2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-4-2011

USA v. Gary Rhines

Precedential or Non-Precedential: Precedential

Docket No. 10-4077

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"USA v. Gary Rhines" (2011). 2011 Decisions. Paper 1352.

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1 

HLD-80 PRECEDENTIAL

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 10-4077 

 ___________ 

 UNITED STATES OF AMERICA 

 v. 

GARY RHINES, a/k/a DERRICK UPSHAW, 

a/k/a GARY R. ALLEN, a/k/a ROBERY CAMBY, 

Gary Rhines, 

 Appellant 

 ____________________________________ 

 On Appeal from the United States District Court 

 for the Middle District of Pennsylvania 

 (D.C. Criminal No. 01-cr-00310) 

 District Judge: Honorable James F. McClure 

 ____________________________________ 

 Submitted for Possible Summary Action Pursuant to 

 Third Circuit LAR 27.4 and I.O.P. 10.6 

January 31, 2011 

 Before: MCKEE, Chief Judge, ALDISERT and WEIS Circuit Judges

(Opinion Filed: April 4, 2011) 

___________________________________ 

Mr. Gary Rhines 

Canaan USP 

P.O. Box 300 

Waymart, PA 18472 

 Pro Se Appellant 

Stephen R. Cerutti, II, Esq. 

Office of the United States Attorney 
2 

228 Walnut Street, P.O. Box 11754 

220 Federal Building and Courthouse 

Harrisburg, PA 17108 

Theodore B. Smith, III, Esq. 

Office of the United States Attorney 

228 Walnut Street, P.O. Box 11754 

220 Federal Building and Courthouse 

Harrisburg, PA 17108 

 Counsel for Appellee 

 _________ 

 OPINION 

 _________ 

PER CURIAM. 

 Gary Rhines, a prisoner proceeding pro se, appeals the District Court’s 

order dismissing his petition for a writ of error coram nobis. Because the appeal does not 

present a substantial question, we will summarily affirm. 

I. 

 Rhines was convicted of possession with intent to distribute fifty grams of 

cocaine base and was sentenced to life in prison. We affirmed the conviction and 

sentence, see United States v. Rhines, 143 F. App’x 478 (3d Cir. 2005), and the United 

States Supreme Court denied certiorari, see Rhines v. United States, 546 U.S. 1210 

(2006). Since then, Rhines has continued to challenge his conviction and sentence. His 

motion pursuant to 28 U.S.C. § 2255 was denied in 2007, and we denied a certificate of 

appealability. In 2010, we denied Rhines’ application to file a second or successive 

§2255 motion (C.A. No. 10-2438), as well as a mandamus petition seeking the dismissal 
3 

of his indictment (C.A. No. 10-2990). 

 Rhines filed a “Motion to Amend Title 28 U.S.C.A. § 1651(A) Writ of 

Coram Nobis under the All Writs Act,” along with a petition for a writ of error coram 

nobis in the District Court in August 2010. He claimed that two police officers involved 

in his case fabricated evidence against him and gave perjured testimony. He based his 

claim on news reports that the officers were indicted in 2007 on charges related to the 

handling of property seized by the local drug task force, including tampering with public 

records and perjury. Rhines contended that the prosecution “suppressed” the pending 

criminal cases against the officers, which would have “exculpated” him, and that his trial 

counsel was ineffective for failing to discover that these officers were under indictment. 

The District Court dismissed Rhines’ petition because he presented no basis for 

extraordinary relief, holding that coram nobis relief is not available to a petitioner who 

remains in custody and that the error Rhines complained of was not of the type within the 

ambit of the writ. 

II. 

 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We 

review de novo legal issues arising from the denial of coram nobis relief. See, e.g., 

United States v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001). If no substantial question is 

presented by this appeal, we may summarily affirm the District Court’s order on any 

ground supported by the record. See 3d Cir. L.A.R. 27.4; IOP 10.6; Tourscher v. 

McCullough, 184 F.3d 236, 240 (3d Cir. 1999). 
4 

 Coram nobis is an extraordinary remedy that “has traditionally been used to 

attack [federal] convictions with continuing consequences when the petitioner is no 

longer ‘in custody’ for purposes of 28 U.S.C. § 2255.” United States v. Baptiste, 223 

F.3d 188, 189 (3d Cir. 2000) (per curiam). A court’s jurisdiction to grant such relief is of 

limited scope, and the standard for obtaining it is more stringent than that applicable on 

direct appeal or in habeas corpus. See United States v. Stoneman, 870 F.2d 102, 106 (3d 

Cir. 1989). Errors which could be remedied by a new trial do not usually come within 

the writ. Id. Rather, the error must be fundamental and “go to the jurisdiction of the trial 

court, thus rendering the trial itself invalid.” Id. When an alternative remedy is 

available, a writ of error coram nobis may not issue. See United States v. Denedo, 129 

S.Ct. 2213, 2220 (2009). 

 We agree that Rhines is not entitled to coram nobis relief. First, Rhines is 

still in prison, whereas coram nobis is usually reserved for situations where the petitioner 

is no longer serving his sentence or “in custody.” See Baptiste, 223 F.3d at 189. Rhines 

contends that being “in custody” is not a “categorical preclusion” to coram nobis, relying 

on two decisions where coram nobis relief was granted to prisoners. See United States v.

Dawes, 895 F.2d 1581 (10th Cir. 1990); Bruce v. Ebert, No. 10-cv-00269, 2010 U.S. 

Dist. LEXIS 112782 (W.D. Va. Oct. 21, 2010).1

 These decisions are not binding upon us 

 

1

 We also note that coram nobis relief was granted in Bruce v. Ebert on account of 

unique circumstances not present in Rhines’ case. Bruce filed a habeas corpus petition 

pursuant to 28 U.S.C. § 2241 in the district court for the district in which he was 

incarcerated (M.D. Pa.). That court transferred the habeas petition to the district court 
5 

and have no bearing upon the standard in this Circuit that writs of error coram nobis are 

generally not available to those “in custody.” See, e.g., Stoneman, 870 F.2d at 105-06. 

 We also agree that Rhines has not asserted a fundamental error that 

rendered his trial invalid. He claims that he was denied the opportunity to impeach the 

officers with the fact of their indictment and that his counsel was ineffective for failing to 

discover this. The officers were indicted about five years after Rhines’ trial and, to the 

extent we can discern from the material Rhines submitted, for actions apparently 

unrelated to Rhines’ case. Rhines has offered nothing but speculation that the 2007 

charges against the officers prove that they fabricated evidence and gave perjured 

testimony at his trial or that impeachment would have resulted in a “not guilty” verdict 

despite the other evidence against him. Furthermore, we note that Rhines has already 

attempted to raise these claims in a second motion under 28 U.S.C. § 2255, which we 

denied him authorization to file (C.A. 10-2438). Rhines may not resort to a writ of error 

coram nobis simply because he cannot meet the standards for filing a second or 

successive § 2255 motion. See Baptiste, 223 F.3d at 189-90. 

 There being no substantial question presented by Rhines’ appeal, we will 

summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4; IOP 10.6. 

 

that sentenced him (W.D. Va.) because Bruce was challenging the validity of his 

conviction. The sentencing court concluded that Bruce was entitled to § 2241 relief for 

one of his convictions, but the court could not grant the relief pursuant to § 2241 because 

the warden of the prison in which Bruce was incarcerated was outside the jurisdiction of 

the court. The court therefore resorted to a writ of error coram nobis to grant Bruce his 

remedy. See 2010 U.S. Dist. LEXIS 112782, at *2-3, *12-15.