IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ISAAC JESUOROBO, a/k/a §

Jesuorobo Isaac Rusher, a/k/a §

Isaac Rusher Jesuorobo §

(# A 75275832), §

 § 

VS. § CIVIL ACTION NO. 4:05-CV-329-Y

 §

STATE OF TEXAS, et al. § 

 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE 

 UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER 

 

This cause of action was referred to United States Magistrate

Judge pursuant to the provisions of 28 U.S.C. § 636(b), as

implemented by an order of the United States District Court for the

Northern District of Texas. The findings, conclusions and

recommendation of the United States Magistrate Judge are as

follows:

FINDINGS AND CONCLUSIONS:

A. NATURE OF THE CASE

 This is a petition for writ of error coram nobis under the

All Writs Act, 28 U.S.C. § 1651. 

B. PARTIES

Petitioner Isaac Jesuorobo currently is detained in the

Corrections Corporation of America’s Houston Processing Center as

a result of a removal proceeding under authority of the Department

of Homeland Security. (June 10, 2005, Questionnaire Response.) He

named the State of Texas as the Respondent. No process has been

issued to Respondent. 

 

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1 The Court takes judicial notice of the relevant dates of record of the

state writ application proceedings in the office of the Tarrant County

District Clerk provided in its response to this Court’s inquiry as shown in

Exhibits 1 and 2. See generally FED. R. EVID. 201; see also Zimmerman v.

Spears, 565 F.2d 310, 312 (5th Cir. 1977) (judicial notice taken of earlier

habeas proceedings in different court). The Court has also confirmed and

takes judicial notice of the disposition of Jesuorobo’s writ applications in

the TXCCA through a search on its website www.cca.courts.state.tx.us/opinions

for writ application numbers WR-54,750-01 and 02. 

2

C. PROCEDURAL HISTORY

Isaac Jesuorobo challenges the October 16, 2002 judgment of

conviction for indecency with a child by contact, case number

0850019D, in the 213th District Court of Tarrant County, Texas.

(Pet. at 1-2; Response to Questionnaire-attachment.) Jesuorobo’s

conviction was affirmed on direct appeal by the Court of Appeals of

Texas, Second District, on March 4, 2004. (Pet., Attachment at ¶

9.) Jesuorobo filed two state applications for writ of habeas

corpus: the first, filed in state district court on December 16,

2002, was dismissed by the Texas Court of Criminal Appeals (TXCCA)

due to the pendency of a direct appeal, on February 13, 2003; the

second, filed in the trial court on July 6, 2004, was dismissed by

the TXCCA on the basis that the sentence had been discharged, on

April 27, 2005.1

 

 D. LEGAL ANALYSIS 

By this action, Jesuorobo claims that he is entitled to a writ

of error coram nobis under the All Writs Act (codified at 28 U.S.C.

§ 1651). He seeks to challenge the state court conviction in this

proceeding on several grounds: the conviction was obtained by a

 

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2

346 U.S. 502 (1954).

3

United States v. Dyer, 136 F.3d 417, 422 (1998), citing Morgan, 346

U.S. at 505-507.

4

United States v. Esogbue, 357 F.3d 532 (2004) quoting Jimenez v.

Trominski, 91 F.3d 767, 768 (5th Cir. 1996)(other citation omitted). 

5

See Morgan, 346 U.S. at 506 n.4 (noting that a request for coram nobis

relief “is a step in the criminal case and not, like habeas corpus where

relief is sought in a separate case and record, the beginning of a separate

civil proceeding”); see also Sinclair v. State of Louisiana, 679 F.2d 513, 514

(5th Cir. 1982)(“A writ of error coram nobis can only issue to aid the

jurisdiction of the court in which the conviction was had.”)

3

violation of the privilege against self incrimination; the

prosecutor failed to provide exculpatory evidence to the defense;

defense counsel failed to impeach the complainant; defense counsel

failed to file a motion to suppress; and appellate counsel failed

to file a motion for new trial. (Pet., Attachment at ¶¶ 20(A-D).)

The Supreme Court, in United States v. Morgan,2 revived the

ancient writ of error coram nobis by holding that the writ was

available under 28 U.S.C. § 1651.3 The Court of Appeals for the

Fifth Circuit has since explained:

The writ of coram nobis is an extraordinary remedy

available to a petitioner no longer in custody who seeks

to vacate a criminal conviction in circumstances where

the petitioner can demonstrate civil disabilities as a

consequence of the conviction, and that the challenged

error is of sufficient magnitude to justify the

extraordinary relief.4

A coram nobis petition, however, must be directed to the court that

rendered the judgment.5

 “It is well settled that the writ of error

coram nobis is not available in federal court to attack state

 

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6

Sinclair, 679 F.2d at 514,

7

Furthermore, although the all writs act, 28 U.S.C. § 1651, provides

that a court “may issue all writs necessary or appropriate in aid of [its]

respective jurisdiction,” a federal district court lacks the general power to

issue writs of mandamus to command state courts and their officers in the

performance of their duties. See Moye v. Clerk, DeKalb County Superior Court,

474 F.2d 1275, 1276 (5th Cir. 1973). Therefore, § 1651 does not afford this

Court authority to order the state court to enter judgment. See Gibbons v.

State of Texas, No.3:04-CV-1156-L, 2004 WL 1629763, at *2 (N.D.Tex. July 19,

2004), report and recommendation adopted, 2004 WL 1774554 (N.D.Tex. Aug. 6,

2004). 

4

criminal judgments.”6 Under this controlling authority, this Court

lacks jurisdiction to consider Jesuorobo’s petition for writ of

error coram nobis challenging a state court conviction.7 

 RECOMMENDATION

It is therefore RECOMMENDED that Isaac Jesuorobo’s May 20,

2005 petition for writ of error coram nobis under 28 U.S.C. § 1651

be dismissed for lack of subject mater jurisdiction. It is further

RECOMMENDED that as the Court lacks jurisdiction, the motion for

stay of deportation [docket no. 5] should be DENIED. 

 NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the

right to serve and file written objections to the United States

Magistrate Judge’s proposed findings, conclusions and recommendation within ten (10) days after the party has been served with a

copy of this document. The court is extending the deadline within

which to file specific written objections to the United States

 

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5

Magistrate Judge’s proposed findings, conclusions and recommendation until July 18, 2005. The United States District Judge need

only make a de novo determination of those portions of the United

States Magistrate Judge’s proposed findings, conclusions, and

recommendation to which specific written objection is timely made.

See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above

a specific written objection to a proposed factual finding or legal

conclusion will bar a party, except upon grounds of plain error or

manifest injustice, from attacking on appeal any such proposed

factual finding and legal conclusion if it has been accepted by the

United States District Judge. See Douglass v. United Services Auto

Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)(en banc); Carter v.

Collins, 918 F. 2d 1198, 1203 (5th Cir. 1990). 

ORDER

Under 28 U.S.C. § 636, it is ORDERED that Petitioner is

granted until July 18, 2005 to serve and file written objections to

the United States Magistrate Judge’s proposed findings, conclusions

and recommendation.

 It is further ORDERED that the above-styled and numbered

action, previously referred to the United States Magistrate Judge

for findings, conclusions and recommendation, be and is hereby,

returned to the docket of the United States District Judge.

 

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6

SIGNED June 27, 2005. 

 /S/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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