In United States v. Bane, No. 18-10232 (Jan. 24,
2020) (William Pryor, Martin, Sutton (6th)), the Court affirmed the
denial of a writ of coram nobis.
After their convictions became final, the defendants
petitioned for a writ of coram nobis, challenging their forfeiture judgment in
light of the Supreme Court’s ruling in Honeycutt. Initially, the Court found that the defendants
had standing because they were challenging the preliminary (not final) forfeiture
order. As to the merits, the Court assumed,
without deciding, that coram nobis could be used to challenge a forfeiture
order and that Honeycutt applied retroactively. The Court affirmed, however, because the
defendants procedurally defaulted their claim by not raising it on direct
appeal. The Court found that a Honeycutt
error is not jurisdictional because the indictment charged a federal offense;
even if the forfeiture allegations were insufficient, that went only to the
sentence. The Court also found that the cause and
prejudice exception to procedural default did not apply: they failed to show cause because
their claim was not sufficiently novel just because Honeycutt had not
yet been decided; and they failed to show prejudice either, as one defendant
was responsible for all the proceeds, and the government could have obtained
the same property against the other defendant through restitution.
Judge Martin concurred in part and dissented in part,
opining that the error was jurisdictional as to one defendant in light of the
Supreme Court’s decisions in Welch and Montgomery v. Louisiana. She reasoned that, as to the one defendant,
the forfeiture amount exceeded the statutory limits.
