Bruce Simmons v. USA

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-14385
Non-Argument Calendar
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D.C. Docket No. 0:19-cv-61443-UU

BRUCE SIMMONS,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 29, 2020)
Before WILLIAM PRYOR, GRANT and LUCK, Circuit Judges.

PER CURIAM:
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Bruce Simmons appeals the denial of his pro se petition for a writ of error
coram nobis under the All Writs Act. 28 U.S.C. § 1651(a). We affirm.
In 1999, the district court convicted Simmons of two counts of distributing
cocaine. 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2. The jury heard testimony from
Agent Adrienne Sullivan of the Federal Bureau of Investigation that he gave a
confidential informant cash on two occasions to purchase cocaine from Simmons,
from a second agent about Simmons’s interview, and from Simmons, who denied
any wrongdoing and blamed the informant for deceiving Sullivan. The district
court sentenced Simmons to concurrent sentences of 240 months of imprisonment.
Simmons filed several unsuccessful challenges to his convictions and
sentence. In his direct appeal, he argued that the evidence was insufficient to
support his convictions, and we affirmed. United States v. Simmons, 237 F.3d 634
(11th Cir. 2000). Simmons later filed several petitions for the writ of error coram
nobis in which he argued that he was legally innocent and requested that the
district court vacate his convictions and sentence. He also moved to vacate his
sentence on the ground that his counsel was ineffective for failing to challenge the
sufficiency of the evidence, but the district court denied the motion as moot and
later we denied Simmons a certificate of appealability. Undeterred, Simmons filed
additional postconviction motions and petitions, which the district court dismissed,
for the most part, as successive. Id. §§ 2255, 2241; see Simmons v. Warden, 589 F.
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App’x 919 (11th Cir. 2014) (recounting Simmons’s litigation history and affirming
a limitation on challenging his convictions).
In 2019, Simmons filed the petition for a writ of coram nobis that is the
subject of this appeal. He argued that he was wrongfully convicted because the
government failed to present scientific evidence connecting him to the crimes or to
call the confidential informant as a witness because she was imprisoned on
unrelated drug charges. He also argued that Sullivan’s testimony was insufficient
to support his convictions. The district court denied Simmons’s petition because he
had failed to identify any evidence to support his claim of innocence and was
“attempting to re-litigate his conviction[s].”
We review the denial of a petition for a writ of coram nobis for abuse of
discretion. United States v. Peter, 310 F.3d 709, 711 (11th Cir. 2002). A writ of
error coram nobis “is an extraordinary remedy of last resort available only in
compelling circumstances where necessary to achieve justice.”
United States v.
Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). The district court can issue the writ
only when “there is and was no other available avenue of relief” and “the error
involves a matter of fact of the most fundamental character which has not been put
in issue or passed upon and which renders the proceeding itself irregular and
invalid.” Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000).
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The district court did not abuse its discretion by denying Simmons’s
petition. Simmons alleged no facts to support a claim of actual innocence. See
Bousley v. United States, 523 U.S. 614, 623 (1998) (“‘[A]ctual innocence’ means
factual innocence, not mere legal insufficiency.”) . He also failed to identify any
errors during his trial that a writ of coram nobis could remedy. See Carlisle v.
United States, 517 U.S. 416, 429 (1996) (“[A] writ of coram nobis . . . was
traditionally available only to bring before the court factual errors ‘material to the
validity and regularity of the legal proceeding itself’ . . . .”). And the writ is
unavailable to relitigate a conviction. See United States v. Addonizio, 442 U.S. 178,
186–88 (1979).
We AFFIRM the denial of Simmons’s petition.
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