United States District Court, W.D. North Carolina, Statesville Division
Cogburn Jr., United States District Judge
MATTER is before the Court on Petitioner's
“Motion for New Trial/Amendment to
Judgment/Reconsideration, ” his “Supplemental
Motion for New Trial, ” and his “Motion to
Supplement Record, ” (Doc. No. 15, 16, 21). Through his
various motions, Petitioner Gregory Roland Pruess seeks to
have this Court reconsider its order dismissing his petition
for writ of coram nobis. Petitioner is represented by Charles
pleaded guilty and was convicted in three separate criminal
prosecutions against him-all for firearm-related offenses.
Petitioner was first convicted in 1995, when he pleaded
guilty to one of twelve charged offenses. (Crim. Case No.
5:94CR19 (Pruess I), Doc. No. 30). Specifically,
Petitioner admitted that he knowingly and unlawfully
transferred a military 60-millimeter mortar round, in
violation of 26 U.S.C. § 5861(e). (Id., Doc. 3
at 2). In exchange for his agreement to plead guilty to this
offense, the Government dismissed all remaining charges
against Petitioner. (Id., Docket Entry 2/26/1996).
This Court sentenced Petitioner to one year and one day in
prison, entering its judgment in April 1996. (Id.,
Doc. No. 30). Petitioner did not appeal his conviction.
and a half after this Court entered its judgment in
Pruess I, a federal grand jury charged Petitioner
with 25 counts of unlawfully shipping, transporting,
receiving, and possessing firearms, explosives, and mortar
and grenade rounds. (Crim. Case No. 5:97CR300 (Pruess
II), Doc. No. 10). Petitioner pleaded guilty without a
plea agreement to 20 of these charges, and the Government
dismissed the remaining five charges. (Id., Docket
years after this Court entered its judgment in Pruess
I, in June 1999, Petitioner filed a petition for habeas
relief under 28 U.S.C. § 2241, arguing that he was
actually innocent of the offense to which he pleaded guilty
four years earlier. (WDNC Case No. 5:99CV79, Doc. No. 1).
This Court construed Petitioner's motion as a motion to
vacate under 28 U.S.C. § 2255 and dismissed the action
as untimely. (Id., Doc. No. 3). This Court also
noted that even if Petitioner's claim of actual innocence
had merit, he could not show that he was actually innocent of
all of the offenses with which he had been charged in 1994
and he was not, therefore, able to demonstrate actual
innocence meriting relief. (Id., Doc. No. 3 at 3
Petitioner was awaiting sentencing in Pruess II, he
was indicted for a third time and charged with transporting a
firearm as a convicted felon and committing that offense
while on pretrial release, in violation of 18 U.S.C.
§§ 922(g) and 3147. (Crim. Case No. 5:99CR48
(Pruess III), Doc. No. 3). Petitioner entered a
straight-up plea of guilty for this offense. (Id.,
Docket Entry 11/08/1999). This Court sentenced Petitioner to
108 months in prison for his convictions in Pruess
II and to eight months in prison for his conviction in
Pruess III. (Crim. Case No. 5:97CR300, Doc. No. 82;
Crim. Case No. 5:99CR48, Doc. No. 23). The Fourth Circuit
affirmed this Court's judgments in Pruess II and
Pruess III. See United States v. Pruess, 2
F. App'x 262 (4th Cir. 2001); United States v.
Pruess, 13 F. App'x 87 (4th Cir. 2001).
in 2000, Petitioner filed a series of motions to recover
certain property that had been seized by ATF in conjunction
with Pruess II. See (Crim. Case No.
5:97CR300, Doc. Nos. 94, 101, 104). On March 24, 2004, this
Court conducted a hearing to address Petitioner's claim
that the Government had seized numerous items that did not
qualify as destructive devices under 18 U.S.C. §
921(a)(4) and 26 U.S.C. § 5845(f). (Id., Docket
Entries 03/24/2004 and 03/25/2004). During this hearing, ATF
Explosives Operation Officer Rich Campbell testified that the
seized items were, in fact, destructive devices.
December 18, 2006, more than 11 years after Petitioner
pleaded guilty in Pruess I, Petitioner filed the
underlying petition for writ of coram nobis, in which
Petitioner argues that he is actually innocent of the offense
to which he pleaded guilty in Pruess I.
Specifically, Petitioner argues that the 60-millimeter mortar
round is not a “destructive device” under 26
U.S.C. § 5861(e). Petitioner relies on Campbell's
March 24, 2004, testimony. (Id., Doc. 1 at 5-6). The
Government filed two responses to Petitioner's petition
and submitted a declaration from Campbell. (Id.,
Docs Nos. 3, 7). In his declaration, Campbell states that he
has reviewed his testimony from the March 24, 2004, hearing
and that he never addressed during his testimony whether a
military 60-millimeter mortar round constitutes a destructive
device for purposes of 26 U.S.C. § 5861(e). See
(Decl. of Richard J. Campbell, WDNC 5:06CV159, Doc. No. 3-1
at ¶ 17, Ex. 1 (explaining that Campbell had reviewed
his testimony from the March 24, 2004, hearing and that
“at no time” did he “testify regarding the
classification under Federal law of a Military 60mm . . .
mortar round”). Campbell also states a military
60-millimeter mortar round is “identified as [an]
explosive bomb and fall[s] within the definition of
destructive devices contained in 26 U.S.C. §
5845(f)(1)(A).” (Id., Doc. No. 3-1 at ¶
9). Based on this declaration, on 26 U.S.C. §
5845(f)(1), which defines “destructive device” to
include a bomb of “similar device, ” and on legal
authority establishing that large-caliber weapons including
mortars constitute destructive devices, the Government
requested that this Court deny Petitioner's petition for
writ of coram nobis. (Id., Doc. No. 3 at 3-4).
August 8, 2011, this Court dismissed Petitioner's
petition for writ of coram nobis. (Id., Doc. No.
13). This Court held that Petitioner failed to establish that
his claim could not have been raised on direct appeal.
(Id. at 17-22). This Court also held that
Campbell's testimony could not support coram nobis relief
because (1) Petitioner failed to produce any legal authority
suggesting that Campbell's testimony was the equivalent
of a statute or case law establishing Petitioner's actual
innocence and (2) Campbell's testimony “did not
mention the 60 mm mortar round at issue” in Pruess
I. (Id. at 22-24). This Court explained that
“the 60 mm mortar round . . . comes within the plain
language of the statute.” (Id. at 23).
days after this Court's decision, Petitioner filed a
motion for reconsideration, attaching a letter sent to this
Court in September 1996, in which Petitioner asserts that he
did not object to certain misstatements in his presentence
report because he could not afford the attorneys' fees
needed to take his case to trial. (Doc. No. 15, Ex. A).
Petitioner requested in his motion that this Court
“consider” this letter “on the issue of
whether he could have sooner brought the claim and as a
partial explanation for his delay in asserting the
same.” (Id. at 1).
after this Court's decision dismissing his coram nobis
petition, Petitioner filed a supplemental motion for
reconsideration, asking that this Court take judicial notice
of Petitioner's 2003 petition for writ of certiorari,
though Petitioner did not submit a copy of that petition.
(Id., Doc. No. 16). Petitioner asserted that one of
the issues raised in that petition was that a 60-millimeter
mortar round is not a destructive device and that Petitioner
was actually innocent. (Id.). Petitioner stated that
as soon as he was able to obtain a copy of the petition for
writ of certiorari, he would submit it for this Court's
March 7, 2017, this Court noted that Petitioner had never
submitted the petition for writ of certiorari and asked
Petitioner to submit a status report. (Doc. No. 17). On April
18, 2017, Petitioner filed a status update, asserting that he
had made significant efforts to obtain a copy of his 2003
petition for writ of certiorari but that counsel could not
recall that he had ever received the petition, and he
requested additional time to submit the petition. (Doc. No.
20). Petitioner also filed a motion to supplement the record,
in which he seeks to supplement the record with the petition
for writ of cert and for additional time to attempt to
located exhibits that were attached to the petition. The
Court ordered the Government to respond to Petitioner's
pending motions. (Doc. No. 22). The Government filed its
Response on June 6, 2017. (Doc. No. 23). On June 12, 2017,
Petitioner filed his Reply, in which he attached his petition
for certiorari, in which he argued his actual innocence.
(Doc. No. 24).
motions are denied. First, to the extent that Petitioner has
filed a motion to supplement the record to submit the
petition for writ of certiorari and accompanying exhibits,
the Court has considered the attached petition for writ of
certiorari. The Court will not allow Petitioner more time to
find the accompanying exhibits, which counsel concedes may
have been destroyed in a flood at Petitioner's home.
Thus, to this extent, the motion to supplement will be
of coram nobis is an extraordinary remedy of “last
resort” and “provides relief in cases where the
error ‘rendered the proceeding itself irregular and
invalid.'” United States v. Akinsade, 686
F.3d 248, 252 (4th Cir. 2012) (quoting United States v.
Addonizio, 442, 178, 186 (1986)). Here, Petitioner has
presented no evidence or legal authority supporting his claim
for relief, let alone evidence or legal authority suggesting
that Pruess I was irregular and invalid. First, the
petition for writ of certiorari that Petitioner has submitted
does not relate to the conviction he now seeks to vacate,
because Petitioner never appealed that conviction.
Furthermore, the fact that Petitioner asserted in that
petition that he was actually innocent of his conviction in
Pruess I does not alter the outcome here because
Petitioner did not assert his legal innocence on direct
appeal. Additionally and more importantly, Petitioner has
presented no facts or evidence supporting a claim of actual
innocence. As this Court explained in its 2011 order
dismissing the petition for coram nobis, Campbell never
testified that a 60-millimeter mortar round is not a
destructive device for purposes of 26 U.S.C. § 5681(e).
Even if he had testified that such a mortar round is not a
destructive device, his testimony would not establish
Petitioner's actual innocence of the offense because the