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Kornse v. United States

United States District Court, W.D. North Carolina, Asheville Division

November 18, 2019

DONALD C. KORNSE, JR., Petitioner,



         THIS MATTER comes before the Court on the Petitioner's pro se “Complaint” [Doc. 1], which the Petitioner characterizes as a “Petition for Writ of Coram Nobis.”

         I. BACKGROUND

         On December 9, 2015, the Petitioner Donald C. Kornse, Jr., entered Skyland Automotive, an automobile dealership in Asheville, North Carolina, wearing a camouflage uniform, a bulletproof vest strapped with rifle and pistol magazines, and a pistol secured underneath his shoulder blade. United States v. Kornse, 708 Fed.Appx. 135, 136 (4th Cir. 2018) (citations and footnote omitted). The Petitioner claimed that he had been deputized by the Department of Homeland Security (DHS), and that he had just returned from a mission in Greenville, South Carolina. Id. The Petitioner eventually removed his firearm at the request of the general manager but told two other employees that he had the right to carry the firearm because he was with the DHS. Id.

         On December 18, 2015, the Petitioner returned to the dealership and displayed a pistol to an employee. Id. The Petitioner told the employee that he could carry the firearm because he was deputized with the DHS and that “there was nothing that [the general manager] could do about it….” Id. The Petitioner was arrested by state authorities shortly thereafter. Id.

         On April 5, 2016, the Petitioner was charged in this Court with a single count of impersonating a federal officer, in violation of 18 U.S.C. § 912. [Criminal Case No. 1:16-cr-00041-MR-WCM (“CR”), Doc. 1: Indictment]. The Petitioner was represented by counsel. The case proceeded to a jury trial on October 31, 2016. Following the close of the Government's proof, defense counsel moved for a judgment of acquittal, which was denied. On November 3, 2016, the jury returned a verdict of guilty. [CR Doc. 58: Verdict]. The Defendant was sentenced on April 13, 2017 to a sentence of time served, along with a term of one year of supervised release. [CR Doc. 81: Judgment]. While serving his one-year term of supervised release, the Petitioner filed a timely appeal to the Fourth Circuit Court of Appeals. [CR Doc. 83: Notice of Appeal].

         On appeal, the Petitioner argued that his motion for judgment of acquittal should have been granted because there was insufficient evidence that he impersonated a federal officer. He further argued that the Court's jury instruction regarding the elements of this charge was plainly erroneous. See Kornse, 708 Fed.Appx. at 135. On January 11, 2018, the Fourth Circuit Court of Appeals rejected the Petitioner's arguments and affirmed the judgment. Id. at 137. The Petitioner then filed a petition for writ of certiorari with the United States Supreme Court. While that petition was pending, on April 12, 2018, the Petitioner's term of supervised release ended. The United States Supreme Court denied certiorari on October 15, 2018. Kornse v. United States, 139 S.Ct. 375 (2018).

         The Petitioner filed the instant Petition on October 11, 2019, attacking the proceedings in the criminal case. The Petition is 40 pages long and has almost 1, 000 pages of supporting documents attached. His long-winded and circular arguments raise primarily the following claims: (1) there was insufficient evidence of guilt to support his conviction; (2) his counsel was ineffective for failing to present exculpatory evidence at trial and for failing to objected to perjured testimony presented by the Government; (3) the prosecutor engaged in misconduct by instituting a frivolous prosecution, withholding exculpatory evidence, and presenting perjured testimony; and (4) the Magistrate Judge assigned to the case failed to recuse himself despite having a conflict of interest. The Petitioner also seeks damages for various violations of his civil rights arising from the alleged deliberate indifference to his medical needs while in confinement and his alleged wrongful prosecution.


         The All Writs Act, 28 U.S.C. § 1651(a), authorizes the Court to hear a petitions for a writ of error coram nobis. United States v. Morgan, 346 U.S. 502, 512 (1954). A coram nobis petition is “of the same general character as one under 28 U.S.C. § 2255, ” but is available to petitioners who are no longer “in custody” and cannot seek habeas relief under § 2255 or § 2241. Morgan, 346 U.S. at 506 n.4. The writ of error coram nobis is a “remedy of last resort, ” United States v. Akinsade, 686 F.3d 248, 252 (4th Cir. 2012), and is narrowly limited to “‘extraordinary' cases presenting circumstances compelling its use ‘to achieve justice, '” United States v. Denedo, 556 U.S. 904, 911 (2009) (quoting Morgan, 346 U.S. at 511).

         A petitioner seeking coram nobis relief must show that “(1) a more usual remedy [such as habeas corpus] is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.” Akinsade, 686 F.3d at 252 (quoting Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987)). An error of “the most fundamental character” is one that has “rendered the proceeding itself irregular and invalid.” United States v. Addonizio, 442 U.S. 178, 186 (1979) (quoting United States v. Mayer, 235 U.S. 55, 69 (1914)). In reviewing the petition, the Court must presume that the underlying proceedings were correct and “the burden rests on the [petitioner] to show otherwise.” Morgan, 346 U.S. at 512.


         A. Claims for Civil Rights Violations

         As an initial matter, the Court notes that the Petitioner appears to assert a number of civil rights claims pursuant to 42 U.S.C. § 1983. Such claims, however, are not cognizable in a post-conviction habeas proceeding. See generally Preiser v. Rodriguez, 411 U.S. 475, 489 (1973) (noting that habeas claims and civil rights claims pursuant to 42 U.S.C. § 1983 are mutually exclusive). Claims for violation of civil rights against State actors regarding such issues as deliberate indifference to medical needs, false arrest, and false imprisonment, are more appropriately brought as a civil suit pursuant to 42 U.S.C. § 1983. Indeed, the Petitioner has already brought two civil actions before this Court asserting nearly identical claims for money damages under 42 U.S.C. § 1983. [See Civil Case No. ...

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