United States District Court, W.D. North Carolina, Asheville Division
DONALD C. KORNSE, JR., Petitioner,
UNITED STATES OF AMERICA Respondent.
MEMORANDUM OF DECISION AND ORDER
REIDINGER, UNITED STATES DISTRICT JUDGE
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.”
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.
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.
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].
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).
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.
STANDARD OF REVIEW
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).
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.
Claims for Civil Rights Violations
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