United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the defendant's
“petition” for relief from judgment under the All
Writs Act, (Doc. 47), which the Court construes as a motion
for such relief. The defendant asks the Court to reduce his
1989 life sentence to time served. (Id. at 8).
defendant and two others (Eyster and Marshall) were convicted
of multiple drug crimes, and the defendant was sentenced to
seven concurrent life sentences. He appealed his conviction
and sentence to the Eleventh Circuit but, while the appeal
was pending, he escaped from federal custody. The government
successfully moved to dismiss the defendant's appeal
under the fugitive disentitlement doctrine. Lynn v.
United States, 365 F.3d 1225, 1227-28
(11thCir. 2004). Meanwhile, Eyster and Marshall
successfully pursued their direct appeals, with the Eleventh
Circuit reversing their convictions based on improper
vouching for the credibility of a key government witness.
Their claim for similar relief based on violations of the
witness sequestration order was rejected. United States
v. Eyster, 948 F.2d 1196, 1207-08, 1210-11
defendant later filed a motion to vacate under 28 U.S.C.
§ 2255, asserting both improper vouching and witness
sequestration violations as constitutional error. Judge
Butler denied relief. On appeal, the Eleventh Circuit held
that the defendant's claims “are fundamentally
trial errors that were available on direct appeal and are not
cognizable in a § 2255 proceeding.” Lynn,
365 F.3d at 1234. The Court then ruled that, even were the
defendant's claims cognizable under Section 2255, they
were procedurally defaulted due to his failure (thanks to his
escape and the consequent dismissal of his appeal) to present
them to the Eleventh Circuit on direct appeal, combined with
his failure to establish either cause and prejudice or actual
innocence excusing his default. Id. at 1234-37. The
sole exception was a claim that the witnesses not only
violated the sequestration order but were fed information by
government agents. As to this claim, the panel assumed for
argument that cause existed, did not address prejudice, and
concluded that the claim failed on its merits because the
affidavits on which it depended contained nothing more than
conclusory allegations. Id. at 1237-39.
defendant recognizes, (Doc. 47 at 1), the All Writs Act
provides for “extraordinary” relief, and
“an extraordinary remedy … should not be granted
in the ordinary case.” United States v.
Denedo, 556 U.S. 904, 913, 917 (2009) (internal quotes
omitted). The defendant says his case is extraordinary in
that he languishes in prison almost three decades after his
co-defendants had their convictions reversed based on grounds
equally applicable to him but which he was foreclosed from
raising due to his escape. (Doc. 47 at 2). That precise
combination of circumstances may render the defendant's
case unusual, but it does not render it extraordinary in any
legally meaningful sense; any other defendant that failed to
appeal, or that had his appeal dismissed due to escape or for
any other reason unrelated to the merits of his appeal, would
be in the same situation as the defendant.
defendant's motion suffers from a second fatal flaw.
“Where a statute specifically addresses the particular
issue at hand, it is that authority, and not the All Writs
Act, that is controlling.” Pennsylvania Bureau of
Correction v. United States Marshals Service, 474 U.S.
34, 43 (1985). Thus, “an extraordinary remedy may not
issue when alternative remedies, such as habeas corpus, are
available.” Denedo, 556 U.S. at 911. The
defendant argues he should obtain relief because the same
errors resulting in the reversal of the convictions of Eyster
and Marshall infected his conviction as well. As the
Lynn Court ruled, any such claims “were
available on direct appeal.” 365 F.3d at 1234. And, to
the extent the defendant's claims were not then
available, they were available on motion to vacate - which
the defendant has already pursued. See, e.g, United
States v. Holt, 417 F.3d 1172, 1175 (11th
Cir. 2005) (the All Writs Act cannot be used to challenge the
constitutionality of a conviction, since such a challenge may
be brought via motion to vacate); United States v.
Guerra, 426 Fed.Appx. 694, 698 (11 Cir. 2011) (the All
Writs Act cannot be used as substitute for a statutory right
of appeal). 
reasons set forth above, the defendant's motion for
relief under the All Writs Act is denied.
 As to the witness sequestration issue,
the panel noted that the Eyster Court found no
constitutional violation. As to the improper vouching issue,
the panel noted that constitutional error rested on the
prejudice to Eyster and Marshall due to the limited evidence
against them, whereas the defendant was charged and convicted
as the leader of a massive criminal enterprise and did not
assert that the evidence against him was as limited as that
against his co-defendants. 365 F.3d at 1233.
As an apparent alternative to
receiving a reduced sentence of time served, the defendant
asks to be permitted to make a showing of actual innocence so
as to excuse the procedural default found by the Eleventh
Circuit. (Doc. 47 at 5). That is, the defendant seeks a
second bite (some twenty years later) at the motion-to-vacate
apple. The limitations on motions to vacate, including the
limitations on second and successive motions to vacate, are
established by statute. 28 U.S.C. § 2255. The defendant
cannot evade those restrictions by invoking the All Writs
Act. See, e.g., Schiavo ex rel. Schindler v.