Philip Anthony Bonadonna v. Unknown , 181 F. App'x 819 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 18, 2006
No. 05-15058 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01162-CV-CAP-1
PHILIP ANTHONY BONADONNA,
Plaintiff-Appellant,
versus
UNKNOWN DEFENDANT,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 18, 2006)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Philip Anthony Bonadonna, a federal prisoner proceeding pro se, appeals the
district court’s dismissal of his petition for writ of error coram nobis, pursuant to
28 U.S.C. § 1651, and the denial of his motion to amend that judgment, pursuant to
Federal Rule Civil Procedure 59(e).1 The district court dismissed Bonadonna’s
writ as frivolous, concluding that he had failed to exhaust the remedy provided by
direct appeal and that the extraordinary remedy provided by the writ of error was
therefore unwarranted. We conclude that Bonadonna’s arguments are untimely
and AFFIRM.
I. BACKGROUND
On 4 April 1985, Bonadonna was haled before a grand jury where he refused
to answer the grand jury’s questions, even after the government offered immunity
from prosecution. Bonadonna served seventeen months for civil contempt and is
now incarcerated on charges related to the questions asked before the grand jury.
He argues that his time spent in jail for civil contempt was actually criminal in
nature and that he should have those seventeen months counted against his current
sentence as time served.
In the district court, Bonadonna argued that, in 1985 grand jury proceeding,
the government had other means of obtaining the information it was seeking from
him and that the government knew that he would not testify regardless of their
1
Bonadonna does not mention Rule 59(e) in his appellate brief, so we deem his
arguments with regard to that rule abandoned. Allison v. McGhan Med. Corp., 184 F.3d 1300,
1317 n.17 (11th Cir. 1999) (“Issues that are not clearly outlined in an appellant’s initial brief are
deemed abandoned.”).
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offer of immunity. Therefore, he argued, the contempt order was merely punitive
rather than an attempt to coerce testimony. The district court conducted a frivolity
review pursuant to 28 U.S.C. § 1915A and found that the writ of error coram nobis
was an extraordinary remedy that was not warranted in this case because
Bonadonna had an alternative remedy, namely, he could have appealed his civil
contempt order pursuant to 28 U.S.C. § 1826(b). On appeal, Bonadonna argues
that the district court erred in dismissing his writ of error coram nobis because,
although he had a right to appeal his 1985 civil-contempt sentence, his attorney
dismissed the appeal without his permission.
II. DISCUSSION
A district court’s decision to dismiss for failure to state a claim under 28
U.S.C. § 1915A is reviewed de novo, taking the allegations in the complaint as
true. See Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). We review a
district court’s denial of the writ of error coram nobis for an abuse of discretion.
Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000) (per curiam). “The
decision to alter or amend judgment is committed to the sound discretion of the
district judge and will not be overturned on appeal absent an abuse of discretion.”
Am. Home Assur. Co. v. Glenn Estess & Assoc., Inc., 763 F.2d 1237, 1238–39
(11th Cir. 1985). First, we determine whether a writ of error coram nobis is the
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proper procedural vehicle to obtain reconsideration of the original contempt order.
Second, after concluding that the writ of error coram nobis is not the proper
procedural vehicle, we broadly construe Bonadonna’s pro se complaint to seek
reconsideration under Rule 60(b) and analyze his request for reconsideration under
the framework established by that rule.
A. Writ of Error Coram Nobis
Bonadonna has styled this as an action for a writ of error coram nobis. At
common law, such a writ of error was taken from the judgment of the King’s
Bench and asked that the court review its own judgment, alleging errors of fact.
Black’s Law Dictionary 362 (8th ed. 2004). Thus, the writ of error was
functionally a motion for reconsideration. However, the writ of error coram nobis
has been abolished in civil cases, and the procedure for obtaining relief from a
judgment in civil cases must be in the form of a Rule 60(b) motion or independent
action.2 United States v. Mills, 221 F.3d 1201, 1203 n.2 (11th Cir. 2000); see Fed.
2
In criminal matters, “[f]ederal courts have authority to issue a writ of error coram nobis
under the All Writs Act, 28 U.S.C. § 1651(a). The 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 bar for coram nobis
relief is high,” and the writ may issue only when (1) “there is and was no other available avenue
of relief”; and (2) “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, 200 F.3d at 734 (quotations omitted). A district court “may consider coram
nobis petitions only where no other remedy is available and the petitioner presents sound reasons
for failing to seek relief earlier.” Mills, 221 F.3d at 1204.
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R. Civ. P. 60(b).
Bonadonna challenges a contempt order from 1985. A federal district court
may order the confinement of “a witness in any proceeding before . . . [a] grand
jury of the United States [who] refuses without just cause shown to comply with an
order of the court to testify,” with the period of confinement not to exceed the
lesser of the remaining term of the grand jury or 18 months. 28 U.S.C. § 1826(a).
The confinement order is appealable, and the appeal must be adjudicated within
thirty days. 28 U.S.C. § 1826(b). We have previously emphasized the importance
of context in determining when a civil contempt order becomes criminal contempt
for proceedings that occur regarding testimony before a grand jury.3
Here, there is no dispute that in 1985 the district court employed § 1826 to
incarcerate Bonadonna through the end of the grand jury’s term, which means that
the contempt proceeding was civil in nature, because that statute provides the
mechanism to compel testimony before a grand jury. Bonadonna wishes to contest
3
See, e.g., In re Grand Jury Proceedings, 877 F.2d 849, 850 (11th Cir. 1989)
(considering an appeal from the denial of appellant’s motion for release from a civil contempt
order based on his failure to testify before a grand jury). The difference between civil contempt
and criminal contempt is whether the order is being used to compel someone to obey the court,
as is the case with civil contempt, or whether the order is used solely to punish, as is the case
with criminal contempt. See Shillitani v. United States, 384 U.S. 364, 368–71, 86 S. Ct. 1531,
1534–36 (1966). We held that “a reviewing court should be reluctant to conclude that civil
contempt has lost its coercive effect prior to the maximum time limit.” In re Grand Jury
Proceedings, 877 F.2d at 850. Bonadonna was held in contempt for less than the maximum
limit.
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the substance of the civil characterization of his contempt order, but that judgment
is long since final, so he seeks to revisit the issue through this writ of error coram
nobis. As we observed previously, the writ of error coram nobis is functionally a
motion for reconsideration.
Generally, both the underlying merits and the denial of a motion for
reconsideration are on appeal. Stone v. INS, 514 U.S. 386, 401–03, 115 S. Ct.
1537, 1547–48 (1995). However, in this case, the merits of whether the 1985
contempt order was civil or criminal in nature belong to a judgment that is long
since final and unappealable. See Cavaliere v. Allstate Ins. Co., 996 F.2d 1111,
1115 (11th Cir. 1993) . Thus, we review the denial of Bonadonna’s writ of error
coram nobis as the denial of a motion to reconsider the nature of the 1985
contempt order, and we conclude that, because the merits of whether the
proceeding was civil or criminal are not currently on appeal, we must treat these as
civil proceedings for purposes of our review. However, the writ of error has been
abolished in civil cases, and Bonadonna’s application for a writ of error coram
nobis is, therefore, the improper method to obtain reconsideration of the 1985 civil
contempt order.
B. Motion for Reconsideration
Because we liberally construe pro se pleadings, Brown v. Johnson, 387 F.3d
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1344, 1350 (11th Cir. 2004), we will review Bonadonna’s petition for a writ of
error coram nobis as a motion for reconsideration pursuant to Rule 60 of the
Federal Rules of Civil Procedure. Rule 60(b) allows a party to be relieved from a
judgment due to: (1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which could not have been discovered earlier with
due diligence; (3) fraud, misrepresentation, or other misconduct of an adverse
party; (4) a void judgment; (5) a judgment that has been satisfied, released,
discharged, reversed or vacated; or (6) any other reason justifying relief from the
operation of the judgment. Fed. R. Civ. P. 60(b).
However, motions filed pursuant to Rule 60(b) must be filed within a
reasonable time, “and for reasons (1), (2), and (3) not more than one year after the
judgment, order, or proceeding was entered or taken.” Id.; see also Gonzalez v.
Crosby, ___ U.S. ___, 125 S. Ct. 2641, 2650–51 (2005) (holding that Rule
60(b)(6) relief is not available when the plaintiff had not acted diligently in
pursuing review of the issue previously). Bonadonna has provided no explanation
for why he has waited almost twenty years to request reconsideration. Thus, we
conclude that the delay was unreasonable and, therefore, affirm the district court’s
judgment.4
4
“If the judgment entered is correct, we may affirm the district court on any legal
grounds regardless of the grounds addressed, adopted or rejected by the district court.” Novak v.
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III. CONCLUSION
Bonadonna sought a writ of error coram nobis from the district court in
order to reduce the sentence that he is currently serving. However, the writ of error
he seeks is not available in civil cases, and, because Bonadonna has proceeded pro
se, we have construed his request as a Rule 60(b) motion for reconsideration. We
conclude that Bonadonna did not seek relief within a reasonable time. Because the
district court properly found that Bonadonna was not entitled to a writ of error
coram nobis, we AFFIRM.
Irwin Yacht & Marine Corp., 986 F.2d 468, 470 (11th Cir. 1993) (quotations omitted).
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