Banos v. Director, TDCJ-CID

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION JOHN W. BANOS § VS. § CIVIL ACTION NO. 1:23cv306 DIRECTOR, TDCJ-CID § ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Petitioner John W. Banos, proceeding pro se, filed the above-styled petition for writ of error coram nobis. The Court previously referred this matter to the Honorable Zack Hawthorn, United States Magistrate Judge, for consideration pursuant to applicable orders of this Court. The Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge recommending the petition be dismissed without prejudice. The Court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report and Recommendation. The court has conducted a de novo review of the objections in relation to the pleadings and the applicable law. After careful consideration, the Court is of the opinion the objections are without merit. The Magistrate Judge correctly stated that as petitioner remains in custody as a result of the state court convictions he challenges, he cannot obtain relief by filing a petition for writ of error coram nobis. In his objections, petitioner asks that his filing be considered as a petition for a writ of audita querela. However, this writ is only available where the legal objection being raised cannot be brought pursuant to any other post-conviction remedy. United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). As petitioner’s legal objections to his convictions may be asserted in a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 , he may not seek relief through a petition for a writ of audita querela. Id. ORDER Accordingly, petitioner’s objections [Dkt. 4] are OVERRULED. The findings of fact and conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge [Dkt. 3] is ADOPTED. A final judgment will be entered in accordance with the recommendation of the Magistrate Judge. SIGNED this 3rd day of October, 2023. Michael J. ‘Truncale United States District Judge