The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER DENYING PETITION FOR WRIT OF ERROR CORAM NOBIS
Before the Court is the petitioner Clicerio Guillen-Reyes' petition, filed pro se, for Writ of Error Coram Nobis. [Doc. No. 1.] This Court has considered the Petition, Respondent's Response and Opposition, and all the supporting documents the parties have submitted. Having considered the documents, this Court DENIES the Petition for the reasons stated below.
On March 12, 1989, Petitioner was arrested in the San Diego County area by Immigration officers. On March 14, 1989, Petitioner was charged with the following violations: Count I, 8 U.S.C. § 1324(a)(1)(B), Illegal Transportation of Aliens (felony); and Count II, 8 U.S.C. § 1325 and 18 U.S.C. § 2, Aiding and Abetting Illegal Entry (misdemeanor). [Pet., Ex. A.] On March 14, 1989, Federal Public Defenders, Inc., were appointed to represent Petitioner. [Id.] Petitioner pled guilty to Count II of the Complaint. [Id.] Count I was dismissed, and Petitioner was committed to the custody of the Burea of Prisons for imprisonment for a period of thirty days. .]
On October 31, 2007, Petitioner filed his petition for writ of error coram nobis. [Doc. No. 1.] On January 10, 2008, this Court issued an Order to Show Cause why the Petition should not be granted. On January 24, 2008, the Court received returned mail, originally sent to Petitioner regarding the Order; the mail was returned as undeliverable because no forwarding address could be found. [Doc. No. 3.] On February 19, 2008, Respondents issued their Response and Opposition to Petitioner's Petition, asking the Court to dismiss the Petition with prejudice. [Doc. No. 4.]
The writ of error coram nobis affords a remedy to attack an unconstitutional or unlawful conviction when the petitioner already has fully served a sentence and is no longer in custody. Estate of McKinney v. United States, 71 F.3d 779, 781 (9th Cir. 1995); United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989). The writ is an "extraordinary remedy" that should be granted "only under circumstances compelling such action to achieve justice." United States v. Morgan, 346 U.S. 502, 511 (1954); see Carlisle v. United States, 517 U.S. 416, 429 (1996) ("'[I]t is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate.'") (quoting United states v. Smith, 331 U.S. 469, 475 n.4 (1947)) (second alteration in original).
"Where the errors are of the most fundamental character, such that the proceeding, itself is rendered invalid, the writ . . . permits a court to vacate its judgments." Estate of McKinney, 71 F.3d at 781. This Court has authority to issue the writ under the All Writs Act, 28 U.S.C. 1651(a). Id. To qualify for coram nobis relief, a petitioner must satisfy the following four requirements: (1) a more usual remedy 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. United States v. Kwan, 407 F.3d 1005, 1011 (9th Cir. 2005).
Petitioner argues: (1) a more usual remedy is not available because he is not in custody and thus ineligible for habeas or § 2255 relief; (2) valid reasons exist for not attacking the conviction earlier because Petitioner was unaware that the conviction could affect his immigration status, and it wasn't until 2003 that he realized he was being prejudiced; (3) the INS denial of Petitioner's petition to renew his amnesty card and the possibility of deportation justify the case or controversy requirement of Article III; and (4) the error is of the most fundamental character because Petitioner received ineffective assistance of counsel. (Pet. at 3-4.)
I. First Requirement - A More Usual Remedy is Not Available
Petitioner argues that a more usual remedy is not available because he is not in custody and not eligible for habeas relief or § 2255 relief. (Pet. at 3.) A petitioner may satisfy the first requirement of the writ, that a more usual remedy is not available, by establishing that he is not in custody and, as a result, not eligible for habeas relief or § 2255 relief. Kwan, 407 F.3d at 1012. Respondents do not argue Petitioner fails to satisfy this requirement. Accordingly, based on ...