The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DISMISSING PETITION FOR WRIT OF ERROR CORAM NOBIS
Petitioner Jaime Barahona-Estupinan ("Petitioner"), a person in federal custody proceeding pro se, brings this petition for writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651. For the reasons set forth below, the Court dismisses the petition for lack of jurisdiction.
On August 16, 2004, Petitioner*fn1 was convicted in this Court, following a jury trial, along with three co-defendants, on one count each of (1) conspiracy to possess cocaine with intent to distribute on board a vessel in violation of 46 App. U.S.C. §§ 1903(a), (c), and (j) [now 46 U.S.C. §§ 70503 & 70506]; and (2) possession of cocaine with intent to distribute on board a vessel in violation of 46 App. U.S.C. §§ 1903(a), (c)(1)(A), and (f) [now 46 U.S.C. §§ 70502--04]. U.S. v. Gamboa-Cardenas, 03-cr-2000-01-IEG (S.D. Cal. August 16, 2004). After determining Petitioner was eligible for "safety valve" relief, the Court imposed a forty-one-month sentence on each count, to be served concurrently. The Court also imposed four years of supervised release as to each count, to run concurrently. [Minute Order, 03-cr-2000-01-IEG (S.D. Cal. January 27, 2005); Doc. No. 151.] The Government appealed the sentences, and the Ninth Circuit affirmed the sentence of one of Petitioner's co-defendants, but vacated and remanded for re-sentencing without the "safety valve" as to Petitioner. U.S. v. Gamboa-Cardenas, 509 F.3d 491, 506 (9th Cir. 2007). However, Petitioner and his co-defendants did not appear for re-sentencing, because they had been deported after serving their term of incarceration. As a result, the Court issued a Minute Order stating that "[i]f [the] government is aware of defendants being back in the United States they are to notify the Court." [Minute Order, 03-cr-2000-01-IEG (S.D. Cal. June 16, 2008); Doc. No. 215.]
Later that year, in October 2008, Petitioner was again intercepted by the United States Coast Guard while in a "go fast" boat loaded with cocaine. Petitioner entered a guilty plea to one count of violating 46 U.S.C. §§ 70503(a)(1), 70506(a) & 70506(b) and 21 U.S.C. § 960(b)(1)(B)(ii) pursuant to a plea agreement in the U.S. District Court for the Middle District of Florida. [Resp't's Resp. to Pet., Ex. 4, at 1.] Petitioner was sentenced to 280 months, after that court applied an enhancement resulting from the prior conviction in this Court.
Petitioner then filed the instant petition for writ of coram nobis, on January 25, 2010, challenging his prior conviction in this Court.
"Coram nobis is an extraordinary writ, used to review errors of the most fundamental character." Matus-Leva v. U.S., 287 F.3d 758, 760 (9th Cir. 2002). A writ of error coram nobis may afford a petitioner relief when the petitioner "already has fully served a sentence." Telink, Inc. v. U.S., 24 F.3d 42, 45 (9th Cir. 1994). Thus, such a petition may properly be entertained only when the petitioner is no longer "in custody." U.S. v. Monreal, 301 F.3d 1127, 1132 (9th Cir. 2002). That a petitioner is released from incarceration does not necessarily mean he or she is not "in custody." For example, the Ninth Circuit has held that a person on supervised release was still "in custody" for the purposes of coram nobis. Monreal, 301 F.3d at 1132; Matus-Leva, 287 F.3d at 761 (same). A person is therefore "in custody" when he is subject to "restraints [on liberty] not shared by the public generally." Jones v. Cunningham, 371 U.S. 236, 240 (1963).*fn2
Here, Petitioner remains "in custody" for purposes of his coram nobis petition. The Court therefore lacks jurisdiction to entertain the petition. Petitioner's status is "in custody" whether considered under the mandate of this Court to return for resentencing or under the original conditions of his supervised release. First, when Petitioner's sentence from this Court was vacated, the discharge of that sentence was not unconditional but subordinate to this Court's resentencing. This Court ordered that it be notified of Petitioner's re-entry into the jurisdiction of the United States so that Petitioner could be resentenced. This order to return for resentencing is a restraint of liberty to which the public as a whole is not subject.*fn3
Furthermore, Petitioner's deportation subsequent to his conditional release from incarceration does not itself discharge the obligations of Petitioner under the terms of his release, particularly if one of those conditions is not to re-enter illegally or without notifying the probation officer. See U.S. v. Murguia-Oliveros, 421 F.3d 951, 953-55 (9th Cir. 2005). Petitioner's four-year term of supervised release would have begun upon his release and deportation, were the sentence not vacated and remanded subject to resentencing. It cannot be said, however, that Petitioner's deportation prior to resentencing relieved him of all obligations to this Court, either to be resentenced or to be supervised for a period of four years after release. Hence, Petitioner remains "in custody" under the sentence of this Court, and this Court thus does not have jurisdiction to entertain the instant petition for writ of error coram nobis.
If the Court construes the instant petition as a motion under § 2255 instead of as a petition under coram nobis, the petition still fails. The Antiterrorism and Effective Death Penalty Act ("AEDPA") imposes a one-year statute of limitations on § 2255 motions. 28 U.S.C. § 2255. The limitation period began to run upon the date the judgment of conviction became final, January 27, 2005. Construed as a § 2255 motion, this petition, filed January 25, 2010, is untimely. "A petitioner may not resort to [a writ of] coram nobis merely because he has failed to meet the AEDPA's gatekeeping requirements." Matus-Leva, 287 F.3d at 761.
For the foregoing reasons, the petition for writ of error coram ...