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Michael Rothwell v. People of the State of Ca

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 25, 2011

MICHAEL ROTHWELL, PETITIONER,
v.
PEOPLE OF THE STATE OF CA, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of error coram nobis. Petitioner has paid the filing fee.

THE PETITION

In his petition for a writ of error coram nobis petitioner alleges as follows. In 1983 a Solano County Superior Court jury found him guilty of second-degree murder, assault with a deadly weapon, and false imprisonment. The trial court sentenced petitioner to twenty-two years and eight months to life in state prison.

Petitioner claims that the state trial court impermissibly allowed the jury to hear about his prior felony conviction for escape without force. Specifically, petitioner contends that in 2010, he discovered a minute order from the Orange County Superior Court that stated in part "Strike all references to Case C-41790." According to petitioner, the case number associated with his prior felony conviction for escape without force was C-41790. In petitioner's view, this court should find that his prior felony conviction for escape without force is constitutionally invalid. Based upon that finding, according to petitioner, this court should also vacate his 1983 Solano County Superior Court conviction and sentence for second-degree murder, assault with a deadly weapon, and false imprisonment because they are based on improperly admitted evidence related to his stricken and constitutionally invalid prior conviction for escape without force. (Pet. at 1-4.)

DISCUSSION

After reviewing the petition filed in this action, the court has determined that the petition must be dismissed. Petitioner is advised that the writ of coram nobis is an extraordinary remedy that allows a movant to attack an unconstitutional or unlawful conviction after the movant has served his sentence and is no longer in custody. United States v. Morgan, 346 U.S. 502, 511 (1954); Estate of McKinney v. United States, 71 F.3d 779, 781 (9th Cir. 1995). "The writ provides a remedy for those suffering from the 'lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact' and 'egregious legal errors.'" United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989) (quoting Yasui v. United States, 772 F.2d 1496, 1498-99 & n.2 (9th Cir. 1985)). The writ of coram nobis permits a court to vacate its judgment when an error has occurred that is of the most fundamental character such that the proceeding itself is rendered invalid. McKinney, 71 F.3d at 781. The writ should be granted "only under circumstances compelling such action to achieve justice." Morgan, 346 U.S. at 511.

Insofar as petitioner seeks to attack his pre-1983 felony conviction for escape without force, he may be conceivably able to state a cognizable claim for relief in this action. Accordingly, out of an abundance of caution, the court will grant petitioner leave to file an amended petition, if he so chooses. However, in any amended petition for writ of coram nobis that he elects to file petitioner will need to establish that: (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 to satisfy the case and controversy requirement of Article III; and (4) the error suffered is of the most fundamental character. United States v. Kwan, 407 F.3d 1005, 1011 (9th Cir. 2005), abrogated on other grounds by Padilla v. Kentucky, __ U.S. __, 130 S.Ct. 1473 (2010).

Insofar as petitioner seeks relief from his 1983 Solano County Superior Court conviction and sentence for second-degree murder, assault with a deadly weapon, and false imprisonment, he is advised that the court is unable to grant him relief in this coram nobis action. Rather, if petitioner wishes to challenge this latter conviction he will be required to proceed by way of a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. As petitioner acknowledges, he is presently incarcerated at Mule Creek State Prison serving a sentence for this conviction. Accordingly, a petition for writ of error coram nobis is not a proper vehicle by which to challenge his 1983 conviction.

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's petition for a writ of error coram nobis is dismissed with leave to filed an amended petition within thirty days from the date of service of this order;

2. Any amended petition must be filed on the form employed by this court and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Amended Petition"; and

3. The Clerk of the Court is directed to send petitioner the form for habeas corpus application.*fn1

DAD:9 roth0844.amd


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