ORDER DENYING PETITIONER'S MOTION TO CORRECT, AMEND OR VACATE HIS SENTENCE (28 U.S.C. § 2255)
Petitioner Nicholas Levi Rianto ("Petitioner") was convicted in 2001 by plea of guilty to one count of violation of 18 U.S.C. § 1028(a)(7) and one count of 18 U.S.C § 1341 and was sentenced to a total term of imprisonment of twelve months and one day. Following a remand to custody in 2005 for violation of terms and conditions of supervised release, Petitioner's case was terminated 2005. The instant petition to correct, vacate or set aside the sentence pursuant to 28 U.S.C. § 2255 was filed on February 7, 2011.
FACTUAL AND PROCEDURAL HISTORY
This case commenced on February 15, 2001, when an indictment alleging 38 counts of identity theft to fraudulently obtain credit was filed. Petitioner was convicted by plea of guilty entered on June 4, 2001. The court's order of judgment and commitment was filed on September 13, 2002. An order of supervised release was filed in regard to Petitioner on August 27, 2004. Petitioner was arrested for violation of the terms of supervised release on September 17, 2004, and again on July 13, 2005. With regard to each violation of supervised release Petitioner was remanded to custody for a period of eight months. The last order of judgment and commitment was filed on September 8, 2005. No notices or appeal or prior habeas petitions have been filed prior to the instant petition, which was filed on February 7, 2011. The court notes that Petitioner appears to be currently incarcerated at an immigration detention center in Eloy, Arizona. The court has no direct knowledge of Petitioner's current custody or residency status.
Petitioner has filed a motion for habeas relief pursuant to 28 U.S.C. § 2255. Section 2255 provides, in pertinent part: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Although it appears that Petitioner is currently in custody, the court's records indicate that he has completed service of the term of imprisonment and supervised release imposed by this court as a result of his conviction on the charges he pled guilty to in 2001. The court, based on Plaintiff's current address, presumes that Petitioner is currently under detention pending deportation proceedings. Where, as here, a petitioner has been discharged from custody and/or court supervision related to the conviction being challenged, Section 2255 does not provide an appropriate vehicle for relief.
"The writ of error coram nobis affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody." Estate of McKinney By & Through 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 Yasai v. United States, 772 F.2d 1496, 1498, 1499 & n. 2 (9th Cir.1985). The writ 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 Supreme Court and Ninth Circuit have "long made clear that the writ of error coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable." United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir.2007).
To qualify for error coram nobis relief, four requirements must be satisfied: (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 or controversy requirement of Article III, and (4) the error is of the most fundamental character. Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987).
As an initial matter, the court notes that Petitioner's underlying purpose -- to mitigate the effect of his prior conviction for an aggravated felony on his current immigration status -- is not directly available. A request for habeas relief, whether by way of 28 U.S.C. § 2255 or by way of writ of error coram nobis, is a collateral attack on the conviction itself. Thus, a petitioner who successfully attacks the plea agreement that is the basis of his conviction may enter a plea of not guilty and be tried on evidence available, or may attempt to negotiate a different plea agreement, but he cannot directly re-engineer the terms of his existing plea agreement to suit his current needs. See e.g. United States v. Krboyan, 2011 WL 2117023 (E.D. Cal. 2011) at *13 (rejecting the petitioner's effort to restate the facts underpinning his conviction in his prior plea agreement).
In addition, the court notes that Petitioner's motion for habeas relief was aimed at satisfying the requirement of section 2255 and fails in a number of respects to adequately address the requirements for relief under the above-listed requirements for writ of error coram nobis. The court will deny Petitioner's motion for relief pursuant to 28 U.S.C. § 2255 and will briefly discuss those standards that apply to the form of habeas relief that is available to him. In all this, Petitioner is cautioned to keep in mind that, should he ultimately prevail on his effort to achieve habeas relief, there is not much cause to believe that a second plea agreement could be negotiated that significantly alters the factual basis for his prior conviction. Petitioner is cautioned that even if he should be successful in his challenge, there is a substantial likelihood that he would be subject to trial on the evidence available without benefit of a plea agreement and, upon a finding of guilt, to be subject to a sentence harsher than the one he already served.
I. More Usual Remedy Not Available
Given that Petitioner is no longer in custody as a result of the conviction being attacked in this motion, there is no doubt that the usual forms of habeas relief are not available. See United States v. Kwan, 407 F.3d 1005, 1012 (9th Cir. 2005) (concluding writ of error coram nobis is only writ available to a petitioner no longer ...