The opinion of the court was delivered by: Jeffrey T. Miller United State District Judge
ORDER DENYING MOTION FOR EQUITABLE RELIEF UNDER THE ALL WRITS ACT
Over 27 years ago, Defendant pled guilty to a misdemeanor offense, attempted possession of cocaine in violation of 21 U.S.C §§ 846 and 844(a). At that time, § 844(a) allowed the sentencing judge to expunge a conviction by imposing a period of diversion for one year and at the end of that year, not entering the tendered guilty plea. During the sentencing proceedings, Defendant requested such a sentence of diversion. The court stated on the record that it did not believe it had the discretion to impose a sentence of diversion and sentenced Defendant to 24 months probation.
On appeal, the Ninth Circuit reversed, holding that the District Court had such discretion and remanded for resentencing with knowledge of that discretion. On remand, the District Court reaffirmed its original sentence of 24 months probation. On July 25, 1986, Defendant filed a Rule 35 Motion to Reduce Sentence which was denied.
Defendant now brings a motion under the All Writs Act and seeks relief by the grant of a writ of error coram nobis. Defendant alleges that his assistance of counsel was ineffective during the sentencing proceedings on remand and that, as a result, Defendant has recently suffered previously unforeseen negative consequences.
A. Legal Standard: The Writ of Error Coram Nobis
Federal courts have the authority to issue a writ of error coram nobis to correct a fundamental adjudicative error when a more usual remedy is not available. 28 U.S.C. 1651(a); United States v. Morgan, 346 U.S. 502, 513 (1954). A defendant must prove each of the following elements to qualify for coram nobis relief: "(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." Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987). Furthermore, a petition for a writ of error coram nobis may be filed by a Defendant who has already served his entire sentence and it is not subject to a statute of limitations. Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994). However, the timing of filing is subject to the equitable doctrine of laches. Id.
B. Application to Defendant's Petition
The first and third elements appear to be easily met; no other remedy is available at this point and Defendant has provided an array of undisputed negative consequences that he continues to face. Ineffective assistance of counsel would qualify as "error.of the most fundamental character." Morgan, at 45. However, Defendant has not shown that trial counsel's performance reached the level of deficiency required under the Strickland standard nor has he established he was prejudiced by trial counsel's alleged deficient performance. Additionally, Defendant's petition clearly fails because of element two. Given Defendant's deportation and continuing immigration restraints, including 27 years of visa denials, years of difficulty visiting family, and prior engagement of immigration counsel, defendant is left with no valid reason for not attacking the conviction earlier.
a. A more usual remedy is not available
All other procedural avenues appear to be unavailable at this point. Habeas corpus relief is not available because, among other things, Defendant is not in custody. The appellate process was exhausted when final judgment was entered on remand in 1986. All other procedural remedies, including relief under 28 U.S.C § 2255, would be ...