United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Petitioner, a state prisoner proceeding without counsel, filed a motion for writ of error coram vobis. (ECF No. 3.) Petitioner also filed a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a).
Petitioner claims that his petition for writ of coram vobis was presented to all levels of state courts (superior, appellate, supreme), and therefore he seeks federal review pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. (ECF No. 3 at 2.) Petitioner asks the court to grant the requested writ of coram vobis, find petitioner actually innocent, and immediately release petitioner from the illegal restraint he has been suffering since May 2, 2011. (ECF No. 3 at 2.)
However, this court lacks jurisdiction to consider such a motion. A writ of error coram vobis attacking a state court conviction may only be brought in the sentencing court. See United States v. Monreal , 301 F.3d 1127, 1131 (9th Cir. 2002) (citing Madigan v. Wells , 224 F.2d 577, 578 n.2 (9th Cir. 1955) ("[T]he writ can issue, if at all, only in aid of the jurisdiction of the... court in which the conviction was had.") (citation omitted)), cert. denied, 537 U.S. 1178 (2003); Sinclair v. State of Louisiana , 679 F.2d 513, 514 (5th Cir. 1982) ("It is well settled that the writ of error coram nobis is not available in federal court to attack state criminal judgments. A writ of error coram nobis can only issue to aid the jurisdiction of the court in which the conviction was had.") (citations and internal citations omitted); see also United States v. Morgan , 346 U.S. 502, 505 n.4 (1954) (coram nobis petition "is a step in the criminal case and not, like habeas corpus where relief is sought in the separate case and record, the beginning of a separate civil proceeding"). As the petitioner's filing challenges a California state court conviction and sentence, coram nobis relief is unavailable in this federal court.
Moreover, jurisdiction is also unavailable to review the state court conviction under Rule 60(b). "[N]either Rule 60(b) per se nor, for that matter, any other of the Federal Rules of Civil Procedure was ever designed to apply to proceedings in other than the United States District Courts." Washington-Baltimore Newspaper Guild, Local 35 v. Washington Post Co. , 442 F.2d 1234, 1239 (D.C. Cir. 1971) (citing Fed.R.Civ.P. 1 ("These rules govern the procedure in the United States district courts in all suits of a civil nature...")). "While Rule 60(b) can be used to relieve a party from a final judgment, order, or proceeding issued by a United States District Court, it cannot be used to relieve Petitioner of an order, judgment or proceeding issued by a state court...." Smalling v. State of Arizona, 2009 WL 2177318 *2 (D. Ariz. July 21, 2009).
In accordance with the above, IT IS HEREBY ORDERED that petitioner's application to proceed in forma pauperis (ECF No. 2.) is granted; and
IT IS RECOMMENDED that:
1. The motion for writ of coram vobis (ECF No. 3) be dismissed for lack of jurisdiction;
2. The motion to set aside state court orders pursuant to Rule 60(b) of the Federal Rules of Civil Procedure be dismissed for lack of jurisdiction; and
3. This action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the ...