United States District Court, N.D. California
ORDER DENYING DEFENDANT'S PETITION FOR WRIT OF CORAM NOBIS
SUSAN ILLSTON, District Judge.
A petition by defendant Trevor Graham, represented by counsel, for writ of coram nobis pursuant to 28 U.S.C. § 1651(a) is scheduled to be heard on July 11, 2014. Docket No. 262. The Court determines that this matter is appropriate for resolution without oral argument and VACATES the hearing. Having considered the arguments of the parties and the papers submitted, the Court hereby DENIES defendant's petition.
On June 8, 2004, as part of the government's investigation into Balco Laboratories, Inc. ("Balco") and Victor Conte, Jr., two Internal Revenue Service - Criminal Investigation Division ("IRS - CID") agents interviewed defendant at his attorney's office in Raleigh, North Carolina. Docket No. 262 Exs. A-B. On November 2, 2006, defendant was indicted for three counts of making false statements to a government agency in violation of 18 U.S.C. § 1001(a)(2) based upon statements he made during the June 8, 2004 interview. Docket No. 1. The first count of the indictment charged defendant with falsely stating "that he never set up any of his athletes with drugs obtained from" Angel "Memo" Heredia. Id. ¶ 11. The second count charged defendant with falsely stating "that he had never met [Heredia] in person." Id. ¶ 13. The third count charged defendant with falsely stating "that he last contacted [Heredia] via a phone call in approximately 1997." Id. ¶ 15. On May 29, 2008, a jury found defendant guilty of count three but was unable to reach a unanimous verdict on the first two counts. Docket Nos. 187-188.
On June 20, 2008, defendant filed a motion for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. Docket No. 196. On July 21, 2008, the Court denied defendant's motion for judgment of acquittal. Docket No. 207. Also on July 21, 2008, the parties filed an agreement whereby defendant agreed to waive his right to appeal his conviction, but not his sentence, as to count three and agreed to waive his right to collaterally attack his conviction on count three at any time, except for a claim that his right to the effective assistance of counsel was violated. Docket No. 206 ¶¶ 3-4. In exchange, the government agreed not to retry counts one and two and to move to dismiss counts one and two against defendant. Id. ¶ 5. On August 13, 2008, the Court dismissed counts one and two of the indictment without prejudice. Docket No. 210. On October 22, 2008, the Court entered judgment against defendant on count three and sentenced defendant to five years probation. Docket No. 224. On November 4, 2008, the Court entered an amended judgment, and on November 12, 2008, the Court entered a second amended judgment. Docket Nos. 228, 229.
On October 4, 2010, defendant, now proceeding pro se, filed a motion for extension of time to file an appeal, and on October 27, 2010, defendant filed a motion to dismiss for lack of jurisdiction where defendant challenged, among other things, whether venue was proper in this Court because the offenses took place in North Carolina. Docket Nos. 234, 236. On November 1, 2010, defendant filed an appeal. Docket No. 238. On December 6, 2010, the Court denied defendant's motion for extension of time and his motion to dismiss for lack of jurisdiction. Docket No. 242. In the order, the Court explained that any challenge to venue was waived because the jury had already returned a guilty verdict. Id. at 4 (citing United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974)). On March 16, 2011, the Ninth Circuit dismissed defendant's appeal as untimely. Docket No. 246. On May 23, 2012, after defendant failed to pay the required filing fees, the Supreme Court closed his case. Docket No. 253.
On November 14, 2012, defendant filed a motion for recusal, and on January 11, 2013, defendant filed a motion to reopen his case. Docket Nos. 255, 256. On February 12, 2013, the Court denied both motions. Docket No. 257. On August 12, 2013, the Court denied defendant's motion for expungement. Docket No. 260.
On June 4, 2014, defendant filed the present petition for writ of coram nobis. Docket No. 262. In the petition, defendant argues that the petition should be granted because his conviction was in violation of his Sixth Amendment right to effective assistance of counsel due to his counsel's failure to challenge venue. Id.
The writ of coram nobis "is available to vacate a conviction even when the defendant is no longer in custody." United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989) (citing United States v. Morgan, 346 U.S. 502, 511 (1954)). "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.'" Id. "Both the Supreme Court and [the 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); see also Carlisle v. United States, 517 U.S. 416, 429 (1996) ("[I]t is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis ] would be necessary or appropriate.'"). "[D]istrict courts have the power to issue the writ under the All Writs Act, 28 U.S.C. § 1651(a)." Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002).
"[A] petitioner must show the following 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."
Riedl, 496 F.3d at 1006. "Because these requirements are conjunctive, failure to meet any one of them is fatal." Matus-Leva, 287 F.3d at 760.
The Court concludes that the present petition should be denied because defendant has failed to satisfy the second and ...