United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT
JUDGE FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR
LACK OF JURISDICTION [TWENTY-ONE DAY OBJECTION
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE.
was convicted of a drug offense in this Court in 2001. He has
since served his federal sentence and been released from
custody. He now petitions for a writ of error coram nobis. As
discussed below, the Court finds the petition should be
dismissed because Petitioner has failed to satisfy the
requirements for the highly unusual remedy of coram nobis.
March 19, 2001, Petitioner was convicted in the United States
District Court for the Eastern District of California, before
Hon. Oliver W. Wanger, of one count of possession of
pseudoephedrine with intent to manufacture methamphetamine,
and aiding and abetting. (United States v.
Contreras, Case No. 1:00-cr-05165-OWW, Doc. No.
He was sentenced to a determinate term of 57 months in
federal prison. (Id.) He completed his sentence and
was released from custody.
filed the instant petition for writ of error coram nobis on
October 10, 2017. (Doc.1.) He moves to vacate or set aside
and expunge the conviction because his plea was invalid,
unintelligent and involuntary. It appears he is claiming that
neither the trial court nor his attorney advised him that
deportation was a possible consequence. He further claims
that his plea was not knowing and intelligent because the
Magistrate Judge misinformed him as to the nature of the
charged crime. Finally, he challenges the validity of the
statutes under which he was convicted.
Preliminary Review of Petition
of the Rules Governing Section 2254 Cases requires the Court
to make a preliminary review of each petition for writ of
habeas corpus. The Court must summarily dismiss a petition
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court . . . .” Rule 4;
O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
1990). The Advisory Committee Notes to Rule 8 indicate that
the Court may dismiss a petition for writ of habeas corpus,
either on its own motion under Rule 4, pursuant to the
respondent's motion to dismiss, or after an answer to the
petition has been filed.
Standard for Writ of Error Coram Nobis
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, 1005-06 (9th Cir. 2007). The Supreme Court
characterized the writ as an “extraordinary
remedy” that should be granted “only under
circumstances compelling such action to achieve
justice.” United States v. Morgan, 346 U.S.
502, 511 (1954); 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.'”) (quoting United States v.
Smith, 331 U.S. 469, 475 n. 4 (1947)) (second alteration
in original). The writ has been available to bring before the
court only those fundamental “factual errors material
to the validity and regularity of the legality of the
proceeding itself, such as the defendants being under age or
having died before the verdict.” Carlisle, 517
U.S. at 429.
Ninth Circuit has also described the writ as
“extraordinary, ” Hirabayashi v. United
States, 828 F.2d 591, 604 (9th Cir. 1997), “used
only to review errors of the most fundamental character,
” Matus-Leva v. United States, 287 F.3d 758,
760 (9th Cir. 2002), and “fill[ing] a very precise gap
in federal criminal procedure, ” Telink, Inc. v.
United States, 24 F.3d 42, 45 (9th Cir. 1994). The Ninth
Circuit adopted the following framework to determine when the
writ should issue:
[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.
Hirabayashi, 828 F.2d at 604.