United States District Court, C.D. California
Present: The Honorable R. GARY KLAUSNER, UNITED STATES
CIVIL MINUTES - GENERAL
(IN CHAMBERS) Order Re: Petition for Writ of Error Coram
BharatKumar Kumar ("Petitioner") is a citizen of
the United Kingdom who has lived in the United States since
he entered the coimtry in 1991 at nine years old. In 2009, he
was indicted for conspiracy to possess and use unauthorized
access devices, in violation of 18 U.S.C. § 1029(b)(2)
(coimt one); use of unauthorized access devices in violation
of 18 U.S.C. § 1029 (a)(2) (count two); and unlawful
possession of fifteen or more access devices, in violation of
18 U.S.C. § 1029(a)(3) (coimt three). Petitioner pled
guilty to count one of the indictment on January 8, 2010.
Three months later, the district court sentenced Petitioner
to 24 months' imprisonment, two years' supervised
release, restitution of $145, 151.50, and a $100 special
Petitioner's offense involved fraud and a loss of over
$10, 000, it constituted an aggravated felony under federal
immigration law. See 8 U.S.C. §§
1101(a)(43)(M)(i). A noncitizen convicted of an aggravated
felony is subject to mandatory deportation. See 8
U.S.C. § 1227(a)(2)(A)(iii); Lee v. United
States, 137 S.Ct. 1958, 1963 (2017).
the Court is Petitioner's Petition for Writ of Error
Coram Nobis ("the Petition"), in which he
argues that the Court must overturn his conviction because
his criminal trial attorney provided ineffective assistance
of counsel under the Sixth Amendment. Specifically,
Petitioner argues his attorney failed to advise him that his
guilty plea would result in mandatory deportation.
first raised this claim in an appeal to the Ninth Circuit
filed in May 2010, but the Ninth Circuit held it was
inappropriate for direct appeal. About four years later.
Petitioner reasserted his ineffective assistance of counsel
argument before this Court hi a motion to vacate, set aside,
or conect his sentence under 28 U.S.C. § 2255
("Section 2255"). The Court held Petitioner failed
to demonstrate prejudice and denied the motion. The Ninth
Circuit rejected Petitioner's Section 2255 appeal on May
7, 2015. The present Petition followed nearly three years
later, on March 15, 2018.
following reasons, the Court DENIES the Petition.
writ of error coram nobis is an extraordinary remedy
that allows a movant to attack an unconstitutional or
unlawful conviction after the movant has seived his sentence
and is no longer in custody. Estate of 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) (citations omitted). The
writ permits a court to vacate its judgment when an error has
occurred that is of such fundamental character that the
proceeding itself is rendered invalid. McKinney, 71
F.3d at 781. The writ should be granted "only under
circumstances compelling such action to achieve
justice." United States v. Morgan, 346 U.S.
502, 511 (1954).
qualify for coram nobis relief, a movant must
establish that: (1) a more usual remedy is not available; (2)
valid reasons exist for not attacking the conviction earlier;
(3) adverse consequences resulting from the conviction
satisfy the case or controversy requirement of Article III;
and (4) the error suffered is of the most fundamental
character. McKinney, 71 F.3d at 781-82.
Government argues that Petitioner failed to establish (1)
that a valid reason exists for waiting nearly three years
after the Ninth Circuit rejected his Section 2255 appeal to
bring his Petition, or (2) that he suffered a fundamental
error. Because the Court finds Petitioner failed to establish
fundamental error, it need not decide whether Petitioner
provided a valid reason for his delay in filing the coram