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Kumar v. United States

United States District Court, C.D. California

May 23, 2018

Nilesh Bharat Kumar Kumar
v.
United States of America

          Present: The Honorable R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE

          CIVIL MINUTES - GENERAL

         Proceedings: (IN CHAMBERS) Order Re: Petition for Writ of Error Coram Nobis (DE1)

         I. INTRODUCTION

         Nilesh 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 assessment.

         Because 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).

         Before 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.

         Petitioner 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.

         For the following reasons, the Court DENIES the Petition.

         II. JUDICIAL STANDARD

         The 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).

         To 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.

         IIi. discussion

         The 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 nobis Petition.

         A. Fund ...


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