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United States v. Dhingra

United States District Court, N.D. California, Oakland Division

July 1, 2019




         Defendant Rakesh Dhingra (“Dhingra” or “Petitioner”) brings the instant petition for writ of error coram nobis seeking to overturn his conviction under 18 U.S.C. § 2422(b). In connection with the petition, he also brings a motion for subpoena of documents. Having read and considered the papers filed in connection with these matters and being fully informed, the Court hereby DENIES the petition and the motion, for the reasons stated below. The Court finds this matter suitable for resolution without a hearing. See 28 U.S.C. § 2255(b); United States v. Taylor, 648 F.2d 565, 573 & n.25 (9th Cir. 1981) (procedural rules applicable to habeas corpus petitions apply to coram nobis petitions).

         I. BACKGROUND

         A. Factual Background[1]

         In July 2000, Dhingra, who was then 40 years old, contacted a minor girl using the Internet-based America Online (“AOL”) Instant Messenger (“IM”) service. He represented to the girl that he was 27 years old. The girl stated on multiple occasions that she was only 14 years old, and Dhingra repeatedly acknowledged her age. Over several days, Dhingra and the girl engaged in extensive IM conversations revolving around sexual topics. As the conversations progressed, they discussed in increasingly explicit detail the sex acts they planned to perform on each other when they met.

         Eventually, Dhingra and the girl arranged to meet at a local community college on July 10, 2000. During that in-person encounter, Dhingra fondled the girl beneath her clothing and placed her hand on his penis. The two then proceeded to his automobile, where they engaged in further sexual activity. Afterward, the girl reported the incident to a teacher, and then, to local law enforcement officials.

         Local law enforcement officials-including Thomas Sharp, Police Detective for the Contra Costa Community College District-arrested Dhingra after covertly arranging a second meeting between him and the girl. On July 14, 2000, Detective Sharp contacted the Federal Bureau of Investigations (“FBI”) and specifically Agent Charles Esposito to further investigate the offense. Agent Esposito interviewed both Dhingra and the girl, conducted forensic examinations of their computers, and subpoenaed AOL for Dhingra's account records. Among other things, the FBI recovered many of the IM messages and emails exchanged between Dhingra and the girl.

         B. Procedural Background

         On August 30, 2001, the United States obtained an indictment against Dhingra for Enticement of Minor to Engage in Prohibited Sexual Conduct, in violation of 18 U.S.C. § 2422(b).[2] Dkt. 1. It alleged that Dhingra enticed a minor to engage in lewd or lascivious conduct, as would constitute a violation of California Penal Code § 288(c)(1).[3] Id. A jury convicted Dhingra of that offense on September 20, 2002. Dkt. 72. On December 17, 2002, the Court sentenced him to 24 months in custody and three years of supervised release. Dkt. 86. Dhingra appealed to the Ninth Circuit, which affirmed the conviction and sentence in a published decision. Dhingra, 371 F.3d 557.

         In July 2016, Dhingra filed a pro se civil action challenging his conviction. Dhingra v. United States, No. 16-cv-03803-SBA. In a single pleading, he brought both a complaint for damages and a petition for writ of error coram nobis. Pet. for Writ of Error Coram Nobis & Compl. for Damages, Dkt. 1, No. 16-cv-03803. He alleged, as he does here, that the victim of the offense was actually an adult and an undercover FBI agent or informer. Id. He further alleged that his contact with the fictitious minor was part of an FBI cyber squad operation under the leadership of Agent Esposito. Id.

         Screening the action under 28 U.S.C. § 1915(e), the Court dismissed the complaint and petition without prejudice. Order Dismissing Compl. & Pet., Dkt. 6, No. 16-cv-03803. As is pertinent here, the Court found that Dhingra was not entitled to coram nobis relief because he failed to justify the 14-year delay in attacking his conviction and had not demonstrated diligence in pursuing his claims. Id. The Court further found that the petition was “devoid of any facts” supporting his assertion that the victim was an adult FBI agent/informer acting as part of a sting operation. Id. Dhingra appealed to the Ninth Circuit, which dismissed the appeal as frivolous. Order, Dkt. 15, No. 16-cv-03803.

         Thereafter, Dhingra filed a renewed petition for writ of error coram nobis in this action, Dkt. 129, followed by numerous supplemental briefs and declarations, see Dkt. 130, 131, 133, 138, 139, 143, 146.[4] On February 19, 2019, he also filed a motion for subpoena of documents. Dkt. 140. On April 9, 2019, the Court issued an order directing Dhingra to file an amended petition setting forth any and all issues and arguments he seeks to advance before this Court and setting a briefing schedule for the United States to respond. Dkt. 152.

         On April 26, 2019, Dhingra filed an Amended Petition for Writ of Error Coram Nobis (“Pet.”), Dkt. 154, along with a supporting declaration (“Decl.”), Dkt. 154-1, and exhibits, Dkt. 154-2. The United States filed a response to the petition, Dkt. 155, as well as a separate response to the motion for subpoena of documents, Dkt. 156. Dhingra filed separate replies. Dkt. 157, 158. The matter is fully briefed and ripe for adjudication.


         A writ of error coram nobis is an “extraordinary remedy” authorized under the All Writs Act, 28 U.S.C. § 1651(a). United States v. Morgan, 346 U.S. 502, 506, 511 (1954). It is “of the same general character” as a habeas petition under 28 U.S.C. § 2255. Id. at n.4. However, a coram nobis petition provides a means to collaterally attack a conviction when the petitioner is no longer in custody and thereby foreclosed from seeking habeas relief. Chaidez v. United States, 568 U.S. 342, 345 (2013) (citing Morgan, 346 U.S. at 510-511).

         “[T]he 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.” Estate of McKinney v. United States, 71 F.3d 779, 781 (9th Cir. 1995) (quotation marks and citations omitted). “Where the errors are of ‘the most fundamental character,' such that the proceeding itself is rendered ‘invalid,' the writ of coram nobis permits a court to vacate its judgments.” Id. (quoting Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) (citation omitted).

         To qualify for coram nobis relief, a petitioner must show that: (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. United States v. Riedl, 496 F.3d 1003, 1006 (9th Cir. 2007) (citing Hirabayashi, 828 F.2d at 604). These requirements are conjunctive, such that failure to meet any one of them is fatal. Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002). “It is presumed the [underlying] proceedings were correct and the burden rests on the [petitioner] to show otherwise.” Morgan, 346 U.S. at 512.


         It is undisputed that Petitioner meets the first element for coram nobis relief, i.e., a more usual remedy is not available because he is not in custody. Although Petitioner does not meaningfully address the third element in his petition, see Pet. at 14, he notes that he has been a sex offender registrant for the last 16 years. Reply at 9. Assuming without deciding that sex offender registration is an adverse consequence sufficient to satisfy the case or controversy requirement, see Chaidez, 568 U.S. at 349 n.5 (identifying sex offender registration as a ...

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