United States District Court, N.D. California, Oakland Division
ORDER DENYING PETITION FOR WRIT OF ERROR CORAM NOBIS
AND MOTION FOR SUBPOENA OF DOCUMENTS DKT. 140, 154
SAUNDRA BROWN ARMSTRONG SENIOR UNITED STATES DISTRICT JUDGE
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).
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.
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.
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.
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). 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). 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
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.
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.
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. 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.
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.
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).
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).
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.
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