Michael Glover v. United States of America
Filing
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ORDER DENYING Petitioners Petition for Writ of Coram Nobis 1 by Judge Ronald S.W. Lew,, (Made JS-6. Case Terminated.) (shb)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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12 MICHAEL GLOVER,
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Currently before the Court is Petitioner Michael
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Petitioner,
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v.
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16 UNITED STATES OF AMERICA,
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Respondent.
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CV 18–05000-RSWL
ORDER re: Petitioner’s
Petition for Writ of
Coram Nobis [1]
22 Glover’s (“Petitioner”) Petition for Writ of Coram
23 Nobis (“Petition”) [1].
Having reviewed all papers
24 submitted pertaining to this Petition, the Court NOW
25 FINDS AND RULES AS FOLLOWS: the Court DENIES
26 Petitioner’s Petition.
27 ///
28 ///
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I. BACKGROUND
2 A.
Factual Background
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On October 2, 2001, Petitioner pleaded guilty to
4 two counts of transporting a minor with intent to
5 engage in criminal sexual activity.
Resp. to Pet. for
6 Writ of Coram Nobis (“Opp’n”) 1:6-8, ECF No. 7.
On
7 February 4, 2002, the Court sentenced Petitioner to
8 twenty-four months in prison and three years of
9 supervised release.
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Id. at 1:11-12.
Petitioner claims that, before his plea hearing, he
11 was not given two pieces of evidence.
Id. at 3:16-18.
12 The first piece of evidence allegedly withheld was an
13 online chat conversation between the victim and
14 Petitioner.
Pet. for Writ of Coram Nobis (“Pet.”)
15 2:14-16, ECF No. 1.
Petitioner claims that he asked
16 the victim, “How ol[d] are you?” and she responded,
17 “I’m 17 years of age, I will not be 18 yrs old until
18 August 2000!”
Id. at 2:16-19.
After receiving this
19 message, Petitioner claims that he told the victim that
20 they could not meet until she turned eighteen.
21 2:20.
Id. at
Petitioner claims that the online chat took
22 place on his computer, which the FBI confiscated.
23 at 2:21-22.
Id.
The second piece of evidence that was
24 allegedly withheld was statements made by several of
25 Petitioner’s associates, who told an unnamed FBI agent
26 “that [Petitioner] doesn’t go after under-age females.”
27 Id. at 2:22-25.
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Petitioner also claims that FBI agents wrote on his
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1 Rap Sheet that he was arrested for traveling across
2 state lines, kidnaping a child, and “fondling her.”
3 Id. at 3:11-15.
Petitioner claims that he has never
4 been arrested on this charge.
Id. at 3:15-16.
5 Further, Petitioner claims that the Government relied
6 on these statements during Petitioner’s plea hearing
7 without taking into account evidence that the Rap Sheet
8 contained falsified information.
9 B.
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Id. at 7:21-23.
Procedural Background
On June 5, 2018, Petitioner filed the instant
11 Petition [1].
The Government filed its Response [7] on
12 July 6, 2018.
Petitioner did not file a reply.
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II. DISCUSSION
14 A.
Legal Standard
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Under the All Writs Act, a federal court may grant
16 writs such as coram nobis.
See 28 U.S.C. § 1651(a).
17 writ of coram nobis is an “extraordinary writ.”
Matus-
18 Leva v. United States, 287 F.3d 758, 760 (9th Cir.
19 2002).
It provides a remedy when a petitioner has
20 served his sentence.
Estate of McKinney By & Through
21 McKinney v. United States, 71 F.3d 779, 781 (9th Cir.
22 1995).
To show that a claim warrants coram nobis
23 relief, a petitioner must establish that “(1) a more
24 usual relief is not available; (2) valid reasons exist
25 for not attacking the conviction earlier; (3) adverse
26 consequences exist from the conviction sufficient to
27 satisfy the case or controversy requirement under
28 Article III; and (4) the error is of the most
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A
1 fundamental character.”
2 omitted).
Id. at 781-82 (quotation
The petitioner has the burden to satisfy
3 each requirement, and failure to meet any one of the
4 four requirements is fatal to a petition.
See
5 Matus-Leva v. United States, 287 F.3d 758, 760 (9th
6 Cir. 2002).
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A writ of coram nobis is rarely granted; the
8 Supreme Court has stated that “it is difficult to
9 conceive of a situation in a federal criminal case
10 today where [a writ of coram nobis] would be necessary
11 or appropriate.”
Carlisle v. United States, 517 U.S.
12 416, 429 (1996) (alteration in original) (quoting
13 United States v. Smith, 331 U.S. 469, 475 n.4 (1947)).
14 B.
Discussion
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1.
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More Usual Relief and Case or Controversy
Requirement
The Government does not dispute that Petitioner has
18 satisfied the first and third requirements for coram
19 nobis relief: (1) that a more usual relief is not
20 available and (2) that adverse consequences exist from
21 the conviction sufficient to satisfy the case or
22 controversy requirement under Article III.
Thus, the
23 Court assumes that Petitioner has satisfied these
24 requirements.
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2.
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Petitioner argues that his delay in filing this
Valid Reason for Delay
27 Petition was justified because he could not have
28 discovered the FBI’s obstruction of justice at an
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1 earlier date and because the FBI’s misconduct was
2 placed on his record in a complex and clever way.
Pet.
3 6:21-22.
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“[T]he time for filing a petition [for writ of
5 coram nobis] is not subject to a specific statute of
6 limitations.”
Telink, Inc. v. United States, 24 F.3d
7 42, 45 (9th Cir. 1994).
Rather, courts require “coram
8 nobis petitioners to provide valid or sound reasons
9 explaining why they did not attack their sentences or
10 convictions earlier.”
United States v. Kwan, 407 F.3d
11 1005, 1012 (9th Cir. 2005).
“[T]he burden of proof is
12 on the petitioner to offer valid reasons for the
13 delay.”
United States v. Riedl, 496 F.3d 1003, 1008
14 (9th Cir. 2007).
The Ninth Circuit has “considered
15 delay to be reasonable . . . when new evidence was
16 discovered that the petitioner could not reasonably
17 have located earlier.”
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Id. at 1007.
Petitioner provides newly-discovered evidence that
19 the FBI allegedly: (1) withheld evidence that
20 Petitioner told the victim that he could not see her
21 until she was eighteen years old; (2) withheld
22 statements made by Petitioner’s associates stating that
23 Petitioner does not pursue underage girls; and
24 (3) stated that Petitioner was arrested for kidnaping
25 and fondling the victim.
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See Pet. 2:25-3:10.
Here, Petitioner does not show that he exercised
27 due diligence in bringing this new evidence.
See
28 Dhingra v. United States, No. C 16-03803 SBA, 2016 U.S.
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1 Dist. LEXIS 132702, at *9 (N.D. Cal. Sep. 27, 2016)
2 (denying coram nobis because the defendant did “not
3 show that he exercised due diligence in pursuing [his]
4 claim”).
Given that Petitioner himself made the
5 statements in the online chat, the Court can assume
6 that he was aware of the statements’ existence prior to
7 the plea hearing.
Thus, Petitioner could have
8 requested the statements from the FBI before his plea
9 hearing or in the nearly seventeen years preceding this
10 Petition, and, had the FBI refused, he could have
11 brought the FBI’s refusal to the attention of the
12 Court.
See Martinez v. United States, 90 F. Supp. 2d
13 1072, 1076 (D. Haw. 2000) (“[D]elay is not justified if
14 the petitioner was aware of a potential ground for
15 relief earlier, but did not choose to pursue it.”).
16 Further, Petitioner does not explain how he learned of
17 his associates’ statements, nor does he explain why he
18 could not have learned of these statements earlier.
19 Without this information, Petitioner has not provided a
20 valid excuse for his delay in bringing this allegation
21 to the Court’s attention.
Lastly, Petitioner states
22 that he did not look at his Rap Sheet until April 2018.
23 Pet. 3:10-12.
Given that Petitioner does not contend
24 that he was previously denied the opportunity to see
25 his Rap Sheet, the Court has no reason to believe that
26 Petitioner could not have found the alleged statements
27 on his Rap Sheet earlier in the seventeen years between
28 his plea hearing and the filing of this Petition.
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Thus, Petitioner has not validly explained his
2 delay in bringing this Petition.
Error of a Fundamental Character1
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3.
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Petitioner claims that the FBI’s alleged refusal to
5 turn over online chat statements and disclose
6 conversations with Petitioner’s associates, combined
7 with its alleged tampering with Petitioner’s record,
8 creates an error of the most fundamental character.
9 Courts reserve the writ of coram nobis for errors that
10 are of “the most fundamental character, such that the
11 proceeding itself is rendered invalid.”
McKinney, 71
12 F.3d at 781 (internal quotation marks and citations
13 omitted).
To show error of the most fundamental
14 character, a petitioner’s allegations must
15 “specifically delineate the factual basis of his
16 claim.”
United States v. Taylor, 648 F.2d 565, 573
17 (9th Cir. 1981).
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Here, Petitioner does not specifically delineate
19 the factual basis for his claims.
Instead, Petitioner
20 simply speculates that the FBI withheld evidence and
21 lied on his record, which is insufficient to
22 demonstrate an error of a fundamental character.
See
23 Dhingra, 2016 U.S. Dist. LEXIS 132702, at *4
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Petitioner must satisfy all four requirements to be
granted a writ of coram nobis. Therefore, the Court DENIES
Petitioner’s Petition because he has not provided a valid
explanation for his delay in filing the Petition. However, for
the sake of completeness, the Court will analyze the “fundamental
error” requirement as well.
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1 (dismissing a coram nobis petition which speculated
2 that an underage victim was actually an adult FBI
3 informant because the “petition [was] devoid of any
4 facts supporting [the Petitioner’s] assertion that the
5 minor victim of his criminal offense was actually an
6 ADULT FBI Agent/Informer” (internal quotations
7 omitted)).
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Further, even if Petitioner had provided a factual
9 basis for his claims, Petitioner has not shown a
10 fundamental error that warrants reversing his
11 conviction.
Petitioner pleaded guilty, under 18 U.S.C.
12 § 2423(a), to two counts of transporting a minor with
13 intent to engage in criminal sexual activity.
Under
14 § 2423(a), a Petitioner cannot claim ignorance of a
15 victim’s age as a defense.
See United States v.
16 Taylor, 239 F.3d 994, 997 (9th Cir. 2001) (“Ignorance
17 of the victim’s age provides no safe harbor from the
18 penalties in 18 U.S.C. § 2423(a).
If someone knowingly
19 transports a person for the purposes of prostitution or
20 another sex offense, the transporter assumes the risk
21 that the victim is a minor, regardless of what the
22 victim says or how the victim appears.”).
Thus, for
23 the purposes of Petitioner’s conviction, it is
24 irrelevant that Petitioner thought that the victim was
25 eighteen.
Further, Petitioner’s associates’ purported
26 testimony would not render Petitioner’s plea hearing
27 invalid, as it does not provide any new details about
28 the offense that might show that Petitioner’s
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1 conviction was a fundamental error.
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Thus, Petitioner has not shown that these
3 allegations present a fundamental error in his criminal
4 proceeding sufficient to grant a writ of coram nobis.
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III. CONCLUSION
For the foregoing reasons, the Court DENIES
7 Petitioner’s Petition.
8 IT IS SO ORDERED.
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10 DATED: August 14, 2018
s/ RONALD S.W. LEW
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HONORABLE RONALD S.W. LEW
Senior U.S. District Judge
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