Nowling v. United States of America

Filing 5

ORDER Dismissing Without Prejudice Petition for Writ of Error Coram Nobis Pursuant to 28 U.S.C. §1915(e)(2)(B) and Denying Motion for Leave to Proceed in Forma Pauperis 2 as Moot. Signed by Judge John A. Houston on 7/24/15. (All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KEITH NOWLING,
v.

Petitioner,

UNITED STATES OF AMERICA,
Respondent.

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Civil No. 15cv0766 JAH
ORDER DISMISSING PETITION
FOR WRIT OF ERROR CORAM
NOBIS PURSUANT TO 28 U.S.C. §
1915(e)(2)(B) AND DENYING
MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS
AS MOOT

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Petitioner Keith Nowling, a prisoner proceeding pro se, filed a petition for Writ of

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Error Coram Nobis, pursuant to 28 U.S.C. § 1651 (Petitioner’s “Writ”), seeking review of

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the sentence imposed in case #3:12-cr-01253-JAH-2. See Doc. # 1 at 3. Petitioner

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additionally filed a Motion for Leave to Proceed In Forma Pauperis (“IFP”), pursuant to 28

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U.S.C. § 1915(a). See Doc. # 2.

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All parties instituting any civil action, suit or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of $350.

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See 28 U.S.C. § 1914(a). An action may proceed despite a petitioner’s failure to prepay

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the entire fee only if the petitioner is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

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Notwithstanding payment of any filing fee or portion thereof, complaints filed by

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any person seeking to proceed IFP are subject to a mandatory and sua sponte review and

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dismissal by the court to the extent it is “frivolous, malicious, fails to state a claim upon

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which relief may be granted, or seeks monetary relief from a defendant immune from such

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relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001);

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Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc).

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Upon review of Petitioner’s Writ, this Court finds that it must be dismissed because

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it fails to present a cognizable claim upon which relief may be granted under 28 U.S.C. §

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1651. To state a claim for coram nobis relief under 28 U.S.C. § 1651, a petitioner must

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show that: (1) a more usual remedy is unavailable, (2) valid reasons existed for not

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attacking the conviction earlier, (3) adverse consequences exist from the conviction

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sufficient to satisfy the case or controversy requirement of Article III, and (4) the error is

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of the most fundamental character. See Hirabayashi v. United States, 828 F.2d 591, 604

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(9th Cir. 1987). The requirements are conjunctive, such that failure to meet any one of

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them is fatal. See Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002).
In his Writ, Petitioner requests correction of the sentence imposed in case #3:12-cr-

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01253-JAH-2.

See Doc. # 1 at 9.

Specifically, Petitioner contends that seven

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misdemeanor convictions were improperly included in his pre-sentence documentation,

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resulting in this Court’s consideration of an improper guideline range during sentencing.

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Id. at 8. In other words, Petitioner attempts to collaterally attack the same sentence he

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currently serves.

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As plead, Petitioner fails to show that his claim is properly brought pursuant to 28

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U.S.C. § 1651. Coram nobis relief affords a remedy specifically intended to attack and

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redress the “lingering collateral consequences” of unlawful convictions that have already

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been “fully served.” See Telnik v. United States, 24 F.3d 42, 45 (9th Cir. 1994). In the

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Ninth Circuit, habeas corpus relief is the usual remedy for inmates in federal custody

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seeking to collaterally attack an allegedly unlawful sentence being served by the inmate.

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Id.

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Petitioner is an inmate in federal custody alleging that the sentence he currently

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serves was unlawfully imposed. See Doc. # 1 at 3. Thus, pursuit of the more usual

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remedy requires filing a habeas corpus petition pursuant to 28 U.S.C. § 2255. See Telnik,

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24 F.3d at 45. Petitioner’s vague contention that “[t]he Title 28 U.S.C. [§] 2255, is not
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available to the petitioner” is insufficient to show that the remedy is unavailable. See Doc.

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# 1 at 10. Therefore, Petitioner has not met his burden to state a claim entitling him to

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coram nobis relief.

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Accordingly, this Court finds that Petitioner’s Writ must be dismissed, pursuant

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to 28 U.S.C. § 1915(e)(2)(B)(ii), because it fails to present a cognizable claim for relief

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under 28 U.S.C. § 1651.

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For the foregoing reasons, IT IS HEREBY ORDERED:
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and

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2.

Petitioner’s Motion for Leave to Proceed In Forma Pauperus is DENIED as
moot.

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Petitioner’s Writ of Error Coram Nobis is DISMISSED without prejudice;

Dated:

July 24, 2015

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JOHN A. HOUSTON
United States District Judge

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