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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 KEITH NOWLING, v. Petitioner, UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) 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 15 Petitioner Keith Nowling, a prisoner proceeding pro se, filed a petition for Writ of 16 Error Coram Nobis, pursuant to 28 U.S.C. § 1651 (Petitioner’s “Writ”), seeking review of 17 the sentence imposed in case #3:12-cr-01253-JAH-2. See Doc. # 1 at 3. Petitioner 18 additionally filed a Motion for Leave to Proceed In Forma Pauperis (“IFP”), pursuant to 28 19 U.S.C. § 1915(a). See Doc. # 2. 20 All parties instituting any civil action, suit or proceeding in a district court of the 21 United States, except an application for writ of habeas corpus, must pay a filing fee of $350. 22 See 28 U.S.C. § 1914(a). An action may proceed despite a petitioner’s failure to prepay 23 the entire fee only if the petitioner is granted leave to proceed IFP pursuant to 28 U.S.C. 24 § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 25 Notwithstanding payment of any filing fee or portion thereof, complaints filed by 26 any person seeking to proceed IFP are subject to a mandatory and sua sponte review and 27 dismissal by the court to the extent it is “frivolous, malicious, fails to state a claim upon 28 which relief may be granted, or seeks monetary relief from a defendant immune from such 15cv0766 1 relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001); 2 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). 3 Upon review of Petitioner’s Writ, this Court finds that it must be dismissed because 4 it fails to present a cognizable claim upon which relief may be granted under 28 U.S.C. § 5 1651. To state a claim for coram nobis relief under 28 U.S.C. § 1651, a petitioner must 6 show that: (1) a more usual remedy is unavailable, (2) valid reasons existed for not 7 attacking the conviction earlier, (3) adverse consequences exist from the conviction 8 sufficient to satisfy the case or controversy requirement of Article III, and (4) the error is 9 of the most fundamental character. See Hirabayashi v. United States, 828 F.2d 591, 604 10 (9th Cir. 1987). The requirements are conjunctive, such that failure to meet any one of 11 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- 12 13 01253-JAH-2. See Doc. # 1 at 9. Specifically, Petitioner contends that seven 14 misdemeanor convictions were improperly included in his pre-sentence documentation, 15 resulting in this Court’s consideration of an improper guideline range during sentencing. 16 Id. at 8. In other words, Petitioner attempts to collaterally attack the same sentence he 17 currently serves. 18 As plead, Petitioner fails to show that his claim is properly brought pursuant to 28 19 U.S.C. § 1651. Coram nobis relief affords a remedy specifically intended to attack and 20 redress the “lingering collateral consequences” of unlawful convictions that have already 21 been “fully served.” See Telnik v. United States, 24 F.3d 42, 45 (9th Cir. 1994). In the 22 Ninth Circuit, habeas corpus relief is the usual remedy for inmates in federal custody 23 seeking to collaterally attack an allegedly unlawful sentence being served by the inmate. 24 Id. 25 Petitioner is an inmate in federal custody alleging that the sentence he currently 26 serves was unlawfully imposed. See Doc. # 1 at 3. Thus, pursuit of the more usual 27 remedy requires filing a habeas corpus petition pursuant to 28 U.S.C. § 2255. See Telnik, 28 24 F.3d at 45. Petitioner’s vague contention that “[t]he Title 28 U.S.C. [§] 2255, is not 2 15cv0766 1 available to the petitioner” is insufficient to show that the remedy is unavailable. See Doc. 2 # 1 at 10. Therefore, Petitioner has not met his burden to state a claim entitling him to 3 coram nobis relief. 4 Accordingly, this Court finds that Petitioner’s Writ must be dismissed, pursuant 5 to 28 U.S.C. § 1915(e)(2)(B)(ii), because it fails to present a cognizable claim for relief 6 under 28 U.S.C. § 1651. 7 8 For the foregoing reasons, IT IS HEREBY ORDERED: 1. and 9 10 2. Petitioner’s Motion for Leave to Proceed In Forma Pauperus is DENIED as moot. 11 12 Petitioner’s Writ of Error Coram Nobis is DISMISSED without prejudice; Dated: July 24, 2015 13 JOHN A. HOUSTON United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 15cv0766

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