Sittman v. United States of America
Filing
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ORDER DENYING PETITIONER'S WRIT OF ERROR CORAM NOBIS re: 1 . Signed by JUDGE ALAN C KAY on 10/20/2014. [CR 91-00921-ACK] CERTIFICATE OF SERVICEParticipants registered to r eceive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on October 21, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DENNIS SITTMAN,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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Civ. No. 14-00349 ACK-RLP
(Cr. No. 91-00921 ACK)
ORDER DENYING PETITIONER’S WRIT OF ERROR CORAM NOBIS
BACKGROUND
On May 9, 1991, Dennis Sittman was indicted in Cr. No.
91-00921 ACK for the offenses of Felon in Possession of Firearm,
in violation of 18 U.S.C. § 922(g)(1) (Counts 1 and 4); Felon in
Possession of Ammunition, in violation of 18 U.S.C. § 922(g)(1)
(Counts 2 and 5); and Possession of an Unregistered Firearm, in
violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (Count 3).
(Gov.’s Resp. Ex. 1.) After a jury trial, Sittman was convicted
on all five counts. Sittman was convicted of violating 18 U.S.C.
§ 922(g)(1) because he had received three Wisconsin felony
convictions for burglary in 1975, and an additional Wisconsin
felony burglary conviction in 1980. On November 3, 1992, the
Court sentenced Sittman to 210 months of imprisonment, pursuant
to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
followed by five years of supervised release. (Id. Ex. 2.) The
1
Court applied the ACCA because of Sittman’s prior Wisconsin
burglary convictions.
Sittman appealed his conviction and 210-month sentence
in Ninth Circuit Case No. 92-10662. Sittman argued that this
Court erred by (1) finding that he was not entitled to the
defense of necessity and (2) enhancing his sentence under the
ACCA because three of his Wisconsin burglary convictions arose
out of a single criminal episode and were committed fifteen years
before his firearms offenses. U.S. v. Sittman, 996 F.2d 1229 (9th
Cir. 1993) (unpublished) (attached as Exhibit 3 to Gov.’s Resp.).
The Ninth Circuit rejected Sittman’s arguments and affirmed his
conviction and sentence. Id.
On May 20, 1994, Sittman filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his conviction and
sentence. (Gov.’s Resp. Ex. 4.) In his § 2255 motion, Sittman
argued, in pertinent part, that he received ineffective
assistance of counsel from his then-attorney Wayne Tashima
because, inter alia, Mr. Tashima failed to challenge the
Government’s use of his three Wisconsin burglary convictions as
predicate offenses to enhance his sentence under the ACCA. (Id.)
Sittman further asserted that he informed Mr. Tashima three times
of his belief that his Wisconsin burglary convictions could not
be used to enhance his sentence because his civil rights were
2
restored pursuant to Wisconsin law.1/
On July 27, 1994, the Court denied Sittman’s § 2255
motion. (Id. Ex. 7.) The Court held, in relevant part, that
Wisconsin law did not prohibit the use of Sittman’s burglary
convictions to enhance his sentence under the ACCA and,
consequently, Mr. Tashima’s conduct was reasonable. (Id.)
On August 12, 1994, Sittman filed a motion for
reconsideration of the Court’s July 27, 1994 order, which the
Court subsequently denied. (Id. Exs. 8 & 9.)
On December 30, 1994, Sittman appealed this Court’s
denial of his § 2255 motion in Ninth Circuit Case No. 94-16651.
(Id. Ex. 10.) Sittman argued that Mr. Tashima was ineffective for
failing to challenge the Government’s use of his Wisconsin
burglary convictions as predicate offenses under the ACCA because
Wisconsin law substantially restored his civil rights once he
completed his state sentences. (Id.)2/
On May 19, 1995, the Ninth Circuit affirmed this
Court’s denial of Sittman’s § 2255 motion. Sittman v. U.S., 56
F.3d 73 (9th Cir. 1995) (unpublished) (attached as Exhibit 14 to
Gov.’s Resp.). The Ninth Circuit held that Wisconsin law did not
1/
In his first § 2255 motion, Sittman did not move to vacate
his conviction under § 922(g)(1) on the grounds that his civil
rights were restored pursuant to Wisconsin law. (See Gov.’s Resp.
Ex. 4 at 7-11.)
2/
In his appellant brief, Sittman did not seek to vacate his
conviction under § 922(g)(1). (See Gov.’s Resp. Ex. 10 at 6-7.)
3
substantially restore Sittman’s civil rights and, as a result, he
failed to demonstrate that he was prejudiced by Mr. Tashima’s
decision not to challenge the Government’s use of his Wisconsin
burglary convictions as predicate offenses. Id.
On June 26, 1996, Sittman filed a second § 2255 motion.
(Gov.’s Resp. Ex. 15.) In that motion, Sittman brought claims of
ineffective assistance of counsel at trial and on appeal. (Id.)
On August 6, 1996, the Court dismissed without
prejudice Sittman’s second § 2255 motion on two grounds. (Id. Ex.
16.) First, the Court held that the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) prohibited Sittman from
filing a second § 2255 motion without obtaining permission from
the Ninth Circuit to file that motion in district court. (Id.)
Second, the Court held that Sittman’s second § 2255 motion was
barred by the AEDPA’s statute of limitations. (Id.)
Sittman appealed the dismissal of his second § 2255
motion in Ninth Circuit Case No. 97-16781. On February 13, 1998,
the Ninth Circuit dismissed Sittman’s appeal for lack of
jurisdiction because his request for a certificate of
appealability and notice of appeal were untimely. (Id. Ex. 17.)
Sittman filed a motion for reconsideration of the Ninth
Circuit’s February 13, 1998 order, which the Ninth Circuit
denied. (Id. Exs. 18 & 19.) Sittman then filed a petition for
writ of certiorari with the U.S. Supreme Court, which the Supreme
4
Court denied. Sittman v. U.S., 525 U.S. 854 (1998) (attached as
Exhibit 20 to Gov.’s Resp.).
On October 30, 1998, Sittman filed a motion for relief
of judgment pursuant to Federal Rule of Civil Procedure 60(b).
(Gov.’s Resp. Ex. 21.) In that motion, Sittman argued that the
Court should reconsider its decision to dismiss Sittman’s second
§ 2255 motion. (Id.)
On December 22, 1998, the Court denied Sittman’s Rule
60(b) motion as untimely. (Id. Ex. 22.) The Court further held
that, even if the Rule 60(b) motion was timely, it would affirm
its prior dismissal of Sittman’s second § 2255 motion. (Id.)
Sittman appealed this Court’s denial of his Rule 60(b)
motion in Ninth Circuit Case No. 99-15450. The Government moved
to dismiss Sittman’s appeal for lack of jurisdiction. On July 17,
1999, the Ninth Circuit construed the Government’s motion as a
motion for summary disposition of the appeal and, so construed,
granted the Government’s motion and affirmed this Court’s
judgment. (Id. Ex. 23.)
On August 1, 2006, Sittman began serving his term of
supervised release in Cr. No. 91-00921 ACK. On October 23, 2013,
Sittman completed his term of supervised release. (Hino Decl. ¶
4.)3/
3/
On February 13, 2013, and before he completed his term of
supervised release in Cr. No. 91-00921 ACK, Sittman pled guilty
(continued...)
5
On August 1, 2014, Sittman filed the instant Petition
for Writ of Error Coram Nobis with this Court pursuant to the All
Writs Act, 28 U.S.C. § 1651. (Doc. No. 1.)4/ Sittman argues that
the Court should vacate his conviction under 18 U.S.C. §
922(g)(1) and sentence enhancement under 18 U.S.C. § 924(e)
because his civil rights were restored within the meaning of 18
U.S.C. § 921(a)(20). (Pet. at 6.) Sittman contends that his civil
rights were restored pursuant to a discharge certificate
allegedly issued to him by the Wisconsin Department of
Corrections (“DOC”) in 1984. (See id. at 5.) Sittman further
contends that he received ineffective assistance of counsel
because his attorney failed to investigate the Wisconsin DOC’s
discharge policy for inmates during the relevant time period.
(Id.)
On September 11, 2014, the Government filed a Response.
(Doc. No. 9.) The Government argues that the Petition should be
3
(...continued)
before a magistrate judge in 3:12cr7086 (S.D. Cal.) to the
offenses of Conspiracy to Distribute Methamphetamine, 21 U.S.C.
§§ 846 & 841(a)(1), and Conspiracy to Launder Money, 18 U.S.C. §§
1956(a)(1)(i) & 1956(a)(1)(B)(i). On January 31, 2014, Sittman was
sentenced in 3:12cr7086 (S.D. Cal.) to 51 months imprisonment and
three years of supervised release.
4/
Remarkably, Sittman filed the instant Petition on August
1, 2014, more than half a year after he was sentenced to 51
months imprisonment in 3:12cr7086 (S.D. Cal.). In any event,
Sittman states that he is seeking coram nobis relief because his
conviction and sentence in Cr. No. 91-00921 ACK could have
“adverse consequences for any future trial or sentenc[ing].”
(Pet. at 6.)
6
denied because Sittman “has already litigated the issue he is
raising in his coram nobis petition.” (Gov.’s Resp. at 13.) The
Government further argues that Sittman has failed to meet his
burden of showing that a valid reason exists for not presenting
evidence of his alleged Wisconsin discharge certificate earlier
in these proceedings. (Id. at 16-18.) Finally, the Government
asserts that the equitable doctrine of laches bars Sittman from
seeking coram nobis relief. (Id. at 1.)
On October 6, 2014, Sittman filed a “Rebuttal to
Government’s Response to Petitioner’s Writ of Coram Nobis.” (Doc.
No. 11.)
The Court finds that no hearing is warranted in this
matter because the motions, files, and records of the case
conclusively show that Sittman is not entitled to coram nobis
relief. U.S. v. Taylor, 648 F.2d 565, 573 (9th Cir. 1981) (where
motions, files and records of the case conclusively show that
petitioner is entitled to no relief, no hearing is required on
petition for writ of error coram nobis); see also D. Haw. Local
Rule 7.2(d) (“Unless specifically required, the court, in its
discretion, may decide all matters, including motions, petitions,
and appeals, without a hearing.”).
STANDARD
The writ of error coram nobis provides “a remedy to
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attack a conviction when the petitioner has served his sentence
and is no longer in custody.” Estate of McKinney By & Through
McKinney v. U.S., 71 F.3d 779, 781 (9th Cir. 1995). Specifically,
the 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.’” Id. (quoting U.S. v. Walgren, 885 F.2d 1417, 1420 (9th
Cir. 1989)).
“Both the Supreme Court and [the Ninth Circuit] have
long made clear that the writ of error coram nobis is a highly
unusual remedy, available only to correct grave injustices in a
narrow range of cases where no more conventional remedy is
applicable.” U.S. v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007);
see also Carlisle v. U.S., 517 U.S. 416, 429 (1996) (“[I]t is
difficult to conceive of a situation in a federal criminal case
today where [a writ of coram nobis] would be necessary or
appropriate.”) and U.S. v. Morgan, 346 U.S. 502, 511 (1954)
(characterizing the writ as an “extraordinary remedy” that should
be granted “only under circumstances compelling such action to
achieve justice”).
To receive coram nobis relief, a petitioner must
demonstrate four factors: “(1) a more usual remedy is not
available; (2) valid reasons exist for not attacking the
conviction earlier; (3) adverse consequences exist from the
8
conviction sufficient to satisfy the case or controversy
requirement of Article III; and (4) the error is of the most
fundamental character.” Riedl, 496 F.3d at 1006 (quoting
Hirabayashi v. U.S., 828 F.2d 591, 604 (9th Cir. 1987)). “Because
these requirements are conjunctive, failure to meet any one of
them is fatal.” Matus-Leva v. U.S., 287 F.3d 758, 760 (9th Cir.
2002).
DISCUSSION
18 U.S.C. § 922(g)(1) makes it “unlawful for any person
who has been convicted in any court, of a crime punishable by
imprisonment for a term exceeding one year to . . . possess
. . . any firearm or ammunition.”
What constitutes a conviction of [a crime
punishable by imprisonment for a term
exceeding one year] shall be determined in
accordance with the law of the jurisdiction
in which the proceedings were held. Any
conviction . . . for which a person . . . has
had civil rights restored shall not be
considered a conviction for purposes of this
chapter, unless such . . . restoration of
civil rights expressly provides that the
person may not ship, transport, possess, or
receive firearms.
18 U.S.C. § 921(a)(20). Accordingly, if a person’s civil rights
have been restored, his felony conviction cannot serve as a
predicate conviction for a violation of § 922(g)(1) “unless such
. . . restoration of civil rights expressly provides that the
person may not ship, transport, possess, or receive firearms.”
9
Sittman was sentenced pursuant to 18 U.S.C. §
924(e)(1), which provides:
In the case of a person who violates section
922(g) of this title and has three previous
convictions by any courts referred to in
section 922(g)(1) of this title for a violent
felony or a serious drug offense, or both,
committed on occasions different from one
another, such person shall be fined under
this title and imprisoned not less than
fifteen years.
18 U.S.C. § 924(e)(1). For § 924(e) to apply, the person’s
conviction must be of the type specified in § 922(g)(1), which,
as stated above, refers to § 921(a)(20). Thus, § 924(e)
incorporates the definition of “crime punishable by imprisonment
for a term exceeding one year,” contained in § 921(a)(20), and
its exclusion of any conviction for which the person’s civil
rights have been restored.
Sittman argues that his Wisconsin burglary convictions
are not “convictions” within the meaning of § 921(a)(20) because,
upon completion of his state sentences in 1984, he received a
discharge certificate from the Wisconsin DOC restoring his civil
rights without any reservations or prohibitions limiting his
right to own or possess firearms. (Pet. at 3.) Sittman asserts
that, as a result, his conviction under § 922(g)(1) and sentence
enhancement under § 924(e)(1) should be vacated. (Id. at 5.)
Sittman has not provided the Court with a copy of the
alleged discharge certificate. Instead, Sittman relies on the
10
affidavit in Hill v. U.S., 118 F.Supp.2d 910, 915 (E.D. Wis.
2000), to establish that he received such a certificate. The Hill
court described the contents of that affidavit:
. . . Walter Dickey, Secretary of the
Wisconsin Department of Corrections between
1983 and 1987 and a participant in the
drafting of DOC’s administrative rules . . .
expresses personal knowledge “of the
practices, procedures, law and regulations
pertaining to the discharge of inmates from
the Wisconsin Department of Corrections.”
Dickey Aff. ¶ 3. He adds: “Based on the law
in effect at that time, and the policies of
Wisconsin Department of Corrections, . . . I
am of the opinion that Mr. Hill was issued a
discharge certificate in 1982, as all inmates
who finished parole were issued discharge
certificates as required by law.” Id. ¶ 5.
Dickey further states “[s]uch discharge
contained language to the effect that ‘Any
civil rights lost as [a] result of such
judgments of conviction are restored by
virtue of this discharge, under the
provisions of Section 57.078 of the Statutes
of the State of Wisconsin,’ ” id. ¶ 6, and
that “such discharge would not contain any
express reservation regarding the right to
own or possess a firearm.” Id. ¶ 7.
Hill, 118 F.Supp.2d at 915. In addition to the Dickey affidavit,
Sittman relies on the sample discharge certificates submitted by
the petitioner in Hill. Those certificates were issued to inmates
who completed their sentences at roughly the same time as the
Hill petitioner, “reflect[ed] the restoration of rights language
11
quoted in Dickey’s affidavit and contain[ed] no firearms
reservation.” Id.5/
In its Response, the Government argues that Sittman
“has already litigated the issue he is raising in his coram nobis
petition.” (Gov.’s Resp. at 13.) This Court has previously
explained that
[c]oram nobis relief “is not available to
litigate issues already litigated.” Klein v.
U.S., 880 F.2d 250, 254 n. 1 (10th Cir.
1989); see also U.S. v. Montalvo, 995 F.2d
234, 1993 WL 181381 (9th Cir. May 27, 1993)
(unpublished). Rather, “it is reserved for
claims which have yet to receive their first
disposition[.]” Id.
Martinez v. U.S., 90 F.Supp.2d 1072, 1075 (D. Haw. 2000) aff’d,
17 Fed. Appx. 517 (9th Cir. 2001); see also U.S. v. Riedl, Cr.
No. 98-00624 ACK, 2006 WL 1119162, at *3 (D. Haw. Apr. 24, 2006)
aff’d, 496 F.3d 1003 (9th Cir. 2007) (noting that courts have
5/
As noted, Sittman relies entirely on the evidence
submitted by the petitioner in Hill to establish that he received
a discharge certificate from the Wisconsin DOC restoring his
civil rights. However, Sittman does not discuss the Seventh
Circuit’s decision in U.S. v. Vitrano, 405 F.3d 506 (7th Cir.
2005). There, the petitioner was discharged from a Wisconsin
state prison in 1983 (a year before Sittman). Id. at 508. The
petitioner asserted that he received a discharge order restoring
his civil rights. Id. The petitioner did not produce a copy of
his discharge order, but rather relied upon the sample discharge
orders of other inmates. Id. In response, the government produced
five types of discharge orders, only one of which contained
language providing that “[a]ny civil rights lost as a result of
such judgments of conviction are restored by virtue of this
discharge.” Id. The Seventh Circuit ultimately ruled that the
petitioner could not “show by a preponderance of evidence that he
received a discharge certificate whose language might be read
reasonably to restore all of his civil rights[.]” Id. at 510.
12
denied coram nobis relief “where the petitioner appears to be
abusing the writ by attempting to re-litigate claims”) (quotation
marks omitted) (citing U.S. v. Kwan, 407 F.3d 1005, 1013 (9th
Cir. 2005), abrogated on other grounds by Padilla v. Kentucky,
559 U.S. 356 (2010)).
The Court agrees with the Government that Sittman is
attempting to re-litigate issues he has previously raised before
this Court and the Ninth Circuit.
As discussed, Sittman argued in his first § 2255 motion
that his Wisconsin burglary convictions could not be used to
enhance his sentence because his civil rights were restored
pursuant to § 921(a)(20) and that his counsel was ineffective for
failing to raise this defense. (Gov.’s Resp. Ex. 4 at 7.) After
extensive briefing by both parties, this Court held that
Sittman’s Wisconsin burglary convictions were properly used to
enhance his sentence under the ACCA and, therefore, his counsel
was not ineffective. (Id. Ex. 7 at 3-4 & 6) (citing Roehl v.
U.S., 977 F.2d 375, 377 (7th Cir. 1992) (ruling that Wis. Stat. §
57.078 does not wipe convictions from an individual’s record once
the person has satisfied his sentence); U.S. v. Ziegenhagen, 776
F.Supp. 441, 449 (W.D. Wis. 1991) (Wisconsin law deems defendant
to be a convicted person for the purpose of acquiring and
possessing a gun).) After this Court denied his motion for
reconsideration, Sittman filed an appeal with the Ninth Circuit.
13
(Id. Exs. 9 & 10.) The Ninth Circuit affirmed this Court’s
holding, and determined that Sittman’s civil rights were not
substantially restored under Wisconsin law and, consequently, he
did not receive ineffective assistance of counsel. (Id. Ex. 14.)
In the instant Petition, Sittman is raising essentially
the same issues previously ruled upon by this Court and the Ninth
Circuit: (1) whether his civil rights were restored within the
meaning of § 921(a)(20), and (2) whether his counsel was
ineffective for not raising this defense. As this Court has twice
held, coram nobis relief is not available to re-litigate issues.
See Martinez, 90 F.Supp.2d at 1075; and Riedl, 2006 WL 1119162,
at *3.
Sittman argues that his Petition raises issues not
previously considered: (1) whether his civil rights were restored
pursuant to a discharge certificate purportedly issued to him by
the Wisconsin DOC, and (2) whether his counsel was ineffective
for failing to research the Wisconsin DOC’s discharge policy as
to inmates who completed their sentences at the same time as
Sittman. The Court is not persuaded by Sittman’s argument.
In his post-conviction motions, Sittman asserted that
his civil rights were restored pursuant to Wis. Stat. § 57.078.
14
(See, e.g., Gov.’s Resp. Ex. 4 at 10.) That statute provided at
the time6/:
[e]very person who is convicted of crime
obtains a restoration of his civil rights by
serving out his term of imprisonment or
otherwise satisfying his sentence. The
certificate of the department or other
responsible supervising agency that a
convicted person has served his sentence or
otherwise satisfied the judgment against him
is evidence of that fact and that he is
restored to his civil rights[.]
Wis. Stat. § 57.078 (1979) (emphasis added). In effect, Sittman
raised the issue as to whether a Wisconsin discharge certificate
could restore his civil rights and provided a basis for
challenging the Government’s use of his burglary convictions as
predicate offenses under §§ 922(g)(1) and 924(e)(1). Indeed, in
Hill, the case upon which Sittman’s Petition relies extensively
upon, the Dickey affidavit indicated that the petitioner was
issued a discharge certificate pursuant to Wis. Stat. § 57.078:
. . . “Based on the law in effect at that
time, and the policies of Wisconsin
Department of Corrections, . . . I am of the
opinion that Mr. Hill was issued a discharge
certificate in 1982, as all inmates who
finished parole were issued discharge
certificates as required by law.” Id. ¶ 5. .
. . [S]uch discharge contained language to
the effect that ‘Any civil rights lost as [a]
result of such judgments of conviction are
restored by virtue of this discharge, under
the provisions of Section 57.078 of the
Statutes of the State of Wisconsin,’ ” id. ¶
6, and that “such discharge would not contain
6/
Wis. Stat. § 57.078 has since been repealed.
15
any express reservation regarding the right
to own or possess a firearm.” Id. ¶ 7.
Hill, 118 F.Supp.2d at 915 (emphasis added).
Moreover, even assuming Sittman is correct in his
assertion that the Petition raises issues not previously
considered, the Court nevertheless concludes that Sittman is
precluded from obtaining coram nobis relief because he has not
satisfied the second element of the four-part test set forth in
Riedl. That is, Sittman has failed to meet his burden of
establishing that valid reasons exist for not challenging his
conviction or sentence earlier on the grounds mentioned herein.
Sittman had numerous opportunities to raise his claims
that his discharge certificate restored his civil rights and that
his counsel was ineffective for failing to investigate the
Wisconsin DOC’s discharge policy. Specifically, Sittman could
have asserted these claims at trial, on direct appeal, or through
his various post-conviction motions, motions for reconsideration
and appeals thereof. As discussed below, Sittman has not provided
the Court with a valid reason for his delay in asserting these
claims.
Both the Ninth Circuit and this Court, consistent with
the extraordinary nature of coram nobis relief, have denied coram
nobis petitions where the petitioners could have presented their
claims to a federal forum and where the petitioners provided no
valid reasons for the delay. See Riedl, 496 F.3d at 1006
16
(affirming this Court’s denial of coram nobis petition because
none of petitioner’s proffered reasons for delay “explain[ed] why
she did not raise her void-for-vagueness or insufficient evidence
claims during trial, on direct appeal or through a 28 U.S.C. §
2255 motion”); Maghe v. U.S., 710 F.2d 503, 503-04 (9th Cir.
1983) (denying coram nobis petition as untimely where claim could
have been raised earlier and there were no sound reasons for
delay); and Martinez, 90 F.Supp.2d at 1075 (denying coram nobis
petition because “[p]etitoner clearly had ‘a fair opportunity’ to
present his federal claims to a federal forum” and supplied no
valid reason for delay) (quoting U.S. v. Johnson, 988 F.2d 941,
945 (9th Cir. 1993)); cf. Riedl, 2006 WL 1119162, at *4 (finding
that claims that could have been raised by direct appeal are
outside the scope of the writ) (citing federal circuit cases).
Sittman appears to argue that he was first made aware
that he received a discharge certificate from the Wisconsin DOC
and that this certificate was sufficient to restore his civil
rights within the meaning of § 921(a)(20) after Hill was issued
in 2000. (See Pet. at 6.)7/ According to Sittman, he was unable
7/
Sittman also appears to argue that he was diligent in
asserting the claims at issue in the instant Petition because he
filed the Petition within nine months after the completion of his
sentence in Cr. No. 91-00921 ACK. See Estate of McKinney, 71 F.3d
at 781 (holding that a petitioner may file a writ of error coram
nobis when he has served his sentence and is no longer in
custody). Even assuming that he was diligent in filing his
Petition, Sittman, as discussed in this Order, has not provided a
valid reason as to why he did not attack his conviction or
(continued...)
17
to file an additional collateral attack on his conviction or
sentence after Hill due to the AEDPA. (Id.)
The AEDPA allows a defendant to file a successive §
2255 motion only if that motion is “certified . . . by a panel of
the appropriate court of appeals to contain” either “(1) newly
discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense,” or “(2) a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.” 28
U.S.C. § 2255(h). As the Government points out, Sittman could
have sought certification from the Ninth Circuit to file an
additional § 2255 motion after the Hill decision was issued.
Instead, Sittman waited fourteen years to file the instant
Petition. The Ninth Circuit has made clear that a coram nobis
petition cannot be used to “circumvent procedural bars.” Kwan,
407 F.3d at 1013.
While this Court recognizes that the AEDPA contains a
one-year limitation period, the AEDPA permits the one year period
7
(...continued)
sentence enhancement prior to the filing of the Petition, on the
basis that he received a discharge certificate restoring his
civil rights. See, e.g., Riedl, 496 F.3d at 1006 (denying coram
nobis petition because petitioner failed to provide sound reasons
for not raising claims prior to her filing a writ of error coram
nobis).
18
to begin to run from the date upon which the factual predicate
for the petitioner’s claims “could have been discovered through
the exercise of due diligence.” See 28 U.S.C. § 2255(f)(4). Thus,
assuming he could prove that § 2255(f)(4) applied, Sittman could
have sought permission from the Ninth Circuit to file an
additional § 2255 motion attacking his conviction and sentence on
the grounds that he received a discharge certificate restoring
his civil rights, and submitted that motion within a year after
Hill was decided.
As a final matter, the Court notes that the Ninth
Circuit has “considered delay [in filing a coram nobis petition]
to be reasonable when the applicable law was recently changed and
made retroactive.” Riedl, 496 F.3d at 1007 (citing Walgren, 885
F.2d at 1421). Such a circumstance is not present in this case
because the relevant Ninth Circuit law has remained the same
throughout the vast majority period of this litigation. That is,
the Ninth Circuit, beginning with its 1995 decision in Herron and
continuing to its 2001 decisions in Laskie and Gallaher (which
have not been overruled), has consistently held that an
individual’s felony state conviction cannot constitute a
predicate offense under §§ 922(g)(1) and 924(e)(1) if that
individual received a discharge certificate restoring his civil
rights without any express prohibition on the possession of
firearms. See U.S. v. Herron, 45 F.3d 340, 341-43 (9th Cir. 1995)
(holding that appellant’s prior state conviction could not be
19
considered a predicate offense because he received a discharge
certificate from the State of Washington restoring his civil
rights and containing no limitation on appellant’s right to
possess firearms); U.S. v. Laskie, 258 F.3d 1047, 1050-53 (9th
Cir. 2001) (finding that appellant’s honorable discharge
releasing him “from all penalties and disabilities” resulting
from his felony conviction “set-aside” his prior conviction and,
consequently, this conviction could not serve as a predicate
offense under § 922(g)(1); and U.S. v. Gallaher, 275 F.3d 784,
789-93 (9th Cir. 2001) (concluding that appellant’s discharge
certificate restored his civil rights and contained no express
prohibition regarding the possession of firearms and thus his
felony convictions were not “convictions” for purposes of the
ACCA).
In sum, coram nobis relief is inappropriate in this
case because Sittman is attempting “to litigate issues already
litigated.” Martinez, 90 F.Supp.2d at 1075. Furthermore, even
assuming that the issues presented by the instant Petition have
not been previously litigated, Sittman fails to satisfy the
second requirement of coram nobis relief by demonstrating that
valid reasons exist for not having attacking his conviction or
sentence earlier on the grounds that he received a discharge
certificate from the Wisconsin DOC restoring his civil rights,
and that he received ineffective assistance of counsel because
his attorney did not investigate the Wisconsin DOC’s discharge
20
policy during the relevant time period.8/ All four requirements
must be met in order for Sittman to obtain coram nobis relief.
See Matus-Leva v. U.S., 287 F.3d at 760. Accordingly, the Court
denies Sittman’s Petition for a Writ of Error Coram Nobis.9/
CONCLUSION
For the foregoing reasons, the Court DENIES
Petitioner’s Writ of Error Coram Nobis.
IT IS SO ORDERED.
DATED:
Honolulu, Hawai#i, October 20, 2014.
________________________________
Alan C. Kay
Senior United States District Judge
Sittman v. U.S., Civ. No. 14-00349 ACK-RLP (Cr. No. 91-00921 ACK): ORDER
DENYING PETITIONER’S WRIT OF ERROR CORAM NOBIS
8/
Because Sittman has not met the second requirement to
qualify for coram nobis relief, the Court will not address
whether he has satisfied the remaining requirements. See MatusLeva, 287 F.3d at 760 (holding that all four elements must be
satisfied in order for petitioner to obtain coram nobis relief).
9/
Because Sittman cannot obtain coram nobis relief due to
his failure to satisfy the second element of Riedl’s four-part
test, the Court will not address whether the equitable doctrine
of laches bars Sittman from seeking coram nobis relief. See
Riedl, 496 F.3d at 1009 (“It is irrelevant that the government
has not established prejudice as to [petitioner’s] void-forvagueness claim because the doctrine of laches only becomes
applicable once a petitioner has satisfied the second coram nobis
requirement, which [petitioner] has not.”).
21
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