Menchaca v. The People of the State of Nebraska

Filing 9

MEMORANDUM AND ORDER - Menchaca's Petition for Writ of Error Coram Nobis (filing no. 1 ) is denied and dismissed without prejudice. Menchaca's Motion for Leave to Proceed In Forma Pauperis (filing no. 5 ) is denied as moot. The court will enter judgment by a separate document. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MANUEL MENCHACA,
Petitioner,

8:18CV193

vs.
THE PEOPLE OF THE STATE OF
NEBRASKA,

MEMORANDUM
AND ORDER

Respondent.
This matter is before the court on Petitioner Manuel Menchaca’s Petition for
Writ of Error Coram Nobis (filing no. 1), which the court construes as being
brought pursuant to 28 U.S.C. § 1651(a), and his Motion for Leave to Proceed In
Forma Pauperis (IFP) (filing no. 5). For the reasons set forth below, this case will
be dismissed for lack of jurisdiction.
I. BACKGROUND
Menchaca is incarcerated in the Federal Correctional Complex in Med
Forrest City, Arkansas. (Filing No. 5 at CM/ECF p.1.) He is serving a 151-month
federal prison sentence imposed by this court on October 18, 2012, in United
States v. Menchaca, Case No. 8:12-cr-00083-LSC-TDT-3. (Filing No. 1 at
CM/ECF p.3.)
In this case, Menchaca is attempting to challenge a Nebraska state court
criminal conviction that predates the federal conviction for which he is currently
incarcerated. Menchaca states that he pleaded guilty on June 20, 2003, to a charge
of Damage to Property in county court in Omaha, Nebraska. Menchaca claims the
conviction was obtained in violation of his rights to due process and effective
assistance of counsel. Menchaca further claims that this conviction was used to

enhance his prison sentence in his federal criminal case as it “contributed to
Petitioner’s status as a career offender under United States sentencing Guidelines
4B1.4.” (Id.)
Menchaca alleges that he has fully served the sentence he received for the
state criminal conviction. As such, Menchaca cannot challenge the conviction by
means of a habeas corpus petition brought pursuant to 28 U.S.C. § 2254 because he
is no longer in custody pursuant to the conviction. See Maleng v. Cook, 490 U.S.
488, 490 (1989) (per curiam) (“[t]he federal habeas statute gives the United States
district courts jurisdiction to entertain petitions for habeas relief only for persons
who are ‘in custody in violation of the Constitution or laws or treaties of the United
States’”), quoting 28 U.S.C. § 2254(a) (emphasis in original). Instead, he argues a
petition for a writ of coram nobis is the proper vehicle for seeking relief from his
conviction. (Filing No. 1 at CM/ECF pp.3–4.)
II. DISCUSSION
Menchaca cannot use a petition for a writ of error coram nobis in this case to
challenge his state criminal conviction. In United States v. Morgan, the Supreme
Court held a writ of coram nobis may be used to correct errors that occurred during
the course of a criminal proceeding, but only in the court of conviction as part of
the original criminal case. 346 U.S. 502, 505–11 (1954). See also Booker v. State
of Arkansas, 380 F.2d 240, 243 (8th Cir. 1967) (“[p]rocedurally, coram nobis is a
step in the original criminal proceeding itself”); Trackwell v. Nebraska, 126
Fed.Appx. 336 (8th Cir. 2005) (unpublished opinion) (“a defendant may seek
coram nobis relief only from the court that rendered judgment”). In other words,
“[b]ecause coram nobis relief must be sought in the court of conviction, such relief
is not available in federal court, for individuals who are challenging a conviction
entered in a state court.” Borrero v. United States, No. 08-315(DSD/FLN), 2008
WL 2357834, *2 (D. Minn. June 5, 2008) (collecting cases).

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For these reasons, the court finds Menchaca cannot challenge his state
criminal conviction by seeking a writ of coram nobis in this court. Coram nobis
relief is not available in federal court to challenge his state criminal conviction
because such relief may only be granted by the court in which Menchaca was
convicted. Moreover, to the extent Menchaca is using this action to challenge the
validity of his current federal prison sentence, his claims cannot be entertained in a
coram nobis proceeding, because 28 U.S.C. § 2255 provides the exclusive means
by which a federal prisoner can collaterally attack the validity of his sentence.
IT IS THEREFORE ORDERED that:
1.
Menchaca’s Petition for Writ of Error Coram Nobis (filing no. 1) is
denied and dismissed without prejudice.
2.
Menchaca’s Motion for Leave to Proceed In Forma Pauperis (filing
no. 5) is denied as moot.1
3.

The court will enter judgment by a separate document.

1

While the Prison Litigation Reform Act (“PLRA” or “Act”) provides that a prisoner who
“brings a civil action or files an appeal in forma pauperis . . . shall be required to pay the full
amount of a filing fee,” the Act does not define “civil action” for the purpose of the IFP statute.
28 U.S.C. § 1915(b)(1). The Tenth Circuit has specifically concluded that “a § 1651 [coram
nobis] petition is not a ‘civil action’ for purposes of § 1915(a)(2) and (b).” Adkins v. Callahan,
143 F. App'x 930, 930–31 (10th Cir. 2005). That conclusion finds support in the fact that a writ
of coram nobis is characterized as “a step in the original criminal proceeding itself.” Booker,
supra. Cf. Martin v. United States, 96 F.3d 853, 854-55 (7th Cir. 1996) (“A petition for
mandamus in a criminal proceeding is not a form of prisoner litigation. . . . It is a procedural step
in the criminal litigation, like an interlocutory or final appeal or a civil contempt proceeding
against a witness.”); Robinson v. State of Nebraska, Case No. 8:17-cv-00204-RGK-PRSE (D.
Neb.), Filing No. 20 (declining to apply PLRA to mandamus petition challenging the petitioner’s
underlying criminal proceedings). Accordingly, the court will not require the collection of any
filing fee pursuant to the PLRA.

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Dated this 15th day of June, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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