Avila v. United States

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 4, 1998
• Docket: 98-1148
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 4 1998 TENTH CIRCUIT PATRICK FISHER Clerk

NICK AVILA, JR.,

Petitioner-Appellant,

v. No. 98-1148 (D.C. No. 97-M-2648) UNITED STATES OF AMERICA, (D.Colo.)

Respondent-Appellee.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.

Petitioner Nick Avila, Jr., appeals the district court’s denial of his petition

for writ of error coram nobis. We affirm.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. In September 1987, Avila, a Denver attorney, was indicted by federal grand

jury on four drug-related counts. He was subsequently convicted of all four

counts and was sentenced to four concurrent ten-year terms of imprisonment and

was fined a total of $10,000. His convictions were affirmed on direct appeal to

this court. United States v. Avila , No. 88-1427 (10th Cir. 1989). In July 1989,

the Colorado Supreme Court disbarred Avila as a result of his convictions.

People v. Avila , 778 P.2d 657 (Colo. 1989).

Avila completed his period of imprisonment and, on December 18, 1997,

filed a petition for writ of error coram nobis, asking the district court to set aside

his federal convictions because “he was denied his constitutional right to an

objective prosecutor at all stages of his trial proceedings.” In support of his

petition, Avila alleged the prosecuting attorney in his case “made written and oral

accusations that [Avila] attempted to murder him and otherwise intimidate his

prosecution of [Avila] just prior to the commencement of the jury trial.”

According to Avila, these accusations were based on the discovery, shortly before

trial, of an explosive device affixed to the prosecutor’s car, and on the fact that

the prosecutor’s apartment complex was fire-bombed on the morning Avila’s trial

commenced. Avila further alleged the writ was an appropriate remedy because,

despite having served his period of imprisonment, he continued to suffer criminal

and civil penalties resulting from the convictions. In particular, he alleged he still

-2- owed a substantial portion of the criminal fine levied against him, and he was

unable to regain his license to practice law because of his convictions. The

district court denied Avila’s petition, concluding even if Avila’s allegations were

true, he had failed to demonstrate his trial was affected in any way by the

prosecutor’s personal interests or motives.

The writ of coram nobis is an “extraordinary remedy” available to a

petitioner no longer in custody who seeks to vacate his conviction in

circumstances where the petitioner can demonstrate that he is suffering civil

disabilities as a consequence of the criminal convictions and that the challenged

error is of sufficient magnitude to justify the extraordinary relief. United States

v. Castro , 26 F.3d 557, 559 (5th Cir. 1994). “Because the writ continues

litigation after final judgment and exhaustion of other remedies, relief should be

‘allowed through this extraordinary remedy only under circumstances compelling

such action to achieve justice.’” Klein v. United States , 880 F.2d 250, 253 (10th

Cir. 1989) (quoting United States v. Morgan , 346 U.S. 502, 511 (1954)). Thus,

“[i]t is presumed that the proceedings leading to the conviction were correct . . .

and the burden is on the petitioner to demonstrate that the asserted error is

jurisdictional or constitutional and results in a complete miscarriage of justice.”

Id.

Avila contends he need not demonstrate actual prejudice flowing from the

-3- prosecutor’s alleged bias against him. Instead, he argues, the mere existence of

the prosecutor’s bias is sufficient to raise due process concerns and should have

required the prosecutor to recuse himself from further participation in the trial.

Avila cites Young v. United States ex rel. Vuitton et Fils S.A. , 481 U.S. 787, 789

(1987), which held counsel for a party that is the beneficiary of a court order may

not be appointed as special prosecutor in a contempt action alleging violation of

that order. We find Young inapposite as it involved a court’s authority to initiate

criminal contempt proceedings and to appoint a private prosecutor. Nothing in

this case is remotely similar. Avila was prosecuted for drug-related crimes, not

criminal contempt. The prosecutor was an Assistant United States Attorney, not a

special prosecutor. The prosecutor’s alleged bias stems from his being the target

of two apparent crimes, not from his representation of another person or entity.

More on point is United States v. Lorenzo , 995 F.2d 1448 (9th Cir. 1993),

where defendants were convicted for involvement in sending IRS 1099-MISC

forms to government officials, including a United States Attorney and several

assistants, and seeking tax refunds. Defendants argued on appeal that, because

the United States Attorney and several assistants were “victims” of the crime, the

office of the United States Attorney should have recused itself from prosecuting

the case. The Ninth Circuit rejected this argument, holding defendants had not

demonstrated prejudice. Id. at 1453. Other circuits agree that a criminal

-4- defendant complaining of an appearance of conflict on the part of a prosecutor

must demonstrate actual prejudice, particularly where the defendant’s challenge is

not asserted until after conviction. See , e.g. , United States v. Lilly , 983 F.2d 300,

309-10 (1st Cir. 1992); Dick v. Scroggy , 882 F.2d 192, 197 (6th Cir. 1989);

Wright v. United States , 732 F.2d 1048, 1056 n.8 (2d Cir. 1984); United States v.

Heldt , 668 F.2d 1238, 1276-77 (D.C. Cir. 1981).

Because Avila has not even attempted to demonstrate actual prejudice

flowing from the prosecutor’s alleged bias, we agree with the district court that

Avila has failed to overcome the presumption that the proceedings leading to his

convictions were correct.

AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge

-5-