2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 12 Case No. 2:21-cv-07708-ODW-PD DAVID SCONCE, 13 ORDER DISMISSING ACTION Petitioner, WITHOUT PREJUDICE AND 14 DENYING CERTIFICATE OF v. APPEALABILITY 15 16 PATRICK COVELLO, Warden, 17 Respondent. 18 I. Introduction 19 On September 20, 2021, Petitioner David Sconce, a California state 20 prisoner, filed a “Petition for Writ of Error Coram Nobis, Pursuant to the All 21 Writs Acts, 28 U.S.C. § 1651(a).” [Dkt. No. 1.] Petitioner pled guilty to 22 conspiracy to commit murder in April 1997 and was sentenced to lifetime 23 probation. Invoking 28 U.S.C. § 1651(a), Petitioner alleges that: (1) the state 24 proceedings misinterpreted a March 1997 grant of writ of federal habeas 25 corpus pursuant to the Ninth Circuit’s decision in Sconce v. Garcetti, 96 F.3d 26 1451, 1996 WL 495109 (9th Cir. 1996); and (2) his counsel committed 27 28 1 ineffective assistance of counsel during the proceedings. 2 For the reasons stated below, the Petition should be summarily dismissed. 3 II. Pertinent Procedural History 4 The instant Petition is Petitioner’s fifth attempt to challenge his 1997 5 plea to conspiracy to commit murder and lifetime probation sentence, which 6 he was found to have violated and thereafter sentenced to 25 years to life in 7 2013. 8 His first habeas petition challenging the plea proceedings was denied 9 and dismissed with prejudice in February 2018 after the Court reached the 10 merits. Sconce v. California, No. 2:14-cv-2447-ODW-JC (C.D. Cal.), Dkt. No. 11 78, report and recommendation adopted, 2018 U.S. Dist. LEXIS 56070. 12 Petitioner voluntarily dismissed his second habeas petition in February 13 2021, after the Magistrate Judge issued a Report and Recommendation for 14 dismissal without prejudice on the ground that it was second or successive. 15 Sconce v. Covello, No. 2:20-cv-01846-ODW-PD (C.D. Cal.), Dkt. Nos. 22, 27, 28, 16 29. 17 Petitioner’s third habeas petition was dismissed without prejudice as 18 second or successive in August 2021. Sconce v. Covello, No. 2:21-cv-04872- 19 ODW-PD (C.D. Cal.), Dkt. No. 6. The Clerk of the Court referred the Petition 20 to the Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a). On September 21 20, 2021, the Ninth Circuit issued an order denying Petitioner’s application 22 for authorization to file a second or successive § 2254 habeas corpus petition. 23 Sconce v. Covello, No. 21-71252, Dkt. No. 5. 24 25 1 The procedural history of Petitioner’s state criminal cases and federal 26 petitions for a writ of habeas corpus is detailed in a 2018 Report and Recommendation that was adopted by this Court in dismissing a petition for a writ 27 of habeas corpus. Sconce v. California, No. 2:14-cv-2447-ODW-JC, Dkt. No. 78 at 3- 28 20, 2018 U.S. Dist. LEXIS 56057, at *2-*25. 1 His fourth habeas petition was dismissed as second or successive on 2 September 17, 2021. Sconce v. Covello, No. 2:21-cv-07067-ODW-PD (C.D. Cal.), Dkt. No. 3. 3 III. Summary Dismissal is Warranted 4 Petitioner now alleges that a writ of error coram nobis is an appropriate 5 vehicle to challenge the 1997 state court proceedings because they occurred 6 following federal habeas relief which ordered specific performance of a prior 7 plea agreement in Petitioner’s criminal case. 8 “[T]he writ of error coram nobis is a highly unusual remedy, available 9 only to correct grave injustices in a narrow range of cases where no more 10 conventional remedy is applicable.” United States v. Riedl, 496 F.3d 1003, 11 1005 (9th Cir. 2007). Such relief may be sought only from the court whose 12 ruling is being challenged. See United States v. Monreal, 301 F.3d 1127, 1131 13 (9th Cir. 2002) (“A writ of error coram nobis attacking [a] conviction may only 14 be brought in the sentencing court.”). Thus, “[c]oram nobis relief is not 15 available in federal court to attack a state court conviction.” Casas-Castrillon 16 v. Warden, 265 F. App'x 639, 640 (9th Cir. 2008); accord Finkelstein v. Spitzer, 17 455 F.3d 131, 134 (2d Cir. 2006), cert. denied, 549 U.S. 1169 (2007) (“[D]istrict 18 courts lack jurisdiction to issue writs of coram nobis to set aside judgments of 19 state courts.”); Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir. 2003) (same); 20 Sinclair v. Louisiana, 679 F.2d 513, 514 (5th Cir. 1982) (“It is well settled that 21 the writ of error coram nobis is not available in federal court to attack state 22 criminal judgments.”); Hensley v. Municipal Court, 453 F.2d 1252, 1252 n.2 23 (9th Cir. 1972) (“We are unable to treat this petition as one seeking coram 24 nobis relief because [the petitioner] seeks to challenge a state court proceeding 25 in federal court. Coram nobis lies only to challenge errors occurring in the 26 same court.”), rev’d on other grounds, 411 U.S. 345 (1973); Rafus v. United 27 States, 2014 WL 3954871, at *2 (C.D. Cal. Aug. 2014) (same). 28 1 To obtain coram nobis relief, a petitioner must show that: “(1) a more 2 usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction 3 sufficient to satisfy the case or controversy requirement of Article III; and (4) 4 the error is of a fundamental character.” Matus-Leva v. United States, 287 5 F.3d 758, 760 (9th Cir. 2002) (in the § 2255 context) (citing Hirabayashi v. 6 United States, 828 F.2d 591, 604 (9th Cir. 1987)). Thus, where “the more 7 usual remedy of a habeas petition is available, the writ of error coram nobis is 8 not.” Id. at 761. 9 The current Petition challenges the 1997 California state court 10 proceedings in which Petitioner pled guilty to conspiracy to commit murder 11 and received a lifetime probation sentence. Accordingly, federal coram nobis 12 relief is unavailable because the error is alleged to have been made not in this 13 court, but in the state court. Additionally, petitioner is in custody after 14 violating probation. He cannot meet the first requirement as the more usual 15 remedy of a habeas petition is available to him even if it would be second or 16 successive. See Matus-Leva, 287 F.3d at 761 (“A petitioner may not resort to 17 coram nobis merely because he has failed to meet the AEDPA's gatekeeping 18 requirements. To hold otherwise would circumvent the AEDPA's overall 19 purpose of expediting the presentation of claims in federal court and enable 20 prisoners to bypass the limitations and successive petitions provisions.”) 21 Properly construed as a habeas petition challenging the state court 22 proceedings, the instant Petition is again second or successive and subject to 23 summary dismissal.
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2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 12 Case No. 2:21-cv-07708-ODW-PD DAVID SCONCE, 13 ORDER DISMISSING ACTION Petitioner, WITHOUT PREJUDICE AND 14 DENYING CERTIFICATE OF v. APPEALABILITY 15 16 PATRICK COVELLO, Warden, 17 Respondent. 18 I. Introduction 19 On September 20, 2021, Petitioner David Sconce, a California state 20 prisoner, filed a “Petition for Writ of Error Coram Nobis, Pursuant to the All 21 Writs Acts, 28 U.S.C. § 1651(a).” [Dkt. No. 1.] Petitioner pled guilty to 22 conspiracy to commit murder in April 1997 and was sentenced to lifetime 23 probation. Invoking 28 U.S.C. § 1651(a), Petitioner alleges that: (1) the state 24 proceedings misinterpreted a March 1997 grant of writ of federal habeas 25 corpus pursuant to the Ninth Circuit’s decision in Sconce v. Garcetti, 96 F.3d 26 1451, 1996 WL 495109 (9th Cir. 1996); and (2) his counsel committed 27 28 1 ineffective assistance of counsel during the proceedings. 2 For the reasons stated below, the Petition should be summarily dismissed. 3 II. Pertinent Procedural History 4 The instant Petition is Petitioner’s fifth attempt to challenge his 1997 5 plea to conspiracy to commit murder and lifetime probation sentence, which 6 he was found to have violated and thereafter sentenced to 25 years to life in 7 2013. 8 His first habeas petition challenging the plea proceedings was denied 9 and dismissed with prejudice in February 2018 after the Court reached the 10 merits. Sconce v. California, No. 2:14-cv-2447-ODW-JC (C.D. Cal.), Dkt. No. 11 78, report and recommendation adopted, 2018 U.S. Dist. LEXIS 56070. 12 Petitioner voluntarily dismissed his second habeas petition in February 13 2021, after the Magistrate Judge issued a Report and Recommendation for 14 dismissal without prejudice on the ground that it was second or successive. 15 Sconce v. Covello, No. 2:20-cv-01846-ODW-PD (C.D. Cal.), Dkt. Nos. 22, 27, 28, 16 29. 17 Petitioner’s third habeas petition was dismissed without prejudice as 18 second or successive in August 2021. Sconce v. Covello, No. 2:21-cv-04872- 19 ODW-PD (C.D. Cal.), Dkt. No. 6. The Clerk of the Court referred the Petition 20 to the Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a). On September 21 20, 2021, the Ninth Circuit issued an order denying Petitioner’s application 22 for authorization to file a second or successive § 2254 habeas corpus petition. 23 Sconce v. Covello, No. 21-71252, Dkt. No. 5. 24 25 1 The procedural history of Petitioner’s state criminal cases and federal 26 petitions for a writ of habeas corpus is detailed in a 2018 Report and Recommendation that was adopted by this Court in dismissing a petition for a writ 27 of habeas corpus. Sconce v. California, No. 2:14-cv-2447-ODW-JC, Dkt. No. 78 at 3- 28 20, 2018 U.S. Dist. LEXIS 56057, at *2-*25. 1 His fourth habeas petition was dismissed as second or successive on 2 September 17, 2021. Sconce v. Covello, No. 2:21-cv-07067-ODW-PD (C.D. Cal.), Dkt. No. 3. 3 III. Summary Dismissal is Warranted 4 Petitioner now alleges that a writ of error coram nobis is an appropriate 5 vehicle to challenge the 1997 state court proceedings because they occurred 6 following federal habeas relief which ordered specific performance of a prior 7 plea agreement in Petitioner’s criminal case. 8 “[T]he writ of error coram nobis is a highly unusual remedy, available 9 only to correct grave injustices in a narrow range of cases where no more 10 conventional remedy is applicable.” United States v. Riedl, 496 F.3d 1003, 11 1005 (9th Cir. 2007). Such relief may be sought only from the court whose 12 ruling is being challenged. See United States v. Monreal, 301 F.3d 1127, 1131 13 (9th Cir. 2002) (“A writ of error coram nobis attacking [a] conviction may only 14 be brought in the sentencing court.”). Thus, “[c]oram nobis relief is not 15 available in federal court to attack a state court conviction.” Casas-Castrillon 16 v. Warden, 265 F. App'x 639, 640 (9th Cir. 2008); accord Finkelstein v. Spitzer, 17 455 F.3d 131, 134 (2d Cir. 2006), cert. denied, 549 U.S. 1169 (2007) (“[D]istrict 18 courts lack jurisdiction to issue writs of coram nobis to set aside judgments of 19 state courts.”); Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir. 2003) (same); 20 Sinclair v. Louisiana, 679 F.2d 513, 514 (5th Cir. 1982) (“It is well settled that 21 the writ of error coram nobis is not available in federal court to attack state 22 criminal judgments.”); Hensley v. Municipal Court, 453 F.2d 1252, 1252 n.2 23 (9th Cir. 1972) (“We are unable to treat this petition as one seeking coram 24 nobis relief because [the petitioner] seeks to challenge a state court proceeding 25 in federal court. Coram nobis lies only to challenge errors occurring in the 26 same court.”), rev’d on other grounds, 411 U.S. 345 (1973); Rafus v. United 27 States, 2014 WL 3954871, at *2 (C.D. Cal. Aug. 2014) (same). 28 1 To obtain coram nobis relief, a petitioner must show that: “(1) a more 2 usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction 3 sufficient to satisfy the case or controversy requirement of Article III; and (4) 4 the error is of a fundamental character.” Matus-Leva v. United States, 287 5 F.3d 758, 760 (9th Cir. 2002) (in the § 2255 context) (citing Hirabayashi v. 6 United States, 828 F.2d 591, 604 (9th Cir. 1987)). Thus, where “the more 7 usual remedy of a habeas petition is available, the writ of error coram nobis is 8 not.” Id. at 761. 9 The current Petition challenges the 1997 California state court 10 proceedings in which Petitioner pled guilty to conspiracy to commit murder 11 and received a lifetime probation sentence. Accordingly, federal coram nobis 12 relief is unavailable because the error is alleged to have been made not in this 13 court, but in the state court. Additionally, petitioner is in custody after 14 violating probation. He cannot meet the first requirement as the more usual 15 remedy of a habeas petition is available to him even if it would be second or 16 successive. See Matus-Leva, 287 F.3d at 761 (“A petitioner may not resort to 17 coram nobis merely because he has failed to meet the AEDPA's gatekeeping 18 requirements. To hold otherwise would circumvent the AEDPA's overall 19 purpose of expediting the presentation of claims in federal court and enable 20 prisoners to bypass the limitations and successive petitions provisions.”) 21 Properly construed as a habeas petition challenging the state court 22 proceedings, the instant Petition is again second or successive and subject to 23 summary dismissal. See Rule 4, Rules Governing Section 2254 Cases (district 24 court must summarily dismiss Section 2254 petitions “[i]f it plainly appears 25 from the petition and any attached exhibits that the petitioner is not entitled 26 to relief in the district court”). Absent an order from the Ninth Circuit, 27 Petitioner may not bring another habeas corpus petition in this Court 28 1 challenging the 1997 conviction and sentence. See 28 U.S.C. § 2244(b)(3)(A); 2 Burton v. Stewart, 549 U.S. 147, 157 (2007) (holding district court lacks jurisdiction to consider the merits of a second or successive petition absent 3 prior authorization from the circuit court). 4 Petitioner incorrectly asserts that the Antiterrorism and Effective 5 Death Penalty Act of 1996 (“AEDPA”) does not apply because he first sought 6 habeas relief prior to the statute’s enactment and the 1997 plea. Any 7 petitions filed before the 1997 proceedings are immaterial, because it is that 8 judgment which Petitioner now challenges. Consequently, the Petition is 9 governed by the AEDPA because it was filed after the statute became effective 10 on April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Lambert v. 11 Blodgett, 393 F.3d 943, 965 (9th Cir. 2004). Moreover, even had the judgment 12 occurred pre-AEDPA and Petitioner filed a petition challenging it then, the 13 AEDPA’s second or successive standard would nonetheless apply to any post- 14 effective date filings. Prince v. Lizarraga, 733 F. App’x 382, 384 (9th Cir. 15 2018) (“[A]pplying AEDPA to second-in-time habeas petitions, where the 16 initial habeas petition was filed pre-AEDPA, does not constitute retroactive 17 application of AEDPA, let alone impermissible retroactive application. This is 18 because AEDPA's enactment does not ‘impair’ a petitioner's right to file a 19 second-in-time habeas petition, regardless of when he filed his initial 20 petition.”). Therefore, the Petition is dismissed without prejudice to Petitioner 21 seeking authorization from the Court of Appeals. 22 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 23 Cases in the United States District Courts, the Court has considered whether 24 a certificate of appealability is warranted in this case. See 28 U.S.C. 25 § 2253(c)(2) (“A certificate of appealability may issue . . . only if . . . [there is] a 26 substantial showing of the denial of a constitutional right”); Fed. R. App. P. 27 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 28 1 | U.S. 478, 484 (2000) (A “substantial showing . . . includes showing that g | reasonable jurists could debate whether (or, for that matter, agree that) the 3 petition should have been resolved in a different manner or that the issues 4 presented were ‘adequate to deserve encouragement to proceed further.”’) 5 (citation omitted). In this matter, Petitioner has not made a substantial 6 showing of the denial of a constitutional right. Accordingly, the Court 7 concludes that a certificate of appealability is unwarranted, and a certificate 3 of appealability is denied. 9 10 IT IS SO ORDERED. NN Dated: October 7, 2021 alageeA- 13 HON.OTISD. WRIGHTH 14 UNITED STATES DISTRICT JUDGE 15 1g | Presented by: 1) PO leuceay Lena hoe '8 | PATRICIA DONAHUE 19 | UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28