JOSE ANDRES OBANDO-SEGURA, ) Case No.: 1:20-cv-01561-SKO (HC) ) Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE TO CASE v. ) ) FINDINGS AND RECOMMENDATION TO ) DISMISS PETITION FOR LACK OF PEOPLE OF CALIFORNIA, et al., ) JURISDICTION ) Respondents. ) [TWENTY-ONE DAY OBJECTION DEADLINE] ) Petitioner was convicted of a drug offense in Kern County Superior Court in 2008. He served a sentence of 60 days in jail, and three years of probation. He was released from custody in August of 2012. He now petitions for a writ of error coram nobis. As discussed below, the Court finds the petition should be dismissed because Petitioner has failed to satisfy the requirements for the highly unusual remedy of coram nobis. In August of 2008, Petitioner was convicted by plea of no contest in the Kern County Superior Court of one count of transporting, importing into the state of California, selling, furnishing, administering, or giving away marijuana/concentrated cannabis, or offering or attempting to engage in one or more such acts, in violation of Health and Safety Code section 11360, subdivision (a). People v. Obando-Segura, 2016 WL 912769, at *2 (Cal. Ct. App. 2016). As part of his plea agreement, he agreed to a “two-year lid” on his sentence. Id. On August 19, 2008, imposition of the sentence was suspended, and he was sentenced to 60 days custody in Kern County Jail, followed by three years of probation. Id. He did not appeal. On December 19, 2013, Petitioner filed a “Non–Statutory Motion to Vacate or Set Aside the Judgment” in the Kern County Superior Court on the ground that his trial attorney rendered ineffective assistance of counsel. Id. at *3. The motion was denied. On October 21, 2014, Petitioner filed a Wende brief with the California Court of Appeal, Fifth Appellate District, identifying no arguable issues and asking the court to independently review the record. Id. On March 10, 2016, the judgment was affirmed. Id. Petitioner does not appear to have pursued relief in the California Supreme Court. Petitioner filed his petition for writ of error coram nobis in this Court on November 2, 2020. (Doc. 1). A. Preliminary Review of Petition Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an answer to the petition has been filed. B. Standard for Writ of Error Coram Nobis “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.” United States v. Riedl, 496 F.3d 1003, 1005–06 (9th Cir. 2007). The Supreme Court characterized the writ as an “extraordinary remedy” that should be granted “only under circumstances compelling such action to achieve justice.” United States v. Morgan, 346 U.S. 502, 511 (1954); see also Carlisle v. United States, 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.’”) (quoting United States v. Smith, 331 U.S. 469, 475 n. 4 (1947)) (second alteration in original). The writ has been available to bring before the court only those fundamental “factual errors material to the validity and regularity of the legality of the proceeding itself, such as the defendants being under age or having died before the verdict.” Carlisle, 517 U.S. at 429. The Ninth Circuit has also described the writ as “extraordinary,” Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1997), “used only to review errors of the most fundamental character,” Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002), and “fill[ing] a very precise gap in federal criminal procedure,” Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994). The Ninth Circuit adopted the following framework to determine when the writ should issue: [A] petitioner must show the following to qualify for coram nobis relief: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.
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JOSE ANDRES OBANDO-SEGURA, ) Case No.: 1:20-cv-01561-SKO (HC) ) Petitioner, ) ORDER DIRECTING CLERK OF COURT TO ) ASSIGN DISTRICT JUDGE TO CASE v. ) ) FINDINGS AND RECOMMENDATION TO ) DISMISS PETITION FOR LACK OF PEOPLE OF CALIFORNIA, et al., ) JURISDICTION ) Respondents. ) [TWENTY-ONE DAY OBJECTION DEADLINE] ) Petitioner was convicted of a drug offense in Kern County Superior Court in 2008. He served a sentence of 60 days in jail, and three years of probation. He was released from custody in August of 2012. He now petitions for a writ of error coram nobis. As discussed below, the Court finds the petition should be dismissed because Petitioner has failed to satisfy the requirements for the highly unusual remedy of coram nobis. In August of 2008, Petitioner was convicted by plea of no contest in the Kern County Superior Court of one count of transporting, importing into the state of California, selling, furnishing, administering, or giving away marijuana/concentrated cannabis, or offering or attempting to engage in one or more such acts, in violation of Health and Safety Code section 11360, subdivision (a). People v. Obando-Segura, 2016 WL 912769, at *2 (Cal. Ct. App. 2016). As part of his plea agreement, he agreed to a “two-year lid” on his sentence. Id. On August 19, 2008, imposition of the sentence was suspended, and he was sentenced to 60 days custody in Kern County Jail, followed by three years of probation. Id. He did not appeal. On December 19, 2013, Petitioner filed a “Non–Statutory Motion to Vacate or Set Aside the Judgment” in the Kern County Superior Court on the ground that his trial attorney rendered ineffective assistance of counsel. Id. at *3. The motion was denied. On October 21, 2014, Petitioner filed a Wende brief with the California Court of Appeal, Fifth Appellate District, identifying no arguable issues and asking the court to independently review the record. Id. On March 10, 2016, the judgment was affirmed. Id. Petitioner does not appear to have pursued relief in the California Supreme Court. Petitioner filed his petition for writ of error coram nobis in this Court on November 2, 2020. (Doc. 1). A. Preliminary Review of Petition Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an answer to the petition has been filed. B. Standard for Writ of Error Coram Nobis “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.” United States v. Riedl, 496 F.3d 1003, 1005–06 (9th Cir. 2007). The Supreme Court characterized the writ as an “extraordinary remedy” that should be granted “only under circumstances compelling such action to achieve justice.” United States v. Morgan, 346 U.S. 502, 511 (1954); see also Carlisle v. United States, 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.’”) (quoting United States v. Smith, 331 U.S. 469, 475 n. 4 (1947)) (second alteration in original). The writ has been available to bring before the court only those fundamental “factual errors material to the validity and regularity of the legality of the proceeding itself, such as the defendants being under age or having died before the verdict.” Carlisle, 517 U.S. at 429. The Ninth Circuit has also described the writ as “extraordinary,” Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1997), “used only to review errors of the most fundamental character,” Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002), and “fill[ing] a very precise gap in federal criminal procedure,” Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994). The Ninth Circuit adopted the following framework to determine when the writ should issue: [A] petitioner must show the following to qualify for coram nobis relief: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.
Hirabayashi, 828 F.2d at 604. C. Analysis Petitioner has failed to satisfy the requirements for such an extraordinary remedy. The more usual remedy in this case would be a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. While § 2254 relief is no longer available as Petitioner is no longer in custody, he was in custody during the three years of probation following conviction. In addition, relief was denied in the state courts in 2016 when the Fifth DCA affirmed the Kern County Superior Court’s denial of relief. He fails to state why he didn’t or could not have filed a § 2254 petition at that point. Moreover, it appears that Petitioner has failed to exhaust his state remedies by seeking relief in the California Supreme Court. Petitioner thus fails to satisfy the second requirement set forth above, as he provides no valid reason for not attacking the conviction earlier. Furthermore, Petitioner fails to show that the error is of “the most fundamental character.” Hirabayashi, 828 F.2d at 604. He presents a claim of ineffective assistance of counsel which he presented to the state courts, and he alleges the state court rejection of the claim was unreasonable. This is a garden-variety habeas claim, not an “error[] of the most fundamental character.” Matus- Leva, 287 F.3d at 760. Consequently, the Court finds that the extraordinary writ of error coram nobis should not be available in this case. The Clerk of Court is hereby DIRECTED to assign a District Judge to this case. Accordingly, the Court HEREBY RECOMMENDS that the Petition for Writ of Error Coram Nobis be SUMMARILY DISMISSED. This Findings and Recommendation is submitted to the United States District Court Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within twenty-one days after being served with a copy, Petitioner may file written objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Sheila K. Oberto Dated: November 10, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE