Roberts v. State of Washington

• Court: District Court, W.D. Washington
• Decided: August 26, 2024
• Docket: 3:24-cv-05507
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 CHARLES HENRY ROBERTS, Case No. 3:24-cv-05507-JLR-TLF 7 Petitioner, v. REPORT AND 8 RECOMMENDATION STATE OF WASHINGTON, 9 Noted for September 10, 2024 Respondent. 10

11 Petitioner Charles Henry Roberts has filed a petition for writ of error coram nobis 12 under the “All Writs Act,” 28 U.S.C. 1651(a) to challenge two 2015 convictions in 13 Washington state court for felony harassment. Dkt. 1. Petitioner avers that “[b]ecause 14 he is no longer in custody or under restraint for these convictions, even though he 15 continues to suffer collateral consequences, 28 U.S.C. § 2254 is no longer available to 16 him.” Id. at 1. Petitioner alleges his felony harassment convictions in state court violate 17 the First Amendment. Id. 18 Petitioner has moved for leave to proceed in forma pauperis (IFP) and has also 19 moved to stay and abey his petition while he exhausts his remedies in state court – he 20 indicates he has filed a personal restraint petition raising the same issues he raises in 21 the instant petition. Dkts. 3, 5. Respondent opposes the motion to stay and abey the 22 petition arguing that a stay is inappropriate as the Court lacks jurisdiction over a petition 23 for writ of error coram nobis. Dkt. 8. 24 // 1 DISCUSSION 2 A writ of coram nobis “is appropriately heard by the district court in which the 3 conviction was obtained.” Korematsu v. U.S., 584 F. Supp. 1406, 1412 (N.D. Cal. 1984) 4 (citing United States v. Morgan, 346 U.S. 502, 512 (1954)). “It is well settled that the writ

5 of error coram nobis is not available in federal court to attack state criminal judgments… 6 . A writ of error coram nobis can only issue to aid the jurisdiction of the court in which 7 the conviction was had.” Sinclair v. Louisiana, 679 F.2d 513, 514 (5th Cir. 1982) (per 8 curiam); Madigan v. Wells, 224 F.2d 577, 578, n. 2 (9th Cir. 1955) (“the writ [of coram 9 nobis] can issue, if at all, only in aid of the jurisdiction of the [ ] court in which the 10 conviction was had.” (citing 28 U.S.C § 1651(a)), cert. denied, 351 U.S. 911 (1956); 11 Hensley v. Municipal Court, 453 F.2d 1252, n. 2 (9th Cir. 1972) (“We are unable to treat 12 this petition as one seeking coram nobis relief because [the petitioner] seeks to 13 challenge a state court proceeding in federal court. Coram nobis lies only to challenge 14 errors occurring in the same court.”), reversed on other grounds, 411 U.S. 345 (1973);

15 see Finkelstein v. Spitzer, 455 F.3d 131, 133-34 (2d Cir. 2006) (collecting cases and 16 affirming denial of petition for coram nobis relief on ground of lack of subject matter 17 jurisdiction); Vasquez v. United States of America, 16-cv-5341-RBL, Dkts. 8, 10 18 (denying petition for writ of coram nobis seeking to challenge state court conviction due 19 to lack of subject jurisdiction). 20 Petitioner argues that the Court should grant the motion to stay and abey the 21 petition because the respondent’s argument that the Court lacks jurisdiction cites to 22 non-binding authority and “a writ of coram nobis to vacate a state conviction is not 23 plainly foreclosed in the Ninth Circuit.” Dkt. 9 at 1-3. However, the Ninth Circuit has

24 1 indicated that a writ of error coram nobis “can issue, if at all, only in aid of the jurisdiction 2 of the [ ] court in which the conviction was had.” See Madigan, 224 F.2d at 578, n. 2. 3 And, even assuming arguendo that this issue has not been sufficiently squarely 4 addressed by the Ninth Circuit or United States Supreme Court, to qualify as binding

5 authority, there is, at a minimum, substantial and significant persuasive authority, 6 including from the Ninth Circuit, supporting the conclusion that the writ of error coram 7 nobis is not available in federal court to attack a state court conviction. 8 Accordingly, the Court should DENY and DISMISS the petition for writ of error 9 coram nobis for lack of subject matter jurisdiction. See Franklin v. State of Or., State 10 Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981) (“A judge … may dismiss an action 11 sua sponte for lack of jurisdiction.”); Fed. R. Civ. P. 12(h)(3) (“If the court determines at 12 any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). 13 The motion to proceed IFP (Dkt. 5) and motion to stay and abey (Dkt. 3) should be 14 DENIED as moot.

15 CONCLUSION 16 Based on the foregoing discussion, the undersigned recommends that the Court 17 DENY and DISMISS the petition for writ of error coram nobis (Dkt. 1) for lack of subject 18 matter jurisdiction. The motion to proceed IFP (Dkt. 5) and motion to stay and abey 19 (Dkt. 3) should be DENIED as moot. A proposed order and proposed judgment are 20 attached. 21 Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall 22 have fourteen (14) days from service of this report to file written objections. See also 23 Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for

24 1 purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can 2 result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 3 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations 4 omitted). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the Clerk is

5 directed to set the matter for consideration on September 10, 2024, as noted in the 6 caption. 7 8 Dated this 26th day of August, 2024. 9 10 11 A

Theresa L. Fricke 12 United States Magistrate Judge

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