United States v. Abraham Hernandez-Zavala

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 2019
• Docket: 18-55267
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-55267

Plaintiff-Appellee, D.C. Nos. 3:12-cv-00228-DMS 3:11-cr-05082-DMS-3 v.

ABRAHAM HERNANDEZ-ZAVALA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Abraham Hernandez-Zavala appeals pro se from the district court’s

judgment denying his petition for a writ of error coram nobis. We have

jurisdiction under 28 U.S.C. § 1291 and, reviewing de novo, see Matus-Leva v.

United States, 287 F.3d 758, 760 (9th Cir. 2002), we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). “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. Chan, 792 F.3d 1151, 1153 (9th Cir.

2015). Hernandez-Zavala’s petition argued that his 2012 conviction for attempted

entry after deportation, in violation of 8 U.S.C. § 1326, should be vacated due to an

alleged error in the presentence report. However, the district court properly denied

the petition because Hernandez-Zavala is currently “in custody” in connection with

his 2012 conviction. See United States v. Monreal, 301 F.3d 1127, 1132 (9th Cir.

2002). “A person in custody may seek relief pursuant to 28 U.S.C. § 2255.”

Matus-Leva, 287 F.3d at 761. Therefore, Hernandez-Zavala cannot avail himself

of coram nobis relief because he cannot show that a more usual remedy is

unavailable to attack his conviction. See id.

In light of this disposition, we do not reach the parties’ remaining

arguments.

AFFIRMED.

2 18-55267