United States v. David Nichols

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10469

Plaintiff-Appellee, D.C. No. 2:89-cr-00258-WBS-AC-9

v. MEMORANDUM* DAVID ALLEN NICHOLS,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Submitted December 2, 2020**

Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.

David Allen Nichols appeals pro se from the district court’s order denying

his petition for a writ of error coram nobis. We have jurisdiction under 28 U.S.C.

§ 1291. 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). Nichols contends that he is entitled to coram nobis relief because he was not

on federal land at the time of his arrest nor involved in interstate commerce, and

the statutes governing his conviction are unconstitutional. The district court

properly denied Nichols’s petition. Because Nichols is currently serving a five-

year term of supervised release, he is still in custody and coram nobis relief is

unavailable. See id. at 761. Moreover, as the district court concluded, Nichols

cannot show an error of the most fundamental character. See id. at 760 (stating

requirements for coram nobis relief); see also 18 U.S.C. § 3231 (vesting district

courts with jurisdiction to prosecute federal crimes); United States v. Kim, 94 F.3d

1247, 1250 (9th Cir. 1996) (“Congress has the authority under the Commerce

Clause to criminalize intrastate drug activity.”).

Nichols also has not shown that he meets the requirements to file a second or

successive 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2255(h). Accordingly, we

deny Nichols’s alternative request that we remand this action to the district court to

proceed as a motion arising under § 2255.

Nichols’s motion, which he styles as a motion for summary judgment, is

denied.

AFFIRMED.

2 19-10469