United States v. Frank

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 12, 2024
• Docket: 24-4021
• Status: Unpublished

Opinion

Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 12, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-4021 (D.C. No. 2:08-CR-00822-CW-1) DAVID GODWIN FRANK, (D. Utah)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, EID, and ROSSMAN, Circuit Judges.** _________________________________

David Godwin Frank petitioned for a writ of coram nobis, asking the district

court to vacate his false statement conviction. The district court denied the petition,

and we affirm.

In late 2003, Mr. Frank provided false information to obtain three loans. This

included fabricating a pay stub used to verify his falsely stated income. He later

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 2

defaulted. Five years later, in December 2008, a grand jury charged Mr. Frank with

three counts of bank fraud in violation of 18 U.S.C. § 1344. Two years later,

Mr. Frank negotiated a plea agreement by which he pled guilty to a superseding

felony information charging him with a single count of aiding and abetting a false

statement in violation of 18 U.S.C. §§ 1001 and 1002. In exchange for the plea, the

government dismissed the three bank fraud counts, recommended a reduction for

acceptance of responsibility, and recommended a sentence at the low end of the

guideline range.

The district court sentenced Mr. Frank to 120 days in a work release program

and 36 months of supervised release. He did not file a direct appeal. Mr. Frank was

released from Bureau of Prisons Custody on March 28, 2013.1

Beginning on April 17, 2014, Mr. Frank unsuccessfully moved the district

court four times to vacate his conviction, arguing that the 2008 indictment was filed

beyond the general 5-year federal criminal statute of limitations, 18 U.S.C. § 3282,

and attributing his failure to earlier raise this defense to ineffective assistance of

counsel.

In 2017, he filed a pro se “motion for relief from judgment.” The district court

construed the motion as a petition for relief under 28 U.S.C. § 2255 and denied it on

1 Mr. Frank twice violated the terms of his supervised release. The first time, he received six months imprisonment followed by 24 months of supervised release. For his second violation, he received 10 months imprisonment with no subsequent supervision.

2 Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 3

the grounds it lacked jurisdiction due to the untimeliness of Mr. Frank’s motion and

because he was no longer a prisoner in federal custody.

In the motion underlying this appeal, Mr. Frank asked the district court to

issue a writ of coram nobis vacating his conviction on the same substantive grounds.

The district court denied relief, reasoning Mr. Frank’s “substantial unjustified

[nine year] delay in bringing his petition constitutes a lack of due diligence and,

therefore, disqualifies him from obtaining coram nobis relief.” Order at 4.

Mr. Frank timely appealed.

I. Analysis

A. Legal Standards

“A petition for a writ of coram nobis provides a way to collaterally attack a

criminal conviction for a person . . . who is no longer in custody and therefore cannot

seek habeas relief.” Chaidez v. United States, 568 U.S. 342, 345 n.1 (2013) (italics

and quotation marks omitted). It exists to “correct errors that result in a complete

miscarriage of justice,” Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989)

(internal quotation marks omitted), and is limited to “extraordinary cases presenting

circumstances compelling its use to achieve justice.” United States v. Denedo, 556

U.S. 904, 911 (2009) (internal quotation marks omitted). “[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.” Carlisle v. United States, 517 U.S. 416, 429 (1996)

(cleaned up).

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To receive coram nobis relief, the petitioner must exercise due diligence in

seeking the writ. Klein, 880 F.2d at 254. The petitioner must have also had no

“alternative remedies,” Denedo, 556 U.S. at 911, and the writ may not be used to

litigate issues that were or could have been raised on direct appeal or in a collateral

attack. United States v. Miles, 923 F.3d 798, 804 (10th Cir. 2019). Finally, “the

burden is on the petitioner to demonstrate that the asserted error is jurisdictional or

constitutional and results in a complete miscarriage of justice.” Klein, 880 F.2d

at 253.

We review the district court’s factual findings for clear error, its rulings on

questions of law de novo, and its ultimate decision to deny the coram nobis writ for

abuse of discretion. See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188

(10th Cir. 2003); United States v. Lujan, No. 22-2014, 2022 WL 17588500, at *3

(10th Cir. Dec. 13, 2022). A district court abuses its discretion when it commits an

error of law. Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1252 (10th Cir. 2006).

B. Due Diligence

To obtain coram nobis relief, a defendant first must show that he or she

exercised due diligence in seeking the writ. Klein, 880 F.2d at 254. Mr. Frank fails

to do so here. More than 13 years passed between the time the district court entered

judgment against Mr. Frank and when he filed this petition. Order at 3. He filed this

petition more than ten years after he was last held in BOP custody, and more than

nine years after he first raised the statute of limitations issue with the court. Id.

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Mr. Frank argues his “many years delay in bringing a writ proceeding” is

“justified” by “ineffective assistance of counsel” because his prior attorney failed to

advise him regarding the statute of limitations defense. Aplt. Br. at 8–9; Reply Br.

at 2–3. But his briefing merely assumes his counsel’s conduct amounted to

ineffective assistance—absent is any discussion of the test for evaluating such

claims: the so-called Strickland analysis. Strickland v. Washington, 466 U.S. 668,

687 (1984) (To prevail a petitioner must show: (1) deficient performance by counsel

that (2) caused prejudice to the petitioner). Mr. Frank did not brief ineffective

assistance in either his Opening or Reply brief, and inadequately briefed arguments

are forfeited. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). In

any event, as the district court recognized Mr. Frank first raised the statute of

limitations defense in 2014 and most recently in 2017. He offers no properly

supported explanation for why he waited nine years after his first filing, or six years

after his 2017 motion, to seek the writ.

The district court did not abuse its discretion when it denied his petition after

concluding this substantial unjustified delay constituted a lack of due diligence. See,

e.g., Klein, (7-year delay warranted denial); United States v. Robinson, 597 F. App’x

551, 552 (10th Cir. 2015) (same for ten-year delay); United States v. Ballard, 317 F.

App’x 719, 722 (10th Cir. 2008) (same for five-year delay); United States v. Gaddis,

200 F. App’x 817, 818–19 (10th Cir. 2006) (same for two-year delay).2

2 We cite to unpublished opinions only for their persuasive value. 5 Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 6

C. Other Bases to Deny Relief

Denying Mr. Frank coram nobis relief is also supported by a litany of other

reasons briefed by the parties but not addressed by the district court. United States v.

Davis, 339 F.3d 1223, 1227 (10th Cir. 2003) (appellate courts can “affirm the rulings

of the lower court on any ground that finds support in the record, even where the

lower court reached its conclusions from a different or even erroneous course of

reasoning.”). These include: (1) Mr. Frank’s procedural default, (2) Mr. Frank has

not shown other remedies or forms of relief were unavailable or inadequate, and

(3) Mr. Frank has not established a jurisdictional or constitutional error resulting in a

complete miscarriage of justice.

1. Procedural Default

To receive coram nobis relief, a petitioner also must establish the claim is not

procedurally defaulted. See, e.g., Miles, 923 F.3d at 804; see also United States v.

Carpenter, 24 F. App’x 899, 905 (10th Cir. 2001). To collaterally attack a plea, a

petitioner must first challenge that plea on direct appeal. See Miles, 923 F.3d at 804

(“[A] petition for writ of coram nobis must be rejected if the claim was raised on or

could have been raised on direct appeal, through a § 2255 motion, or in any other

prior collateral attack on the conviction or sentence.”); see also United States v.

Aguayo, 2021 WL 4998920, at *2 (10th Cir. Oct. 29, 2021). Mr. Frank never made a

direct appeal and so has procedurally defaulted. Miles, 923 F.3d at 804.

Mr. Frank contends his procedural default is excused by him having shown

ineffective assistance of counsel. Reply Br. at 4. A petitioner can overcome

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procedural default by showing “cause for his failure to raise the claim in an earlier

proceeding and resulting prejudice.” Id. at 803 (emphasis added). This argument

fails.

As discussed above, Mr. Frank has not “shown” ineffective assistance of

counsel. Supra (I)(B). He has merely stated in conclusory fashion that his counsel

was ineffective. Mr. Frank accurately quotes Rogers v. United States as stating that

an “attorney’s error provides cause to excuse a procedural default.” 91 F.3d 1388,

1391 (10th Cir. 1996). That is true, as far is it goes, but it presupposes attorney error.

Indeed, in the very next sentence, Rogers lays out the Strickland test for establishing

ineffective assistance of counsel—something Mr. Frank fails to address. Mr. Frank

has not established ineffective assistance of counsel and so has not shown a good

cause failure to raise the claim earlier. Miles, 923 F.3d at 803.

But even if he had established ineffective assistance of counsel, Mr. Frank

does not address the second requirement to overcoming procedural default: resulting

prejudice. Id. Prejudice can be established with “evidence tending to show that had

[Mr. Frank] been advised [properly], he would have elected to proceed to trial.”

United States v. Harms, 371 F.3d 1208, 1212 (10th Cir. 2004). But as the

government points out, Mr. Frank was facing three counts of bank fraud—all of

which were timely under the relevant 10-year statute of limitations. He does not—

and presumably cannot—explain why he would have chosen to face three bank fraud

charges rather than plead guilty to a single false statement charge and receive a

low-end recommendation.

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Mr. Frank’s procedural default independently supports affirming the district

court. 3

2. § 2255 Relief

A writ of coram nobis is also only available when other remedies and forms of

relief are unavailable or inadequate. Miles, 923 F.3d at 804; see also Embrey v.

United States, 240 F. App’x. 791, 794 (10th Cir. July 9, 2007). Mr. Frank’s failure to

seek relief under § 2255 likewise supports affirming the district court. Miles,

923 F.3d at 804 (“[A] claim pressed through a coram nobis petition is ordinarily

barred if the petitioner . . . simply failed to pursue the claim under § 2255 when

petitioner could have.”).

Mr. Frank argues § 2255 relief was functionally unavailable because he did not

learn about the statute of limitations defense until after the one-year time to file a

§ 2255 claim had run. He cites Gibson v. Klinger and Yang v. Archuleta in support

of the proposition that “ignorance of the law” permits equitable tolling of the time to

file a motion under § 2255. 232 F.3d 799, 808 (10th Cir. 2000); 525 F.3d 925, 929–

30 (10th Cir. 2008). Neither case supports his position. Not only did Gibson concern

a different statute, the Anti-Terrorism and Effective Death Penalty Act, but it also

affirmed the district court’s dismissal of the petitioner’s habeas petition as time

barred. 232 F.3d at 808. And Yang likewise declined to apply equitable tolling

3 A petitioner can overcome procedural default by demonstrating “actual innocence.” United States v. Hisey, 12 F.4th 1231, 1235 (10th Cir. 2021). Mr. Frank does not profess his actual innocence.

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predicated on poor English-language proficiency, noting it is a “rare remedy” “not to

be disregarded by courts out of a vague sympathy for particular litigants.” 525 F.3d

at 929–30.

Relief under § 2255 was neither unavailable nor inadequate merely because

Mr. Frank failed to avail himself of it. Miles, 923 F.3d at 804 (“[A] petition for writ

of coram nobis must be rejected if the claim was raised or could have been

raised . . . through a § 2255 motion”); Prost v. Anderson, 636 F.3d 578, 589

(10th Cir. 2011) (“[I]t is the infirmity of the § 2255 remedy itself, not the failure to

use it or to prevail under it, that is determinative.”). His failure to do so likewise

requires affirming.

3. Fundamental Error Resulting in a Complete Miscarriage of Justice

Finally, coram nobis relief is an “‘extraordinary remedy’ to be invoked ‘only

under circumstances compelling such action to achieve justice.’” Rawlins v. Kansas,

714 F.3d 1189, 1195 (10th Cir. 2013) (quoting Morgan, 346 U.S. at 511). This

requires “demonstrate[ing] that the asserted error is jurisdictional or constitutional

and results in a complete miscarriage of justice.” Klein, 880 F.2d at 253; see also

Lujan, 2022 WL 17588500, at *2. A petitioner may meet this burden by “asserting

his innocence to the charge to which he pleaded guilty.” See United States v.

Bustillos, 31 F.3d 931, 934 (10th Cir. 1994); see also Embrey, 240 F. App’x. at 794

(To show “a jurisdictional or constitutional error resulting in a “complete miscarriage

of justice . . . [a] petitioner must, among other things, assert his or her ‘innocence of

the charge.’”) (citing Bustillos, 31 F.3d at 934) (Gorsuch, J.). And “where the

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Government has forgone more serious charges in the course of plea bargaining,

petitioner’s showing of actual innocence must also extend to those charges.” Bousley

v. United States, 523 U.S. 614, 624 (1998).

Mr. Frank professes legal, not actual, innocence—asserting that his failure to

raise the statute of limitations deprived him of a complete defense. In support, he

cites United States v. Cooper. 956 F.2d 960, 961 (10th Cir. 1992) (“[T]he law of this

circuit is that the statute of limitations is a bar to prosecution.”). On its face, Cooper

supports his position. But since Cooper, the Court has held that a district court’s

failure to consider “an unraised limitations defense” is not an error, much less the

sort of fundamental error warranting coram nobis relief. Musacchio v. United States,

577 U.S. 237, 247 (2016) (a statute of limitations defense “becomes part of a case

only if the defendant presses it in the district court.”). Indeed, Musacchio expressly

held that the general federal statute of limitations Mr. Frank relies on here, § 3282(a),

“provides a nonjurisdictional defense, not a jurisdictional limit” and a “district

court’s failure to enforce an unraised limitations defense under § 3282(a) cannot be a

plain error”—let alone abuse of discretion. Id. at 248.

Cooper is also readily distinguishable from this case. There, the defendant

timely raised the issue in district court before direct appeal. 956 F.2d at 961. And

unlike Cooper, Mr. Frank received—in exchange for this guilty plea—the

government’s agreement to dismiss more serious charges which were within the

limitations period, and to which Mr. Frank does not profess actual innocence.

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Finally, Cooper did not concern the “‘extraordinary remedy” of coram nobis relief,

Morgan, 346 U.S. at 511, and so was procedurally distinct.

Mr. Frank’s arguments do not demonstrate a fundamental error warranting

coram nobis relief. This likewise supports affirming the district court.

II. Conclusion

For these reasons, we affirm the district court’s order denying Mr. Frank’s

petition for a writ of coram nobis.

Entered for the Court

Timothy M. Tymkovich Circuit Judge