United States v. Kenneth McNeil

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 26, 2022
• Docket: 21-16750
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-16750

Plaintiff-Appellee, D.C. Nos. 1:21-cv-00212-SOM-RT 1:02-cr-00547-SOM-1 v.

KENNETH CHARLES McNEIL, AKA MEMORANDUM* Chip,

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Susan Oki Mollway, District Judge, Presiding

Submitted May 17, 2022**

Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.

Kenneth Charles McNeil appeals pro se from the district court’s orders

denying his petition for a writ of error coram nobis and motion for reconsideration.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the denial of a

petition for a writ of error coram nobis, see United States v. Riedl, 496 F.3d 1003,

* 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). 1005 (9th Cir. 2007), and for abuse of discretion the denial of a reconsideration

motion, see Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255,

1262 (9th Cir. 1993). We affirm.

McNeil contends that the district court ignored a “fundamental concept of

intent” when analyzing his claim regarding the definition of intent. However, the

court correctly concluded that this claim did not warrant coram nobis relief

because McNeil had not shown a valid reason why he did not raise it earlier. See

Riedl, 496 F.3d at 1006 (to be eligible for coram nobis relief, a petitioner must

show “valid reasons exist for not attacking the conviction earlier”). Moreover, our

review of the record shows that McNeil has not shown an error “of the most

fundamental character” with respect to his intent claim. See id.

McNeil next argues that the government made a concession in its answering

brief to a prior coram nobis appeal that constitutes impeaching evidence that

should have been disclosed under Brady v. Maryland, 373 U.S. 83 (1963), and

Giglio v. United States, 405 U.S. 150 (1972). We agree with the district court that

the statement on which McNeil relies is not evidence, see Comstock v. Humphries,

786 F.3d 701, 709 (9th Cir. 2015) (“arguments in briefs are not evidence”), and

that McNeil failed to show an error “of the most fundamental character,” Riedl,

496 F.3d at 1006. Contrary to McNeil’s contention, the district court did not err in

its analysis of this claim.

2 21-16750 McNeil also contends that the district court erred by deciding his petition

without conducting an evidentiary hearing. The district court did not err because

the record conclusively shows that McNeil is not entitled to relief. See 28 U.S.C.

§ 2255(b); United States v. Taylor, 648 F.2d 565, 573 n.25 (9th Cir. 1981)

(“Whether a hearing is required on a coram nobis motion should be resolved in the

same manner as habeas corpus petitions.”). Contrary to McNeil’s argument, we

are bound by Taylor because McNeil has not shown that it is “clearly

irreconcilable” with intervening higher authority. See Miller v. Gammie, 335 F.3d

889, 900 (9th Cir. 2003) (en banc).

We do not consider McNeil’s claim, raised for the first time in his reply

brief, that the government’s alleged change in its theory of the case violates his

right to due process. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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