Appellate Case: 22-2014 Document: 010110781425 Date Filed: 12/13/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 13, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-2014 (D.C. No. 1:12-CR-00268-JB-1) OSCAR LUJAN, (D. N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, PHILLIPS, and EID, Circuit Judges. _________________________________
Oscar Lujan appeals from the district court’s denial of his petition for a writ of
coram nobis. In his petition, Mr. Lujan sought the vacatur of his 2012 conviction for
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The
government did not oppose Mr. Lujan’s request for coram nobis relief, but the district
court denied the writ. On appeal, Mr. Lujan and the government both argue that the
district court should have granted coram nobis relief. We agree. Accordingly, we
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-2014 Document: 010110781425 Date Filed: 12/13/2022 Page: 2
reverse and remand to the district court with instructions to grant the writ and vacate
Mr. Lujan’s conviction.
I. Background
In 2005, Mr. Lujan was convicted in state court of the New Mexico crime of
larceny (over $250). He received a deferred sentence. In 2007, after he successfully
completed the conditions for his deferred sentence, the case was dismissed.
In 2012, Mr. Lujan pleaded guilty in federal court to being a felon in
possession of a firearm, in violation of § 922(g)(1). That statute prohibits a person
“who has been convicted in any court of, a crime punishable by imprisonment for a
term exceeding one year,” from possessing a firearm. § 922(g)(1). As part of his
plea agreement, he admitted he had previously been convicted of the New Mexico
larceny offense, “which was at the time of conviction punishable by imprisonment
for a term exceeding one year.” R., vol. I at 30 (internal quotation marks omitted).
Mr. Lujan was sentenced to 18 months in prison on his § 922(g)(1) conviction
followed by a two-year term of supervised release. Consistent with the terms of his
plea agreement, he did not appeal his conviction or sentence and he did not
collaterally attack his conviction or sentence through a 28 U.S.C. § 2255 motion. He
completed his term of supervised release in July 2015.
While Mr. Lujan was serving his term of supervised release, the New Mexico
Supreme Court issued a decision answering a certified question from this court in a
§ 922(g)(1) case. See United States v. Reese, 326 P.3d 454, 455, 456 (N.M. 2014).
Reese confirmed “that upon the satisfactory completion of all conditions for a
2 Appellate Case: 22-2014 Document: 010110781425 Date Filed: 12/13/2022 Page: 3
deferred sentence and the resulting dismissal of all charges, New Mexico restores a
person’s civil rights.” Id. at 455. And a conviction does not count as a conviction
for purposes of § 922(g)(1) if the defendant “has had civil rights restored.” 18 U.S.C.
§ 921(a)(20). Thus, the completion of a deferred sentence in New Mexico removes
the conviction from the purview of § 922(g)(1).
In 2019, the Supreme Court addressed an unrelated question: the mens rea
requirement of § 922(g). It held in Rehaif v. United States, 139 S. Ct. 2191, 2200
(2019), “that in a prosecution under 18 U.S.C. § 922(g) . . . , the Government must
prove both that the defendant knew he possessed a firearm and that he knew he
belonged to the relevant category of persons barred from possessing a firearm.” This
was a change in how this court, and every other court of appeals to address the issue,
had interpreted the statute’s elements. See id. at 2210 & n.6 (Alito, J., dissenting).
One year later, Mr. Lujan filed his petition for a writ of coram nobis attacking
his § 922(g)(1) conviction for being a felon in possession. Mr. Lujan argued his
guilty plea was unknowing and involuntary because the magistrate judge who
accepted it had not informed him of the statute’s true elements, which under Rehaif
required the government to prove he knew he was a felon. He contended that this
violated his Fifth Amendment rights to due process and that his conviction should be
vacated.
Mr. Lujan next asserted that he was not a felon. He explained that “[s]tate law
governs whether a state court judgment constitutes a qualifying ‘conviction[,]’
[] § 921(a)(20),” and relied on Reese for the proposition that “[u]nder New Mexico
3 Appellate Case: 22-2014 Document: 010110781425 Date Filed: 12/13/2022 Page: 4
law ‘the dismissal of charges following the successful completion of a deferred
sentence equate[s] to an automatic restoration of civil rights.’” R., vol. I at 33
(quoting Reese, 326 P.3d at 462).
Mr. Lujan argued he had established his entitlement to coram nobis relief
because he had valid reasons for not attacking his conviction earlier because Rehaif
was not decided until 2019, the usual remedy under § 2255 was not available because
he is no longer in custody, there was a fundamental error, and his conviction is
invalid because the conduct he admitted to was not a crime.
The government filed a response in which it stated it did not oppose
Mr. Lujan’s request for coram nobis relief, specifically noting it would not be in the
public interest to do so. The district court held a hearing on the petition, and then
asked the government to file a supplemental brief. In that brief, the government
reiterated its support for Mr. Lujan’s coram nobis petition, again explaining its belief
“that opposing coram nobis relief would not be in the public’s interest in these very
specific circumstances.” Id. at 56 (internal quotation marks omitted).
The district court denied relief, however, concluding that (1) coram nobis
could only be used to correct factual, not legal errors, and (2) Mr. Lujan had not been
diligent in seeking relief. Mr. Lujan now appeals. The government filed a response
brief in support of Mr. Lujan’s appeal, arguing the district court should have granted
his petition.
4 Appellate Case: 22-2014 Document: 010110781425 Date Filed: 12/13/2022 Page: 5
II. Discussion
“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 internal quotation marks omitted). The writ 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 it 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).
To be entitled to coram nobis relief, the petitioner must exercise due diligence
in seeking the writ. Klein, 880 F.2d at 254. In addition, the petitioner must have 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.
“[W]e 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.” United States v. Lesane, 40 F.4th 191, 196 (4th Cir. 2022).
5 Appellate Case: 22-2014 Document: 010110781425 Date Filed: 12/13/2022 Page: 6
“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).
Although the procedural vehicle in this appeal is unusual, the question is
simple: whether Mr. Lujan’s conviction for an offense he did not commit should be
vacated. As the government persuasively argues in support of Mr. Lujan’s appeal,
“[t]he district court should have granted Lujan the writ of coram nobis, a writ that he
sought with the government’s support. To be sure, the writ is a rare and
extraordinary measure reserved for cases where justice demands its use—but Lujan’s
case is such a situation.” Aplee. Br. at 5. Because “Lujan is actually innocent of the
crime for which he was convicted,” the government contends “the district court erred
in not granting him relief from that conviction through a writ of coram nobis.” Id. at
17. We agree. We conclude the district court abused its discretion in denying the
writ by committing two legal errors.
First, the district court determined it could not grant coram nobis relief
because of its belief that coram nobis was only available to correct factual errors.
Although the writ of coram nobis was originally a common-law remedy, the Supreme
Court held in United States v. Morgan, 346 U.S. 502, 506-07, 511, 513 (1954), that a
federal district court possesses the authority through the All Writs Act, 28 U.S.C.
§ 1651(a), to issue a writ of coram nobis and vacate a criminal conviction after a
sentence has been served. And while the writ was limited at common law to factual
errors, the Supreme Court has explained that “in its modern iteration coram nobis is
broader than its common-law predecessor” and can “issue to redress a fundamental
6 Appellate Case: 22-2014 Document: 010110781425 Date Filed: 12/13/2022 Page: 7
error.” Denedo, 556 U.S. at 911 (italics omitted). The Court then described the writ
as “an extraordinary tool to correct a legal or factual error.” Id. at 912-13; see also
Ragbir v. United States, 950 F.3d 54, 61-62 (3d Cir. 2020) (explaining that the
Supreme Court in Morgan “broadened the scope of coram nobis relief beyond that of
curing factual errors,” and so “[c]oram nobis became a collateral remedy to correct
fundamental errors, whether factual or legal”); United States v. Wilkozek, 822 F.3d
364, 368 (7th Cir. 2016) (explaining that “the scope of the writ has been broadened in
modern times to claims of both legal and factual error, but only in criminal cases”);
United States v. George, 676 F.3d 249, 253 (1st Cir. 2012) (“In federal criminal
cases, the writ is now available as a remedy of last resort for the correction of
fundamental errors of fact or law.”). Because the writ may be used to correct legal
errors, as well as factual errors, the district court erred when it concluded otherwise.
Second, the district court determined that coram nobis relief was not
appropriate because Mr. Lujan had not been diligent in pursuing his claim. The court
acknowledged, however, that “[a]ctual innocence constitutes a valid reason for
delay.” R., vol. I at 100. But the court concluded that Mr. Lujan was not actually
innocent because he was asserting only legal errors in his conviction. The court erred
in reaching that conclusion because it did not apply the correct standard for
determining whether Mr. Lujan is actually innocent, and his assertion of a legal error
does not alter the actual-innocence analysis.
The Supreme Court’s decision in Bousley v. United States, 523 U.S. 614
(1998), is instructive. In Bousley, the petitioner pleaded guilty to using a firearm in
7 Appellate Case: 22-2014 Document: 010110781425 Date Filed: 12/13/2022 Page: 8
violation of 18 U.S.C. § 924(c)(1). 523 U.S. at 616. The Supreme Court
subsequently issued a decision interpreting § 924(c)(1)’s “use” prong to require the
government to show “‘active employment of the firearm.’” Id. (quoting Bailey v.
United States, 516 U.S. 137, 144 (1995)). The petitioner sought collateral relief
under § 2255, raising a claim of legal error similar to Mr. Lujan’s—that his guilty
plea was not knowing and intelligent because he had been misinformed of the
elements of the charged crime. Id. Although the petitioner had procedurally
defaulted his claim by failing to raise it on direct appeal, id. at 621, the Court
explained that his claim could still be reviewed if he could establish his actual
innocence, id. at 623. The Court further explained that a petitioner can establish his
actual innocence if he “demonstrate[s] that, in light of all the evidence, it is more
likely than not that no reasonable juror would have convicted him.” Id. (internal
quotation marks omitted). The Court then remanded to give the petitioner the
opportunity to make a showing on actual innocence, noting that to do so he “need
demonstrate no more than that he did not ‘use’ a firearm as that term is defined in
Bailey.” Id. at 624.
After Bousley, we “recognize[d] that as a general rule a claim of actual
innocence can be based on the failure to establish an element of the offense on which
the defendant was prosecuted.” Pacheco v. El Habti, 48 F.4th 1179, 1190
(10th Cir. 2022) (citing Bousley, 523 U.S. at 623-24, and United States v. Bowen,
8 Appellate Case: 22-2014 Document: 010110781425 Date Filed: 12/13/2022 Page: 9
936 F.3d 1091, 1108 (10th Cir. 2019)1). Mr. Lujan satisfies the standard for actual
innocence because no reasonable “properly instructed juror[],” Schlup v. Delo,
513 U.S. 298, 329 (1995), would have found him guilty of violating § 922(g)(1). To
prove Mr. Lujan violated § 922(g)(1), the government would need to show that he
had a qualifying felony conviction within the meaning of § 922(g)(1), and that he
knew he was a felon when he possessed the firearm, see Rehaif, 139 S. Ct. at 2194.
No reasonable juror could resolve those factual questions against Mr. Lujan on the
evidentiary record.
It is undisputed that Mr. Lujan successfully completed the conditions of his
deferred sentence for the New Mexico crime of larceny and that the charge was
dismissed, see R., vol. I at 30, 40-41, which resulted in an automatic restoration of
his civil rights, see Reese, 326 P.3d at 462. Section 921(a)(20) explains that “[a]ny
conviction . . . for which a person . . . has had civil rights restored shall not be
considered a conviction for purposes of” § 922(g)(1). It was therefore not illegal for
Mr. Lujan to possess a firearm because he did not have a qualifying felony conviction
within the meaning of § 922(g)(1). As we recently reiterated, “the core idea of actual
1 In Bowen, the defendant “challenge[d] his conviction for brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), which rested on the trial court’s instruction that witness retaliation was a crime of violence under 18 U.S.C. § 924(c)(3).” 936 F.3d at 1095. Relying on the Supreme Court’s recently issued decision in United States v. Davis, 139 S. Ct. 2319 (2019), which held that § 924(c)(3)(B) is void for vagueness, and our determination that the defendant’s convictions for witness retaliation did not qualify as crimes of violence under § 924(c)(3)(A), we concluded that the defendant was actually innocent of his § 924(c)(1) conviction. Bowen, 936 F.3d at 1095, 1108. 9 Appellate Case: 22-2014 Document: 010110781425 Date Filed: 12/13/2022 Page: 10
innocence is that the petitioner may have been imprisoned for conduct that was not
prohibited by law.” Pacheco, 48 F.4th at 1189 (internal quotation marks omitted).
Because his § 922(g)(1) conviction is based on conduct that was not prohibited by
law, Mr. Lujan is actually innocent.
Turning back to the considerations for granting coram nobis relief, we
conclude Mr. Lujan has established his entitlement to the writ and to have his
conviction vacated. Both Mr. Lujan and the government assert that Mr. Lujan was
diligent in filing his petition because he filed it within one year of the Rehaif
decision. The government acknowledges that the Reese decision came out six years
before Mr. Lujan filed his petition and reiterates its belief that “Reese is essential to
Lujan’s entitlement to relief.” Aplee. Br. at 13. But the government also contends
“it is doubtful that Lujan had a basis for a coram nobis petition until Rehaif provided
him a constitutional hook in 2019.” Id. at 15. It explains that “[w]hile Rehaif is a
case of statutory interpretation, it gave rise to Lujan’s claim that he was unaware of
the elements of the charged offense when he pleaded guilty, which is a constitutional
error.” Id. (citing Bousley, 523 U.S. 618-19). But we need not resolve the question
of whether Reese or Rehaif should have triggered Mr. Lujan to file his petition
because he is actually innocent, and, as the district court correctly noted, “[a]ctual
innocence constitutes a valid reason for delay,” R., vol. I at 100 (citing cases); see
also Lesane, 40 F.4th at 201 (“Because this is a clear case of actual innocence . . .
a delayed coram nobis petition should not ordinarily bar relief.”).
10 Appellate Case: 22-2014 Document: 010110781425 Date Filed: 12/13/2022 Page: 11
Likewise, Mr. Lujan’s actual innocence excuses his failure to seek relief
through a direct appeal or § 2255 motion. See Miles, 923 F.3d at 806 (noting that
actual innocence provides an exception to raise procedurally barred claims in a coram
nobis proceeding); see also Bousley, 523 U.S. at 623 (permitting review of
procedurally defaulted claim in § 2255 proceeding when petitioner makes a showing
of actual innocence). And he has no alternative remedies because he is no longer in
custody. See Chaidez, 568 U.S. at 345 n.1 (explaining that coram nobis provides the
way to collaterally attack a conviction when a petitioner is no longer in custody and
is unable to seek relief through a § 2255 motion).
Finally, Mr. Lujan has identified a constitutional error that results in a
miscarriage of justice. As the Supreme Court has recognized, “[a] plea of guilty is
constitutionally valid only to the extent it is voluntary and intelligent” and “a plea
does not qualify as intelligent unless a criminal defendant first receives real notice of
the true nature of the charge against him, the first and most universally recognized
requirement of due process.” Bousley, 523 U.S. at 618 (internal quotation marks
omitted). Here, the magistrate judge who took his plea failed to inform Mr. Lujan
that the government had to prove his knowledge of his status. This fundamental
constitutional error led to a miscarriage of justice because Mr. Lujan was convicted
for an act that the law does not make criminal. See Davis v. United States, 417 U.S.
333, 346-47 (1974) (explaining that a conviction and punishment “for an act that the
law does not make criminal . . . inherently results in a complete miscarriage of
justice” (internal quotation marks omitted)). We therefore conclude Mr. Lujan has
11 Appellate Case: 22-2014 Document: 010110781425 Date Filed: 12/13/2022 Page: 12
demonstrated his entitlement to a writ of coram nobis. Cf. United States v. Bustillos,
31 F.3d 931, 934 (10th Cir. 1994) (explaining that “a writ of error coram nobis is
available only to correct errors resulting in a complete miscarriage of justice” and
concluding that standard was not met because “[t]he defendant does not assert his
innocence of the charge to which he pleaded guilty” (italics omitted)); see also
Lesane, 40 F.4th at 201 (discussing the requirements for coram nobis relief and
explaining that “it is difficult to imagine an error of a more fundamental character
than a conviction for an offense the person did not commit”).
III. Conclusion
We reverse the district court’s judgment and remand with instructions to grant
the writ and vacate Mr. Lujan’s § 922(g)(1) conviction. We grant Mr. Lujan’s
motion to withdraw his request for oral argument and to submit his appeal on the
briefs.
Entered for the Court
Gregory A. Phillips Circuit Judge