United States v. Solon

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 17, 2020
• Docket: 20-8024
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 17, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-8024 (D.C. No. 2:07-CR-00032-SWS-1) NATHANIEL SOLON, (D. Wyo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BALDOCK, and CARSON, Circuit Judges. _________________________________

Nathaniel Solon, appearing pro se, appeals the district court’s denial of his

petition for a writ of coram nobis. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.

I. BACKGROUND

A federal grand jury indicted Mr. Solon on counts of (1) possessing and

(2) attempting to receive child pornography. His primary defense, developed through

* 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. a computer forensics expert, was that “there was no evidence that the images of child

pornography on [his] computer were ever opened, viewed, or saved to another

location.” United States v. Solon, 596 F.3d 1206, 1209 (10th Cir. 2010). He

therefore proposed that “a virus may have compromised the system and allowed

access to the computer by outside sources.” Id. The jury nonetheless convicted on

both counts, and Mr. Solon received a 72-month sentence. Id. at 1208. We affirmed.

Id.

Mr. Solon then filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct

his sentence. He argued, among other things, that his appellate counsel had provided

ineffective assistance on direct appeal by failing to assert an insufficient-evidence

claim. See United States v. Solon, 548 F. App’x 520, 522 (10th Cir. 2013). The

district court denied the motion, and we refused to issue a certificate of appealability.

Id. at 523.

Mr. Solon was released from prison in January 2013 and completed his

supervised release term in December 2018.

In June 2019, Mr. Solon petitioned the district court for a writ of coram nobis.

He argued that the evidence introduced at trial confirmed his theory that malware

must have placed the child pornography on his computer. The district court denied

the petition, reasoning that it and this court had already rejected his insufficiency

claim, and that he presented no new evidence of his alleged innocence. Mr. Solon

timely appealed.

2 II. DISCUSSION

“[W]here a federal convict cannot bring a § 2255 petition because he or she is

no longer in federal custody,” federal courts may still grant coram nobis relief “in

extraordinary cases presenting circumstances compelling its use to achieve justice.”

Rawlins v. Kansas, 714 F.3d 1189, 1196 (10th Cir. 2013) (internal quotation marks

omitted). But the court may not grant relief on grounds the petitioner “raised or

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

collateral attack on the conviction or sentence.” United States v. Miles, 923 F.3d

798, 804 (10th Cir.), cert. denied, 140 S. Ct. 470 (2019). If a petitioner claims actual

innocence, he or she must demonstrate “it is more likely than not that no reasonable

juror would have convicted” in light of new evidence, meaning “relevant evidence

that was either excluded or unavailable at trial.” Id. (internal quotation marks

omitted).

When reviewing a district court’s denial of a coram nobis petition, we review

questions of law de novo, but review the district court’s decision to deny the writ for

an abuse of discretion. See United States v. Mandanici, 205 F.3d 519, 524 (2d Cir.

2000).

On appeal, Mr. Solon argues again for his interpretation of the evidence. He

fails to address the district court’s reasons for denying relief, or otherwise to

demonstrate that the district court erred. Having reviewed the record and the relevant

authorities, we agree that Mr. Solon is not entitled to coram nobis relief for

substantially the same reasons stated by the district court.

3 III. CONCLUSION

We affirm the district court’s judgment.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge