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Kille v. State

United States District Court, District of Nevada

November 18, 2014

DAVID AUGUST KILLE, Petitioner,
v.
STATE OF NEVADA, Respondent.

ORDER

GLORIA M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT COURT

Petitioner David August Kille, a Nevada prisoner, has filed an application to proceed in forma pauperis and submitted a petition for a writ of errors coram nobis as well as a motion to extend prison copywork limit.

Petitioner seeks a petition for writ of coram nobis based on his claim that his counsel was ineffective when he failed to inform petitioner of his right to a direct appeal of a state juvenile judgment of conviction entered May 12, 2003 (ECF #1-1). Petitioner states that he is not in custody on the judgment of conviction he challenges. Id. at 3.

The writ of error coram nobis affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody. Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir.1994). Specifically, "[t]he writ provides a remedy for those suffering from the 'lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact' and 'egregious legal errors.'" United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989) (quoting Yasui v. United States, 772 F.2d 1496, 1498, 1499 & n. 2 (9th Cir.1985)). Where the errors are of "the most fundamental character, " such that the proceeding itself is rendered "invalid, " the writ of coram nobis permits a court to vacate its judgments. Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) (quoting United States v. Mayer, 235 U.S. 55, 69 (1914)). The Ninth Circuit has held that to qualify for coram nobis relief, four requirements must be satisfied: '"(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.'" Estate of McGivney By and Through McGivney v. U.S., 71 F.3d 779, 781-782 (9th Cir. 1995) (quoting United States v. McClelland, 941 F.2d 999, 1002 (9th Cir.1991)).

District Courts have the authority to issue the writ under the All Writs Act, 28 U.S.C. 1651(a). However, a federal petition for a writ of coram nobis cannot be filed by a person seeking to challenge a state petition; it is a writ used by a court to correct its own errors, not errors of another jurisdiction. See Finkelstein v. Spitzer, 455 F.3d 131, 133-34 (2d Cir. 2006); Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir. 2003). Moreover, this court cannot construe this action as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, because that provision allows a federal court to entertain a habeas petition for relief from a state-court judgment "only on the ground that the [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). This provision "requir[es] that the habeas petitioner be 'in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91 (1989); see Carafas v. LaVallee, 391 U.S. 234, 238 (1968). As petitioner has stated that he is not in custody pursuant to the state-court judgment of conviction from which he seeks relief, even if the court were to construe this action as a petition for a writ of habeas corpus, it would nevertheless be subject to dismissal.

IT IS THEREFORE ORDERED that the Clerk shall detach and file the petition (ECF #1-1).

IT IS FURTHER ORDERED that the petition for writ of coram nobis is DISMISSED.

IT IS FURTHER ORDERED that petitioner's application for leave to proceed in forma pauperis without having to prepay the full filing fee (ECF #1) as well as his motion to extend prison ...


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