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Ninth Circuit:
Coram Nobis Relief Properly Denied Where Instructional Error ‘Not Fundamental’
Dissenter Argues That Omission Relieved Prosecution of Part of Its Burden
By a MetNews Staff Writer
A divided Ninth U.S. Circuit Court of Appeals held yesterday that a defendant who filed a petition for a writ of error coram nobis—a companion to habeas corpus petitions for those who are no longer in custody—was not entitled to have his conviction for possessing a firearm while being unlawfully present in the U.S. vacated due to a failure to instruct the jury that he must have been aware of his immigration status.
At issue was whether the instructional error was “of the most fundamental character” so as to justify the extraordinary remedy of vacatur of a final judgment of conviction.
Circuit Judge Ryan D. Nelson wrote the majority opinion, finding that the error was not “fundamental,” saying that “no jury would have reached a different verdict even if [the required] instruction had been given,” noting evidence presented during the trial showing that the defendant had been previously deported, lied about his removal on a green card application, and had received letters telling him that he did not have lawful status.
Under those circumstances, Nelson said, the defendant failed to meet his burden as he could not even establish plain error, let alone the sort of fundamental problem required to justify overturning a final judgment of conviction.
Dissenting, Circuit Judge Roopali Desai argued that the jury instructions relieved the prosecution of the burden of proving an essential element of the offense and, as such, amounted to fundamental error.
Nelson also penned a concurring opinion to express concern over the broadening scope of the doctrine governing such writ petitions, remarking that the relief was historically only available to correct factual errors and, up until 1950s, was broadly accepted as being unavailable in federal proceedings. He opined:
“The modern writ of coram nobis hardly bears resemblance to the ancient writ. These days, the writ refers to a very different judicial enterprise than existed at common law….It’s time to take a hard look at the role the writ should play in our law.”
Nelson accused the dissent of proving his point as to the expansive nature of the doctrine, saying it “shows how the modern iteration of the writ could be transformed into something even more unwieldy if handled without care and an eye to history and tradition.”
Supreme Court Decision
The question arose after the U.S. Supreme Court held in the 2019 Rehaif v. U.S. decision that firearm offenses based on the status of the defendant—such as being a felon or residing in the country illegally—require the prosecution to prove that the accused was aware of the qualifying facts.
In 2014, Hector Cervantes-Torres was convicted by a jury of violating 18 U.S.C. §922(g)(5), among other crimes, after he was found to be in possession of multiple rifles in his home. He was sentenced to two years in prison. The jury was not instructed that the offense requires knowledge of his status as an unlawful resident.
His defense at trial centered on his assertion that he was lawfully present in the country, or, at least, believed that he had lawful permanent residence status. He presented evidence that the government had temporarily renewed his green card before ultimately determining that he was not eligible for lawful residency
Following the Rehaif decision, he filed petition for a writ of error coram nobis in 2021. District Court Judge David O. Carter of the Central District of California, who had also presided over the trial, denied the petition as to the §922(g)(5) offense, finding that no reasonable jury could conclude that Cervantes-Torres was unaware of his illegal status at the time he possessed the firearms.
Yesterday’s opinion, joined in by Circuit Judge Eric D. Miller, affirms the denial. Nelson noted that the parties disagreed about the standard of review applicable, but declared:
“Even under the legal standard of review that would govern a direct appeal—that is, ignoring the fact that the postconviction nature of a coram nobis petition demands more—Cervantes-Torres’s arguments fail. Even Cervantes-Torres does not argue that the standard of review on collateral review should be more deferential than on direct appeal.”
He continued:
“[P]lain error review would apply on direct appeal….mean[ing] that Cervantes-Torres would have needed to show a ‘reasonable probability’ of a different outcome had the jury received the correct Rehaif instruction….He cannot do so, and that resolves the case. After all, if an error is not plain, it cannot be of the most fundamental sort, either.”
Desai’s Dissent
Desai wrote:
“This court’s precedent is clear: When an improper jury instruction ‘relieve[s] the prosecution from its burden of proving an essential element of the offense[,]…the error is a fundamental one and justifies the collateral relief of coram nobis.’…To be convicted under § 922(g), the government must prove that the defendant knew of his unlawful status; knowledge is an essential element of the offense….But the court did not instruct the jury at Cervantes Torres’s trial that the prosecution must prove this essential element. Even worse, at closing, the prosecutor misled the jury, stating that ‘the government [did] not have to prove’ that Cervantes Torres knew of his unlawful status….Cervantes Torres is entitled to coram nobis relief.”
Pointing to case law establishing that petitioners are entitled to coram nobis relief when jury instructions allow the government to sidestep the burden of proving every element beyond a reasonable doubt, she argued that “[t]he failure to give a Rehaif instruction…infected [the] entire trial” and said:
“Cervantes Torres spent over two years in prison because he owned hunting rifles; he now faces severe immigration consequences for the same. And yet the prosecution did not prove the essential element that distinguishes innocent gun ownership from criminal gun ownership: knowledge of his unlawful status. Cervantes Torres has thus experienced all the punishment and prejudice of a criminal conviction, without ever being convicted of the crime. This is an error of the most fundamental character that warrants the ‘extraordinary remedy’ of coram nobis relief.”
Nelson’s Concurrence
Nelson explained in his concurring opinion that, until the 1950s, federal courts routinely held that the writ was not applicable in federal proceedings and only applied under circumstances involving factual errors.
However, the jurist noted that “the Supreme Court abruptly changed course” in the 1954 U.S. v. Morgan case, and held that “the writ could be used in federal courts to correct some legal errors.” Since that time, he reasoned:
“This modern form of the writ, however, bears little resemblance to the traditional writ. We have, in effect, substituted the true writ of coram nobis for something else—a habeas analogy for those too late to use habeas relief.”
He added:
“The writ of coram nobis was never meant to be as capacious as habeas corpus, which has long been understood to be much broader….But dissatisfied with even that, the dissent would make coram nobis relief more lenient than habeas relief, relieving those who seek the writ of showing a reasonable probability of a different outcome but for an alleged legal error that was not preserved or was procedurally defaulted….
“Not only that, it would make the bar for coram nobis relief even lower than on direct appeal on an unpreserved claim.”
The jurist distinguished the jurisprudence cited by Desai as involving cases where the outcome would have been different had the instructional error been corrected and said that the cases do not “suggest that coram nobis permits an end run around probabilistic judgments in collateral postconviction litigation.”
Under these circumstances, he concluded:
“A judge may imagine a system of criminal adjudication that she thinks is more just. But it’s not just to create a bespoke system of adjudication that changes to fit our idiosyncratic sentiments. Neither is it just to bend established doctrines out of shape to create more lenient pathways to results we like. It is just to apply the law and stay the course of history and tradition and respect the legal contours adopted by the democratic branches of the greatest republic the world has ever known.”
The case is Cervantes-Torres v. U.S., 23-55617.
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