Opinion
CV 21-10055-RSWL CV 02-00531-RSWL-2
04-11-2022
NELLY HERRERA, Petitioner, v. UNITED STATES OF AMERICA; and TRACY WILKISON, Respondents.
ORDER RE: PETITION FOR WRIT OF ERROR CORAM NOBIS [1]
HONORABLE RONALD S.W. LEW, SENIOR U.S. DISTRICT JUDGE
Currently before the Court is Nelly Herrera's (“Petitioner”) Petition for Writ of Error Coram Nobis (the “Petition”) [1]. Having reviewed all papers submitted pertaining to this Petition, the Court NOW FINDS AND RULES AS FOLLOWS: the Court DENIES the Petition.
I. BACKGROUND
On March 19, 2003, Petitioner was convicted on all twenty-eight counts of the indictment, which concerned a drug conspiracy in violation of 1 21 U.S.C. §§ 846, 841(a)(1), (c)(2), and 18 U.S.C. § 2. See Indictment, ECF No. 1; Verdict, ECF No. 133. The Court then sentenced her to 360 months' imprisonment. See J. & Commitment, ECF No. 181. The Ninth Circuit affirmed the judgment and remanded on the limited issue of whether the sentence would have been materially different had the Court known the sentencing guidelines were advisory. United States v. Herrera, 238 Fed.Appx. 281, 284-85 (9th Cir. 2007). Thereafter, on October 30, 2007, this Court reimposed the same sentence, see Order, ECF No. 283, and the Ninth Circuit affirmed on October 21, 2008, see Mandate, ECF No. 311.
On October 2, 2017, Petitioner filed a Motion to Void Criminal Judgment [464] under Rule 60(b)(4) of the Federal Rules of Civil Procedure, challenging her conviction and sentence by arguing primarily that the Court lacked jurisdiction. The Court construed this Motion as a 28 U.S.C. § 2255 motion (i.e., the appropriate avenue to challenge jurisdiction in imposing a sentence) as opposed to a Rule 60(b)(4) motion, which only applies to vacating civil judgments. See Order re: Def.'s Mot. to Void Criminal J. 2:21-3:8, ECF No. 473. The Court then denied this Motion, finding it was barred by the statute of limitations and lacked merit because the Court did have jurisdiction. See id. at 3:9-4:17.
On March 9, 2018, Petitioner filed a Motion for Reconsideration [477], again arguing that the Court lacked subject matter jurisdiction and that the Judgment 2 was therefore void. The Court denied this Motion, determining that Petitioner did not offer any newly discovered evidence or intervening change in the controlling law to warrant reconsideration. See Order re: Def.'s Mot. for Recon. 3:26-4:4, ECF No. 482. Petitioner then filed a second Motion for Reconsideration [500], seeking to reduce her sentence pursuant to 18 U.S.C. § 3742(e). The Court denied this Motion because § 3742(e) did not confer the Court with authority to reconsider Petitioner's sentence post appeal. See Order re: Def.'s Mot. for Recon. 5:3-11, ECF No. 510.
Petitioner filed a Motion for Compassionate Release [521] on April 6, 2020. The Court denied this Motion because Petitioner had failed to satisfy exhaustion requirements and compassionate release would have been inappropriate under the 18 U.S.C. § 3553(a) factors. See Order re: Def.'s Mot. for Compassionate Release 9:6-28, 17:26-18:3, ECF No. 541.
Petitioner filed the instant Petition for Writ of Error Coram Nobis [1] on December 17, 2021. The Government opposed [4] on March 3, 2022. Petitioner replied [5] on March 31, 2022.
II. DISCUSSION
A. Legal Standard
Coram nobis “provides a remedy for those suffering from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors 3 of fact and egregious legal errors.” United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989) (internal quotation marks and citation omitted). Coram nobis is an extraordinary writ that is typically available only to petitioners who have fully served their sentences. United States v. Monreal, 301 F.3d 1127, 1132 (9th Cir. 2002). “To warrant coram nobis relief, the petitioner must establish that: (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 a fundamental character.” Id.
B. Discussion
Coram nobis relief is only available where “a more usual remedy is not available.” Monreal, 301 F.3d at 1132. Where a person is in custody, a more usual remedy is available because relief may be sought pursuant to 28 U.S.C. § 2255. Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir. 2002) (“Because the more usual remedy of a habeas petition is available, the writ of error coram nobis is not.”). This is true even where a habeas petition would fail due to procedural defects. Id. (“A petitioner may not resort to coram nobis merely because he has failed to meet the [Antiterrorism and Effective Death Penalty Act]'s gatekeeping requirements.”).
Here, Petitioner remains in custody and a writ of error coram nobis is therefore unavailable to her. See 4 id. (“Predictably, appellate courts, including ours, have consistently barred individuals in custody from seeking a writ of error coram nobis.”). Alternatively, if the Court were to construe the Petition as a § 2255 motion, the motion would fail because it is time-barred. See Order re: Def.'s Mot. to Void Criminal J. 3:9-10 (finding a habeas petition brought by Petitioner in 2018 to be time-barred). Petitioner offers no explanation for her failure to raise these arguments sooner, and the Court sees none from the record.
Even if Petitioner were able to overcome these procedural hurdles, the Petition lacks merit. Petitioner argues that the charges brought against her are void because the statutes she was found to have violated were not properly implemented, and that the Court lacked jurisdiction over her case. See Pet. for Writ of Error Coram Nobis, ECF No. 1. But the Ninth Circuit has long recognized that federal courts have jurisdiction to adjudicate prosecutions under 21 U.S.C. §§ 841 and 846. See United States v. Fernandez, 388 F.3d 1199, 1219 (9th Cir. 2004). Moreover, this Court has previously rejected a similar jurisdictional challenge raised by Petitioner. See Order re: Def.'s Mot. to Void Criminal J. 4:1-8 (citations omitted) (“Federal courts have exclusive jurisdiction over offenses against the laws of the United States, like [Petitioner]'s here. And this Court specifically has jurisdiction over this case because [Petitioner]'s 5 offense occurred in this District.”). The Petition fails both procedurally and on the merits and is therefore DENIED.
The Court notes that Petitioner raises many of the same arguments here as she raised in her previous Motion to Void Criminal Judgment [464] and Motion for Reconsideration [477]. These arguments have also been raised numerous times by Cenobio Herrera, a co-defendant in this Action, whose repeated jurisdictional challenges caused him to be declared a vexatious litigant. The Court has rejected these arguments in every instance. Petitioner is therefore warned that further filings challenging the Court's jurisdiction over Petitioner's case may result in an order to show cause why she should not be declared a vexatious litigant.
III. CONCLUSION
Based on the foregoing, the Court DENIES the Petition. Petitioner is also warned that further filings challenging the Court's jurisdiction may result in an order to show cause why she should not be declared a vexatious litigant.
IT IS SO ORDERED. 6