United States District Court, D. Kansas
MEMORANDUM AND ORDER
Kathryn H. Vratil United States District Judge.
March 11, 2009, the Court sentenced defendant to 18 months in
prison and five years of supervised release. This matter is
before the Court on defendant's letter (Doc. #92) filed
April 29, 2019, which the Court construes as a motion for a
writ of coram nobis. For reasons stated below, the Court
overrules defendant's motion.
February 27, 2008, a grand jury indicted defendant for
failing to update a registration under the Sex Offender
Registration and Notification Act (“SORNA”) in
violation of 18 U.S.C. § 2250. See Indictment
(Doc. #1). Defendant filed a motion to dismiss which asserted
that (1) Section 2250 is invalid because Congress lacked
authority under the Commerce Clause to criminalize a local
sex offender's failure to register in a state-created
registry; (2) SORNA's registration requirements were
invalid because Congress lacked authority under the Commerce
Clause to force citizens who have been convicted under state
law to register as sex offenders; (3) as applied to his
travel before February 28, 2007 (when the Attorney General
issued the interim rule), SORNA violated the ex post facto
clause; (4) Section 2250 was not made retroactive to offenses
which occurred before its effective date and even if it was
retroactive, defendant's prosecution violated the ex post
facto clause; (5) the Attorney General's regulation was
invalid because it was issued without a notice and comment
period in violation of the Administrative Procedure Act; (6)
SORNA violated the non-delegation doctrine because Congress
attempted to delegate to the Attorney General the power to
determine the retroactivity of the registration requirements;
(7) defendant's prosecution under Section 2250 violated
his right to due process because he did not receive notice of
SORNA's requirements when he was convicted of the
underlying offense, it was impossible for him to comply with
SORNA because Kansas has not adopted a SORNA-compliant
registry and he could not “knowingly” violate
SORNA because no state had adopted a SORNA-compliant
registry; (8) Section 2250 violated the Tenth Amendment
because it forced state officials to enforce a federal
regulatory scheme; and (9) as applied, SORNA infringed on
defendant's constitutional right to travel. On September
23, 2008, the Court overruled defendant's motion to
dismiss. See Memorandum And Order (Doc. #34).
November 24, 2008, defendant pled guilty to failing to update
a registration under SORNA. On March 11, 2009, the Court
sentenced defendant to 18 months in prison and five years of
supervised release. See Judgment In A Criminal Case
(Doc. #47). Defendant did not appeal. On April 29, 2011,
after defendant violated the terms of his supervised release,
the Court sentenced him to eight months in prison and five
years of supervised release. See Judgment In A Criminal
Case (Doc. #59). On November 3, 2015, after defendant
again violated the terms of his supervised release, the Court
sentenced him to 21 months in prison with no supervised
release to follow. See Judgment In A Criminal Case
(Doc. #86). On March 16, 2017, the Bureau of Prisons released
October 3, 2016, defendant filed a motion to expunge his
conviction because (1) SORNA was not in effect in 1981 when
he was convicted of a sex offense and (2) he is fully
rehabilitated. On October 11, 2016, the Court overruled
defendant's motion. See Memorandum And Order
February 24, 2017, defendant filed a letter which the Court
construed as a motion to vacate his conviction under 28
U.S.C. § 2255. Defendant's motion asserted that his
conviction for failure to update his registration was
erroneous and his name should be removed from the sex
offender registry because (1) the indictment did not allege
that he received notice of the requirement to register under
SORNA and (2) the record demonstrates that he did not in fact
receive notice until his arrest in this case. See
Doc. #89 at 6. On April 20, 2017, the Court overruled
defendant's motion and denied a certificate of
appealability. See Memorandum And Order (Doc. #91).
April 29, 2019, defendant filed the instant letter which asks
the Court to vacate or expunge his conviction and remove his
name from the sex offender registry.
argues that his conviction for failure to update his
registration was erroneous because (1) he did not in fact
receive notice of the requirement to register under SORNA
until his arrest in this case and (2) his 1981 conviction in
California did not involve an underage female. See
Doc. #92 at 1-6. Because defendant is no longer in custody,
the Court construes his present letter as a motion for a writ
of coram nobis under 28 U.S.C. § 1651. See Chaidez
v. United States, 568 U.S. 342, 345 n.1 (2013) (petition
for writ of coram nobis provides way to collaterally attack
criminal conviction for person no longer in custody and
therefore cannot seek habeas relief under 28 U.S.C.
§§ 2255 or 2241); Rawlins v. Kansas, 714
F.3d 1189, 1196 (10th Cir. 2013) (coram nobis applies where
petitioner alleges defects that existed before judgment that
would otherwise be raised in habeas proceedings but for
petitioner no longer being in custody).
of error coram nobis is available only to correct errors
resulting in a complete miscarriage of justice, or under
circumstances compelling such action to achieve justice.
United States v. Bustillos, 31 F.3d 931, 934 (10th
Cir. 1994); see 28 U.S.C. § 1651(a). To obtain
relief, petitioner must demonstrate that (1) he diligently
pursued the claim, (2) other remedies are unavailable or
inadequate and (3) a fundamental error occurred,
i.e. the error resulted in a complete miscarriage of
justice. United States v. Thody, 460 Fed.Appx. 776,
778 (10th Cir. 2012) (citing United States v.
Morgan, 346 U.S. 502, 511-12 (1954) and Embrey v.
United States, 240 Fed.Appx. 791, 793-94 (10th Cir.
fails to show that other remedies are unavailable or
inadequate. Defendant filed a motion to dismiss which raised
several of the claims in his current motion, but the Court
overruled the motion. See Memorandum And Order (Doc.
#34). Defendant did not appeal his conviction or sentence.
Defendant filed similar claims seeking to vacate his
conviction under Section 2255, but the Court overruled that
motion. See Memorandum And Order (Doc. #91).
Defendant cannot use the writ of coram nobis to raise issues
that were or could have been raised on direct appeal or in a
motion under 28 U.S.C. § 2255. See Embrey, 240
Fed.Appx. at 794; see also United States v.
Perceval, 563 Fed.Appx. 592, 594 (10th Cir. 2014)
(defendant not entitled to relief because remedies of direct
appeal and Section 2255 were adequate); Bradshaw v.
Story, 86 F.3d 164, 166 (10th Cir. 1996) (failure to
obtain relief under Section 2255 does not establish that
remedy is either inadequate or ineffective).
also has not shown a “complete miscarriage of
justice.” Bustillos, 31 F.3d at 934. Defendant
argues that before he was arrested in this case, he lacked
actual notice of a registration requirement. As explained in
a prior order, actual notice that federal law required him to
update his registration is not an essential element of the
charge. Memorandum And Order (Doc. #34) at 15-17
(citations omitted). In addition, the record belies
defendant's claim that he did not have actual
notice. Defendant's alternative claim that his
name should be removed from the sex offender registry because
his 1981 conviction in California did not involve an underage
female lacks factual support. It appears that the age of the
victim was not an essential element of the 1981 conviction
and that the offense triggered a reporting requirement under
SORNA because it involved “force, violence, duress,
menace or threat of great bodily harm.” PSIR ¶ 34;
see 42 U.S.C. § 16911. Defendant has not
presented credible evidence that a “complete
miscarriage of justice” occurred.
IS THEREFORE ORDERED that defendant's letter
(Doc. #92) filed April 29, 2019, which the Court construes as
a motion for a ...