Maasen v. United States

• Decision Date: 11 May 2021
• Docket Number: No. CR-16-01357-PHX-DGC,No. CV-19-05736-PHX-DGC (MHB),CV-19-05736-PHX-DGC (MHB),CR-16-01357-PHX-DGC
• Parties: Scott Maasen, Petitioner/Movant/Defendant, v. United States of America, Respondent/Plaintiff.
• Court: U.S. District Court — District of Arizona

Scott Maasen, Petitioner/Movant/Defendant, v. United States of America, Respondent/Plaintiff.

No. CV-19-05736-PHX-DGC (MHB)

No. CR-16-01357-PHX-DGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

May 11, 2021

ORDER

Scott Maasen was convicted of concealing bankruptcy assets in Case No. CR-16-01357. He was sentenced to eighteen months in prison and ordered to pay $1,392,000 in restitution. Pursuant to 28 U.S.C. § 2255, he brought this civil action challenging the restitution order entered in the criminal case. Doc. 1; CR Doc. 142.¹ Because a § 2255 motion cannot be used to challenge restitution, Maasen's motion is construed as a petition for writ of error coram nobis. See Docs. 6, 10.

Magistrate Judge Michelle Burns has issued a report recommending that the petition be denied ("R&R"). Doc. 18. Maasen has filed an objection to which the government has responded. Docs. 19, 20. For reasons stated below, the Court will accept the R&R in part and deny the petition.

I. Background.

In November 2016, a grand jury indicted Maasen on multiple offenses arising from a $1.5 million loan he had obtained from the Small Business Administration ("SBA") and his subsequent bankruptcy proceedings. CR Doc. 1. The superseding indictment charged Maasen with making a false statement to the SBA (count one), conspiracy (count two), transfer and concealment in contemplation of bankruptcy (count three), concealment of assets in bankruptcy (counts four and six), fraudulent transfer of property (count five), and false oath or account in bankruptcy (counts seven through twelve). CR Doc. 39. Maasen pled guilty to count four in April 2018. CR Doc. 84. On November 13, 2018, the Court sentenced him to eighteen months in prison followed by three years of supervised release. CR Docs. 122, 125. The Court also ordered him to pay restitution to the SBA in the amount of $1,392,000 - the outstanding loan balance. CR Doc. 129; see also CR Doc. 120 ¶¶ 25, 72 (presentence report setting forth restitution amount).²

Maasen moves to vacate the restitution order pursuant to § 2255(a), which provides that a federal prisoner may obtain relief from his sentence if it was "imposed in violation of the United States Constitution or the laws of the United States[.]" 28 U.S.C. § 2255(a). Maasen asserts a single ineffective assistance of counsel claim, arguing that his counsel failed to object to the Court's use of the wrong standard for determining actual loss for restitution purposes. Doc. 1 at 5; CR Doc. 142 at 5. The Court granted Maasen's request to convert the § 2255 motion to a coram nobis petition. Docs. 6, 10. Judge Burns concluded in her R&R that the petition should be denied because Maasen has not met the four-part test for coram nobis relief. Doc. 18.

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II. R&R Standard of Review.

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court "must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The Court is not required to conduct "any review at all . . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

III. Discussion.

A. Legal Standard for a Writ of Error Coram Nobis.

The term "coram nobis" is Latin for "in our presence" or "before us." See Nowlin v. United States, 81 F. Supp. 3d 514, 519 (N.D. Miss. 2015) (citing Black's Law Dictionary, at 304-05 (5th ed. 1979)). At common law, a coram nobis writ was used by "a court to vacate its own judgments 'for errors of fact in those cases where the errors are of the most fundamental character, that is, such as rendered the proceeding itself invalid.'" Flores v. Washington, No. 2:18-CV-00177-SAB, 2018 WL 10509378, at *1 (E.D. Wash. Sept. 18, 2018) (quoting United States v. Mayer, 235 U.S. 55, 69 (1914)); see Raven v. Oklahoma, No. CIV-16-289-D, 2016 WL 3950959, at *2 (W.D. Okla. June 14, 2016) ("[T]he common law scope of coram nobis was a writ from the judgment-issuing court to itself, granting itself power to reopen that judgment.") (quoting Rawlins v. Kansas, 714 F.3d 1189, 1196 (10th Cir. 2013)).

In 1946, amendments to Federal Rule of Civil Procedure 60 expressly abolished coram nobis writs. Fed. R. Civ. P. 60(e); see Flores, 2018 WL 10509378, at *1. Several years later, however, the United States Supreme Court "held that district courts have the power to issue the writ under the All Writs Act[.]"³ Matus-Leva v. United States, 287F.3d 758, 760 (9th Cir. 2002) (citing United States v. Morgan, 346 U.S. 502, 506-07 (1954)); see also United States v. Mischler, 787 F.2d 240, 241 n.1 (7th Cir. 1986) ("[The] writ of error coram nobis is authorized by 28 U.S.C. § 1651 (1981) - the all writs provision of the Judicial Code. While the writ was abolished in 1946 by the amendment of Fed.R.Civ.P. 60(b), it retains its vitality in criminal proceedings.") (citing Morgan); Flores, 2018 WL 10509378, at *1 (Morgan held that the abolition under Rule 60 "applied only to civil writs and that district courts retained authority to issue writs of coram nobis in collateral criminal proceedings"); United States v. Stine, No. CR 99-00155-PCT-JJT, 2018 WL 6030977, at *2 (D. Ariz. May 22, 2018) ("A writ of Coram Nobis . . . authorizes a court to vacate its judgment where errors are of the most fundamental character.") (citing Morgan).

The Supreme Court has observed that "the All Writs Act is 'a residual source of authority to issue writs that are not otherwise covered by statute,' and that, 'it is difficult to conceive of a situation in a federal criminal case today where the writ would be necessary or appropriate.'" Stine, 2018 WL 6030977, at *2 (quoting Carlisle v. United States, 517 U.S. 416, 429 (1996)). Indeed, both the Supreme Court and the Ninth Circuit "have long made clear that the writ of error coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable." United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007); see Morgan, 346 U.S. at 511 (characterizing the writ as an "extraordinary remedy" that should be granted "only under circumstances compelling such action to achieve justice"); Matus-Leva, 287 F.3d at 760 ("Coram nobis is an extraordinary writ, used only to review errors of the most fundamental character."); Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) (describing the writ as "extraordinary").

"In Hirabayashi, consistent with the extraordinary nature of coram nobis relief, [the Ninth Circuit] adopted the following framework for deciding when the writ should be issued:

A petitioner must show the following to qualify for coram nobis relief: (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."

Riedl, 496 F.3d at 1006 (quoting Hirabayashi, 828 F.2d at 604, and noting that the Ninth Circuit has "repeatedly reaffirmed this framework") (citations omitted). "Because these requirements are conjunctive, failure to meet any one of them is fatal." Matus-Leva, 287 F.3d at 760 (citing United States v. McClelland, 941 F.2d 999, 1002 (9th Cir. 1991)).

B. Judge Burns's R&R.

Judge Burns found that Maasen has met none of the Hirabayashi requirements for coram nobis relief. Doc. 18 at 4-12. Specifically, Judge Burns concluded: (1) a more usual remedy was available because Maasen had the right to challenge restitution on direct appeal (id. at 4-5); (2) Maasen offers no excuse for waiting a year to challenge restitution in this Court (id. at 5-7); (3) restitution constitutes a financial injury that is not the sort of adverse consequence supporting the issuance of a coram nobis writ (id. at 7-8); and (4) Maasen fails to state a claim of ineffective assistance of counsel, and therefore does not demonstrate error of the most fundamental character justifying the extraordinary remedy of a coram nobis writ (id. at 8-12).

C. Maasen's Objections.

Maasen objects to Judge Burns's conclusions that he has not satisfied the test for coram nobis relief. Doc. 19. The Court will address each of the four Hirabayashi requirements.

1. Availability of a More Usual Remedy.

Because a § 2255 motion cannot be used to challenge restitution, the government agrees that the first Hirabayashi requirement is satisfied - a more usual remedy is not available. Doc. 12 at 10 & n.3 (citing United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir. 1999)); see also United States v. Thiele, 314 F.3d 399, 401 (9th Cir. 2002) ("We agree with the district court that Kramer controls and that Thiele cannot collaterallyattack his restitution order in a § 2255 motion."). Judge Burns concluded, however, that Maasen fails to meet the first Hirabayashi requirement because he "did have the remedy of filing a direct appeal of the restitution order, even though he elected not to do." Doc. 18 at 5. The Court does not agree with that conclusion.

The Supreme Court made clear in Morgan that coram nobis relief may be available to achieve justice even "after final judgment and exhaustion or waiver of any statutory right of review[.]" 346 U.S. at 511. Consistent with this approach, the Ninth Circuit made clear in Hirabayashi that a coram nobis writ can provide a remedy "where no other relief is available." 828 F.2d at 604 (emphasis added); see also Riedl, 496 F.3d at 1005 (coram nobis relief may be appropriate "where no more conventional remedy is applicable") (emphasis added). In United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005), the government argued that the defendant "did not satisfy this first Hirab...