US v. Haga, Crim. No. 81-CR-137.

• Decision Date: 03 July 1990
• Docket Number: Crim. No. 81-CR-137.
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. Michael William HAGA, Defendant/Petitioner.
• Court: U.S. District Court — District of Colorado

740 F. Supp. 1493

UNITED STATES of America, Plaintiff/Respondent, v. Michael William HAGA, Defendant/Petitioner.

Crim. No. 81-CR-137.

United States District Court, D. Colorado.

July 3, 1990.

COPYRIGHT MATERIAL OMITTED

Michael J. Norton, U.S. Atty., James P. Moran, Asst. U.S. Atty., Denver, Colo., for plaintiff/respondent.

Walter L. Gerash, Todd J. Thompson, Denver, Colo., for defendant/petitioner.

MEMORANDUM OPINION AND ORDER

SHERMAN G. FINESILVER, Chief Judge.

THIS MATTER comes before the court on defendant-petitioner's ("petitioner") Motion to Reconsider and Vacate Order re: Coram Nobis. Petitioner Michael Haga moves this court to vacate its order of December 14, 1989 denying Mr. Haga's motion for a writ of coram nobis, and to assign this matter to the Hon. John L. Kane, Jr. for further proceedings. In the alternative, petitioner moves this court to reconsider its denial of petitioner's motion in the nature of coram nobis to vacate judgment of conviction, as per our order dated December 14, 1989. Finally, petitioner requests an evidentiary hearing to resolve the issue of Mr. Haga's competency. We granted the motion for a hearing on the issue of competency. The hearing was held earlier this year.

The court has carefully considered the parties' pleadings, the evidence, and oral arguments. With the following order, we hereby enlarge on our earlier ruling. For the reasons set forth below, petitioner's motion to vacate the December 14, 1989 order and to assign this matter to Judge Kane is DENIED. Further, petitioner's motion to reconsider our previous order denying petitioner a writ of coram nobis is DENIED.

I.

On September 25, 1981, the Hon. John L. Kane, Jr. heard petitioner's guilty plea to one count of Information alleging a violation of 18 U.S.C. § 656. Petitioner admitted to embezzling approximately half a million dollars in funds from a number of area banks. In exchange for the court's accepting petitioner's guilty plea, the government agreed not to file additional charges arising from the defendant's employment at the First National Bank of Bear Valley in Denver. Petitioner was represented by Claud Wild, Esq. at the change of plea hearing.

On October 23, 1981, the court sentenced petitioner. Terry Wiggins, Esq. represented Mr. Haga on that date. At the sentencing, petitioner's attorney represented to the court that petitioner, a law graduate, had worked temporarily as a law clerk with the Wiggins firm while awaiting sentencing. From personal knowledge, Mr. Wiggins alluded to petitioner's remorse for committing the crimes and urged the court to sentence his client to a term of probation. Petitioner was sentenced by the court to a five year term of imprisonment. The court ordered that Mr. Haga should receive psychiatric treatment during incarceration.

Mr. Haga was confined to the penal institution at Fort Worth, Texas. He entered prison on November 3, 1981. While confined, petitioner received treatment for a variety of ailments. His physicians administered prednisone therapy during this time, which reportedly caused a remission in Mr. Haga's symptoms. Mr. Haga was released in December, 1983. Following his release, petitioner remained on parole until November 12, 1986.

On November 7, 1989, petitioner filed a Motion in the Nature of Coram Nobis asking the court to vacate its judgment of conviction in this matter. On December 14, 1989, we denied Mr. Haga's petition. Mr. Haga filed a motion to reconsider our order on January 5, 1990, stating that his motion was improperly before this court and asking us, in the alternative, to reconsider our denial of the writ. The motion further requested a hearing regarding petitioner's competency at the time of his conviction.

At the hearing earlier this year, petitioner, represented by Walter Gerash, Esq., claimed that a recent diagnosis of neurosarcoidosis, an organic neurological disorder, invalidates his guilty plea because he was insane at the time of committing the crime and incompetent when entering his plea. At the hearing on this matter, petitioner offered four medical opinions supporting a diagnosis of neurosarcoidosis, including testimony of Henry Frey, M.D., a Colorado psychiatrist.

Petitioner claims that he continues to suffer adverse legal consequences from his conviction. Beyond the stigma of a felony conviction, he alleged that he may suffer enhanced penalties in further legal proceedings pending in state court,¹ and has already suffered loss of employment opportunities in the banking business, his chosen profession.

II.

The writ of coram nobis was a common law remedy,² abolished in civil cases with the passage of amended Fed.R.Civ.P. 60(b) in 1946. Following its abolition in civil cases, the writ's function in modern American law remained unclear for a number of years. The United States Supreme Court, however, in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), expressly reserved the use of writs of coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651(a), in criminal matters. Courts have disagreed regarding whether the writ is civil or criminal in nature. The divergence has lead to differing interpretations of Morgan in imposing time limits for filing the motion,³ and in imposing discovery rules on proceedings. Annotation. Application of Civil or Criminal Procedural Rules in Federal Court Proceeding on Motion in Nature of Writ of Error Coram Nobis, 53 A.L.R.Fed. 762 (1981).

The writ's function in criminal matters is quite narrow; it remains one to fill a void. Yasui v. United States, 772 F.2d 1496, 1498 (9th Cir.1985), cert. denied, 484 U.S. 831, 108 S.Ct. 103, 98 L.Ed.2d 63 (1987), reh'g denied, 484 U.S. 971, 108 S.Ct. 471, 98 L.Ed.2d 409 (1987). Traditionally, the writ was reserved for cases "where no other form of relief is available." James v. United States, 459 U.S. 1044, 103 S.Ct. 465, 74 L.Ed.2d 615 (1982); Morgan, 346 U.S. at 512, 74 S.Ct. at 253. That prerequisite has come to mean that writs are issued only after the petitioner has been finally released from custody. "In custody" is defined broadly under 28 U.S.C. § 2255, as probation, parole, or any other form of minimal custodial supervision. See, Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); United States v. Condit, 621 F.2d 1096, 1098 (10th Cir.1980); Strand v. United States, 675 F.Supp. 1283, 1287 (D.Utah 1987), aff'd, 865 F.2d 267 (10th Cir.1988).

A writ of coram nobis is considered an "extraordinary remedy" which is appropriate to correct only fundamental errors and to prevent injustice. Morgan, 346 U.S. at 511-12, 74 S.Ct. at 252-53 (writ to be used "only under circumstances compelling such action to achieve justice" and to correct "errors of the most fundamental character"). See, e.g., United States v. Scherer, 673 F.2d 176 (7th Cir.1982), cert. denied, 457 U.S. 1120, 102 S.Ct. 2935, 73 L.Ed.2d 1334 (1982) (where petition denied because new evidence of perjured testimony unlikely to have substantially influenced original conviction); Deaton v. United States, 480 F.2d 1015 (8th Cir.1973) (where writ denied, but filed on the grounds that guilty plea coerced); Bruno v. United States, 474 F.2d 1261 (8th Cir.1972) (where counsel inadequate); Navarro v. United States, 449 F.2d 113 (9th Cir.1971) (where writ allowed assertion of self-incrimination defense); United States v. Mills, 430 F.2d 526 (8th Cir.1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 589, 27 L.Ed.2d 636 (1971) (where petitioner incompetent at time of conviction); Mitchell v. United States, 228 F.2d 747 (10th Cir.1955) (where right to counsel violated); see also, Yasui, 772 F.2d at 1496; United States v. Taylor, 648 F.2d 565, 570 (9th Cir.1981), cert. denied, 454 U.S. 866, 102 S.Ct. 329, 70 L.Ed.2d 168 (1981) (where prosecutorial improprieties held to be proper basis for writ to issue); Lewis v. United States, 314 F.Supp. 851 (D.Alaska 1970); Annotation. Availability, Under 28 U.S.C.S. § 1651, of Writ of Error Coram Nobis to Vacate Federal Conviction Where Sentence has been Served, 38 A.L.R.Fed. 617 (1978).

Presumably, the proceedings leading to conviction were correct; the petitioner bears the burden of demonstrating that the asserted error is either jurisdictional or constitutional and results in a miscarriage of justice. Klein v. United States, 880 F.2d 250, 253 (10th Cir.1989). Petitioner must demonstrate that he suffers from present adverse consequences sufficient to require the court to adjudge his conviction unconstitutional, and not merely to vacate his sentence. Yasui, 772 F.2d at 1498. "Absent a complete miscarriage of justice, and where there have been no serious, fundamental violations of the petitioner's constitutional rights, society's interest in finality would not be served by granting coram nobis." United States v. Williamson, 806 F.2d 216, 222 (10th Cir.1986); Ward v. United States, 381 F.2d 14 (10th Cir.1967).

The petitioner must also show that valid reasons exist for his not having attacked his conviction earlier. Maghe v. United States, 710 F.2d 503 (9th Cir.1983), cert. denied, 463 U.S. 1212, 103 S.Ct. 3549, 77 L.Ed.2d 1396 (1983). When, as in this case, the petitioner claims that new evidence exists, he must show that due diligence could not have revealed the evidence prior to trial and that the evidence would likely have lead to a different result. Klein, 880 F.2d at 253-54; United States v. Dellinger, 657 F.2d 140, 144 n. 9 (7th Cir.1981).

Yasui, illustrates the writ's specificity. Mr. Yasui, an American citizen of Japanese ancestry during World War II, was convicted for violating a curfew order, Public Proclamation No. 3 of the Western Defense Command. The proclamation required all persons of Japanese ancestry in certain far western states to be at home between 8:00 p.m. and 6:00 a.m. On November 16, 1942, Mr. Yasui was convicted and sentenced to one year in prison and a $5,000.00 fine. Yasui petitioned the court for a writ of...