[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13126 ELEVENTH CIRCUIT
MARCH 6, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 93-00068-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIUS OBASOHAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 6, 2009)
Before BIRCH, WILSON and FAY, Circuit Judges.
PER CURIAM:
Julius Obasohan appeals the district court’s denial of his pro se petition for
writ of error coram nobis. Obasohan challenged in his petition his 1994
conviction, pursuant to a guilty plea, for conspiracy to produce, use and traffic in
one or more counterfeit access devices, in violation of 18 U.S.C. § 1029.
Specifically, he argued that the following enumerated overt acts in furtherance of
the conspiracy were not a violation of § 1029(b)(2): (1) his co-defendant, Oromie
Ogionwo, presented a false driver’s license in the name of Robert L. Voelkell, Jr.
to a postal employee; (2) Ogionwo obtained mail containing a Discover credit card
in Voelkell’s name; and, (3) Ogionwo delivered the mail containing that Discover
credit card to Obasohan.
On appeal, Obasohan argues that his coram nobis petition was warranted
because his conduct was not a crime under 18 U.S.C. § 1029, and he is no longer in
custody. Therefore, no other remedy is available to correct his improper
conviction. Furthermore, he contends that he suffers from various continuing civil
disabilities due to his improper conviction. Obasohan argues that he did not
produce, use, and traffic in any counterfeit access device, and thus he could not
have violated 18 U.S.C. § 1029. Obasohan claims that because a major element of
§ 1029(a)(1) is that the access device or credit card be counterfeited, faked, or
forged, he could not have committed the offense because the Discover credit card
was unauthorized instead of counterfeited. Obasohan states that based on the
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Discover credit card being unauthorized, his overt acts could only have been
charged under 18 U.S.C. § 1029(a)(2), but because he did not obtain at least $1,000
in value from the credit card, the elements of this offense were not met.
Obasohan, relying primarily on United States v. Peter, 310 F.3d 709 (11th
Cir. 2002) (per curiam), argues that because the indictment did not allege a crime,
the district court lacked jurisdiction to accept his guilty plea to a non-offense.
Obasohan concedes that he pled guilty to conspiracy under § 1029(b)(2).
However, he argues that he did not violate § 1029(a)(1). Therefore, he contends
that he could not be guilty of § 1029(b)(2) because neither the rule of law nor
evidence supported his guilt.
Obasohan also contends that he did not attack his improper conviction
earlier because his counsel misadvised him that an unauthorized access device was
also a counterfeit access device. Specifically, Obasohan states that his counsel
failed to discover that he was charged with one specific conduct, which was not
within the reach of § 1029(a)(1). Obasohan argues that, at every stage of his
criminal proceedings, his counsel provided him with ineffective representation in
violation of due process by failing to notice that there was a jurisdictional defect in
his indictment. Further, Obasohan contends that he did not discover the difference
in the two elements of § 1029(a)(1) until after reviewing his immigration appeal in
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Obasohan v. U.S. Att’y Gen., 479 F.3d 785 (11th Cir. 2007) (hereinafter
“immigration case”), in which we stated that his conviction was premised upon one
conduct depicted in the indictment, which was contrary to the overly broad “true
name fraud” used by the district court in denying his coram nobis petition.
Obasohan contends that based on his immigration case, he has discovered that “all
credit cards are not counterfeited.” Obasohan, relying on Ninth Circuit case law,
argues that coram nobis does not require that he challenge his conviction at the
earliest possible opportunity, but only that he provide reasons for not doing so
earlier.
“Federal courts have authority to issue a writ of error coram nobis under the
All Writs Act, 28 U.S.C. 1651(a).” United States v. Mills, 221 F.3d 1201, 1203
(11th Cir. 2000). We review a district court’s denial of the writ of error coram
nobis for an abuse of discretion. Alikhani v. United States, 200 F.3d 732, 734
(11th Cir. 2000) (per curiam).
As defined in § 1029 at the time of Obasohan’s conviction, a counterfeit
access device is “any access device that is counterfeit, fictitious, altered, or forged,
or an identifiable component of an access device or a counterfeit access device.”
18 U.S.C. § 1029(e)(2). Further, an unauthorized access device is “any access
device that is lost, stolen, expired, revoked, canceled, or obtained with intent to
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defraud.” 18 U.S.C. § 1029(e)(3).
“The writ of error coram nobis is an extraordinary remedy of last resort
available only in compelling circumstances where necessary to achieve justice.”
Mills, 221 F.3d at 1203. The bar for coram nobis is high and relief may issue only
where: (1) “there is and was no other available avenue of relief,” and (2) “the error
involves a matter of fact of the most fundamental character which has not been put
in issue or passed upon and which renders the proceeding itself irregular and
invalid.” Alikhani, 200 F.3d at 734 (internal quotation marks and citation omitted).
A district court “may consider coram nobis petitions only where no other remedy
is available and the petitioner presents sound reasons for failing to seek relief
earlier.” Mills, 221 F.3d at 1204. “[T]he concern with finality served by the
limitation on collateral attack has special force with respect to convictions based on
guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784, 99 S. Ct. 2085, 2087
(1979). In addition,“[a] claim of newly discovered evidence relevant only to the
guilt or innocence of the petitioner is not cognizable in a coram nobis proceeding.”
Moody v. United States, 874 F.2d 1575, 1577 (11th Cir. 1989).
The writ of error coram nobis is a remedy available to vacate a conviction
when the petitioner has served his or her sentence and is no longer in custody
because “the results of the conviction may persist.” United States v. Peter, 310
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F.3d 709, 712 (11th Cir. 2002) (internal quotation marks omitted). In Peter, we
found coram nobis relief to be appropriate. Peter claimed that the facts supporting
his guilty plea did not constitute an offense in light of a Supreme Court case
decided after his sentence had expired. Id. at 711. We found that “Peter’s
innocence of the charged offense appears from the very allegations made in the
superseding information, not from the omission of an allegation requisite to
liability” and ruled as a consequence that the district court lacked jurisdiction to
accept a guilty plea to a “non-offense.” Id. at 715.
We held in Peter that “a writ of error coram nobis must issue to correct the
judgment that the court never had power to enter.” Id. at 716. In so holding, we
distinguished claims that a defendant had been charged in an indictment with
alleged conduct that was non-criminal– a jurisdictional defect– from claims
involving indictments with omissions, such as a missing element, which are not
jurisdictional defects. Id. at 714. Similarly, in United States v. Cotton, 535 U.S.
625, 630, 122 S. Ct. 1781, 1785 (2002), the Supreme Court held that an
indictment’s failure to allege an essential element of an offense did not constitute a
jurisdictional defect.
Here, Obasohan’s failure to investigate and recognize the legal significance
of his claims is not a sound reason for failing to seek relief earlier. Therefore, he
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did not satisfy the requirements for coram nobis relief. Additionally, Obasohan’s
subject matter jurisdiction claim is distinguishable from Peter because Obasohan
was not charged with a non-offense. Therefore, the district court did not abuse its
discretion in denying Obasohan’s petition.
CONCLUSION
Upon review of the record and the parties’ briefs, we discern no reversible
error. Accordingly, we affirm.
AFFIRMED.
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