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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10857
Non-Argument Calendar
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D.C. Docket No. 6:17-cr-00205-PGB-LRH-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZAFAR BAKHRAMOVICH YADIGAROV,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 8, 2021)
Before MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Zafar Yadigarov appeals the district court’s denial of his
28 U.S.C. § 1651
petition for a writ of error coram nobis. On appeal, Yadigarov argues that the
district court erred by ruling that his petition was procedurally barred and by
denying his petition without holding an evidentiary hearing. Because we discern
no abuse of discretion, we affirm.
I. BACKGROUND
A federal grand jury indicted Yadigarov on one count of conspiracy to
commit marriage fraud and one count of marriage fraud. Three days before trial,
Yadigarov’s attorney advised him that he “really need[ed] to plea” because
Yadigarov could “get 16 months prison when [he] los[t].” Doc. 427-1 at 2. 1 The
day of trial, Yadigarov pled guilty to both counts.
At the change of plea hearing before the district court, Yadigarov testified
that he had received a copy of the indictment, discussed the charges with his
attorney, and was fully satisfied with his attorney’s representation and advice.
Yadigarov acknowledged that he had not been threatened, intimidated, or coerced
into pleading guilty. And he said he understood it was “exceptionally likely” that
he could be deported from the United States because of his guilty pleas. Doc. 392
at 6. The court informed Yadigarov of the potential statutory penalties he faced
and explained that the advisory sentencing guidelines range would not be
1
“Doc.” numbers refer to the district court’s docket entries.
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calculated until after the probation office prepared a Presentence Investigation
Report (“PSR”). The district court cautioned Yadigarov that if the PSR’s
guidelines range was different from what he expected, he could not withdraw his
guilty plea on that basis. The district court also explained that the Sentencing
Guidelines were advisory and that the court could impose a sentence lower or
higher than the PSR’s recommended range. Yadigarov said that he understood.
Yadigarov pled guilty to both counts; the court accepted the plea and adjudicated
him guilty.
The PSR grouped both counts per U.S.S.G. § 3D1.2(b) and determined that
under U.S.S.G. § 2L2.2(a), Yadigarov’s base offense level was eight. The PSR
applied a two-level reduction for acceptance of responsibility, yielding a total
offense level of six. Based on his total offense level and criminal history category
of I, Yadigarov’s recommended range under the Sentencing Guidelines was zero to
six months’ imprisonment.
Shortly after the PSR was filed, Yadigarov moved to withdraw his guilty
plea. He contended, among other arguments, that he felt pressured to plead guilty
by his family and friends and from the fear of potential immigration consequences.
The district court denied Yadigarov’s motion, concluding that his plea was a
“knowing, voluntary, and intelligent decision that was made without undue
influence.” Doc. 364 at 5. Yadigarov’s case proceeded to sentencing, where the
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district court sentenced him to time served and one year of supervised release.
Yadigarov filed a notice of appeal and later voluntarily dismissed the appeal.
When he dismissed the appeal, Yadigarov had almost eight months left in his term
of supervised release.
About four months after his term of supervised release ended, Yadigarov
filed a petition for a writ of error coram nobis under the All Writs Act,
28 U.S.C.
§ 1651(a), in the district court, asserting ineffective assistance of counsel.
Yadigarov argued that his attorney wrongfully advised him that if convicted at
trial, his guidelines range would be 10–16 months’ imprisonment when, in fact, the
range was 0–6 months regardless of whether he pled guilty or proceeded to trial.
But for this incorrect advice, Yadigarov would have “taken his chances at trial.”
Doc. 427 at 5.
The district court denied Yadigarov’s petition. The court explained that
ineffective assistance of counsel claims were properly pursued under
28 U.S.C.
§ 2255 and that, under Carlisle v. United States,
517 U.S. 416 (1996), “‘[w]here a
statute specifically addresses the particular issue at hand, it is that authority, and
not the All Writs Act, that is [c]ontrolling.’” Doc. 428 at 2 (quoting Carlisle,
517 U.S. at 429). Because Yadigarov had ignored Carlisle and failed to articulate
why he did not pursue relief under § 2255, the court concluded his petition was
frivolous.
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The district court also determined that even if coram nobis relief was
available, Yadigarov was not entitled to it. At the change of plea hearing, the court
informed Yadigarov of the potential consequences of pleading guilty, that the
guidelines range would not be calculated until after the PSR was prepared, and that
the court could impose a sentence above or below the guidelines range. As a
result, Yadigarov was “well-aware of the potential risks of proceeding to trial . . .
and that any advice by his attorney regarding the sentencing guidelines may prove
to be incorrect.” Id. at 6. The district court concluded that Yadigarov elected to
plead guilty and his attempt to vacate his convictions to avoid deportation was not
the type of “compelling circumstance[]” for which coram nobis relief was
intended. Id. at 5 (internal quotation marks omitted).
This is Yadigarov’s appeal.
II. STANDARD OF REVIEW
We review a district court’s denial of a writ of error coram nobis for an
abuse of discretion. United States v. Bane,
948 F.3d 1290, 1294 (11th Cir. 2020).
An error of law is an abuse of discretion. Alikhani v. United States,
200 F.3d 732,
734 (11th Cir. 2000). And a district court abuses its discretion if it makes a finding
of fact that is clearly erroneous. Diveroli v. United States,
803 F.3d 1258, 1262
(11th Cir. 2015). “A factual finding is clearly erroneous when, upon review of the
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evidence, we are left with a definite and firm conviction a mistake has been made.”
United States v. Dimitrovski,
782 F.3d 622, 628 (11th Cir. 2015).
We have not yet specified a standard of review for the denial of an
evidentiary hearing in a petition for a writ of error coram nobis, but in other
contexts a district court’s denial of an evidentiary hearing is reviewed for an abuse
of discretion. See Aron v. United States,
291 F.3d 708, 714 n.5 (11th Cir. 2002);
see also, e.g., Hernandez v. United States,
778 F.3d 1230, 1232 (11th Cir. 2015)
(evidentiary hearing in a motion to vacate a sentence); Burgess v. Comm’r, Ala.
Dep’t of Corr.,
723 F.3d 1308, 1320 (11th Cir. 2013) (evidentiary hearing in a
habeas proceeding). In Aron, we noted that if the petitioner “alleges facts that, if
true, would entitle him to relief, then the district court should order an evidentiary
hearing and rule on the merits of his claim.”
291 F.3d at 715 (internal quotation
marks omitted). However, a district court is not required to hold an evidentiary
hearing where the petitioner’s allegations are “affirmatively contradicted by the
record, or the claims are patently frivolous.”
Id.
III. DISCUSSION
Federal courts have authority to issue writs 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). “A writ of error coram nobis is a remedy available to vacate a
conviction when the petitioner has served his sentence and is no longer in custody,
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as is required for post-conviction relief under
28 U.S.C. § 2255.” United States v.
Peter,
310 F.3d 709, 712 (11th Cir. 2002). 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 obtaining
coram nobis relief is high, and the writ may issue only where “there is and was no
other available avenue of relief” and “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 omitted). Further, courts may consider coram nobis
petitions only where the petitioner “presents sound reasons for failing to seek relief
earlier.” Mills, 221 F.3d at 1204.
The district court did not abuse its discretion in denying Yadigarov’s petition
for writ of error coram nobis because, although
28 U.S.C. § 2255 offered an
avenue of relief, Yadigarov failed to seek it and to provide sound reasons for
failing to do so.2 Yadigarov requests coram nobis relief based on ineffective
assistance of counsel, but “an ineffective assistance of counsel claim is properly
2
Because we conclude that the district court properly determined that Yadigarov was not
entitled to coram nobis relief on this ground, we do not decide whether ineffective assistance of
counsel may serve as the basis for coram nobis relief or address the merits of Yadigarov’s
ineffective assistance of counsel claim. See Gonzalez v. United States,
981 F.3d 845, 851 (11th
Cir. 2020) (“We have assumed but not decided that ineffective assistance of counsel may
constitute an error so fundamental as to warrant coram nobis relief.” (internal quotation marks
omitted)).
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raised in a collateral attack on the conviction under
28 U.S.C. § 2255.” United
States v. Merrill,
513 F.3d 1293, 1308 (11th Cir. 2008) (alteration adopted)
(internal quotation marks omitted). Yadigarov correctly notes that § 2255 relief
was unavailable when he filed his coram nobis petition because he was no longer
“in custody,” as is required for post-conviction relief under § 2255. Peter,
310 F.3d at 712. However, Yadigarov could have raised his ineffectiveness claim
under § 2255 until October 10, 2019, when his term of supervised release ended.
See United States v. Brown,
117 F.3d 471, 475 (11th Cir. 1997) (holding a person
is “in custody” within the meaning of § 2255 when he is serving a term of
supervised release). There was an available avenue of relief for the claim
Yadigarov seeks to vindicate; he simply failed to pursue it. See Alikhani,
200 F.3d
at 734 (“[T]he writ [of error coram nobis] is appropriate only when there is and
was no other available avenue of relief.” (emphasis added)); see also Carlisle,
517 U.S. at 429 (“Where a statute specifically addresses the particular issue at
hand, it is that authority, and not the All Writs Act, that is controlling.” (internal
quotation marks omitted)).
Yadigarov also does not offer “sound reasons . . . for failure to seek
appropriate earlier relief.” United States v. Morgan,
346 U.S. 502, 512 (1954). He
does not assert that he only learned of the factual basis for his ineffective
assistance of counsel claim after he was no longer eligible for § 2255 relief. Cf.
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Gonzalez v. United States,
981 F.3d 845, 852 (11th Cir. 2020) (“Perhaps having no
reason to question bad legal advice because it appeared accurate is a valid excuse
for not seeking relief earlier.” (internal quotation marks omitted)). Instead,
Yadigarov argues that he was unable to move for § 2255 relief while his direct
appeal was pending. That is true, see United States v. Khoury,
901 F.2d 948, 969
n.20 (11th Cir. 1990), but Yadigarov chose to file a direct appeal rather than raise
his ineffective assistance of counsel claim in a § 2255 motion. What’s more,
Yadigarov fails to account for the eight months after he dismissed his direct appeal
but before his supervised release term ended. During those eight months § 2255
relief was available, yet Yadigarov provides no valid excuse for failing to seek it.
See Alikhani,
200 F.3d at 734; see also Carlisle,
517 U.S. at 429; Morgan,
346 U.S. at 512. Yadigarov also contends, without citing to authority, that because
he filed his coram nobis petition within § 2255’s one-year limitations period, he
should not be barred from obtaining relief. See
28 U.S.C. § 2255(f). But
Yadigarov’s argument is inapposite, as it still does not explain why he failed to
seek relief under § 2255 when such relief was available.
A petition for a writ of coram nobis is an “extraordinary remedy of last
resort,” Mills, 221 F.3d at 1203; it does not provide a petitioner an opportunity to
assert claims he neglected to bring in previously available proceedings, see
Alikhani,
200 F.3d at 734. Therefore, we conclude that the district court did not
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abuse its discretion in denying Yadigarov’s petition because he was permitted to
seek relief under § 2255 and he did not provide sound reasons for failing to do so
while serving his term of supervised release. Further, because Yadigarov was not
entitled to coram nobis relief, the district court did not abuse its discretion when it
denied his petition without an evidentiary hearing. See Aron,
291 F.3d at 715.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of
Yadigarov’s petition.
AFFIRMED.
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