United States v. Bazuaye , 399 F. App'x 822 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7965
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEROMI HORNS BAZUAYE, a/k/a Joromi Bazuaye, a/k/a Jeromi
Duzuaye, a/k/a Joromi Duzuaye,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr.,
Senior District Judge. (1:91-cr-00508-LO-1)
Submitted: September 24, 2010 Decided: October 28, 2010
Before GREGORY and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David L. Lewis, LEWIS & FIORE, New York, New York, for
Appellant. Neil H. MacBride, United States Attorney, Thomas H.
McQuillan, Assistant United States Attorney, David I.
Sharfstein, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeromi Horns Bazuaye appeals the district court’s
order denying his petition and amended petition for a writ of
error coram nobis. Bazuaye sought the writ to void his 1992
guilty plea to a violation of 18 U.S.C. § 1029(a)(3) (2006),
based on an illegal forfeiture provision in his plea agreement.
Finding no reversible error, we affirm.
Federal courts have the authority to grant relief from
a conviction via a writ of error coram nobis after the
expiration of a sentence. 28 U.S.C. § 1651 (2006); United
States v. Morgan, 346 U.S. 502, 512-13 (1954). Traditionally,
the writ is available only to remedy “factual errors material to
the validity and regularity of the legal proceeding itself.”
Carlisle v. United States, 517 U.S. 416, 429 (1996) (internal
quotation marks omitted). Because the writ is an “extraordinary
remedy” that should issue “only under circumstances compelling
such action to achieve justice[,] [a]n error of the most
fundamental character must have occurred to warrant issuing the
writ, and no other remedy may be available.” United States v.
Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988) (internal quotation
marks and citations omitted). The Supreme Court has observed
that “it is difficult to conceive of a situation in a federal
criminal case today where a writ of coram nobis would be
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necessary or appropriate.” Carlisle, 517 U.S. at 429 (internal
quotation marks and brackets omitted).
To be entitled to coram nobis relief, the petitioner
must demonstrate that: “(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.” Hirabayashi v. United States, 828 F.2d
591, 604 (9th Cir. 1987). We conclude that Bazuaye failed to
meet the second and fourth elements of this test.
While criminal forfeiture was not authorized for
Bazuaye’s offense at the time he entered his guilty plea or at
the time the district court entered judgment, Bazuaye had ample
opportunity between 1992 and 2009 to challenge his sentence on
that ground, but he failed to do so. Bazuaye states on appeal
that he discovered the fundamental error only when preparing to
defend against immigration removal proceedings recently
initiated against him. However, the error was discoverable at
the time Bazuaye pled guilty and most certainly was discoverable
at some point within the seventeen years that passed between the
entry of judgment and the filing of the coram nobis petition.
In addition, the error complained of by Bazuaye does
not qualify as fundamental. Even acknowledging that Bazuaye
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should not have been subjected to criminal forfeiture, that
error does not impact the integrity of his guilty plea or the
validity of the judgment that he violated a federal offense. We
thus decline to conclude that the regularity of the legal
proceedings that culminated in Bazuaye’s conviction was
fundamentally flawed.
Accordingly, because Bazuaye was not entitled to the
extraordinary remedy of a writ of error coram nobis, we affirm
the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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