Suero-Peralta v. United States , 517 F. App'x 585 ( 2013 )

FILED
NOT FOR PUBLICATION APR 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND SUERO-PERALTA, No. 07-35881
Petitioner - Appellant, D.C. No. CV-07-0850-RSL
v.
MEMORANDUM*
UNITED STATES OF AMERICA;
FEDERAL BUREAU OF PRISONS,
Respondents - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted April 12, 2013**
Seattle, Washington
Before: TASHIMA and CALLAHAN, Circuit Judges, and SEABRIGHT,
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable J. Michael Seabright, United States District Judge for
the District of Hawaii, sitting by designation.
Raymond Suero-Peralta (“Petitioner”) seeks to challenge collaterally a 1992
conviction by guilty plea for which he received a sixty-month term of
imprisonment. Petitioner contends that he pleaded guilty with the understanding
that his federal sentence would run concurrently with a state sentence that was
anticipated but had not yet been imposed. Although the state court did
subsequently impose a sentence that was to run concurrently with the federal
sentence, Petitioner claims that at one point, the United States Bureau of Prisons
(“BOP”) improperly treated his state and federal sentences as running partially
consecutive to each other.
In 2007, Petitioner filed a pro se motion in which he asked the district court
to vacate his 1992 conviction as void ab initio. Before the court ruled on the
motion, Petitioner asked the court to construe his motion as a petition for writ of
error coram nobis. Without mentioning Petitioner’s coram nobis request, the
district court denied the motion and dismissed it with prejudice. Two years later,
the BOP granted Petitioner’s administrative appeal relating to the calculation of his
sentencing credits. In 2010, Petitioner asked this Court to disregard from his
appeal “the issue relating to the failure of the Bureau to credit [his] aggregated
term of incarceration” but to “examine the other merits” of his case. Now
represented by appointed counsel, Petitioner contends that the district court erred
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by construing his pro se motion as a habeas petition under 28 U.S.C. § 2255, rather
than as a coram nobis petition. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253, and we affirm.
The district court’s denial of a petition for writ of error coram nobis is
subject to de novo review. Matus-Leva v. United States, 287 F.3d 758, 760 (9th
Cir. 2002). To the extent that the district court construed Petitioner’s pro se motion
as a habeas petition under 28 U.S.C. § 2255, we also review de novo the court’s
dismissal of the petition for lack of jurisdiction. See Marrero v. Ives, 682 F.3d
1190, 1192 (9th Cir. 2012); United States v. Monreal, 301 F.3d 1127, 1130 (9th
Cir. 2002).
We do not decide whether the district court erred by failing to construe
Petitioner’s motion as a coram nobis petition because, in any event, Petitioner is
ineligible for coram nobis relief.1 Coram nobis is an extraordinary remedy
available only if Petitioner can show, inter alia, “error[] of the most fundamental
character.” Matus-Leva, 287 F.3d at 760; see Hirabayashi v. United States, 828
F.2d 591, 604 (9th Cir. 1987). Petitioner concedes that in 2009, BOP corrected the
1
We find the record sufficient to permit a ruling on the merits of the
coram nobis petition, and “[w]e may affirm on any ground finding support in the
record.” Matus-Leva, 287 F.3d at 760.
3
sentencing miscalculation that formed the basis of his pro se motion; accordingly,
he cannot show fundamental error.
AFFIRMED.
4