Patrick Shin v. United States ( 2019 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PATRICK SHIN, No. 17-16460
Petitioner-Appellant, D.C. No.
1:15-cv-00377-SOM-RLP
v.
UNITED STATES OF AMERICA, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding
Argued and Submitted October 12, 2018
Honolulu, Hawaii
Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges.
Patrick Shin (Shin) appeals the district court’s denial of his petition for a
writ of error coram nobis or, in the alternative, a writ of audita querela.
We review de novo the district court’s ruling on a petition for a writ of error
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
coram nobis or a writ of audita querela. See United States v. Riedl, 496 F.3d 1003,
1005 (9th Cir. 2007); see also United States v. Hovsepian, 359 F.3d 1144, 1153
(9th Cir. 2004) (en banc). We review for an abuse of discretion a district court’s
determination whether an evidentiary hearing is warranted. See Runningeagle v.
Ryan, 825 F.3d 970, 990 (9th Cir. 2016). We affirm.
1. To establish entitlement to a writ of error coram nobis, the petitioner
must show 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 . . . ; and (4) the error is of the most fundamental character.” Riedl, 496
F.3d at 1006 (citation omitted). Shin has established the first three factors, but not
the fourth.
As Shin has completed his sentence and is not in custody, no “more usual”
remedy is available. Id. (citation omitted). Because Shin only became aware of
the asserted exculpatory evidence in May, 2015, he had valid reasons for not
attacking his conviction earlier. Finally, Shin has suffered at least reputational and
professional consequences as a result of his conviction. See Hirabayashi v. United
States, 828 F.2d 591, 606 (9th Cir. 1987) (recognizing a “presumption that
collateral consequences flow from any criminal conviction”) (citation omitted).
Shin pled guilty to making a false statement in violation of 18 U.S.C.
2
§ 1001(a)(3), admitting the materiality of his statement. See United States v.
Peterson, 538 F.3d 1064, 1073 (9th Cir. 2008) (listing elements). However, Shin
argues that an “error of the most fundamental character” occurred because the
government violated Brady v. Maryland, 373 U.S. 83 (1963), when it failed to
disclose exculpatory evidence that Wesley Choy (Choy) was not the proper party
to testify as to materiality, and because his actions are no longer a crime after the
Supreme Court’s decision in Universal Health Services, Inc. v. United States ex
rel. Escobar, 136 S. Ct. 1989 (2016).
Without deciding whether a Brady violation qualifies as an error of “the
most fundamental character,” we conclude that no Brady violation occurred
because Shin did not prove the existence of exculpatory evidence. Although Choy
acknowledged that he could not testify as to the materiality of Shin’s false
statement, Shin failed to provide any evidence that the government could not prove
materiality through another witness, such as Annette Ching.
Shin also misreads Escobar. Contrary to Shin’s contention, both Escobar
and United States v. Lindsey, 850 F.3d 1009 (9th Cir. 2017) reiterated the
“familiar” premise that a statement is material if a “reasonable [person] would
attach importance to it in determining his choice of action in the transaction.”
Escobar, 136 S. Ct. at 2002-04 & n.6 (citation and alteration in original omitted);
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see also Lindsey, 850 F.3d at 1014. Consequently, Shin’s misstatements could be
material irrespective of their subjective effect on a particular government official.
See Lindsey, 850 F.3d at 1013-14.
2. “If the record refutes the applicant’s factual allegations or otherwise
precludes habeas relief, a district court is not required to hold an evidentiary
hearing.” Sivak v. Hardison, 658 F.3d 898, 927 (9th Cir. 2011) (citation and
alteration omitted). Shin failed to establish that an evidentiary hearing would
reveal support for a Brady violation or for an absence of materiality. Thus, the
district court did not abuse its discretion in denying Shin’s request for an
evidentiary hearing. See id.
3. “A person seeking a writ of audita querela must show . . . a legal
defect in the underlying sentence or conviction. . . .” Hovsepian, 359 F.3d at 1154
(citations and internal quotation marks omitted). As discussed, Shin did not
establish any such defect. Thus, audita querela relief is not available. See id.
AFFIRMED.
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