United States v. Rhodes

MEMORANDUM ^**

David Thomas Rhodes appeals pro se the district court’s denial of his petition for a writ of coram nobis, filed pursuant to 28 U.S.C. § 1651(a), challenging his 1985 convictions for conspiring to possess with intent to distribute cocaine, interstate travel in aid of racketeering, unlawful use of a communication facility, and possession of unregistered firearms. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s denial of a petition for a writ of coram nobis, United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir.1989), and we affirm.

The district court properly denied Rhodes’ petition because Rhodes cannot show that “valid reasons exist for not attacking the conviction earlier.” Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987). Indeed, Rhodes has raised, unsuccessfully, the issue set forth in his petition in several prior proceedings, including motions filed pursuant to 28 U.S.C. § 2255. See e.g., United States v. Rhodes, No. 86-2961, 1988 WL 82800 (9th Cir. Feb.17, 1989). The writ of coram nobis is therefore not available to him. See United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir.2001) (per curiam) (stating that “common law writs survive only to the extent they fill ‘gaps’ in the current systems of postconviction relief’); cf. Walgren, 885 F.2d at 1420 (concluding that valid reasons for not attacking conviction earlier existed where claim was based on recent and fully retroactive change in law); Hirabayashi, 828 F.2d at 605 (reaching same conclusion where claim was based on newly discovered evidence that could not have been found earlier despite petitioner’s due diligence).

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.