Stephen Yagman v. United States

FILED
NOT FOR PUBLICATION
AUG 05 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN YAGMAN No. 15-56836
Petitioner - Appellant, D.C. No. 2:15-cv-07586-SVW-KS
v.
MEMORANDUM*
UNITED STATES OF AMERICA
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted July 8, 2016**
Pasadena, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and CHEN, 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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward M. Chen, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
Petitioner-Appellant Stephen Yagman (“Yagman”) appeals an order denying
his motion for a preliminary injunction. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
Yagman was convicted of tax evasion, bankruptcy fraud, and money
laundering. This Court affirmed his conviction on appeal. See United States v.
Yagman, 345 F. App’x 312 (9th Cir. 2009). Yagman filed a motion under 28
U.S.C. § 2255, collaterally attacking his bankruptcy conviction.1 The district court
denied the motion. This Court affirmed. Yagman then filed his first coram nobis
petition, which the district court denied.
The instant (second) coram nobis petition is Yagman’s third collateral attack
on his bankruptcy conviction. With this petition, he moved for “preliminary and
permanent injunctions against [the United States], and its agents, employees,
agents, assigns, etc., ordering them to vacate and prohibiting them from enforcing
[Yagman’s] criminal convictions or enforcing any laws based on those
convictions . . . .” The district court denied this motion because Yagman “cannot
show any likelihood of success on the merits” of his petition, because he “raise[d]
the same arguments that ha[d] already been extensively considered and rejected.”
1
Yagman objects to judicial notice of the Government’s excerpts. His
objection is overruled because courts may take notice of their own and inferior
courts’ records. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
2 15-56836
Yagman admits he brought these same arguments in his two prior collateral attacks
on his conviction, as well as in his direct appeal and before the trial court in a
motion to dismiss.
Successive section 2255 motions disguised as coram nobis petitions are not
permitted. See Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir. 2002)
(rejecting coram nobis petition because prisoner “may not resort to coram nobis
merely because he has failed to meet the AEDPA’s gatekeeping requirements. To
hold otherwise would. . . enable prisoners to bypass the limitations and successive
petitions provisions.”). Because Yagman’s petition asserts the same claims already
rejected multiple times, the district court correctly concluded the instant coram
nobis proceeding would fail on the merits. Yagman cannot establish “that he is
likely to succeed on the merits.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
20 (2008); see also Johnson v. Cal. State Bd. of Accountancy, 72 F.3d 1427, 1430
(9th Cir. 1995) (even under the alternative test “it must be shown as an irreducible
minimum that there is a fair chance of success on the merits.”). Nor did he
establish the balance of hardships tips in his favor. See Winter, 555 U.S. at 20
(requiring a plaintiff to show “that he is likely to suffer irreparable harm . . . that
the balance of equities tips in his favor, and that an injunction is in the public
interest.”); Dollar Rent A Car v. Travelers Indem. Co., 774 F.2d 1371, 1374 (9th
3 15-56836
Cir. 1985). The district court correctly denied Yagman’s motion for a preliminary
injunction.
AFFIRMED.
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