Summary
The Ninth Circuit affirmed the partial denial of Hector Cervantes-Torres’s petition for a writ of error coram nobis seeking to vacate his conviction under 18 U.S.C. § 922(g)(5) because the jury was not instructed, as later required by Rehaif v. United States, that he knew of his unlawful immigration status. The panel held that, even under the less demanding plain-error standard applicable on direct appeal, there was no reasonable probability of a different verdict given the evidence of his deportation, USCIS notice, and expired immigration documentation. Judge Nelson concurred to argue that coram nobis should be narrowly limited, and Judge Desai dissented.
Topics
Practice areas
Questions Presented
- Whether the district court erred in partially denying Cervantes-Torres's coram nobis petition seeking to vacate his § 922(g)(5) conviction for failure to give a Rehaif instruction at trial.
Holdings
- The district court did not err in denying coram nobis relief because, even under the standard of review governing a direct appeal (plain error), there is no reasonable probability that the jury would have reached a different verdict if a Rehaif instruction had been given.
Key quotations
“Even under the legal standard of review that would govern a direct appeal—that is, ignoring the fact that the postconviction nature of a coram nobis petition demands more—Cervantes-Torres cannot prevail.” (at 1117)
“A straightforward application of this court’s precedent dictates the result: Because the jury instructions “relieved the prosecution from its burden of proving an essential element of the offense[,]” United States v. McClelland, 941 F.2d 999, 1003 (9th Cir. 1991), Cervantes-Torres is entitled to coram nobis relief.” (at 1130)
Factual background
Cervantes-Torres, a Mexican-born former legal permanent resident, was deported in 2003 after a felony drug conviction. He re-entered the U.S. a week later using a green card officials failed to confiscate. In 2012, his felony conviction was expunged, and he applied for a replacement green card, falsely stating he had never been deported. USCIS denied his application in a letter informing him he lacked lawful status and was subject to a 10-year re-entry bar. In 2013, ICE arrested him at his home, where long guns were found. He was convicted in 2014 of being a felon in possession of a firearm and possessing a firearm as an alien unlawfully present. In 2019, the Supreme Court decided Rehaif, holding that knowledge of one's relevant status is an element of § 922(g) offenses. In 2021, Cervantes-Torres filed a coram nobis petition challenging his § 922(g) convictions based on the absence of a Rehaif instruction at trial.
Procedural history
Cervantes-Torres was convicted in 2014 of being a felon in possession of a firearm and possessing a firearm as an alien unlawfully present. In 2021, he filed a coram nobis petition to vacate his § 922(g) convictions due to the absence of a Rehaif instruction. The district court granted the petition as to the § 922(g)(1) conviction but denied it as to the § 922(g)(5) conviction. The Ninth Circuit affirmed the denial.