United States v. Migliaccio

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LANCE C. MIGLIACCIO,

Defendant - Appellant.

No. 25-1237
(D.C. No. 1:09-CR-00292-REB-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before HARTZ, MATHESON, and McHUGH, Circuit Judges.
_________________________________
Pro se Petitioner Lance Migliaccio appeals the district court’s denial of his
petition for a writ of coram nobis and related motions. He argues that an anonymous
letter revealed constitutional errors in his 2009 conviction and urges this court to
vacate his conviction and dismiss his indictment with prejudice. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm the denial of his petition. He has

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit

August 18, 2026

Christopher M. Wolpert
Clerk of Court
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failed to show that the contents of the letter—or any of his other assertions—entitle
him to coram nobis relief.
I. BACKGROUND
On December 9, 2009, Petitioner pleaded guilty to five counts of possession
with intent to distribute and distribution of the drug Ecstasy. As part of his plea
agreement, he stipulated that the government’s evidence would show that he
knowingly and intentionally distributed the drugs in five transactions with a
confidential informant. Petitioner also acknowledged his guilt in statements to the
court under oath when he entered his plea and during sentencing.
Petitioner did not directly appeal his conviction or sentence. But, beginning in
2012, he pursued several avenues for postconviction relief. He filed five motions to
vacate, set aside, or correct his sentences under 28 U.S.C. § 2255. He also petitioned
for relief under the ancient writ of audita querela. All these petitions were denied.
Petitioner was released from prison in 2013, and his supervised release was
terminated in 2015.
Nine years later, he filed the present petition for a writ of coram nobis. He
based his petition on an anonymous letter, which he calls the “Whistleblower Death
Bed Confession Letter.” The letter was mailed to the district court in July 2023 and
Petitioner allegedly obtained a copy of it in September 2023. He also filed a motion
to vacate his conviction in which he reiterated many of the claims in his coram nobis
petition and alleged that the government had received the letter and violated its
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ethical and constitutional duties by failing to disclose it to him. As Petitioner sees it,
th is letter exculpates him and establishes the government’s misconduct in his case.
The district court denied Petitioner’s coram nobis petition and subsequent
motion to vacate on the ground that he failed to assert actual innocence. But we have
since clarified that actual innocence, while potentially relevant, is not a requirement
for coram nobis relief. See United States v. Salgueido, No. 25-2088, 2026 WL
2221619, at *5 (10th Cir. Aug. 3, 2026).
1
Nevertheless, we can affirm denial on an
alternative ground: the assertions in the letter do not establish that Petitioner would
suffer a miscarriage of justice if denied relief. His other arguments are also meritless.
II. DISCUSSION
We review the district court’s factual findings for clear error, its rulings on
questions of law de novo, and its ultimate decision to deny the coram nobis writ for
abuse of discretion. See id. at *1.
Because Petitioner is pro se, “we construe [his] pleadings liberally,” making
“some allowances for deficiencies, such as unfamiliarity with pleading requirements,
failure to cite appropriate legal authority, and confusion of legal theories.” Lankford
v. Wagner, 853 F.3d 1119, 1121–22 (10th Cir. 2017) (internal quotation marks

1
Our circuit has “focused on three requirements” for such relief, “each of
which can be said to derive from the very nature of an ‘extraordinary’ remedy:
(1) the petitioner cannot obtain or could not have obtained relief through other
remedies; (2) absent relief, the petitioner will suffer extraordinary injury—a
miscarriage of justice; and (3) petitioner has acted diligently to obtain coram nobis
relief, as befitting the magnitude of the injury and the importance of finality.”
Salgueido, 2026 WL 2221619, at *3.

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omitted). “But we cannot take on the responsibility of serving as [his] attorney in
constructing arguments and searching the record.” Id. at 1122 (internal quotation
marks omitted).
Petitioner has adequately presented only four arguments, none of which has
merit. First, Petitioner suggests that the district court erred by mischaracterizing
some of his filings. We disagree. Petitioner contends that the document filed by the
district court on March 27, 2024 (Dist. Ct. Dkt. No. 135) was a motion for judicial
oversight and discovery, and not—as the district court characterized it—a letter to the
court. But the document, in both form and content, is unmistakably a letter. See
United States v. Griffith, 928 F.3d 855, 876 (10th Cir. 2019) (“[W]e are not bound by
a pleading’s title; rather, we consider its substance”). And regardless of how the
document was characterized, it was addressed in the district court’s analysis of
Petitioner’s coram nobis petition and motion to vacate.
2

Second, Petitioner argues that the government “conced[ed] [his] claims
of prosecutorial misconduct and constitutional violations” and “waiv[ed] [its]
defenses” by failing to contest his “dispositive motions, including Doc #135.”
Aplt. Br. at 26. But, as discussed above, Dist. Ct. Dkt. No. 135 is a letter to the
court; it is not a motion that required a government response. And the

2
Petitioner further contends that the district court erred by docketing the
anonymous letter under seal and misattributing it to him. We fail to see how this
prejudiced Petitioner. And, in any event, Petitioner already prevailed on this point
below by successfully moving the district court to unseal the letter.
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government addressed Petitioner’s claims of prosecutorial misconduct and
constitutional violations in its response to his coram nobis petition.
Third, Petitioner claims that the government received the anonymous
letter in July 2023 but withheld it from his defense counsel. He says that by
failing to disclose the letter, the government violated its “ethical duties,” as
well as “Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405
U.S. 150 (1972), and Napue v. Illinois, 360 U.S. 264 (1959).” Aplt. Br. at 39.
There is no Brady, Giglio, or ethical violation here because Petitioner received
a copy of the letter in ample time before resolution of his petition. See, e.g.,
United States v. Erickson, 561 F.3d 1150, 1165 (10th Cir. 2009) (“[A]
defendant is not deprived of due process by the government’s failure to
disclose information if the defendant has obtained the information through
other means”). And Napue is inapposite because there was no trial, the only
testimony presented was before a grand jury, and Petitioner voluntarily
pleaded guilty. Cf. United States v. Ruiz, 536 U.S. 622, 628–29 (2002) (“When
a defendant pleads guilty he or she, of course, forgoes not only a fair trial, but
also other accompanying constitutional guarantees”); Tollett v. Henderson, 411
U.S. 258, 266–267 (1973) (no habeas relief available to petitioner who pleaded
guilty but later learned that his grand jury had been unconstitutionally
selected).
Finally, Petitioner argues that the district court should have granted him
a writ of coram nobis in light of the assertions in the letter. To begin with, we
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are very skeptical of this letter. It is anonymous, unverified, and unsworn. We
doubt it would have been admissible had the district court proceeded to an
evidentiary hearing. But even if the letter is genuine and accurate, we disagree
with Petitioner’s claim that the letter “undermine[s] the factual basis of [his]
plea.” Aplt. Br. at 15.
The district court summarized the contents of the letter as follows:
3

[1] Federal agents coached a confidential informant . . . to convince
Migliaccio to commit crime.

[2] Migliaccio refused the confidential informant’s efforts to convince
him to commit crime, and specifically refused to commit illegal drug
transactions.

[3] “All the phone calls and recordings in which Mr. Migliaccio refused
were either destroyed and or altered as to be unintelligible.”

[4] “There were extensive violations of Brady and large quantities of
exculpatory evidence that would have been very beneficial to Mr.
Migliaccio’s case which were destroyed and or altered.”

[5] Agents illegally wiretapped Migliaccio’s and family members’
phones.

[6] Agents illegally placed GPS units on Migliaccio’s and family
members’ automobiles.

[7] “Some surveillance equipment was installed by our team in
Migliaccio’s house with no warrants.”

[8] On the day agents arrested Migliaccio at his home “his mother let us
in” yet at the same time “we forcibly entered pushing her out of the way

3
Petitioner has not argued on appeal that the district court’s summary of the
letter was clearly erroneous or incomplete. Accordingly, we address the assertions in
the letter as summarized by the court. See United States v. Ozbirn, 189 F.3d 1194,
1197 (10th Cir. 1999) (accepting as true unchallenged factual findings by district
court).
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not identifying ourselves” and initially searched the home without a
warrant.

[9] A black bag seized at Migliaccio’s residence on the day of his arrest
was not Migliaccio’s bag.

[10] A “G36” assault rifle that Migliaccio “was charged with was a
prepared set up.”

[11] Agents drugged Migliaccio’s wife without her knowledge in hopes
of obtaining information from her.

[12] Prior to Migliaccio’s arrest, and while he was detained pre-trial,
agents decided to place him at the Jefferson County Holding Facility.

[13] The phone system “at Jefferson County was compromised.”

[14] Due to the “compromised” phone system, “nearly everyone on the
Migliaccio investigation listened to Mr. Migliaccio’s privileged
communications” while he was at the Jefferson County Holding Facility.

[15] “At some point Mr. Migliaccio became suspicious and identified that
this was going on.”

[16] Migliaccio contacted his attorney, Harvey Steinberg, and told him
that agents were listening to his privileged communications.

[17] Assistant U.S. Attorney Stephanie Podolak also told Mr. Steinberg
that “DOJ and all the agents involved were listening to privileged
communications of his client.”

[18] Mr. Steinberg met with Migliaccio and discussed the possibility of
the case being dismissed “because of the DOJ’s intentional misconduct.”

[19] Mr. Steinberg “approached” Assistant U.S. Attorney Colleen Covell
about the issue and she responded that “if Mr. Migliaccio pursued this
direction, she would throw the entire kitchen sink” at Migliaccio and “the
plea negotiations would be off.”

[20] “Mr. Steinberg assured Ms. Covell that he would coerce Mr.
Migliaccio into accepting a plea and would influence him into dropping
the phone issue” which “he did the next day.”

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[21] “This man was wrongfully imprisoned. We created his case top to
bottom. . . . This man was innocent.”

R. at 811–12 (Dist. Ct. Order) (quoting Whistleblower Deathbed Confession
Letter, R. at 86–95) (original brackets and internal citations omitted).
The writ of coram nobis is available to “correct errors of the most
fundamental character,” which we have taken to mean errors “that result in a
complete miscarriage of justice.” Salgueido, 2026 WL 2221961, at *4 (internal
quotation marks omitted). Several of the assertions in this letter (numbers 1–3,
5–8, 11, 12, and 19) may show violations of the law in the course of the
investigation, but Petitioner fails to explain, and we fail to see, how they
would have affected his decision to plead guilty. They therefore could not have
resulted in a miscarriage of justice. As an example, the letter says that law
enforcement officers drugged Petitioner’s wife to obtain information (number
11). But Petitioner has not specified what information the officers obtained or,
more importantly, how that information factored into his own decision to
voluntarily plead guilty or acknowledge his guilt under oath.
Other assertions in the letter lack specificity, are conclusory, or are not
relevant to Petitioner’s conviction (numbers 4, 9–10, 21). They, too, do not
suffice to show a miscarriage of justice. For example, the letter references
“large quantities of exculpatory evidence” that was destroyed (number 4), but
the letter does not describe the evidence or explain why it would have been
exculpatory. It is hard to imagine what such evidence could be, in view of
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Petitioner’s guilty plea and his under-oath statements. And even if the “G36”
assault rifle was a “prepared set up” (number 10), as asserted in the letter,
there would be no miscarriage of justice because Petitioner was convicted only
on drug charges.
As for the remaining assertions regarding the purported eavesdropping
on privileged conversations (13–20), if the letter is to be believed, then
Petitioner was fully aware before pleading guilty that officers had
eavesdropped. Coram nobis is available only to a petitioner who “has acted
diligently to obtain coram nobis relief, as befitting the magnitude of the injury
and the importance of finality.” Salgueido, 2026 WL 2221619, at *3. There is
no indication that Petitioner raised this issue any time before his guilty plea,
any time after his conviction or sentencing, or any time in the over 14 years
from when he first became aware until he filed his petition.
4
Because
Petitioner was aware of this information before he pleaded guilty, he cannot
show that he acted diligently.
5

4
Even if Petitioner had diligently pursued his claims based on eavesdropping,
he would need to show prejudice to prevail on those claims. See United States v.
Hohn, 123 F.4th 1084, 1088 (10th Cir. 2024) (en banc) (“Sixth Amendment violation
of the right to confidential communication with an attorney requires the defendant to
show prejudice”). And he has not done so.
5
Petitioner also appeals the district court’s denial of his motion to appoint a
special master and his numerous motions seeking to compel discovery and unseal
documents related to the letter. We review these discovery rulings for abuse of
discretion. See Harrington v. Sorelle, 313 F.2d 10, 13 (10th Cir. 1963) (special
master); Motley v. Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995) (motions
to compel); United States v. Bacon, 950 F.3d 1286, 1291 (10th Cir. 2020) (unseal
documents). Because Petitioner would not be entitled to relief even if the assertions
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III. CONCLUSION
We AFFIRM the district court’s denial of the coram nobis petition and related
motions. Petitioner’s pending motions in this court are DENIED.
Entered for the Court

Harris L Hartz
Circuit Judge

in the letter were true, the district court did not err in denying Petitioner’s discovery-
related motions.

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