David Scott Harrison v. United States of America

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID SCOTT HARRISON,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
No. 10-56462
D.C. No. 3:09-cv-01792-DMS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted September 27, 2011**
Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.
David Scott Harrison appeals from the district court’s judgment denying his
petition for a writ of coram nobis. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
Harrison seeks to challenge his 1988 guilty-plea convictions under
FILED
OCT 04 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-56462 2
18 U.S.C. § 844(i) on the ground that the van and boat involved in his case bore an
insufficient relation to interstate commerce under Jones v. United States, 529 U.S.
848 (2000), a claim that he has previously advanced in habeas petitions brought
under 28 U.S.C. § 2241.
Harrison contends that the district court erred by failing to rule on his
motion under 28 U.S.C. §§ 144 and 455 to disqualify all of the judges of the
Southern District of California for bias or prejudice. The district court did not
commit reversible error by failing to rule on the motion for recusal, as Harrison’s
allegations of bias on the part of Judge Sabraw were insufficient to support the
conclusion that Judge Sabraw’s “impartiality might reasonably be questioned.”
28 U.S.C. § 455; see 28 U.S.C. § 144; United States v. Sibla, 624 F.2d 864, 867-69
(9th Cir. 1980).
As to the merits of his appeal, the district court did not err in denying coram
nobis relief, as Harrison’s federal parole is still pending, and as we have previously
ruled that he could have presented his Jones claim in his first collateral challenge
to his conviction. See Matus-Leva v. United States, 287 F.3d 758, 760-61 (9th Cir.
2002) (coram nobis relief inappropriate where petitioner is still subject to a federal
sentence or where a remedy under section 2255 is or was at one time available);
Harrison v. Ollison, 519 F.3d 952, 960-61 (9th Cir. 2008).
AFFIRMED.

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