United States of America v. Derek Davis, a.k.a. Derik Davis, a.k.a. Terry Davis, a.k.a. Terry McCullough

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEREK DAVIS, a.k.a. Derik Davis, a.k.a.
Terry Davis, a.k.a. Terry McCullough,
Defendant-Appellant.
No. 18-15131
D.C. Nos. 2:17-cv-01301-WBS
2:08-cr-00474-WBS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Derek Davis appeals pro se from the district court’s order denying his
petition for a writ of error coram nobis. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo, see Matus-Leva v. United States, 287 F.3d 758, 760
(9th Cir. 2002), and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 18-15131
The district court determined that Davis is not entitled to coram nobis relief
because he is subject to a term of supervised release, and therefore still in custody.
Davis contends that the district court could have terminated his supervised release
and thereby permitted him to proceed with his petition. The district court did not
abuse its discretion by implicitly denying Davis’s request for early termination of
supervised release. See United States v. Emmett, 749 F.3d 817, 819 (9th Cir. 2014)
(setting forth standard of review for motions to terminate supervised release). We
agree with the district court that Davis cannot avail himself of coram nobis relief
because he cannot show that a more usual remedy is unavailable to attack his
conviction. See Matus-Leva, 287 F.3d at 761.
The district court recognized that it could construe Davis’s petition as a
motion under 28 U.S.C. § 2255, but chose not to do so. Davis’s remaining
arguments do not persuade us to reverse the district court’s order.
Davis’s motion to expedite and motion and amended motion for leave to file
a memorandum seeking injunctive relief are denied.
AFFIRMED.

-- 2 of 2 --