United States of America v. Abraham Hernandez-Zavala

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ABRAHAM HERNANDEZ-ZAVALA,
Defendant-Appellant.
No. 18-55267
D.C. Nos. 3:12-cv-00228-DMS
3:11-cr-05082-DMS-3
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Abraham Hernandez-Zavala appeals pro se from the district court’s
judgment denying his petition for a writ of error coram nobis. We have
jurisdiction under 28 U.S.C. § 1291 and, reviewing de novo, see Matus-Leva v.
United States, 287 F.3d 758, 760 (9th Cir. 2002), 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
MAY 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-55267
“The writ of error coram nobis is a highly unusual remedy, available only to
correct grave injustices in a narrow range of cases where no more conventional
remedy is applicable.” United States v. Chan, 792 F.3d 1151, 1153 (9th Cir.
2015). Hernandez-Zavala’s petition argued that his 2012 conviction for attempted
entry after deportation, in violation of 8 U.S.C. § 1326, should be vacated due to an
alleged error in the presentence report. However, the district court properly denied
the petition because Hernandez-Zavala is currently “in custody” in connection with
his 2012 conviction. See United States v. Monreal, 301 F.3d 1127, 1132 (9th Cir.
2002). “A person in custody may seek relief pursuant to 28 U.S.C. § 2255.”
Matus-Leva, 287 F.3d at 761. Therefore, Hernandez-Zavala cannot avail himself
of coram nobis relief because he cannot show that a more usual remedy is
unavailable to attack his conviction. See id.
In light of this disposition, we do not reach the parties’ remaining
arguments.
AFFIRMED.

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