United States District Court, D. Oregon, Portland Division
J. Williams United States Attorney Hannah Horsley Assistant
United States Attorney, Attorneys for United States of
Ray Lintott FCI Sheridan P.O. Pro se Defendant/Petitioner.
OPFNION & ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE.
filed a petition for writ of error coram nobis,
asking the Court to vacate his fully-served sentence in this
case. The Court denies the petition.
1994, Mr. Lintott pled guilty to one count of bank robbery in
violation of 18 U.S.C. § 2113(a). Compl., ECF 1;
Judgment, ECF 17. Mr. Lintott's guidelines range fell at
151-188 months. Findings of Fact Order ¶ 1, ECF 18. The
court considered Defendant's substantial assistance to
authorities and acceptance of responsibility, and sentenced
him to ninety-six months imprisonment and three years'
supervised release. Findings of Fact Order ¶¶ 3, 4;
Judgment at 96-97. The sentence was also based, in part, on a
finding that Defendant was a career offender under United
States Sentencing Guidelines ("Guidelines") §
4B1.1 and 4B1.2. Findings of Fact Order; Pre-Sentence Report
(PSR) ¶¶ 24, 34. To reach this finding, the court
concluded that bank robbery was a crime of violence, as were
two prior Oregon Burglary I convictions. PSR ¶¶ 24,
2002, while on supervised released for the 1994 bank robbery,
Defendant was charged with committing a new bank robbery in
violation of 18 U.S.C. § 2113(a). Compl., United
States v. Lintott, 3:02-cr-00074-MO. He pled guilty and
was sentenced as a career offender to 151 months
imprisonment. PSR at¶ 45, United States v.
Lintott, 3:16-cr-00412-MO. The court also revoked his
supervised release and imposed a consecutive twenty-four
month sentence. Order Revoking Supervised Release and
Imposing Sentence, ECF 26. No reimposed term of supervised
release was ordered. Id.
2016, while again on supervised release, Defendant was
charged with four new counts of bank robbery in violation of
18 U.S.C. § 2113(a). Information, United States v.
Lintott, 3:16-cr-00412-MO, ECF 2. He pled guilty and was
sentenced as a career offender to 151 months imprisonment.
Transcript of Sentencing at 6, United States v.
Lintott, 3:16-cr-00412-MO, ECF 44; Judgment, United
States v. Lintott, 3:16-cr-00412-MO, ECF 41. At the same
time, the court revoked his supervised release and imposed a
concurrent term of imprisonment. Judgment, United States
v. Lintott, 3:16-cr-00412-MO, ECF 41.
15, 2018, Defendant moved for the first time to vacate or
correct his 1994 sentence in this case pursuant to 28 U.S.C.
§ 2255. On August 24, 2018, Defendant moved to modify
that motion to a § 1651 writ of error coram
nobis, acknowledging that the § 2255 petition was
untimely and that he was no longer in custody on the sentence
imposed in the 1994 case.
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. Riedl, 496 F.3d
1003, 1005 (9th Cir. 2007). The "writ of error coram
nobis affords a remedy to attack an unconstitutional or
unlawful conviction in cases when the petitioner already has
fully served a sentence." Telink, Inc. v. United
States, 24 F.3d 42, 45 (9th Cir. 1994); see also
United States v. Morgan, 346 U.S. 502, 511 (1954)
(recognizing that common law writ of error coram nobis still
exists after enactment of 28 U.S.C. § 2255). The writ
allows a court to vacate a judgment for errors of fact,
Hirabayashi v. United States, 828 F.2d 591, 604 (9th
Cir. 1987), as well as for "egregious legal
errors," Yasui v. United States, 772 F.2d 1496,
1499 n.2 (9th Cir. 1985).
warrant coram nobis relief, a defendant must
(1) a more usual remedy is not available; (2) valid reasons
exist for not attacking the conviction earlier; (3) adverse
consequences exist from the conviction sufficient to satisfy
the case or controversy requirement of Article III; and (4)
the error is of a fundamental character.
Matus-Leva v. United States,
287 F.3d 758, 760 (9th
Cir. 2002). "Because these requirements are conjunctive,
failure to meet any one of them ...