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United States v. Lintott

United States District Court, D. Oregon, Portland Division

April 19, 2019

UNITED STATES OF AMERICA,
v.
TERRY RAY LINTOTT, Defendant/Petitioner

          Billy J. Williams United States Attorney Hannah Horsley Assistant United States Attorney, Attorneys for United States of America.

          Terry Ray Lintott FCI Sheridan P.O. Pro se Defendant/Petitioner.

          OPFNION & ORDER

          MARCO A. HERNANDEZ UNITED STATES DISTRICT JUDGE.

         Defendant 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.

         BACKGROUND

         In 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, 34.

         In 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.

         In 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.

         On May 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.

         STANDARDS

         "[T]he 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).

         To warrant coram nobis relief, a defendant must establish that:

(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 ...


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