DAVID M. SCATES, PETITIONER V. UNITED STATES OF AMERICA No. 90-6754 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fourth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-3a, 1b) is unreported, but the judgment is noted at 914 F.2d 249 (Table). The orders of the district court (App., infra, 1a-10a) are unreported. JURISDICTION The judgment of the court of appeals was entered on September 21, 1990, and amended on October 25, 1990. The petition for a writ of certiorari was filed on December 18, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court properly denied petitioner's petition for a writ of error coram nobis. STATEMENT Following a jury trial in the United States District Court for the Eastern District of North Carolina in 1986, petitioner was convicted of conspiracy to manufacture and possess pyrrolidine ("PHP"), a Schedule I controlled substance, with the intent to distribute it, in violation of 21 U.S.C. 846. The district court sentenced petitioner to a term of 15 years' imprisonment, and the court of appeals affirmed. In September 1987, petitioner filed a motion to vacate or correct his sentence under 28 U.S.C. 2255. In January 1988, the district court denied the motion. Gov't C.A. Br. 3. In September 1988, petitioner filed a second motion styled as both a motion under 28 U.S.C. 2255 and a "Petition for Writ of Error Coram Nobis under 28 U.S.C. 1651." In April 1989, the district court denied that motion. App., infra, 1a-7a. In December 1989, the district court denied petitioner's motion for reconsideration. App., infra, 8a-10a. The court of appeals affirmed. Pet. App. 1a-3a. 1. In his September 1988 motion, petitioner challenged the validity of a 1966 juvenile conviction for breaking and entering a thrift shop on a military reservation. Petitioner alleged that he had not made a knowing and intelligent waiver of his right to counsel in that case. App., infra, 4a-5a. To evaluate petitioner's claim, the district court "obtained and carefully reviewed the record from (petitioner's) 1966 juvenile conviction." Id. at 5a. The court found that petitioner "was informed on two separate occasions of his right to counsel and that on both occasions he waived his right." Ibid. Petitioner signed a "waiver of right to appointed counsel" stating: The undersigned acknowledges that * * * he has the right to be represented by counsel before the commissioner and throughout the case, that counsel will be appointed by the commissioner to represent him if he is financially unable to obtain counsel, and that waiver of counsel before the commissioner will not prevent him from requesting appointment of counsel before the district court, all of which he fully understands. The undersigned now states to the commissioner that he does not desire to have counsel appointed to represent him before the commissioner and waives such appointment. The defendant states that he attended school through the 8 grade and can read and write. Ibid. The commissioner certified (id. at 6a) that: The above-named defendant has been fully informed * * * of his right to have counsel appointed by the commissioner to represent him before the commissioner; and that waiver before the commissioner will not prevent him from requesting appointment of counsel before the district court; that he has voluntarily and understandingly executed the above waiver in my presence after its meaning and effect have been fully explained to him. The judgment and commitment order of the juvenile court, dated September 22, 1966 and signed by the judge, recites (ibid.): (Petitioner), not represented by counsel and stating that he did not desire appointment of counsel, appearing before me in person after being apprised by me of his rights and the consequences of his consent to be tried on a charge of juvenile delinquency, consented in writing to be so tried and has admitted the charge. The district court found that "the face of the record shows (petitioner) was informed of his right to counsel and voluntarily waived that right." Ibid. Because petitioner had not submitted an affidavit contradicting the facts in the record, the district court dismissed the petition for a writ of error coram nobis. Id. at 6a-7a. On December 8, 1989, the district court denied petitioner's motion for reconsideration. The court agreed that petitioner's affidavit, and the affidavit of his mother, supported his claims, but held that petitioner had failed to "demonstrate continuing adverse consequences resulting from the conviction under attack." App., infra, 9a (citing Cline v. United States, 453 F.2d 873 (5th Cir. 1972); Rogers v. United States, 451 F.2d 562, 563 (5th Cir. 1971)). The district court noted that petitioner had not alleged that he was suffering or would suffer any continuing adverse consequences from his 1966 conviction. On the basis of a review of the record and presentence report, the court found that "it appears that the 1966 conviction was in no way used to enhance (petitioner's) present sentence." App., infra, 9a. The court also noted that petitioner had been convicted of various criminal offenses on eight occasions since 1966, "includ(ing) several felonies in which petitioner was committed to more than thirty days' incarceration." Ibid. Consequently, the court concluded that even if expungement of petitioner's 1966 conviction were warranted, expungement "would not appreciably improve (his) prospects for parole or result in restoration of his civil rights." Ibid. 2. The court of appeals affirmed. Pet. App. 1a-3a, 1b. The court observed (id. at 2a) that "(c)oram nobis is an extraordinary remedy * * * available only under circumstances compelling relief in order to achieve justice" (citing United States v. Morgan, 346 U.S. 502, 512-513 (1954)), and that the "burden is on the petitioner to show * * * that a more usual remedy is unavailable; that valid reasons exist for not attacking his conviction earlier; that adverse consequences flow from his conviction so that there exists a case or controversy; and that the error is of the most fundamental character." Pet. App. 2a (citing Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987)). Although petitioner alleged (Pet. App. 2a-3a) that he did not know he had a right to counsel or a right to appeal, and was not aware of the adverse consequences of his juvenile conviction, the court found, in light of petitioner's "extensive history in the criminal justice system" (id. at 3a), that he had not shown "valid reasons justifying his failure to attack his convictions earlier," ibid. /1/ ARGUMENT 1. Petitioner contends (Pet. 3-4) that the decision of the court of appeals "precludes juvenile defendants within the Fourth Circuit from seeking coram nobis relief from an unconstitutional adjudication." Id. at 4. That contention is incorrect. In United States v. Morgan, 346 U.S. 502 (1954), this Court held that federal district courts are authorized to issue writs of error coram nobis pursuant to the All Writs Act, 28 U.S.C. 1651(a). The Court observed, however, that "(c)ontinuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice." 346 U.S. at 511. Accordingly, a motion for a writ of error coram nobis must be heard only where no other remedy is available "and sound reasons exist() for failure to seek appropriate earlier relief." Id. at 512. See United States v. Darnell, 716 F.2d 479 (7th Cir. 1983) ("flexible, equitable time limitation" applies to petitions for coram nobis), cert. denied, 465 U.S. 1083 (1984); Kiger v. United States, 315 F.2d 778 (7th Cir. 1963) (denying coram nobis relief for failure to show sound reason for not seeking appropriate earlier relief), cert. denied, 375 U.S. 924 (1964). Contrary to petitioner's contention, the court of appeals did not hold or suggest that a writ of coram nobis is unavailable merely because a conviction is "very old." Pet. 4. Instead, the court denied relief because petitioner failed to show "sound reasons * * * for fail(ing) to seek appropriate earlier relief." Morgan, 346 U.S. at 512. The district court found that petitioner had been convicted of numerous offenses since 1966, including several felonies. /2/ On the basis of this "extensive history in the criminal justice system," the court of appeals reasonably concluded that petitioner had not shown a valid reason for failing to seek earlier relief from a conviction that is now some 25 years old. Pet. App. 3a. The court of appeals' decision does not conflict with the other court of appeals decisions on which petitioner relies. In Hirabayashi v. United States, 828 F.2d 591, 604-605 (9th Cir. 1987), the court required the petitioner to show valid reasons for failing to seek earlier relief. In Woods v. United States, 457 F.2d 185, 186 (7th Cir. 1972), petitioner alleged that "he first became aware of his right to counsel" in May 1970, and the government apparently did not contest that allegation. Lujan v. United States, 424 F.2d 1053, 1055 (5th Cir. 1970), also cited by petitioner, does not consider whether the petitioner in that case had a valid reason for not challenging his conviction sooner. In Farnsworth v. United States, 232 F.2d 59, 63 (D.C. Cir. 1956), the court said that "where (a) fundamental constitutional right has been denied, an accused should not be precluded from relief because he cannot satisfy a court that he had good cause for any delay in seeking it." But the court also noted that a defendant who delays attacking a conviction "might have difficulty maintaining his burden of proof, or a heavier burden of proof might be imposed upon him." And these statements were unnecessary to the decision in Farnsworth, because the court held that the petitioner's delay was excusable in the circumstances of that case. /3/ Ibid. 2. Petitioner also suggests (Pet. 4-5) that this case presents an opportunity for this Court to decide an issue not discussed by the courts below -- the retroactive effect of In re Gault, 387 U.S. 1 (1967). Petitioner does not contend that the courts of appeals are in conflict on this issue. See United States v. Slipka, 735 F.2d 1064, 1066 (8th Cir. 1984) (applying In re Gault retroactively). In this case, moreover, the court of appeals implicitly assumed that petitioner had a constitutional right to counsel in 1966, and nevertheless denied the petition. Thus, a holding that In re Gault applies retroactively would not change the outcome of this case. /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General THOMAS M. GANNON Attorney APRIL 1991 /1/ On October 25, 1990, the court of appeals amended its opinion to deny a motion to supplement the record with the presentence report and transcript of sentencing, because the record already contained those documents. See Pet. App. 1b. /2/ Petitioner asserts (Pet. 3 n.1) that he has "only a single valid prior felony conviction" (emphasis added), but does not dispute that he has numerous prior convictions. In light of petitioner's extensive criminal record, the district court found that expungement of his 1966 juvenile conviction would not reduce his sentence or lead to restoration of his civil rights. App., infra, 9a. Consequently, even if the possibility of other collateral consequences is sufficient to avoid mootness, see Sibron v. New York, 392 U.S. 40, 50-58 (1968), this case does not present "circumstances compelling (coram nobis relief) to achieve justice." Morgan, 346 U.S. at 511. /3/ Petitioner also relies (Pet. 3-4) on two district court decisions. In United States v. Liska, 409 F. Supp. 1405, 1407 (E.D. Wis. 1976), the court stated that "(w)hile delay is not without practical consequence and legal significance, it does not bar the action." In United States v. Marcello, 210 F. Supp. 892, 895 (E.D. La. 1962), aff'd, 328 F.2d 961, 963 (5th Cir.), cert. denied, 377 U.S. 992 (1964), the court stated that "(t)hough laches is not available to the United States as a defense to this petition, nevertheless petitioner's quantum of proof is affected and magnified by the lapse of time as well as the good faith and credibility of the moving party." While these statements are in some tension with statements by courts of appeals that an unexplained failure to attack a conviction may bar coram nobis relief, Liska and Marcello nevertheless recognize that unjustified delay may result in denial of coram nobis relief. In any event, conflicts between the district courts and the courts of appeals do not warrant certiorari. See R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice Section 4.8 (6th ed. 1986). /4/ Petitioner's fact-bound allegations (Pet. 5-6) that his father was a "sadistic schizophrenic" who asked that petitioner be sent to prison, and that petitioner could not read or write at age 14 and suffered from dyslexia, do not explain his failure to challenge his conviction earlier. APPENDIX