Nordahl v. United States , 425 F. App'x 35 ( 2011 )

10-3096-pr
Nordahl v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 20th day of June, two thousand eleven.
PRESENT:
DENNIS JACOBS,
Chief Judge,
RALPH K. WINTER,
JOSEPH M. McLAUGHLIN,
Circuit Judges.
__________________________________________
Blane D. Nordahl,
Petitioner-Appellant,
v. 10-3096-pr
United States of America,
Respondent-Appellee.
__________________________________________
FOR APPELLANT: Blane D. Nordahl, pro se, Jacksonville, FL.
FOR APPELLEE: Susan Corkery, Charles N. Rose, Assistant United States
Attorneys, Of Counsel, for Loretta E. Lynch, United States
Attorney for the Eastern District of New York, New York, NY.
Appeal from an order of the United States District Court for the Eastern District of New
York (Feuerstein, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.
Appellant Blane D. Nordahl, proceeding pro se, appeals from the district court’s order
denying his petition for a writ of error coram nobis pursuant to 28 U.S.C. § 1651(a). We assume
the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.
We review de novo the issue of whether a district court applied the proper coram nobis
standard, but review the district court’s decision to deny the writ for abuse of discretion. See
United States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000). A writ of error coram nobis is
“essentially a remedy of last resort for petitioners who are no longer in custody pursuant to a
criminal conviction and therefore cannot pursue direct review or collateral relief by means of a
writ of habeas corpus.” Fleming v. United States, 146 F.3d 88, 89-90 (2d Cir. 1998). To obtain
coram nobis relief, a petitioner must show that: (1) “there are circumstances compelling such
action to achieve justice”; (2) “sound reasons exist for failure to seek appropriate earlier relief”;
and (3) “the petitioner continues to suffer legal consequences from his conviction that may be
remedied by granting of the writ.” Id. at 90 (internal quotation marks omitted). The writ is “not
a substitute for appeal, and relief under the writ is strictly limited to those cases in which errors
of the most fundamental character have rendered the proceeding itself irregular and invalid.”
Foont v. United States, 93 F.3d 76, 78 (2d Cir.1996) (internal quotation marks and ellipsis
omitted). In reviewing a petition for the writ, this Court presumes that the proceedings were
correct, and the burden of showing otherwise rests on the petitioner. See Nicks v. United States,
955 F.2d 161, 167 (2d Cir. 1992).
Here, the district court did not abuse its discretion in concluding that Nordahl failed to
provide sound reasons for his delay in seeking appropriate earlier relief. There was a nearly
eight-year delay between Nordahl’s October 2000 judgment of conviction and September 2008
coram nobis petition. Even assuming that Nordahl did not discover that his direct appeal had
been withdrawn until January 2005, it was not reasonable for him to neglect to consult with his
attorney or inquire into the status of his appeal for a period of over four years, and he has not
justified waiting another 3.5 years before filing his coram nobis petition. Under these
circumstances, “to entertain [Nordahl’s] petition notwithstanding his unjustifiable delay would
be an unwarranted infringement upon the government’s interest in the finality of convictions.”
Foont, 93 F.3d at 80. Because we affirm the district court’s order on this basis alone, we decline
to reach the court’s analysis of the merits of Nordahl’s coram nobis petition.
Accordingly, the order of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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