                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE NINTH CIRCUIT
                                                                                 JUL 26 2019
                                                                         MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS
PATRICK SHIN,                                     No.    17-16460

              Petitioner-Appellant,               D.C. No.
                                                  1:15-cv-00377-SOM-RLP
 v.

UNITED STATES OF AMERICA,                         MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                             for the District of Hawaii
                    Susan O. Mollway, District Judge, Presiding

                      Argued and Submitted October 12, 2018
                                Honolulu, Hawaii

Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges.

      Patrick Shin (Shin) appeals the district court’s denial of his petition for a

writ of error coram nobis or, in the alternative, a writ of audita querela.

      We review de novo the district court’s ruling on a petition for a writ of error

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
coram nobis or a writ of audita querela. See United States v. Riedl, 496 F.3d 1003,

1005 (9th Cir. 2007); see also United States v. Hovsepian, 359 F.3d 1144, 1153

(9th Cir. 2004) (en banc). We review for an abuse of discretion a district court’s

determination whether an evidentiary hearing is warranted. See Runningeagle v.

Ryan, 825 F.3d 970, 990 (9th Cir. 2016). We affirm.

      1.      To establish entitlement to a writ of error coram nobis, the petitioner

must show 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 . . . ; and (4) the error is of the most fundamental character.” Riedl, 496

F.3d at 1006 (citation omitted). Shin has established the first three factors, but not

the fourth.

      As Shin has completed his sentence and is not in custody, no “more usual”

remedy is available. Id. (citation omitted). Because Shin only became aware of

the asserted exculpatory evidence in May, 2015, he had valid reasons for not

attacking his conviction earlier. Finally, Shin has suffered at least reputational and

professional consequences as a result of his conviction. See Hirabayashi v. United

States, 828 F.2d 591, 606 (9th Cir. 1987) (recognizing a “presumption that

collateral consequences flow from any criminal conviction”) (citation omitted).

      Shin pled guilty to making a false statement in violation of 18 U.S.C.


                                           2
§ 1001(a)(3), admitting the materiality of his statement. See United States v.

Peterson, 538 F.3d 1064, 1073 (9th Cir. 2008) (listing elements). However, Shin

argues that an “error of the most fundamental character” occurred because the

government violated Brady v. Maryland, 373 U.S. 83 (1963), when it failed to

disclose exculpatory evidence that Wesley Choy (Choy) was not the proper party

to testify as to materiality, and because his actions are no longer a crime after the

Supreme Court’s decision in Universal Health Services, Inc. v. United States ex

rel. Escobar, 136 S. Ct. 1989 (2016).

      Without deciding whether a Brady violation qualifies as an error of “the

most fundamental character,” we conclude that no Brady violation occurred

because Shin did not prove the existence of exculpatory evidence. Although Choy

acknowledged that he could not testify as to the materiality of Shin’s false

statement, Shin failed to provide any evidence that the government could not prove

materiality through another witness, such as Annette Ching.

      Shin also misreads Escobar. Contrary to Shin’s contention, both Escobar

and United States v. Lindsey, 850 F.3d 1009 (9th Cir. 2017) reiterated the

“familiar” premise that a statement is material if a “reasonable [person] would

attach importance to it in determining his choice of action in the transaction.”

Escobar, 136 S.Ct. at 2002-04 & n.6 (citation and alteration in original omitted);


                                           3
see also Lindsey, 850 F.3d at 1014. Consequently, Shin’s misstatements could be

material irrespective of their subjective effect on a particular government official.

See Lindsey, 850 F.3d at 1013-14.

      2.     “If the record refutes the applicant’s factual allegations or otherwise

precludes habeas relief, a district court is not required to hold an evidentiary

hearing.” Sivak v. Hardison, 658 F.3d 898, 927 (9th Cir. 2011) (citation and

alteration omitted). Shin failed to establish that an evidentiary hearing would

reveal support for a Brady violation or for an absence of materiality. Thus, the

district court did not abuse its discretion in denying Shin’s request for an

evidentiary hearing. See id.

      3.     “A person seeking a writ of audita querela must show . . . a legal

defect in the underlying sentence or conviction. . . .” Hovsepian, 359 F.3d at 1154

(citations and internal quotation marks omitted). As discussed, Shin did not

establish any such defect. Thus, audita querela relief is not available. See id.

      AFFIRMED.




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