                                                                                 FILED
                                                                     United States Court of Appeals
                                        PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                         May 3, 2019

                                                                         Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                            Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                               No. 18-6119
 v.

 ALEXANDER CHRISTIAN MILES,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                        for the Western District of Oklahoma
                           (D.C. No. 5:06-CR-00096-HE-1)
                       _________________________________

Don P. Chairez, Law Offices of Don Chairez, Las Vegas, Nevada, for Defendant-
Appellant.

Steven W. Creager, Assistant United States Attorney (Robert J. Troester, First Assistant
United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-
Appellee.
                        _________________________________

Before HARTZ, MURPHY, and CARSON, Circuit Judges.
                  _________________________________

HARTZ, Circuit Judge.
                        _________________________________

       Defendant Alexander Christian Miles appeals the denial of his second petition for

a writ of coram nobis. He pleaded guilty in 2009 to submitting a false affidavit in

connection with an application for a visa for a 14-year-old girl from Cambodia to whom
he was engaged. He has already unsuccessfully challenged that judgment in a direct

appeal, a motion for relief under 28 U.S.C. § 2255, and a previous petition for a writ of

coram nobis. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district

court’s denial of his second petition because each of its claims for relief either had been

raised by Defendant in earlier proceedings and rejected by this court, or could have been

raised in those proceedings and was inexcusably neglected.

       I.     BACKGROUND

       Defendant, age 43 at the time, married a 14-year-old Cambodian girl, S.K., in a

Cambodian wedding ceremony in October 2001. The previous July he had applied to the

Immigration and Naturalization Service (INS) for a K-1 visa on S.K.’s behalf, and

represented in his affidavit in support of the application that she was 18 years old. The

visa was granted and he and S.K. moved to New York, where they were married in

December 2001. In February 2002, S.K. applied to the INS for adjustment of status, and

Defendant again lied about her age on his affidavit in support of that application.

       In July 2002, Defendant and S.K. moved to Oklahoma. Shortly thereafter, federal

prosecutors charged him with violating the Mann Act, 18 U.S.C. § 2423(a), which

prohibits transporting a minor across state lines with intent to engage in sexual activity

contrary to state law. After a jury was empaneled and sworn, but before any evidence or

argument had been presented to it, the district court granted Defendant’s motion to

dismiss the indictment because it did not specify the underlying Oklahoma offense—

leaving open the possibility that it was statutory rape, an offense to which Defendant’s

marriage to S.K. would have provided a complete defense.


                                              2
       The government re-indicted Defendant under the Mann Act, this time specifying

that the underlying Oklahoma offense was forcible rape. He moved to dismiss that

indictment on double-jeopardy grounds, but the district court denied the motion and we

affirmed after an interlocutory appeal. See United States v. Miles (Miles I), 327 F. App’x

797, 798 (10th Cir. 2009). He then entered into a plea agreement with the government

under which the indictment was to be dismissed, and he pleaded guilty to an information

charging him with violating 18 U.S.C. § 1001(a)(3) by falsely stating S.K.’s age in the K-

1 visa application. Unnoticed by the court or the parties, however, the information stated

that the K-1 application had been filed in February 2002 (the date of the application for

adjustment of S.K.’s status) rather than the true date of July 2001. Nonetheless,

Defendant “himself affirmed both the alleged date and document in his colloquy with the

court establishing the factual basis for his plea at the plea hearing.” United States v.

Miles (Miles III), 546 F. App’x 730, 731–32 (10th Cir. 2012).

       The plea agreement contained a clause waiving Defendant’s right to “[a]ppeal or

collaterally challenge his guilty plea,” and his right to “[a]ppeal, collaterally challenge, or

move to modify . . . his sentence as imposed by the Court and the manner in which the

sentence is determined, provided the sentence is within or below the advisory guideline

range determined by the Court to apply to this case.” Aplt. App. at 42. The court

imposed a five-year sentence and sex-offender conditions, Defendant appealed the

imposition of the sex-offender conditions, and we affirmed the sentence. See United

States v. Miles (Miles II), 411 F. App’x 126, 127–28 (10th Cir. 2010).




                                               3
       In 2011, Defendant filed a pro se § 2255 motion claiming (1) that he was actually

innocent of making a material false statement to the INS in February 2002, because his

wife’s age was not material to the application for adjustment of status, (2) that his

attorney in the double-jeopardy appeal had been ineffective, and (3) that if the charge to

which he pleaded had actually been making a false statement on a K-1 visa application

for S.K. in February 2002, his plea had no factual basis and any false statement was

immaterial because he had already obtained a K-1 fiancée visa by that time. The district

court denied the motion, and we declined to issue a certificate of appealability. See Miles

III, 546 F. App’x at 736. We held that the collateral-review waiver in Defendant’s plea

agreement barred any legal challenge to his guilty plea and, relevant to this appeal, that

he was not “factually innocent of making a false statement on the K–1 visa application he

submitted for his fiancée.” Id. at 734.

       In 2013, after he had served his sentence, Defendant filed a pro se petition for a

writ of coram nobis under the All Writs Act, 28 U.S.C. § 1651(a). See United States v.

Denedo, 556 U.S. 904, 911 (2009) (“In federal courts the authority to grant a writ of

coram nobis is conferred by the All Writs Act, which permits ‘courts established by Act

of Congress’ to issue ‘all writs necessary or appropriate in aid of their respective

jurisdictions.’”). “A petition for a writ of coram nobis provides a way to collaterally

attack a criminal conviction for a person . . . who is no longer ‘in custody’ and therefore

cannot seek habeas relief under 28 U.S.C. § 2255 or § 2241.” Chaidez v. United States,

568 U.S. 342, 345 n.1 (2013). But a remedy is rarely available. Federal courts are only

permitted “to entertain coram nobis applications in extraordinary cases presenting


                                              4
circumstances compelling its use to achieve justice.” Rawlins v. Kansas, 714 F.3d 1189,

1196 (10th Cir. 2013) (internal quotation marks omitted).

       Defendant’s petition asserted that he had thought his guilty plea was based on

making a false statement on the 2002 adjustment-of-status form rather than the 2001 visa

application, that his trial counsel had told him that was the case, and that he discovered

that he had pleaded guilty to lying on the visa application only upon reading this court’s

decision on his § 2255 motion. The district court denied the petition, and we affirmed.

See United States v. Miles (Miles IV), 553 F. App’x 846, 849 (10th Cir. 2014). We held

that the petition was procedurally barred because Defendant had previously “had an

adequate remedy under § 2255” for the claim he was asserting, and that he was not

entitled to the miscarriage-of-justice exception to the bar because he had not shown his

factual innocence. Id. at 848–49.

       Finally, Defendant filed a second petition for a writ of coram nobis, the one at

issue in this appeal. He claims that he is actually innocent of the false-statement offense

to which he pleaded guilty because his false statement of S.K.’s age was not material to

either the visa application or the application for adjustment of status. And he claims that

his trial counsel was ineffective in two respects: (1) for not fulfilling his duty under

Padilla v. Kentucky, 559 U.S. 356 (2010), to adequately inform Defendant of the

immigration consequences of his plea, and (2) for failing to investigate the facts and law

on the materiality of Defendant’s false statement. The district court initially treated the

petition as a successive § 2255 motion and dismissed it on that ground, but we reversed

that dismissal in United States v. Miles (Miles V), 697 F. App’x 601, 602 (10th Cir.


                                              5
2017), on the ground that it is improper to recharacterize a petition by a person no longer

in custody as a § 2255 motion. On remand the district court once again dismissed the

petition, this time on the grounds that it was barred as an abuse of the writ, was barred by

Defendant’s collateral-review waiver, and in any event did not satisfy the requirements

for a writ to issue. Agreeing in essence with the first ground, we need not address the

others.

          II.   DISCUSSION

                A.     General Principles Governing Collateral Attacks on Convictions

          Before filing the coram nobis petition at issue here, Defendant had appealed his

sentence, pursued relief under § 2255, and sought relief under a prior coram nobis

petition. The question naturally arises whether there is any limit to how many

postconviction petitions he can file. Are there procedural barriers to such petitions, or

must we always address each issue he raises?

          There is a body of law limiting second or successive habeas corpus petitions

(including applications under 28 U.S.C. §§ 2241 and 2254 and motions under § 2255),

which are by far the most common avenues for challenges to convictions after direct

appeals have been exhausted or not pursued. Although the Supreme Court has

consistently “rejected res judicata in a strict sense as a basis for dismissing a later habeas

action,” it has “made clear that the prior adjudication [bears] vital relevance to the

exercise of the court’s discretion in determining whether to consider the petition.”

McCleskey v. Zant, 499 U.S. 467, 482 (1991). Some of this law derives from statutory

provisions, particularly the Antiterrorism and Effective Death Penalty Act of 1996


                                               6
(AEDPA), but several principles were developed through judicial decisions predating

AEDPA. See id. at 489 (“[T]he doctrine of abuse of the writ refers to a complex and

evolving body of equitable principles informed and controlled by historical usage,

statutory developments, and judicial decisions.”); Stanko v. Davis, 617 F.3d 1262, 1269

(10th Cir. 2010) (“Long before AEDPA, and even before the enactment of § 2244, the

Supreme Court developed several principles limiting the review of second or subsequent

habeas petitions.”).

       The successive-use-of-the-writ doctrine “authorized a federal court to decline to

consider a habeas petition presenting a claim that was previously raised and adjudicated

in an earlier habeas proceeding, unless the court determined that hearing the claim would

serve the ends of justice.” Stanko, 617 F.3d at 1269; see id. at n.7. The ends-of-justice

exception had been described as requiring a “colorable showing of factual innocence,”

McCleskey, 499 U.S. at 495, although the test is now formulated to require a showing that

the alleged error “probably has caused the conviction of one innocent of the crime,”

thereby “implicating a fundamental miscarriage of justice.” Id. at 494–95.

       “Another principle, abuse of the writ, authorized a court to decline to hear a

second or subsequent habeas petition raising a claim that could have been presented in an

earlier petition but was not.” Stanko, 617 F.3d at 1269. “[I]f a second or subsequent

petition raises a claim that could have been raised in an earlier petition, the petitioner

must establish that the omission was not the result of inexcusable neglect in order to

proceed on the new claim.” Id. at 1271. In other words, the petitioner must show “cause

for his failure to raise the claim in an earlier proceeding and resulting prejudice.” Stanko,


                                              7
617 F.3d at 1271. “[T]he cause standard requires the petitioner to show that some

objective factor external to the defense impeded counsel’s efforts to raise the claim,” or

that the claim had not been raised because counsel had been “constitutionally

ineffective.” McCleskey, 499 U.S. at 493–94 (brackets and internal quotation marks

omitted). This procedural bar also may be overcome if the petition comes within the

miscarriage-of-justice exception by “mak[ing] a proper showing of actual innocence.”

McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (internal quotation marks omitted); see

Stanko, 617 F.3d at 1271. A “proper showing” to overcome either bar requires “new

evidence [that] shows it is more likely than not that no reasonable juror would have

convicted the petitioner.” McQuiggin, 569 U.S. at 395 (brackets and internal quotation

marks omitted). “New evidence” is “relevant evidence that was either excluded or

unavailable at trial.” Schlup v. Delo, 513 U.S. 298, 327–28 (1995); see id. at 324 (“To be

credible, such a claim requires petitioner to support his allegations of constitutional error

with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence—that was not presented at trial.”).

       We can think of no reason why these same restrictions should not apply to

petitions for writs of coram nobis. The writ is not to be granted lightly. Its availability is

limited to “extraordinary cases presenting circumstances compelling its use to achieve

justice.” Denedo, 556 U.S. at 911 (internal quotation marks omitted). As the First

Circuit observed: “The further a case progresses through the remedial steps available to a

criminal defendant, the stiffer the requirements for vacating a final judgment. Thus,

direct review is more defendant-friendly than post-judgment review, and an initial habeas


                                              8
petition is easier for a criminal defendant to litigate than a successive one. The writ of

error coram nobis lies at the far end of this continuum.” United States v. George, 676

F.3d 249, 258 (1st Cir. 2012) (citations omitted).

       Indeed, Tenth Circuit precedent already imposes a bar to coram nobis relief

“unless relief under 28 U.S.C. § 2255 was unavailable or would have been inadequate.”

United States v. Payne, 644 F.3d 1111, 1112 (10th Cir. 2011). In other words, a claim

pressed through a coram nobis petition is ordinarily barred if the petitioner previously

raised the claim in a § 2255 motion but was unsuccessful or simply failed to pursue the

claim under § 2255 when petitioner could have. It is a small, and wholly logical, step to

expand this bar beyond previously available § 2255 motions to include all previously

available postconviction avenues for relief. We have done so in a nonprecedential

opinion. See United States v. Tarango, 670 F. App’x 981, 981 (10th Cir. 2016) (Gorsuch,

J.) (“A writ of coram nobis may not be used to litigate issues that were or could have

been raised on direct appeal or through collateral litigation, including a 28 U.S.C. § 2255

motion.”). We now adopt that proposition here. Absent those traditional grounds that

have excused successive or abusive habeas petitions, a petition for writ of coram nobis

must be rejected if the claim was raised or could have been raised on direct appeal,

through a § 2255 motion, or in any other prior collateral attack on the conviction or

sentence. Our view finds support in decisions from other circuits. See United States v.

Swindall, 107 F.3d 831, 836 n.7 (11th Cir. 1997); United States v. Camacho-Bordes, 94

F.3d 1168, 1172–73 (8th Cir. 1996); United States v. Bartlett, Nos. 90-6345, 90-6351,

1990 WL 135645, at *1 n.* (4th Cir. Sept. 20, 1990). But see United States v. Darnell,


                                              9
716 F.2d 479, 481 n.5 (7th Cir. 1983) (the abuse-of-the-writ doctrine does not apply to

coram nobis petitions, because the narrow scope of the writ “ensures that coram nobis

will not be utilized as a substitute for appeal”).

              B.      Application to This Case

       Defendant’s petition asserts two grounds for relief: (1) that he is actually innocent

of the false-statement offense to which he pleaded guilty, because his false statement of

S.K’s age was not material1, and (2) that he received ineffective assistance of counsel in

connection with his guilty plea, because his trial counsel did not inform him of potential

immigration consequences of his guilty plea and did not adequately investigate the

factual basis of his guilty plea. Both are procedurally barred.

       Defendant’s actual-innocence claim was raised and rejected in prior collateral

attacks. In his § 2255 proceeding we held that his falsification of S.K.’s age in the visa

application was a material falsehood and he was not actually innocent of the charge even

if the date in the information was incorrect. See Miles III, 546 F. App’x at 732–34. And

in upholding the rejection of his first coram nobis petition, we determined that Defendant

clearly understood at the time of his plea that he was pleading guilty to a false statement

related to the visa application, not the application for adjustment of status. See Miles IV,

553 F. App’x at 849.


1
  The Supreme Court has “not resolved whether a prisoner may be entitled to habeas
relief based on a freestanding claim of actual innocence” McQuiggin, 569 U.S. at 391;
see also Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based
on newly discovered evidence have never been held to state a ground for federal habeas
relief absent an independent constitutional violation occurring in the underlying state
criminal proceeding.”).

                                              10
       As for Defendant’s first ineffective-assistance claim, he relies on the Supreme

Court’s decision in Padilla, which postdated his conviction. Perhaps coram nobis is a

proper avenue for relief if a claim is based on Supreme Court law that was declared after

the defendant had fully served the criminal sentence. Cf. United States v. Snyder, 871

F.3d 1122, 1127 (10th Cir. 2017) (“Cause excusing procedural default is shown if a claim

is so novel that its legal basis was not reasonably available to counsel at the time of the

direct appeal.” (brackets and internal quotation marks omitted)). But that is not the case

here. Padilla was decided on March 31, 2010, and Defendant filed his § 2255 motion in

2011. Moreover, the claim could have been included in his 2013 coram nobis petition.2


2
  There is a much more disturbing reason why Defendant’s Padilla claim fails. Although
he is a citizen of Sweden, his counsel conceded at oral argument that he is also a
naturalized United States citizen. Padilla concerns counsel’s obligation “to inform [a]
noncitizen client that he faces a risk of deportation.” 559 U.S. at 374 (emphasis added).
To pursue this claim, Defendant falsely states in his coram nobis petition and his affidavit
in support of the petition that he is an “alien national.” His briefs on appeal do not state
outright that he is not a citizen, but his opening brief states that he is a “foreign national,”
Aplt. Br. at 34, his reply brief states that “the government has failed to provide any
proof . . . that [he] is a U.S. Citizen,” Reply Br. at 23, and both briefs continue to press
the Padilla claim.

         The apparently knowing and material misrepresentations in Defendant’s filings are
potential violations of the rules of professional conduct for the United States District
Court for the Western District of Oklahoma, and the rules of professional conduct in
California and Nevada, two states in which Defendant’s counsel, Don P. Chairez, is
licensed to practice law. It appears that Defendant is currently not eligible to practice law
in California for administrative reasons, but these misrepresentations might justify
professional discipline against him as well. We direct the clerk to forward copies of this
opinion to the State Bar of California and the State Bar of Nevada so that they can assess
whether counsel’s conduct and/or Miles’s conduct warrants any sanction. See In re
Graham, 981 F.2d 1135, 1142 (10th Cir. 1992) (“A court may . . . report misconduct by
a[n] . . . attorney to that attorney’s bar association for the purpose of instituting
disciplinary proceedings.”); Lail v. Apfel, No. 98-7079, 1999 WL 147305, at *2 (10th
Cir. Mar. 18, 1999) (“[C]ontinued misrepresentations to this court . . . may

                                              11
       It is even clearer that Defendant’s second ineffective-assistance claim could have

been raised earlier. The matters that he contends his counsel should have discovered

before he pleaded guilty were all presented in his § 2255 proceedings. He was aware of

everything that he needed to raise the present ineffective-assistance claim.

       To be sure, the procedural bars to Defendant’s present claims may be overcome in

certain circumstances. But Defendant has not identified any legitimate ground to do so

here. He argues that cause for his failure to raise his ineffective-assistance-of-trial-

counsel claims is present because of (1) ineffectiveness of trial counsel—in the very

respects that he complains of in his coram nobis petition, (2) “new developments in law,”

Aplt. Br. at 41, and (3) “extrinsic fraud,” id. at 43. We are not persuaded. He does not

explain how ineffectiveness of trial counsel kept him from arguing his ineffectiveness

claims in his § 2255 proceedings or his first coram nobis petition; the cases he cites as

“new developments” are not essential, or even material, to his present claims; and the

evidence of asserted fraud is only the untrue allegation that the prosecution and the courts

incorrectly characterized his guilty plea as being to his false statement on the visa

application.

       Nor can Defendant rely on the actual-innocence exception to procedural bar. The

only new evidence he puts forward in support of his argument for actual innocence is a


lead . . . to . . . a referral to the Oklahoma State Bar for possible disciplinary
proceedings.”). Because counsel informed this court during oral argument that Miles is
also a medical doctor, we direct the clerk to forward copies of this opinion to the
Oklahoma Medical Board, the New York Office of Professional Medical Conduct, the
Arizona Medical Board, and the Medical Board of California, all states in which Miles
was licensed to practice medicine.

                                              12
2013 Department of Homeland Security guidance document that he claims tends to prove

that a 14-year-old can qualify for a fiancée visa. He argues that this document establishes

that his false statement of S.K’s age was not material. But we doubt that this document

would have affected our reasoning in rejecting Defendant’s actual-innocence claim in his

§ 2255 proceeding. See Miles III, 546 F. App’x at 734 (“[I]n assessing the ability of Mr.

Miles and his fiancée to conclude a valid marriage within ninety days of her arrival for

purposes of the K–1 visa, the true age of his fiancée, which would have triggered

significant if not conclusive impediments, was plainly a material consideration.”). It does

not make it “more likely than not that no reasonable juror would have convicted him.”

Schlup, 513 U.S. at 327.

       III.   CONCLUSION

       We AFFIRM the denial of Defendant’s petition.




                                            13
