                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 13 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-17678

              Plaintiff - Appellee,              D.C. No. 3:04-cr-00185-HDM-
                                                 RAM
       v.

JOHN LIGON,                                      MEMORANDUM *

              Defendant - Appellant.

                 Appeal from the United States District Court
                          for the District of Nevada
              Howard D. McKibben, Senior District Judge, Presiding

                     Argued and Submitted December 6, 2011
                            San Francisco, California

Before: BEA and TROTT, Circuit Judges, and PALLMEYER, District Judge.**



      John Ligon appeals the district court’s judgment dismissing his petition

seeking a writ of error coram nobis as barred by his plea agreement. We affirm.

The district court correctly concluded that Ligon voluntarily and knowingly



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Rebecca R. Pallmeyer, United States District Judge for
the Northern District of Illinois, sitting by designation.
waived his right to bring an “as applied” constitutional challenge in his plea

agreement, which explicitly waived any collateral attack on his conviction for

possession of a firearm by a felon. Courts generally enforce a defendant’s waiver

of the right to appeal or collateral attack a conviction if “(1) the language of the

waiver encompasses the defendant’s right to appeal on the grounds claimed on

appeal, and (2) the waiver is knowingly and voluntarily made.” United States v.

Nunez, 223 F.3d 956, 958 (9th Cir. 2000) (internal quotation marks omitted). The

parties do not contest that Ligon’s petition for writ of error coram nobis is a form

of collateral attack encompassed by the plea agreement. See Telink, Inc. v. United

States, 24 F.3d 42, 45 (9th Cir. 1994).

      Instead, Ligon contends that at the time of the plea agreement he was

laboring under the mistaken belief that, should this court overturn his predicate

felony conviction on appeal, his gun rights would be restored automatically, by

operation of law. Ligon’s own attorney, however, informed Ligon that if he signed

the agreement, the only means for reversing his felon-in-possession conviction was

by presidential pardon. Where a defendant has been properly advised of the

consequences of entering into a plea agreement, the waiver of appellate rights is

enforceable. See United States v. Navarro-Botello, 912 F.2d 318, 320-21 (9th Cir.

1990). Ligon’s conviction on his guilty plea provides an independent basis upon



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which 18 U.S.C. § 922(g)(1) now prohibits him from possessing guns. His

subjective belief to the contrary is not sufficient to demonstrate that the collateral

attack waiver was unknowing and involuntary.

      Ligon asks the court to recognize a “miscarriage of justice” exception to

otherwise valid waivers of appellate rights. The court declines the invitation. This

court does recognize certain exceptions to valid appellate waivers, see United

States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996), but a nebulous

“miscarriage of justice” exception is not among them. Even if this court were to

entertain such an exception, Ligon’s argument would require assessment of the

merits of a claim any time an appellant asserts an “as applied” constitutional

challenge–an extension well beyond the rare circumstances in which courts that do

consider the “miscarriage of justice” exception have applied it. See United States

v. Stabile, 633 F.3d 219, 247-48 (3d Cir. 2011), cert. denied, ___ S. Ct. ___, 80

U.S.L.W. 3217 (2011); United States v. Teeter, 257 F.3d 14, 26 (1st Cir. 2001).

      Because Ligon knowingly and voluntarily waived his right to collaterally

attack his felon-in-possession conviction, the district court’s dismissal of his

petition is AFFIRMED.




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