         11-207-cr
         United States v. Frank Salcido

                                          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.

 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 17th day of April, two thousand twelve.
 4
 5       PRESENT:
 6
 7               JOSEPH M. MCLAUGHLIN,
 8               ROBERT D. SACK,
 9               DEBRA ANN LIVINGSTON,
10
11                               Circuit Judges.
12       _______________________________________________
13
14       UNITED STATES OF AMERICA,
15
16                                          Appellee,

17                        -v.-                                                        No. 11-207-cr
18
19       FRANK SALCIDO,

20                               Defendant-Appellant.
21       _______________________________________________

22                                                  EZEKIEL E. CORTEZ, San Diego, California, for Defendant-
23                                                  Appellant.

24                                                  MONICA J. RICHARDS, for William J. Hochul, Jr., United
25                                                  States Attorney for the Western District of New York,
26                                                  Buffalo, New York, for Appellee.


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 1          Appeal from an order of the United States District Court for the Western District of New

 2   York (Michael A. Telesca, Judge), entered December 16, 2010.

 3          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

 4   that the order of the District Court is AFFIRMED.

 5          Defendant-Appellant Frank Salcido (“Salcido”) appeals from a decision and order of the

 6   United States District Court for the Western District of New York, denying Salcido’s petition for

 7   writ of error coram nobis to vacate his 1994 guilty plea on federal drug conspiracy charges. We

 8   assume the parties’ familiarity with the underlying facts and procedural history of the case, and with

 9   the issues on appeal.

10                                                *    *   *

11          Relief under a writ of error coram nobis “is strictly limited to those cases in which errors of

12   the most fundamental character have rendered the proceeding itself irregular and invalid.” United

13   States v. Mandanici, 205 F.3d 519, 524 (2d Cir. 2000) (quoting Foont v. United States, 93 F.3d 76,

14   78 (2d Cir.1996)); see also Nicks v. United States, 955 F.2d 161, 167 (2d Cir.1992) (stating that a

15   writ of error coram nobis should be granted “only where extraordinary circumstances are present”).

16   A writ of error coram nobis is “essentially a remedy of last resort for petitioners who are no longer

17   in custody pursuant to a criminal conviction.” Fleming v. United States, 146 F.3d 88, 89-90 (2d

18   Cir.1998) (per curiam).

19          “To obtain coram nobis relief, a petitioner must demonstrate that 1) there are circumstances

20   compelling such action to achieve justice, 2) sound reasons exist for failure to seek appropriate

21   earlier relief, and 3) the petitioner continues to suffer legal consequences from his conviction that

22   may be remedied by granting of the writ.” Mandanici, 205 F.3d at 524 (quoting Fleming, 146 F.3d

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 1   at 90) (internal quotation marks omitted). On appeal, our review of whether a district judge applied

 2   the legal standard in considering a coram nobis petition is de novo, but we “review the judge’s

 3   ultimate decision to deny the writ for abuse of discretion.” Id.

 4           Here, as an initial matter Salcido remains incarcerated, pursuant to his 1994 guilty plea and

 5   two other subsequent federal convictions. Beyond falling outside the paradigmatic scope of coram

 6   nobis relief, Salcido has also failed to adduce “sound reasons” for his failure to seek appropriate

 7   earlier relief for what he alleges to have been the failure of the district court that oversaw the 1994

 8   guilty plea to comply with the requirements of Fed. R. Crim. P. 11. It is uncontested that Salcido

 9   did not challenge his 1994 conviction—on direct appeal, through a petition for writ of habeas corpus

10   pursuant to 28 U.S.C. § 2255, or indeed by any other means prior to the coram nobis petition at issue

11   in the present appeal. And when Salcido was charged in 2005 with failing to report to serve his

12   sentence on the 1994 conviction (and instead fleeing to Mexico and remaining a fugitive from 1994-

13   2005), though represented by counsel he did not challenge the validity of that conviction then either,

14   but rather pled guilty to the 2005 charges as well.

15           Salcido argues on appeal that this Court’s decision in Hanson v. Phillips, 442 F.3d 789 (2d

16   Cir. 2006), demonstrates that the district court erred in (allegedly) basing its denial of his petition

17   on the doctrine of fugitive disentitlement; he additionally claims that his undisputed cognitive

18   impairments provide a valid reason for failing to challenge his 1994 conviction more quickly. Yet,

19   as Hanson recognizes, 442 F.3d at 795-796, “fugitive disentitlement” refers to the dismissal of

20   appeals, or other petitions for relief of a fugitive defendant, as a sanction for that defendant’s flight,

21   Ortega-Rodriguez v. United States, 507 U.S. 234, 239-242 (1993). Here, the issue is whether

22   Salcido simply forfeited any direct or collateral challenge to the 1994 conviction by failing timely


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 1   to file such a challenge (because he was a fugitive during the time for doing so). As for Salcido’s

 2   cognitive impairment, even without considering the period during which he was a fugitive, it is

 3   undisputed that he has had the benefit of assistance of counsel at least since 2005; Salcido does not

 4   attempt to justify his failure to bring his challenge to the 1994 conviction (by writ of coram nobis

 5   or otherwise) in the intervening period.

 6          That the statute of limitations has run on both Salcido’s right to appeal and his right to

 7   petition for a writ of habeas corpus to challenge his 1994 conviction does not change this analysis.

 8   Salcido, again, remains incarcerated pursuant to the conviction that he is challenging, and such a

 9   petitioner “cannot recapture [a] lost opportunity [to directly appeal or collaterally attack a

10   conviction] by resorting to coram nobis,” United States v. Dos Santos, 979 F. Supp. 949, 951

11   (E.D.N.Y. 1997) (citing Foont, 93 F.3d 76). While under the all Writs Act, 28 U.S.C. § 1651(a),

12   a writ of error coram nobis provides an “extraordinary” remedy for petitioners to correct “errors of

13   the most fundamental character,” United States v. Morgan, 346 U.S. 502, 512 (1954), “[wh]ere a

14   statute specifically addresses the particular issue at hand, it is that authority and not the All Writs

15   Act, that is controlling,” Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985).

16   Though it thus follows that Salcido may have the opportunity to seek a writ of coram nobis when

17   he has completed serving his sentence, the district court did not abuse its discretion in determining

18   that Salcido failed to meet the stringent requirements of coram nobis relief in the present case.

19          We have reviewed Salcido’s remaining arguments and find them to be without merit. For

20   the foregoing reasons, the order of the District Court is AFFIRMED.

21                                                          FOR THE COURT:
22                                                          Catherine O’Hagan Wolfe, Clerk
23




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