     19‐1256‐cv
     In the Matter of the Petition of James M. Kernan v. On Notice to the United States Department of Justice as its interests may appear


                                       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 ASUMMARY ORDER@). A PARTY
CITING TO 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,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 8th day of November, two thousand nineteen.
 4
 5             PRESENT: PIERRE N. LEVAL,
 6                              RAYMOND J. LOHIER, JR.,
 7                              RICHARD J. SULLIVAN,
 8                                      Circuit Judges.
 9             ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
10             IN THE MATTER OF THE
11             PETITION OF JAMES M. KERNAN,
12
13                                 Petitioner‐Appellant,
14
15                          v.                                                                             No. 19‐1256‐cv
16
17             ON NOTICE TO THE UNITED STATES
18             DEPARTMENT OF JUSTICE AS ITS
19             INTERESTS MAY APPEAR,
20
21                              Respondent‐Appellee,
22             ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
 1         FOR APPELLANT:                                FRANK POLICELLI, Law Office
 2                                                       of Frank Policelli, Utica, NY.
 3
 4         FOR APPELLEE:                                 No Appearance.
 5
 6         Appeal from an order of the United States District Court for the Northern

 7   District of New York (Glenn T. Suddaby, Chief Judge).

 8         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 9   AND DECREED that the order of the District Court is AFFIRMED.

10         James M. Kernan, an attorney, appeals from an order of the District Court

11   (Suddaby, C.J.) denying his petition for a writ of error coram nobis. On appeal,

12   Kernan argues that the District Court erred in denying the writ, as he continues

13   to suffer legal consequences from his criminal convictions, had sound reasons for

14   not asking for relief at an earlier time, and the relief must be granted to achieve

15   justice. We assume familiarity with the underlying facts and the record of prior

16   proceedings, to which we refer only as necessary to explain our decision to

17   affirm.

18         “On appeal, we review de novo the question of whether a district judge

19   applied the proper legal standard, but review the judge’s ultimate decision to

20   deny the writ for abuse of discretion.” United States v. Mandanici, 205 F.3d 519,

                                               2
 1   524 (2d Cir. 2000). “A petitioner seeking coram nobis relief must demonstrate

 2   that 1) there are circumstances compelling such action to achieve justice, 2)

 3   sound reasons exist for failure to seek appropriate earlier relief, and 3) the

 4   petitioner continues to suffer legal consequences from his conviction that may be

 5   remedied by granting of the writ.” Kovacs v. United States, 744 F.3d 44, 49 (2d

 6   Cir. 2014) (quotation marks omitted). The writ is an “extraordinary remedy,”

 7   id. (quotation marks omitted), and is “strictly limited to those cases in which

 8   errors . . . of the most fundamental character have rendered the proceeding itself

 9   irregular and invalid,” Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996)

10   (quotation marks omitted).

11         With respect to the first element above, the District Court concluded that

12   granting the writ would not achieve justice. We find no abuse of discretion in

13   this conclusion. Kernan represented Oriska Insurance Company in a lawsuit

14   filed over ten years after he pleaded guilty, even after the New York Department

15   of Financial Services (DFS) prohibited him from providing any legal services to

16   Oriska in February 2013.




                                               3
 1         The District Court also concluded that there was no sound reason for

 2   Kernan’s delay in seeking relief. We similarly see no error in this conclusion.

 3   Kernan argues that the harm stemming from his conviction did not occur until he

 4   was disqualified from representing Oriska in November 2018 and his application

 5   for readmittance to the bar of the Northern District of New York was denied in

 6   December 2018. But as stated above, DFS ordered him not to provide legal

 7   services to Oriska in February 2013, nearly six years before he filed his petition

 8   here. And in any case, relief under the writ is not a substitute for direct appeal.

 9   See Foont, 93 F.3d at 78. More fundamentally, Kernan offers no reason why he

10   delayed seeking relief based on alleged Brady violations. Indeed, when Kernan

11   previously petitioned for a writ of error coram nobis in 2014, the District Court

12   denied the petition because, as relevant here, it concluded that Kernan had not

13   demonstrated reasons for the delay in seeking relief, and Kernan voluntarily

14   dismissed his appeal of that decision.




                                              4
1         We have considered Kernan’s remaining arguments and conclude that

2   they are without merit. For the foregoing reasons, the order of the District

3   Court is AFFIRMED.

4                                        FOR THE COURT:
5                                        Catherine O=Hagan Wolfe, Clerk of Court




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