                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                   UNITED STATES COURT OF APPEALS March 4, 2014
                                                              Elisabeth A. Shumaker
                               TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

 v.                                                     No. 13-3278
                                             (D.C. No. 2:06-CR-20151-JWL-1)
 JERRY L. LESTER,                                       (D. Kansas)

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
      Defendant and appellant, Jerry L. Lester, proceeding pro se, appeals the

denial of his petition for a writ of error coram nobis. For the following reasons,

we affirm.



                                 BACKGROUND

      Mr. Lester does not dispute the basic facts, as stated by the district court in

its Memorandum and Order in which it denied his request for a writ of error

coram nobis. We accordingly take the basic facts from that order:

             In March 2006, agents with the Bureau of Alcohol, Tobacco,
      Firearms and Explosives received information that defendant Jerry
      Lester had corresponded via email with an individual in Germany
      named Clause Chownietz regarding the sale of a firearm silencer in
      May 2005. Over the course of six emails between these two parties,
      Mr. Lester confirmed that the silencer was still for sale, the amount
      charged for shipping to his address in Kansas, and Mr. Chownietz’s
      mailing address to which Mr. Lester could send the funds. Based on
      these emails, agents began investigating Mr. Lester and the scope of
      that investigation expanded to include the possibility that Mr. Lester
      had made false statements when he filled out the ATF forms related
      to a firearm purchase in February 2006 at a local pawn shop. In
      obtaining a search warrant for Mr. Lester’s home and office, agents
      indicated, among other details, that other ATF agents had
      successfully purchased a firearm silencer from the German
      individual. Ultimately, agents discovered and seized six firearms,
      over 10,000 rounds of ammunition and drug paraphernalia. The
      agents did not discover a firearm silencer.
             In February 2007, Mr. Lester was convicted by a jury of
      making false statements to acquire firearms and using a controlled
      substance in possession of firearms. He was sentenced to 27 months’
      imprisonment. Mr. Lester’s conviction and sentence were affirmed
      by the Tenth Circuit. United States v. Lester, 285 Fed. Appx 542
      (10th Cir. 2008).


                                         -2-
Mem. & Order at 1-2; R. Vol. 1 at 169-70. Mr. Lester has by now completed his

sentence of incarceration and supervised release.

      On May 31, 2011, Mr. Lester filed a Petition for a Writ of Error Coram

Nobis in the federal district court. He alleged several grounds of error, including

that he was denied his counsel of choice under the Sixth Amendment, and that the

district court erroneously failed to consider 18 U.S.C. § 3501 in admitting his

confession at his trial. 1 On July 28, 2011, the district court denied his motion,

finding that he had not satisfied the stringent standards for relief under coram

nobis. Mr. Lester appealed, and our court affirmed the district court’s denial.

United States v. Lester, 453 Fed. Appx. 810 (10th Cir. 2011) (unpublished). In

particular, we stated that, “[a] writ of error coram nobis cannot issue when

another remedy was adequate and available,” and Mr. Lester “failed to show that

he could not have raised his § 3501 argument on direct appeal or in a motion

under 28 U.S.C. § 2255.” Id. at 811.

      On August 15, 2013, Mr. Lester filed the instant Petition for Writ of Error

Coram Nobis. He claimed that, based on a Google search he conducted himself,

he had discovered information suggesting that Mr. Chowanietz had defrauded

several of his customers of money from the time before Mr. Lester was indicted

until 2012. He attached the results of his Google search, which consisted of

      1
       18 U.S.C. § 3501 concerns the “Admissibility of confessions” in criminal
prosecutions by the United States, and specifies how the trial judge determines
the voluntariness of a confession.

                                         -3-
various postings on websites in which people complained abut Mr. Chowanietz.

He thus argued that this “new evidence” showed that the “government’s case-in-

chief is lacking in indicia of reliability” and is “no more than a recent

fabrication.” Petition at 5; R. Vol. 1. He claimed that this information showed

that Mr. Chowanietz was “an international thief who offers air gun and firearm

accessories for sale on the internet and when he receives payment for an item he

takes and keeps the buyers’ money and does not mail them the item, thus

perpetrating the fraud.” Id. at 6. Mr. Lester argued that Mr. Chowanietz’s fraud

upon many of his customers qualified as exculpatory evidence that the

government should have disclosed to him under Brady v. Maryland, 373 U. S. 83

(1963). He thus sought to have his conviction vacated.

      The district court denied his petition on November 1, 2013. The court

denied relief because: (1) “information was presented to the jury (and provided to

Mr. Lester during discovery) that other individuals had inquired or purchased

suspicious items from Mr. Chowanietz over a period of time”; (2) “no Brady

violation can be established because, among other things, the information

identified by Mr. Lester is readily available to the public by virtue of the very

Google search that Mr. Lester conducted”; (3) “many of the emails identified by

Mr. Lester reflect posting dates well after the trial date such that the government

obviously could not have produced them prior to trial”; and (4) “Mr. Lester has

not shown how such information would have been admissible or relevant to the

                                          -4-
charges against him.” Mem. & Order at 2-3; Supp. Vol. 1. Mr. Lester appeals

that order.



                                   DISCUSSION

      “When reviewing a denial of a coram nobis petition, we review questions of

law de novo, but review the district court’s decision to deny the writ for an abuse

of discretion.” United States v. Thody, 460 Fed. Appx. 776, 778 (10th Cir. 2012)

(unpublished). 2 “A district court abuses its discretion when it renders a judgment

that is arbitrary, capricious, whimsical, or manifestly unreasonable.” United

States v. Lewis, 594 F.3d 1270, 1277 (10th Cir. 2010) (quotation omitted).

Coram nobis is an “extraordinary remedy” to be invoked “only under

circumstances compelling such action to achieve justice.” United States v.

Morgan, 346 U.S. 502, 511 (1954). “[T]he burden is on the petitioner to

demonstrate that the asserted error is jurisdictional or constitutional and results in

a complete miscarriage of justice.” Klein v. United States, 880 F.2d 250, 253

(10th Cir. 1989).

      Moreover, Mr. Lester is not entitled to a writ of coram nobis “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. 1011). That Mr. Lester failed to

      2
        We do not normally cite unpublished decisions of this circuit, but we cite
this one because it provides a recent, accurate and comprehensive statement of
circuit authority.

                                         -5-
obtain relief “does not establish that the remedy so provided [was] either

inadequate or ineffective.” Prost v. Anderson, 636 F.3d 578, 585 (10th Cir. 2011)

(quotation omitted).

      As the government notes, a petition for a writ of coram nobis provides a

way to collaterally attack a criminal conviction for a person, like Mr. Lester, who

is no longer “in custody” and therefore cannot seek habeas relief under 28 U.S.C.

§ 2255 or § 2241. See Morgan, 346 U.S. at 507. It is, however, an extraordinary

remedy, available “only under circumstances compelling such action to achieve

justice.” Id. at 511.

      We conclude that Mr. Lester has failed to show that the district court

abused its discretion in denying his petition for a writ of coram nobis. And the

district court’s own reasoning, as stated above, provides ample support for that

conclusion. As the court stated, information was in fact presented to the jury that

other individuals had purchased suspicious items from Mr. Chowanietz over a

period of time. Furthermore, no Brady violation could be established because,

inter alia, the information identified by Mr. Lester is readily available to the

public, as evidenced by Mr. Lester’s Google search, and therefore was in no way

“withheld” by the government. Additionally, much of the “information”

identified by Mr. Lester in his Google search bore identifying dates indicating

that it was posted on the internet long after the trial date, and could therefore

hardly have been revealed pre-trial to Mr. Lester. Finally, Mr. Lester has not

                                          -6-
shown how any of the allegedly “new” information would have been admissible

or relevant, under Brady, to any of the charges against him. Mr. Lester has

moreover failed to show why much of this information could not have been raised

in a § 2255 motion or, for that matter, on direct appeal.

      In short, Mr. Lester has failed to demonstrate entitlement to the

extraordinary remedy of a writ of coram nobis.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s denial of

Mr. Lester’s petition.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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