                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                           July 9, 2007
                                     TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                        Clerk of Court

 W ILLIA M J.R . EM B REY ,

          Petitioner - A ppellant,
                                                         No. 07-7031
 v.
                                                  (D.C. No. 06-CV -437-JHP)
                                                         (E.D. Okla.)
 U N ITED STA TES O F A M ER ICA,

          Respondent - Appellee.



                              OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      W illiam J.R. Embrey, proceeding pro se, seeks a writ of coram nobis

challenging his 1969 federal bank-robbery conviction. Construing his petition

with the liberality it is due, see Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007);

Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007), M r. Embrey suggests

his aged conviction rests on a violation of the federal structure of our

Constitution. Because, among other defects, the writ of coram nobis is not a




      *
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ).
This 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judgment is not binding precedent except under the doctrines of law of the case,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. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
proper vehicle for (re)litigating years- or decades-later issues that were or could

have been raised earlier, we affirm the district court’s dismissal of M r. Embrey’s

petition.

                                        ***

      Three weeks before Christmas, on December 4, 1968, M r. Embrey robbed

W ebbers Falls State Bank, a bank in M uskogee County, Oklahoma, insured by the

Federal Deposit Insurance Corporation, taking $793. In 1969, a federal grand

jury charged him with one count of violating 18 U.S.C. § 2113(a), the Federal

Bank Robbery Act; the indictment specifically stated that the stolen money was

“insured by the Federal Deposit Insurance Corporation.” Indictment, Tab 4,

Gov’t Ex. Following trial, the U nited States D istrict Court for the Eastern

District of Oklahoma convicted M r. Embrey and sentenced him to eight years of

incarceration – a sentence that was to run consecutively to a separate state

sentence. See J. and Commitment, Tab 4, Gov’t Ex., at 1. After serving his state

sentence, M r. Embrey, on M ay 19, 1972, commenced his eight-year federal

sentence. See Return, Tab 4.

      Following such a long spell in prison for his original offense, one would

have hoped M r. Embrey might have found another line of work; as it was, he

rapidly returned to his former trade. In 1980, shortly after his release, the United

States District Court for the W estern District of M issouri convicted M r. Embrey




                                         -2-
after he committed another bank robbery and sentenced him back to prison. See

Dec. 23, 1988 M em. Order E.D. Okla., at 1-2, Tab 4, Gov’t Ex., at 7.

      On July 5, 1988 – more than 19 years after his first bank-robbery

conviction but while serving his sentence for the second bank robbery – M r.

Embrey sought to attack his 1969 conviction collaterally in a petition seeking a

writ of coram nobis or habeas corpus. M r. Embrey claimed, inter alia, that

because the 1969 indictment failed to mention 18 U.S.C. § 2113(f), which defines

“bank” under the Federal Bank Robbery Act as “any institution the deposits of

which are insured by the Federal Deposit Insurance Corporation,” the grand jury

failed to charge and the government failed to prove that M r. Embrey committed a

federal, rather than a state, crime. See June 30, 1988 Coram Nobis or 28 U.S.C.

§ 2255, Tab 4, Gov’t Ex., at 3, at 2-7; see also Aug. 12, 1988 Embrey Reply, at 1-

8, Tab 4, Gov’t Ex., at 5. The district court analyzed the petition as one for

habeas corpus relief and dismissed it for lack of jurisdiction because M r. Embrey

had completed his sentence for the 1969 bank robbery and thus w as no longer “in

custody” (at least for the challenged 1969 bank-robbery conviction) under the

statute. See J., Tab 4, Gov’t Ex., at 6; see also Dec. 23, 1988 M em. Order E.D.

Okla., at 1-2, Tab 4, Gov’t Ex., at 7. It is unclear from the record before us

whether M r. Embrey appealed.

      Turning at last to the events giving rise to this particular appeal, on

October 6, 2006, M r. Embrey filed in the United States District Court for the


                                         -3-
Eastern District of Oklahoma another petition for writ of coram nobis challenging

his 1969 conviction. In a similar but slightly different vein to his 1988 petition,

M r. Embrey challenged the jurisdiction of the 1969 court on the basis that he

committed a purely intrastate offense and therefore the district court’s

proceedings represented an intrusion on state sovereignty. See Oct. 6, 2006

Coram N obis, Tab 1.

      On M arch 30, 2007, the district court denied M r. Embrey’s requested relief,

holding that M r. Embrey failed to meet his heavy burden of showing his 1969

conviction represented a “complete miscarriage of justice.” See Feb. 26, 2007

M ag. J. Rep. and Rec., at 4. Indeed, M r. Embrey admitted that he robbed the

Oklahoma bank, arguing only that a purely intrastate bank robbery should not

count as a federal crime. See, e.g., Dec. 8, 2006 Embrey Ans. Br., Tab 5, Gov’t

Ex., at 56. M r. Embrey timely filed this present appeal on June 4, 2007,

contending that the district court lacked jurisdiction to convict him, because (1)

the grand jury charged him in, and the district court convicted him based upon, a

defective indictment, as he outlined in his (resurrected) 1988 petition; and (2) he

comm itted a purely intrastate bank robbery, and under the Constitution (including

Article I, § 8, Clause 17; Article IV, § 4; the Ninth Amendment; and the Tenth

Amendment), Article II of the Articles of Confederation, and a plethora of pre-

New-Deal-Era cases, the federal government trampled Oklahoma’s sovereignty,

as he outlined in his 2006 district court argument. See Aplt. Op. Br. at 1-26.


                                         -4-
                                        ***

      In its common law form, the writ of coram nobis was a “procedural tool

whose purpose [was] to correct errors of fact only, and its function [was] to bring

before the court rendering judgment matters of fact, which if known at [the] time

of judgment was rendered, would have prevented its rendition.” Black’s Law

Dictionary 338 (6th ed. 1990). 1 Despite the advent of the federal rules replacing

many common law procedures, the writ remains with us, albeit in a somewhat

modified form. In United States v M organ, 346 U.S. 502 (1954), the United

States Supreme Court explained that the A ll W rits Act, 28 U.S.C. § 1651(a),

authorizes federal courts to continue to issue the w rit in extraordinary cases,

including to address invalid convictions which have continuing consequences

when the petitioner has served his or her sentence and is no longer “in custody”

sufficient to invoke a habeas corpus proceeding under 28 U.S.C. § 2255.

M organ, 346 U.S. at 506-13.

      The M organ Court suggested, however, three prerequisites to the granting

of a writ of coram nobis. First, the petitioner must have exercised diligence in

bringing his or her claim. See id. at 511 (“Such an attitude may reflect the rule


      1
         “In Latin, ‘coram nobis’ means ‘before us.’ Originally, the petition was
submitted in the court of the King’s Bench, or ‘before us’ in the sense of being
before the King. In contrast, the writ of coram vobis, an analogous procedure,
was brought before judges of the court of Common Pleas, or ‘before you.’ The
distinction between these terms is virtually meaningless in the American context.”
United States v. Thom as, 49 Fed. Appx. 781, 783 (10th Cir. 2002) (unpub.)
(internal citations and quotation marks omitted).

                                         -5-
that deliberate failure to use a known remedy at the time of trial may be a bar to

subsequent reliance on the defaulted right.”). Under our case law, moreover, the

petitioner carries the burden of demonstrating his or her due diligence. See Klein

v. United States, 880 F.2d 250, 253-54 (10th Cir. 1989).

      Second, the writ is only available when other remedies and forms of relief

are unavailable or inadequate. See Morgan, 346 U.S. at 512 (“[W]e think, no

other remedy being then available and sound reasons existing for failure to seek

appropriate earlier relief, this motion in the nature of the extraordinary writ of

coram nobis must be heard by the federal trial court.”). W e have explained that

this means the petitioner “must exhaust all otherwise available remedies, which

includes seeking post-conviction relief under § 2255.” United States v.

Carpenter, 24 Fed. Appx. 899, 905 (10th Cir. 2001) (unpub.) (citing United States

v. Johnson, 237 F.3d 751, 755 (6th Cir. 2001) and Goldstein v. United States

Parole Comm’n, 940 F. Supp. 1505, 1508 (C.D. Cal. 1996)). Neither may the

writ be employed to litigate issues that were or could have been raised on direct

appeal or in other, collateral litigation. See United States v. Stefanoff, 1998 W L

327888, at *2 (10th Cir. June 22, 1998) (unpub.) (citing Barnickel v. United

States, 113 F.3d 704, 706 (7th Cir. 1997) (“[C]oram nobis . . . (like habeas

corpus) cannot be used to reach issues that could have been raised by direct

appeal.”); United States v. M iller, 1996 W L 200330, at *1 (10th Cir. Apr. 25,

1996) (unpub.) (citing Klein, 880 F.2d at 254 n.1).


                                         -6-
      Third and finally, the writ is available to correct errors of a fundamental

nature. See Morgan, 346 U.S. at 512. The proceedings leading to the petitioner’s

underlying criminal conviction are presumptively correct, see id.; see also Klein,

880 F.2d at 253, and the petitioner has the burden of asserting a jurisdictional or

constitutional error resulting in a “complete miscarriage of justice.” Id. To meet

this burden, a petitioner must, among things, assert his or her “innocence of the

charge.” United States v. Bustillos, 31 F.3d 931, 934 (10th Cir. 1994). 2

      Given these hurdles, the Supreme Court has indicated that “it is difficult to

conceive of a situation in a federal criminal case today where [a writ of coram

nobis] would be necessary or appropriate.” Carlisle v. United States, 517 U.S.

416, 429 (1996); see also Casias v. United States, 421 F.2d 1233, 1234 (10th Cir.

1970) (applying M organ and quoting the Supreme Court: “continuation of

litigation after final judgment and exhaustion or w aiver of any statutory right to

review should be allowed through this extraordinary remedy only under

circumstances compelling such action to achieve justice”).

      W hen review ing on appeal the district court’s denial of a petition for w rit

of coram nobis, we review for clear error the district court’s factual findings, de

novo questions of law , and for abuse of discretion the district court’s decision to


      2
          Traditionally, as well, the writ was “available only to bring before the
court factual errors material to the validity and regularity of the legal proceeding
itself, such as the defendant’s being under age or having died before the verdict.”
Carlisle v. United States, 517 U.S. 416, 429 (1996) (internal quotation marks
omitted).

                                         -7-
deny the writ. See United States v. Gaddis, 200 Fed. Appx. 817, 819 (10th Cir.

2006) (unpub.) (citing Blanton v. United States, 94 F.3d 227, 230 (6th Cir. 1996)

and United States v. M andancici, 205 F.3d 519, 524 (2d Cir. 2000)).

                                         ***

       M r. Embrey’s appeal fails on nearly all applicable scores. W ith respect to

his first argument on appeal – the allegedly defective nature of his 1969

indictment – there is no question but that M r. Embrey could have raised this, or

any other legal deficiency in the indictment, in his original 1969 criminal

proceedings. See Stefanoff, 1998 W L 327888, at *2 (citing Barnickel, 113 F.3d at

706); see also M iller, 1996 W L 200330, at *1 (citing Klein, 880 F.2d at 254 n.1).

W e have, however, no indication he did so. Instead, M r. Embrey appears to have

waited until 1988 to bring this argument to court. At that time, of course, the

district court did not address the merits, instead holding that it lacked jurisdiction

under Section 2255. But M r. Embrey was free to challenge this ruling on appeal

– arguing, perhaps, that a coram nobis petition does not require a petitioner’s

current incarceration. W e cannot tell from the record, however, whether M r.

Embrey appealed, let alone what arguments he pursued. Given all this, we are in

no position to say that M r. Embrey has satisfied either the first or second M organ

prongs. Far from showing the requisite diligence, he waited years – decades even

– before bringing his argument. And far from showing a lack of other modes for

litigating his claim, he does not dispute that he could have raised his argument in


                                          -8-
his direct 1969 criminal proceeding or that he did raise it once already in his 1988

collateral proceeding. M aking matters worse, he did not even raise this point

before the district court in the current proceedings, instead waiting to (re)launch it

on appeal.

      M r. Embrey’s second argument – that bank robbery ought to be treated

exclusively as a state offense – likewise could have been raised in his original

1969 criminal proceedings or in his 1988 collateral proceedings. Yet, M r.

Embrey waited until October 2006 before seeking to litigate the point. Even if it

were possible to overlook his lack of diligence and the fact that other modes of

relief were available to him, we w ould agree with the district court that M r.

Embrey fails to demonstrate (or even allege) a fundamental miscarriage of justice.

Indeed, far from protesting his innocence, M r. Embrey candidly concedes he is

guilty of the bank robbery at issue, see, e.g., Dec. 8, 2006 Embrey Ans. Br., Tab

5, Gov’t Ex., at 56, and under our received precedents, his charge that the federal

government lacks constitutional authority to criminalize illicit acts in the banking

field can be described no more charitably than frivolous. See, e.g., Westfall v.




                                         -9-
United States, 274 U.S. 256, 258 (1927); Clark v. United States, 184 F.2d 952,

953-54 (10th Cir. 1950). 3 Affirmed.



                                       ENTERED FOR THE COURT



                                       Neil M . Gorsuch
                                       Circuit Judge




      3
        Neither is this the sort of factual issue traditionally suited to the coram
nobis writ. See supra note 2.

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