                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 13 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-15111

                Plaintiff-Appellee,             D.C. Nos.
                                                1:10-cv-00275-ALA-LK
 v.                                             1:02-cr-00547-ALA-1

KENNETH CHARLES MCNEIL, AKA
Chip,                                           MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Hawaii
                   Susan O. Mollway, District Judge, Presiding

                              Submitted July 9, 2020**
                                 Honolulu, Hawaii

Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.

      Appellant Kenneth Charles McNeil appeals the denial of a petition for a writ

of error coram nobis challenging his 2003 conviction for violating 18 U.S.C.

§ 2262(a)(1) by traveling in interstate commerce with the intent to violate a



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
protection order that prohibited him from being within 100 yards of a relative’s

minor child, and subsequently violating that order. McNeil asserts that he could

not have traveled with an intent to violate the protective order because he did not

believe there would be an opportunity to violate the protective order. We review

de novo a district court’s denial of a petition for writ of error coram nobis. See

United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007). We now affirm the

district court’s denial of McNeil’s petition.

      McNeil finished serving his sentence in 2006, and then completed his three-

year term of supervised release over a decade ago. His current petition is his

fourth post-conviction motion, and his third petition for coram nobis relief. To

obtain relief under this “extraordinary writ,” a petitioner must show that “(1) a

more usual remedy is not available; (2) valid reasons exist for not attacking the

conviction earlier; (3) adverse consequences exist from the conviction sufficient to

satisfy the case or controversy requirement of Article III; and (4) the error is of the

most fundamental character.” Hirabayashi v. United States, 828 F.2d 591, 604

(9th Cir. 1987). At a minimum, McNeil fails to satisfy requirements (2) and (4) of

the above.

      McNeil has demonstrated no valid reason for failing to raise his arguments

earlier either on direct appeal or through a 28 U.S.C. § 2255 petition. McNeil

claims he satisfied this requirement because he “filed his [current] coram nobis


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petition with the district court as soon as possible” after the government allegedly

announced a new legal theory in response to his second coram nobis petition that

was never presented to the jury. Even assuming McNeil’s characterization of the

government’s actions is correct, coram nobis relief is typically confined to

addressing newly discovered fundamental errors (such as factual errors, egregious

legal errors, or extraordinary exculpatory evidence) that existed at the time of trial

and which are not otherwise subject to standard time constraints. See, e.g., United

States v. Morgan, 346 U.S. 502, 511–12 (1954) (holding that writ of error coram

nobis was appropriate vehicle for prisoner’s request that prior conviction be

vacated for failure to advise him of his right to counsel, and where “no other

remedy [was] then available and sound reasons exist[ed] for failure to seek

appropriate earlier relief”); Hirabayashi, 828 F.2d at 593–94, 601 (finding coram

nobis relief available where previously concealed documents provided irrefutable

proof, unavailable during the period of defendant’s sentence, that the wartime

measures he was convicted of violating were motivated by racial bias); Navarro v.

United States, 449 F.2d 113, 114 (9th Cir. 1971) (finding coram nobis relief

available where a particular legal defense was unavailable at time of defendant’s

conviction and would have provided a complete defense to defendant’s charge).

Because nothing prevented McNeil from identifying and challenging the alleged

legal error either on direct appeal or via habeas petition, he fails to demonstrate


                                           3
why his arguments could not have been raised earlier.

      McNeil has also failed to meet his burden of demonstrating the jury erred at

all in convicting him, much less that it was an error “of the most fundamental

character.” See Riedl, 496 F.3d at 1006 (internal quotation marks and citation

omitted). The question of intent is a factual determination to be made by the jury,

see Baker v. United States, 310 F.2d 924, 930 (9th Cir. 1962), and the jury

instructions here were and are uncontested. Based on the evidence presented at the

trial, a reasonable jury could conclude that McNeil traveled to Hawaii with intent

to engage in conduct violative of the protective order. See 18 U.S.C. § 2262(a)(1).

This is a far cry from the highly unusual situation that would merit this

exceedingly rare form of relief. Riedl, 496 F.3d at 1005; see also Carlisle v.

United States, 517 U.S. 416, 429 (1996) (“[I]t is difficult to conceive of a situation

in a federal criminal case today where [a writ of coram nobis] would be necessary

or appropriate.” (second alteration in original) (internal quotation marks and

citation omitted)).

      Finally, the district court made no error in denying an evidentiary hearing

because the record conclusively shows that McNeil is not entitled to relief. See 28

U.S.C. § 2255(b); United States v. Taylor, 648 F.2d 565, 573 n.25 (9th Cir. 1981)

(“Whether a hearing is required on a coram nobis motion should be resolved in the

same manner as habeas corpus petitions.”).


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AFFIRMED.




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