Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1988)

MEMORANDUM

Dhalluin appeals from the denial of his 28 U.S.C. § 2255 petition to set aside a federal conviction for driving under the influence of alcohol in a federal park. In the alternative, Dhalluin argues that the district court should have construed his claim as a petition for a writ of error coram nobis. Dhalluin alleges that his conviction was illegal because the incident did not occur on federal property and because he was denied effective assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court's denial of a section 2255 petition. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986). We affirm.

Dhalluin contends that the district court erred in determining that he did not satisfy the "in federal custody" requirement of section 2255. He asserts that although he is not in federal custody, his federal conviction resulted in the revocation of his state probation and thus the loss of his liberty.

To satisfy the jurisdictional requirement of section 2255, a petitioner must show that he is under sentence of a federal court or will be subject to such custody in the future. See Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) (Hirabayashi) . A prisoner in state custody subject to a concurrent federal sentence does not meet this requirement because the concurrent federal sentence "does not make the state custody 'custody under sentence' of a federal court." Booth v. United States, 209 F.2d 183, 184 (9th Cir. 1953), cert. denied, 347 U.S. 923 (1954).

In this case, the federal district court imposed only a suspended sentence on Dhalluin's drunk driving charge. Hence, his conviction did not subject Dhalluin to "custody under sentence of a federal court." Moreover, because the district court imposed no conditions on Dhalluin's suspended sentence, he faces no actual federal confinement based on that sentence. Although Dhalluin's federal conviction caused the Nevada state court to revoke his probation, this effect does not convert Dhalluin's state custody into federal custody for purposes of section 2255. See id. Therefore, Dhalluin has not satisfied the custody requirement of section 2255.

Dhalluin contends that the district court should have considered whether he was entitled to relief through a writ of error coram nobis. The writ of error coram nobis is available under the All Writs Act, 28 U.S.C. § 1651(a), to challenge an unlawful conviction even if the defendant has fully served his or her sentence. United States v. Morgan, 346 U.S. 502, 511 (1954) (Morgan) ; Hirabayashi, 828 F.2d at 604. The writ allows a court to vacate a judgment for errors of fact, Hirabayashi, 828 F.2d at 604, as well as for "egregious legal errors," Yasui v. United States, 772 F.2d 1496, 1499 n. 2 (9th Cir. 1985).

The errors of which Dhalluin complains are "fundamental errors" which would render his federal criminal proceeding invalid. See United States v. Taylor, 648 F.2d 565, 570 n. 14 (9th Cir.), cert. denied, 454 U.S. 866 (1981). He alleges his conviction is invalid because his arrest did not occur on federal land and because his attorney was ineffective. Coram nobis relief is available to correct these types of errors. See Morgan, 346 U.S. at 508 (coerced guilty plea); Tucker v. United States, 235 F.2d 238 (9th Cir. 1956) (ineffective assistance of counsel); Navarro v. United States, 449 F.2d 113, 114 (9th Cir. 1971) (guilty plea invalid because privilege against self-incrimination would have been a complete defense). Moreover, because he is not in federal custody, Dhalluin has no other means of challenging his federal conviction. See Hirabayashi, 828 F.2d at 604.

However, even if the district court erred in failing to consider the coram nobis issue, we may affirm on any ground supported by the record. See Charley's Taxi Radio Dispatch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 874 (9th Cir. 1987). Hence, we now determine whether the district court would have been correct in dismissing the action had it construed Dhalluin's petition as one for coram nobis.

Dhalluin contends that the district court did not have jurisdiction over his drunk driving prosecution because he was arrested on state property. He alleges that the federal park ranger arrested him on a Nevada state highway that was not part of the Lake Mead National Recreation Area.

A guilty plea conclusively proves the factual allegations contained in the indictment. United States v. Mathews, 833 F.2d 161, 164 (9th Cir. 1987). Therefore, Dhalluin's plea conclusively proved the allegation that his arrest occurred on federal property. See United States v. Davis, 452 F.2d 577, 578 (9th Cir. 1971) (per curiam) (when a defendant pleads guilty to federal bank robbery, government is not required to prove that bank was federally insured).

Dhalluin contends that his attorney was ineffective because he did not advise Dhalluin of the possible jurisdictional defect, conducted an inadequate investigation, and failed to pursue several viable defenses. To prevail on an ineffective assistance of counsel claim, a defendant "must show that the counsel's representation fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). The Strickland test "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 57-58 (1985) (Hill) . To satisfy the prejudice prong of the Strickland test, a defendant challenging a guilty plea must show that there is a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59. Assessment of prejudice also depends on whether the outcome of the trial would likely have been different. Id.

Dhalluin's attorney was not deficient in failing to advise Dhalluin that the crime did not occur on federal jurisdiction. The map submitted by the government shows that Nevada State Highway 166 is clearly part of the Lake Mead National Recreation Area. Similarly, the attorney acted reasonably in apparently deciding not to pursue the possible defense of the low blood-alcohol level shown by the intoximeter test. The test occurred 45 minutes after the arrest and after Dhalluin had already failed the field sobriety test. Finally, whether Dhalluin had possession of the controlled substance and whether the ranger improperly left him handcuffed for two hours is irrelevant to the attorney's decision to advise Dhalluin to plead guilty to the charge of driving while under the influence. Therefore, Dhalluin has not satisfied the first prong of the Strickland test. 466 U.S. at 694.

In addition, Dhalluin has alleged no facts "which could amount to a showing that but for counsel's errors, he would have insisted on going to trial." See Agtas v. Whitley, 836 F.2d 1233, 1235 (9th Cir. 1988). Dhalluin's petition contains no allegation that he would have gone to trial had he received different advice, and the record contains no such indication. Moreover, Dhalluin has presented no evidence or affirmative defense missed by his attorney which would likely have changed the outcome of a trial. See Hill, 474 U.S. at 59. Accordingly, Dhalluin has not satisfied the prejudice prong of the Strickland test.

On appeal, Dhalluin also alleges that his attorney misinformed him as to the possible revocation of his state parole. Dhalluin did not raise this issue at the district court. Generally, we will not consider an issue which was not raised at the district court. See Prantil v. California, 843 F.2d 314, 319 n. 5 (9th Cir. 1988). Moreover, because ascertaining whether Dhalluin's attorney improperly advised him would require new factual determinations, this is an inappropriate issue to address for the first time on appeal. See Bolker v. Commissioner, 760 F.2d 1039, 1042 (9th Cir. 1985).

AFFIRMED.