Unpublished Disposition, 884 F.2d 1395 (9th Cir. 1985)

MEMORANDUM^** 

Thomas H. Hunter petitions for a writ of habeas corpus. In 1972, Hunter pleaded guilty to two counts of armed robbery and was sentenced to 15 years imprisonment on both counts to run concurrently, and for parole consideration at the end of three years. On November 9, 1984, Hunter was convicted by jury of unarmed postal robbery (18 U.S.C. § 2114) and, because of his parole from the 1972 conviction, Hunter was sentenced to five years imprisonment. Hunter, currently incarcerated for the 1984 conviction, files this petition for writ of habeas corpus, seeking to vacate the sentence imposed for the 1972 conviction. We review de novo. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841 (1985), and we affirm the denial of Hunter's petition.

DISCUSSION

We must consider at the outset whether the district court had power under 28 U.S.C. § 2255 to entertain this petition.

The federal habeas corpus statute requires that the applicant must be 'in custody' when the application for habeas corpus is filed.

Carafas v. LaVallee, 391 U.S. 234, 238 (1968). When Hunter filed this Sec. 2255 petition, he was in federal custody pursuant to a sentence imposed by his 1984 conviction--he remains incarcerated in federal prison. In his petition for habeas corpus Hunter seeks to vacate his 1972 conviction.

In Cook v. Malene, 847 F.2d 616, 618 (9th Cir. 1988) (per curiam), we held that a prisoner "in custody" under one conviction is "in custody" to attack an earlier conviction used to enhance the sentence for the later conviction. In this case, the record is unclear as to whether the 1984 conviction was enhanced by the conviction sought to be vacated under Sec. 2255.

Even if the "in custody" requirement of habeas is not met, however, the district court had jurisdiction to grant or deny Hunter relief from his 1972 conviction under 28 U.S.C. § 1651. "Inasmuch as any relief to which appellant may be entitled is not available through Sec. 2255 or habeas corpus proceedings, ... appellant's motion is entitled to be treated as an application for a writ of error coram nobis." Azzone v. United States, 341 F.2d 417, 419 (8th Cir.), cert. denied, 381 U.S. 943 (1965); see United States v. Brown, 413 F.2d 878, 879 (9th Cir.), cert. denied, 397 U.S. 947 (1970) (treating writ of coram nobis as motion under 28 U.S.C. § 2255).

In this present petition, Hunter asserts that his 1972 guilty plea was not voluntary because he was suffering from the effects of heroin withdrawal and medication, he was in "shock" from the brutal rape and murder of his wife, and his attorney provided false and misleading information to induce him to enter the guilty plea. Hunter also asserts that he was denied effective assistance of counsel because he was sentenced more severely than his attorney led him to believe and because his attorney did not move for a competency hearing. We do not reach the merits of Hunter's claims because we conclude that Hunter has not exercised reasonable diligence in ascertaining and presenting the asserted grounds for relief.

Laches may bar either a petition for coram nobis relief or a petition for habeas corpus. See United States v. Morgan, 346 U.S. 502, 512 (1954) ("sound reasons existing for failure to seek appropriate earlier relief"); Hirabayashi v. United States, 828 F.2d 591, 604-05 (9th Cir. 1987); Fed. Habeas Corpus Rule 9(a). In this case, Hunter knew or should have known since the time of his conviction in 1972 of the facts underlying his claims and the grounds for relief. Hunter's guilty plea was entered on November 21, 1972. In his application to enter the guilty plea, Hunter acknowledged that his mind was clear and that he was not under the influence of alcohol or drugs. In 1973, Hunter sought a modification of his sentence so he could participate in a drug treatment program. Yet, he did not state that his drug problem, his attorney's ineffective representation or the "shock" from his wife's murder in any way affected the entry of his plea. In a letter dated August 10, 1974, Hunter sought a reduction in his sentence. Again, he made no mention of any infirmities in his 1972 plea and judgment.

In 1977, Hunter, represented by counsel, filed a petition for a writ of habeas corpus. In both the petition and accompanying affidavit Hunter referenced his 1972 guilty plea and the fact that the sentence was imposed because of his drug problem. Hunter also submitted with this petition a declaration made by the attorney who represented him in the 1972 proceedings. Significantly, the counsel's declaration states that Hunter suffered from heroin withdrawal but does not state that Hunter was not competent to enter a plea. The 1977 petition for habeas corpus and accompanying affidavits are void of any claim challenging the plea, sentence or any part of the 1972 judgment. Hunter agreed to dismissal of the 1977 action with prejudice.

In 1984, Hunter, convicted of postal robbery, read a letter during the sentencing hearing in which he again stated that his drug problem was the reason he committed the bank robbery in 1972. On October 30, 1985, Hunter sought a reduction in his sentence and wrote a letter describing the circumstances leading to his conviction in 1972. In both letters, Hunter fails to mention the current alleged infirmities with the 1972 plea and judgment. Despite these numerous motions and petitions, Hunter waited 14 years before raising these claims to any court in any fashion. Hunter has failed to demonstrate that the 14-year delay was excusable.¹ 

Finally, Hunter has prejudiced the United States in its ability to respond to the motion; specifically, pursuant to 28 U.S.C. § 753, the transcript of the proceedings was destroyed, "thus eliminating any exact record of what transpired." United States v. Darnell, 716 F.2d 479, 481 n. 5 (7th Cir. 1983), cert. denied, 465 U.S. 1083 (1984) (" [t]he doctrine of laches ... protects against 'sandbagging' and ensures that coram nobis relief will not be granted where a petitioner's unexcusable delay in raising his claim has prejudiced the government.").

Like Darnell, this case is a textbook example of the problems arising from an inordinate delay in seeking relief. The cognizable claims that Hunter raises--ineffective assistance of counsel and involuntary guilty plea--are troublesome even where a complete record of the proceedings exists and here the records are destroyed. Clearly, Hunter's delay has prejudiced the government. Id. Accordingly, we hold that the doctrine of laches bars Hunter from now seeking relief under 28 U.S.C. § 1651(a) or 28 U.S.C. § 2255.

AFFIRMED.