United States of America, Plaintiff-appellee, v. Ray L. Pruett, Defendant-appellant, 21 F.3d 1123 (10th Cir. 1994)

Before BRORBY and EBEL, Circuit Judges, and COOK, Senior District Judge.^* 

ORDER AND JUDGMENT^** 

COOK, Senior District Judge.

The appellant seeks review of the denial by the district court of his application for writ of coram nobis. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

Appellant was charged on April 14, 1983 with six violations of 18 U.S.C. § 1623, false material declarations before a federal grand jury. At trial, the court ruled that materiality was not an issue for the jury and ruled as a matter of law that the statements were material. The jury found appellant guilty on all counts. He was sentenced to one year imprisonment on count 1 and two years probation on counts 2-6 to be served consecutively. Defendant did not appeal and has served his term of imprisonment. On November 30, 1992, over nine years after trial, defendant sought a writ of error coram nobis regarding the issue of "materiality" not being submitted to the jury. On July 8, 1993, the district court entered its order denying the writ. This appeal followed.

Pursuant to the All Writs Act, 28 U.S.C. § 1651(a), coram nobis relief is available to vacate a conviction, even after the sentence has expired, when a constitutional right is at stake. Carter v. Attorney General of the United States, 782 F.2d 138, 141 (10th Cir. 1986). Coram nobis is an extraordinary writ available only under circumstances compelling such action to achieve justice. Ward v. United States, 381 F.2d 14, 15 (10th Cir. 1967).¹  Those circumstances include an explanation of why a coram nobis petitioner did not earlier seek relief from the judgment, a showing that the petitioner continues to suffer significant collateral consequences from the judgment, and a demonstration that an error of the most fundamental character occurred. Hager v. United States, 993 F.2d 4 (1st Cir. 1993). See also Klein v. United States, 880 F.2d 250, 254 (10th Cir. 1989) (due diligence in seeking the writ is a prerequisite to relief). Here, defendant has made no attempt and has not met the requirements to show why the issue has not been raised sooner. The motion was procedurally barred.² 

Even were we to consider the merits, defendant fares no better. This Court held in United States v. Girdner, 773 F.2d 257, 259 (10th Cir. 1985), cert. denied, 475 U.S. 1066 (1986), that materiality in perjury cases under Sec. 1623 is a question for the court to decide. See also United States v. Larranga, 787 F.2d 489, 494 (10th Cir. 1986).³  Thus, the trial court has been fully vindicated in its ruling.

For the foregoing reasons, the district court order below is AFFIRMED.