United States of America, Plaintiff-appellee, v. Kenny Edward Elliott, Defendant-appellant, 70 F.3d 1280 (9th Cir. 1995)

MEMORANDUM^** 

Kenny Edward Elliott appeals the district court's denial of his petition for writ of coram nobis. Elliott contends that the district court erred by denying him relief. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the denial of a petition for writ of coram nobis, United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989), and affirm.

To qualify for coram nobis relief, the petitioner must demonstrate the following factors: "(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).

In 1986, Elliott was convicted of theft of interstate property and possession of stolen interstate property in violation of 18 U.S.C. § 695. He was sentenced to two years in prison and has since completed his sentence. On December 14, 1994, Elliott filed a motion to vacate his sentence under 28 U.S.C. 2255 contending that counsel was ineffective, the district court committed Rule 11 violations, and the district court improperly participated in the plea discussions. On March 15, 1995, the district court construed the motion as a petition for writ of coram nobis and denied Elliott's claims on their merits. Because Elliott has failed to establish any valid reason for failing to raise these issues previously or shown any fundamental error, see Hirabayashi, 828 F.2d at 604, we affirm the district court's denial of his petition, see United States v. Donn, 661 F.2d 820, 824 (9th Cir. 1981) (appellate court may affirm on any basis supported by the record).

AFFIRMED.