USA V. DAVID NICHOLS, No. 19-10469 (9th Cir. 2020)
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FILED NOT FOR PUBLICATION DEC 8 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. U.S. COURT OF APPEALS No. 19-10469 D.C. No. 2:89-cr-00258-WBS-AC-9 MEMORANDUM* DAVID ALLEN NICHOLS, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding Submitted December 2, 2020** Before: WALLACE, CLIFTON, and BRESS, Circuit Judges. David Allen Nichols appeals pro se from the district court’s order denying his petition for a writ of error coram nobis. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002), we affirm. * 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). Nichols contends that he is entitled to coram nobis relief because he was not on federal land at the time of his arrest nor involved in interstate commerce, and the statutes governing his conviction are unconstitutional. The district court properly denied Nichols’s petition. Because Nichols is currently serving a fiveyear term of supervised release, he is still in custody and coram nobis relief is unavailable. See id. at 761. Moreover, as the district court concluded, Nichols cannot show an error of the most fundamental character. See id. at 760 (stating requirements for coram nobis relief); see also 18 U.S.C. § 3231 (vesting district courts with jurisdiction to prosecute federal crimes); United States v. Kim, 94 F.3d 1247, 1250 (9th Cir. 1996) (“Congress has the authority under the Commerce Clause to criminalize intrastate drug activity.”). Nichols also has not shown that he meets the requirements to file a second or successive 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2255(h). Accordingly, we deny Nichols’s alternative request that we remand this action to the district court to proceed as a motion arising under § 2255. Nichols’s motion, which he styles as a motion for summary judgment, is denied. AFFIRMED. 2 19-10469
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