United States v. David Petersen

24-12435 Opinion of the Court 3 assistance of counsel at trial. The district court denied the motions, Petersen appealed, and we either affirmed or denied review. See United States v. Petersen, 708 F. App'x 983 (11th Cir. 2017); Petersen

v. United States, 859 F. App'x 370 (11th Cir. 2021). After serving his sentence, Petersen moved for a writ of er- ror coram nobis. See 28 U.S.C. § 1651. He argued again that the government had presented false evidence at his trial and asserted that there was "newly discovered evidence" which was "not known or reasonably discoverable at the time of trial." The district court denied the motion, Petersen appealed, and we affirmed. See United States v. Petersen, 2023 WL 3720851 (11th Cir. 2023). Petersen then filed a second motion for a writ of error coram nobis. He asserted that, before his trial, a prosecutor told him the government knew that he lacked knowledge of the crimes for which he was charged. Based on this alleged statement, Petersen argued that the government failed to prove the requisite mens rea for his convictions at trial and that the district court gave an im- proper jury instruction on willful blindness. Petersen also con- tended that the Supreme Court's recent decision in Fischer v. United States constituted "newly discovered evidence" that warranted re- versal. See 603 U.S. 480 (2024). Petersen moved for the district court to "void all [o]rders . . . related to his conviction [and] sen- tence," and to set aside the judgment.

Again, the district court denied the motion. Petersen's argu- ments, the district court explained, could not be brought in a mo- tion for coram nobis relief because he knew about the prosecutor's

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4 Opinion of the Court 24-12435 alleged statement for more than a decade but offered no explana- tion for why he had failed to assert the argument earlier. The dis- trict court noted that if "such an assertion [was] buried somewhere in the mountain of meritless motions the defendant has filed over the years, it has been considered and rejected," and could not be resurrected "simply by reasserting it in a different format." Finally, the district court observed that, even if it were to consider Pe- tersen's arguments on the merits, they would fail because the jury found beyond a reasonable doubt that he had the requisite mens rea for his crimes, and a single prosecutor's alleged opinion to the contrary would not change that finding.

Petersen timely appealed, and the government responded with a motion for summary affirmance.

STANDARD OF REVIEW

We review for abuse of discretion the denial of a motion for a writ of error coram nobis. See United States v. Bane, 948 F.3d 1290, 1294 (11th Cir. 2020). "An abuse of discretion occurs when a dis- trict court commits a clear error of judgment, fails to follow the proper legal standard or process for making a determination, or re- lies on clearly erroneous findings of fact." Yellow Pages Photos, Inc.

v. Ziplocal, LP, 846 F.3d 1159, 1163 (11th Cir. 2017). Summary disposition is appropriate when "the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case, or where, as is more frequently the case, the appeal is frivolous." Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

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24-12435 Opinion of the Court 5 We liberally construe pro se filings, but pro se litigants must follow procedural rules. United States v. Ogiekpolor, 122 F.4th 1296, 1304 (11th Cir. 2024). We cannot serve as Petersen's "de facto coun- sel" or "rewrite an otherwise deficient pleading" for his benefit. Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1169 (11th Cir. 2014) (ci- tation omitted).

DISCUSSION

The All Writs Act, 28 U.S.C. section 1651(a), provides fed- eral courts with the authority to issue writs of error coram nobis. United States v. Mills, 221 F.3d 1201, 1203 (11th Cir. 2000). "A writ of error coram nobis is a remedy available to vacate a conviction when the petitioner has served his sentence and is no longer in cus- tody." United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002). It is

"an extraordinary remedy of last resort available only in compel- ling circumstances where necessary to achieve justice." Mills, 221 F.3d at 1203.

A writ of error coram nobis "may issue 'only when the error involves a matter of fact of the most fundamental character which has not been put in issue or passed upon and which renders the proceeding itself irregular and invalid.'" Alikhani v. United States,

200 F.3d 732 (11th Cir. 2000) (citation omitted). Fundamental er- rors do not include "prejudicial misconduct in the course of the trial, the misbehavior or partiality of jurors, [or] newly discovered evidence." Mills, 221 F.3d at 1204 (citation omitted). Further,

"courts may consider coram nobis petitions only where no other

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6 Opinion of the Court 24-12435 remedy is available and the petitioner presents sound reasons for failing to seek relief earlier." Id.

Here, the government is "clearly right as a matter of law"

that the district court did not abuse its discretion by denying Pe- tersen's petition for a writ of error coram nobis. Groendyke, 406 F.2d at 1162. Petersen grounded his petition—and its core argu- ments regarding mens rea and the willful blindness jury instruc- tion—on a statement he allegedly heard a prosecutor make over a decade ago. Given that Petersen himself heard the statement, he was aware of it before his trial. But Petersen's petition offered no

"sound reasons" for why he did not raise any arguments based on the statement at trial or in any of his many postjudgment motions.¹ Mills, 221 F.3d at 1204; see also Gonzalez v. United States, 981 F.3d 845, 852 (11th Cir. 2020) (holding that once a petitioner becomes

"aware of the true basis of his contention, he cannot wait to file a coram nobis petition without a sound reason" (cleaned up)). Be- cause Petersen was aware of the alleged statement years before he filed his petition, and because he failed to provide a sound reason for neglecting to raise it earlier, the district court correctly

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24-12435 Opinion of the Court 7 determined that Petersen could not assert arguments based off of the statement for the first time in his second coram nobis petition. Petersen's reliance on the Supreme Court's recent decision in Fischer is also inapposite. He asserts that Fischer "constitutes newly discovered evidence" that was previously unavailable. But Petersen never explains how Fischer relates to his case, and no con- nection is immediately apparent. Fischer addressed the narrow question of whether specific language in 18 U.S.C. section 1512(c)(2) "should be read in light of the limited reach of" the pre- ceding clause in section 1512(c)(1). See 603 U.S. at 483. The Su- preme Court ultimately concluded it should be and limited the scope of section 1512(c)(2). Id. at 497-98.

Liberally construed, Petersen asserts that we should simi- larly limit the scope of 18 U.S.C. section 2—one of the statutes he was convicted under. But section 1512 is a different statute from section 2, and Fischer based its reasoning on section 1512's specific language and historical context. See 603 U.S. at 486-494. Petersen offers no analysis tying Fischer's reasoning to section 2 and we do not see how it could relate. Thus, Fischer does not support either an expansive reading of section 2 or Petersen's petition for a writ of error coram nobis.

In his appellate briefing, Petersen attempts to relitigate his case by raising several claims that he did not assert in his motion below. He alleges that there was insufficient evidence presented at trial to convict him, that the indictment failed to specify the overt acts he committed, and that he received ineffective assistance of

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8 Opinion of the Court 24-12435 counsel.²However, Petersen abandoned these claims by failing to raise them in his motion for coram nobis relief below. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) ("This Court has repeatedly held that an issue not raised in the dis- trict court and raised for the first time in an appeal will not be con- sidered by this court." (citation and internal quotation marks omit- ted)); Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir. 2000) ("Argu- ments raised for the first time on appeal are not properly before this Court.").

In short, the government is "clearly right as a matter of law"

that the district court did not abuse its discretion by denying Pe- tersen's coram nobis petition. Groendyke, 406 F.2d at 1162. Thus, the government is entitled to summary affirmance.

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24-12435 Opinion of the Court 9

CONCLUSION

We GRANT the government's motion for summary affir- mance and AFFIRM the district court's order denying Petersen's motion for a writ of error coram nobis.³

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