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United States v. Miles

United States Court of Appeals, Tenth Circuit

May 3, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,

          Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:06-CR-00096-HE-1)

          Don P. Chairez, Law Offices of Don Chairez, Las Vegas, Nevada, for Defendant-Appellant.

          Steven W. Creager, Assistant United States Attorney (Robert J. Troester, First Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

          Before HARTZ, MURPHY, and CARSON, Circuit Judges.


         Defendant Alexander Christian Miles appeals the denial of his second petition for a writ of coram nobis. He pleaded guilty in 2009 to submitting a false affidavit in connection with an application for a visa for a 14-year-old girl from Cambodia to whom he was engaged. He has already unsuccessfully challenged that judgment in a direct appeal, a motion for relief under 28 U.S.C. § 2255, and a previous petition for a writ of coram nobis. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court's denial of his second petition because each of its claims for relief either had been raised by Defendant in earlier proceedings and rejected by this court, or could have been raised in those proceedings and was inexcusably neglected.

         I. BACKGROUND

         Defendant, age 43 at the time, married a 14-year-old Cambodian girl, S.K., in a Cambodian wedding ceremony in October 2001. The previous July he had applied to the Immigration and Naturalization Service (INS) for a K-1 visa on S.K.'s behalf, and represented in his affidavit in support of the application that she was 18 years old. The visa was granted and he and S.K. moved to New York, where they were married in December 2001. In February 2002, S.K. applied to the INS for adjustment of status, and Defendant again lied about her age on his affidavit in support of that application.

         In July 2002, Defendant and S.K. moved to Oklahoma. Shortly thereafter, federal prosecutors charged him with violating the Mann Act, 18 U.S.C. § 2423(a), which prohibits transporting a minor across state lines with intent to engage in sexual activity contrary to state law. After a jury was empaneled and sworn, but before any evidence or argument had been presented to it, the district court granted Defendant's motion to dismiss the indictment because it did not specify the underlying Oklahoma offense- leaving open the possibility that it was statutory rape, an offense to which Defendant's marriage to S.K. would have provided a complete defense.

         The government re-indicted Defendant under the Mann Act, this time specifying that the underlying Oklahoma offense was forcible rape. He moved to dismiss that indictment on double-jeopardy grounds, but the district court denied the motion and we affirmed after an interlocutory appeal. See United States v. Miles (Miles I), 327 Fed.Appx. 797, 798 (10th Cir. 2009). He then entered into a plea agreement with the government under which the indictment was to be dismissed, and he pleaded guilty to an information charging him with violating 18 U.S.C. § 1001(a)(3) by falsely stating S.K.'s age in the K-1 visa application. Unnoticed by the court or the parties, however, the information stated that the K-1 application had been filed in February 2002 (the date of the application for adjustment of S.K.'s status) rather than the true date of July 2001. Nonetheless, Defendant "himself affirmed both the alleged date and document in his colloquy with the court establishing the factual basis for his plea at the plea hearing." United States v. Miles (Miles III), 546 Fed.Appx. 730, 731-32 (10th Cir. 2012).

         The plea agreement contained a clause waiving Defendant's right to "[a]ppeal or collaterally challenge his guilty plea," and his right to "[a]ppeal, collaterally challenge, or move to modify . . . his sentence as imposed by the Court and the manner in which the sentence is determined, provided the sentence is within or below the advisory guideline range determined by the Court to apply to this case." Aplt. App. at 42. The court imposed a five-year sentence and sex-offender conditions, Defendant appealed the imposition of the sex-offender conditions, and we affirmed the sentence. See United States v. Miles (Miles II), 411 Fed.Appx. 126, 127-28 (10th Cir. 2010).

         In 2011, Defendant filed a pro se § 2255 motion claiming (1) that he was actually innocent of making a material false statement to the INS in February 2002, because his wife's age was not material to the application for adjustment of status, (2) that his attorney in the double-jeopardy appeal had been ineffective, and (3) that if the charge to which he pleaded had actually been making a false statement on a K-1 visa application for S.K. in February 2002, his plea had no factual basis and any false statement was immaterial because he had already obtained a K-1 fiancée visa by that time. The district court denied the motion, and we declined to issue a certificate of appealability. See Miles III, 546 Fed.Appx. at 736. We held that the collateral-review waiver in Defendant's plea agreement barred any legal challenge to his guilty plea and, relevant to this appeal, that he was not "factually innocent of making a false statement on the K-1 visa application he submitted for his fiancée." Id. at 734.

         In 2013, after he had served his sentence, Defendant filed a pro se petition for a writ of coram nobis under the All Writs Act, 28 U.S.C. § 1651(a). See United States v. Denedo, 556 U.S. 904, 911 (2009) ("In federal courts the authority to grant a writ of coram nobis is conferred by the All Writs Act, which permits 'courts established by Act of Congress' to issue 'all writs necessary or appropriate in aid of their respective jurisdictions.'"). "A petition for a writ of coram nobis provides a way to collaterally attack a criminal conviction for a person . . . who is no longer 'in custody' and therefore cannot seek habeas relief under 28 U.S.C. § 2255 or § 2241." Chaidez v. United States, 568 U.S. 342, 345 n.1 (2013). But a remedy is rarely available. Federal courts are only permitted "to entertain coram nobis applications in extraordinary cases presenting circumstances compelling its use to achieve justice." Rawlins v. Kansas, 714 F.3d 1189, 1196 (10th Cir. 2013) (internal quotation marks omitted).

         Defendant's petition asserted that he had thought his guilty plea was based on making a false statement on the 2002 adjustment-of-status form rather than the 2001 visa application, that his trial counsel had told him that was the case, and that he discovered that he had pleaded guilty to lying on the visa application only upon reading this court's decision on his § 2255 motion. The district court denied the petition, and we affirmed. See United States v. Miles (Miles IV), 553 Fed.Appx. 846, 849 (10th Cir. 2014). We held that the petition was procedurally barred because Defendant had previously "had an adequate remedy under ยง 2255" for the ...

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