Criminal – Court denies writ of error coram nobis

Where a former prisoner sought a writ of error coram nobis, but his petition was not timely, it regurgitated arguments previously made and rejected by the court and he failed to show an error of the most fundamental character, it was denied.

Background

Percival Norman Fenton filed a pro se motion to correct his sentence through a petition for a writ of error coram nobis under 28 U.S.C. § 1651.

Analysis

A writ of error coram nobis is available to vacate a conviction after the sentence has been completely served. It is a rare and extraordinary remedy available “only under circumstances compelling such action to achieve justice.” A writ of error coram nobis shall issue only if (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.

In this case, the first and third requirements for the issuance of a writ of coram nobis are met. As Fenton is no longer in custody, coram nobis is the proper avenue to challenge his conviction. As to the third requirement, the Fourth Circuit has held that collateral consequences of conviction, such as disbarment and threat of deportation, are sufficient continuing injuries to fulfill the case or controversy requirement.

But Fenton fails to meet the second and fourth requirements for coram nobis relief. As to the second requirement—timeliness—Fenton provides no justification for his failure to seek earlier relief. “The absence of a formal ‘deadline’ for filing a coram nobis petition does not relieve a petitioner of his burden to affirmatively demonstrate that ‘valid reasons exist for not attacking the conviction earlier.’”

The Fourth Circuit has held that the timeliness requirement is met when a petitioner plausibly claims actual innocence based on newly discovered facts, seeks relief shortly after a change in the law  or discovers previously unknown consequences of a wrongful conviction. Arguing that his motion is timely, Fenton merely asserts “this is the second post-incarceration/post supervised § 1651 filing release writ that the Petitioner has filed . . . the [writ of] coram nobis may not be filed while the Petitioner is still in custody.”

Fenton has raised the same claims repeatedly in numerous § 2255 motions to vacate and a previous petition under §1651. Coram nobis relief is an extraordinary remedy designed to provide relief based on new evidence or a recent change in the law that renders a final conviction unjust. Fenton seeks to relitigate claims addressed repeatedly by this court. To the extent that Fenton makes new factual assertions, they were clearly discoverable at the time of his conviction and therefore are untimely.

As to the fourth element, although Fenton claims actual innocence, his claims still fail to allege fundamental error. Fenton’s claims of actual innocence and misunderstanding need not be taken as true when they are fully contradicted by the record. Representations of the parties and findings by the judge accepting a plea constitute a “formidable” barrier in collateral attacks to the conviction.

When a petitioner later presents contradictory allegations, these allegations are subject to summary dismissal if they are “unsupported by specifics” or “wholly incredible” as compared to the record. Fenton pled guilty pursuant to a written plea agreement and stated in open court that he was guilty of Counts One through Forty-Nine of the Information.

Fenton affirmed that he reviewed the Information with counsel and understood the charges. He also stated that he knew he would have to pay restitution of $400,000, which was based on the entirety of his criminal conduct, not just the charges to which he pled guilty. Finally, Fenton asserted that counsel had been “very effective.” Fenton’s repudiation of these earlier statements does not create a fundamental fact that could undermine the validity of the entire proceeding and resulting judgment.

Petition for writ of coram nobis relief dismissed.

United States v. Fenton, Case No. 5:07-cr-25, April 10, 2026. WDVA at Harrisonburg (Ballou). VLW 026-3-169. 7 pp.

Full-Text Opinion

VLW 26-3-169
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