Petition for a writ of mandamus — In Re Randolph George, Petitioner

NO. _____

In the

Supreme Court of the United States

RANDOLPH GEORGE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for an Extraordinary Writ of Mandamus to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR EXTRAORDINARY

WRIT OF MANDAMUS

COREY EVAN PARKER, ESQ.

COUNSEL FOR PETITIONER

LAW OFFICE OF COREY EVAN PARKER

1230 ROSECRANS AVENUE, SUITE 300

MANHATTAN BEACH, CA 90266

(424) 456-3193

COREY@COREYEVANPARKERLAW.COM

JUNE 28, 2019

SUPREME COURT PRESS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

In light of the fact that the First, Fifth, Sixth,

Seventh, Ninth, and Eleventh Circuits disagree on

the question whether in a 28 U.S.C. § 2255 petition a

petitioner can challenge a restitution order or order

imposing costs of imprisonment based on a meritorious ineffective assistance of counsel [IAC] claim

where such a challenge does not claim a right to be

released from custody,

And in light of the fact that it has been long held

(Townsend v. Sain, 372 U.S. 293 (1963)) that “Where

newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been

presented to the state trier of facts [because of IAC],

the federal court must grant an evidentiary hearing,”

THE QUESTION PRESENTED HERE IS:

Whether in a case like this one, where the petitioner was procedurally forced into filing an error

coram nobis proceeding and denied the opportunity

to file a petition under 28 U.S.C. § 2255 to vacate his

sentence, claiming that his counsel was ineffective at

trial and at sentencing, and where his petition was

denied on the grounds that Section 2255 relief was

unavailable because he had finished his sentence on

his conviction and was no longer in custody, is it

error for the court to deny his petition for writ of

error coram nobis, seeking to vacate his convictions?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iv

OPINION BELOW...................................................... 1

JURISDICTION.......................................................... 1

RULE 20.3 STATEMENT .......................................... 1

STATUTORY PROVISIONS INVOLVED ................. 2

STATEMENT OF THE CASE .................................... 3

A. Facts Material to Consideration of the

Questions Presented ........................................ 3

ARGUMENT ............................................................... 9

I.

WHERE PETITIONER GEORGE FILED HIS

PETITION UNDER 28 U.S.C. § 2255 TO VACATE

HIS SENTENCE, CLAIMING THAT HIS COUNSEL

WAS INEFFECTIVE BOTH AT TRIAL AND AT

SENTENCING, AND WHERE HIS PETITION

WAS DENIED ON THE GROUNDS THAT SECTION

2255 RELIEF WAS UNAVAILABLE BECAUSE

HE HAD FINISHED HIS SENTENCE ON HIS

CONVICTION AND WAS NO LONGER IN

CUSTODY, IT IS A VIOLATION OF HIS DUE

PROCESS RIGHT TO BE HEARD WHEN THE

COURT DENIES HIS PETITION FOR WRIT OF

ERROR CORAM NOBIS, SEEKING TO VACATE

HIS CONVICTIONS .............................................. 9

II. PETITIONER GEORGE’S PETITION SHOULD BE

GRANTED BECAUSE UNDER 28 U.S.C. § 2255

HE SHOWS THAT AN ERROR OF FACT WAS SO

iii

TABLE OF CONTENTS – Continued

Page

FUNDAMENTAL AS TO RENDER THE ENTIRE

PROCEEDING INVALID ...................................... 21

III. THE COURT SHOULD ISSUE RELIEF IN THE

FORM OF A WRIT OF MANDAMUS UNDER

THESE FACTS ................................................... 24

CONCLUSION.......................................................... 26

APPENDIX TABLE OF CONTENTS

Memorandum Opinion of the Ninth Circuit

(December 3, 2018) ............................................. 1a

Order of the Ninth Circuit

(April 27, 2016) ................................................... 3a

Order Denying Defendant’s Petition for Writ of

Coram Nobis (November 9, 2016) ...................... 4a

Order of the Ninth Circuit Denying Petition for

Panel Rehearing (March 22, 2019) .................... 9a

Order Denying Motion for Reconsideration

(January 13, 2017)............................................ 10a

iv

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

Page

CASES

Barnickel v. United States,

113 F.3d 704 (7th Cir. 1997)................................ 10

Blaik v. United States,

161 F.3d 1341 (11th Cir. 1998) ...................... 11, 12

Cheek v. United States,

498 U.S. 192 (1991) ........................................... 18

Cheney v. U.S. Dist. Court for Dist. of Columbia,

542 U.S. 367 (2004) ............................................ 24

Ex parte Fahey,

332 U.S. 258 (1947) ........................................... 24

Foster v. Barilow,

6 F.3d 405 (6th Cir. 1993) ................................... 22

Grant v. United States,

72 F.3d 503 (6th Cir. 1996) ............................... 21

Gulfstream Aerospace Corp. v. Mayacamas

Corp., 485 U.S. 271 (1988) ................................ 24

Lane v. Williams, 455 U.S. 624,

102 S.Ct. 1322, 71 L.Ed.2d 508 (1982) ............. 11

Matus-Leva v. United States,

287 F.3d 758 (9th Cir. 2002) ............................... 2

Ratliff v. United States,

999 F.2d 1023 (6th Cir. 1993) ......... 12, 13, 22, 23

Roche v. Evaporated Milk Ass’n,

319 U.S. 21 (1943) ............................................... 24

v

TABLE OF AUTHORITIES—Continued

Page

Smullen v. United States,

94 F.3d 20 (1st Cir. 1996) .............................. 10, 12

Strickland v. Washington,

466 U.S. 668 (1984) .................................... passim

Townsend v. Sain,

372 U.S. 293 (1963) .............................................. i

United States v. Addonizio, 442 U.S. 178,

60 L.Ed.2d 805, 99 S.Ct. 2235 (1979) ............... 13

United States v. Ameline,

409 F.3d 1073 (9th Cir. 2005).......................... 7, 20

United States v. Bishop,

91 F.3d 1100 (9th Cir. 2002) ....................... 15, 18

United States v. Claiborne,

765 F.2d 784 (9th Cir. 1985) ............................... 18

United States v. Frady, 456 U.S. 152,

71 L.Ed.2d 816, 102 S.Ct. 1584 (1982) ............. 22

United States v. George,

226 F.App’x 771 (9th Cir. 2007) .......................... 8

United States v. George,

411 F.App’x 31 (9th Cir. 2010) ................... passim

United States v. George,

420 F.3d 991 (9th Cir. 2005) ......................... 7, 15

United States v. Kramer,

195 F.3d 1129 (9th Cir. 1999) ..................... 11, 12

United States v. Kwan,

407 F.3d 1005 (9th Cir. 2005) ........................... 16

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. Schlesinger,

49 F.3d 483 (9th Cir. 1994) ................................ 21

United States v. Segler,

37 F.3d 1131 (5th Cir. 1994) ............................. 10

United States v. Thiele,

314 F.3d 399 (9th Cir. 2002) ............................. 12

United States v. Verdin,

243 F.3d 1174 (9th Cir. 2001) ........................... 11

United States v. Watroba,

56 F.3d 28 (6th Cir. 1995) ........................... 10, 12

Weinberger v. United States,

268 F.3d 346 (6th Cir. 2001) ...................... passim

Will v. United States,

389 U.S. 90 (1967) ............................................. 24

STATUTES

26 U.S.C. § 7203 .......................................................... 7

26 U.S.C. § 7206(1) ...................................................... 7

28 U.S.C. § 1651(a) ........................................... 1, 2, 24

28 U.S.C. § 2255 ................................................. passim

JUDICIAL RULES

Sup. Ct. R. 20 .............................................................. 1

1

OPINION BELOW

The opinion below is the December 3, 2018

unpublished Opinion by the United States Court of

Appeals for the Ninth Circuit affirming the denial of

Petitioner Randolph George’s petition for writ of

error coram nobis and motion for rehearing. See

Appendix 1, United States v. George, 744 F.App’x 481

(9th Cir. 2018); 2018 U.S. App. LEXIS 33895; 2018

WL 6311687.

JURISDICTION

As stated in Sup. Ct. R. 20, this Court has jurisdiction to issue a Writ of Mandamus as authorized by

the All Writs Act, 28 U.S.C. § 1651.

The basis for federal jurisdiction in the court of

first instance (the United States District Court for

the Northern District of California) was 28 U.S.C.

§ 1651(a).

RULE 20.3 STATEMENT

Petitioner seeks the issuance of an Extraordinary Writ of Mandamus to both the 9th Circuit and

the District Court for the Northern District of California to allow a hearing and grant his petition under

28 U.S.C. § 2255 to vacate his sentence, whereby he

claims that his counsel was ineffective at trial and

2

sentencing, reversing the denial of his petition, which

denial was rendered on the grounds that Section

2255 relief was unavailable because he had finished

his sentence on his conviction and was no longer in

custody.

The Petitioner turns to this Court, as the only

one that can provide the relief he seeks, as his coram

nobis motions have been denied at both the District

and Circuit courts. As noted by the District Court,

“Coram nobis is an extraordinary writ, used only to

review errors of the most fundamental character.”

Matus-Leva v. United States, 287 F.3d 758, 760 (9th

Cir. 2002). (App.6a) Thus, Petitioner properly brings

to this court this petition for an extraordinary writ of

mandamus as his final resort.

STATUTORY PROVISIONS INVOLVED



28 U.S.C. § 1651–Writs

(a) The Supreme Court and all courts established by Act of Congress may issue all writs

necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and

principles of law.

(b) An alternative writ or rule nisi may be

issued by a justice or judge of a court which has

jurisdiction.



28 U.S.C. § 2255

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right

3

to be released upon the ground that the sentence

was imposed in violation of the Constitution or

laws of the United States, or that the court was

without jurisdiction to impose such sentence, or

that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to

collateral attack, may move the court which

imposed the sentence to vacate, set aside or correct

the sentence.

STATEMENT OF THE CASE

A.

Facts Material to Consideration of the Questions

Presented

During the years 1991, 1992, and 1993, Petitioner

Randolph George (“George”) was affiliated with Media

Venture Partnership, which brokered the sale of radio

stations and, through its affiliate Media Venture

Management, Inc., handled court-appointed receiverships for financially troubled radio stations being

sold off to satisfy debts owed to the stations’ creditors.

George was appointed to serve as the receiver. George’s

receiver fees, which were negotiated with the interested parties and approved by the court at the start

of the receivership, were paid on an interim basis

during the administration of the receivership, usually

monthly.

George served as the court-appointed receiver

for five different stations during the relevant period:

Reno Broadcasting from October of 1990 to January

of 1992, Royal Broadcasting from May of 1991 until

4

1994, KXGO Radio Station from March of 1991 to

December of 1992, Diamond Broadcasting from May

1993 to May of 1994, and JJN Broadcasting in 1994.

In addition to brokerage commissions and income from

other sources, George was paid $90,001.42 in receiver

fees in 1991, $125,432.66 in 1992, and $154,595 in

1993.

George retained numerous attorneys and accountants to assist him with the receiverships to assure

compliance with court orders and reporting duties. The

primary accounting firm was Antonini Professional

Corporation (“APC”). In addition to managing the

receivership accountings and the filing of tax returns

for the receivership corporations, APC managed

George’s personal accounts and provided him with personal tax advice.

When George refinanced the mortgage on his

residence in March of 1994, he submitted copies of

apparent tax returns for 1991 and 1992, listing the

receiver fees as personal income for those years.

George also submitted a Statement of Income and

Expenses for 1993, listing receiver fees as his personal

income. These returns were later alleged to be fraudulent documents allegedly fabricated by George for

purposes of obtaining the refinancing of his mortgage.

On January 13, 1995, the Internal Revenue Service

(IRS) sent George a written inquiry regar-ding his

1991 and 1992 returns, asserting they had not been

filed. George responded that the returns indeed had

been filed in December of 1994. This was later asserted

to be a false response. George also responded to a

subsequent IRS inquiry, asserting that the APC

accounting firm was to have completed the returns,

5

but that it went out of business and another firm was

working on the returns. This, too, was later asserted

to be a false response but post-trial was shown by

George to be true both by decla-rations from his former

accountants and by factual correspondence.

George allegedly later prepared the 1991 and 1992

returns himself, with the support of his accoun-tants,

filing them on October 16, 1995. In any event, neither

George’s returns nor his spouse’s for 1991 and 1992

reported the receiver fees received during those years.

George asserted that a question had arisen about how

the receiver fees should be reported for 1991 and

1992. He contended that APC believed, and advised,

that pursuant to the receiver-ship orders and pursuant

to California law, the receivership payments were not

taxable income to George nor tax deductible expenses

for the corpora-tions until the fees were no longer

contingent. He contended that APC had determined

that the receiv-er fees were contingent for all the

receiverships until 1993, when all interested parties

approved George’s fees. Accordingly, he contended,

no receiver fee payments were reported either on the

corporate tax returns, which were prepared and filed

by his ac-countants, or on George’s personal tax returns

for 1991 and 1992, on which, George contended, his

accountants advised him to report the receivership

fees, in the same manner they had been reported on

the corporate tax returns.

No return was filed by George or his wife for tax

year 1993. George contended that the delay in preparing the 1993 return was due both to the com-plexity

of his 1993 tax return and to personal problems

(which included being forced out of his home by a fire

6

and a daughter’s suffering severe medical problems)

that the 1993 tax return had not yet been filed by the

time the IRS audit had commenced. The IRS auditor

said the 1993 tax re-turn could be filed with him and

that he would give George thirty days to do so. George

contended that his attorney, John Youngquist, advised

him not to file the 1993 tax return while there was

still an outstanding dispute with the IRS.

The auditor almost immediately thereafter referred

his findings for prosecution. The George’s 1994 joint

tax return reported $23,000 in receiver fees, the amount

of receiver fees the receivership courts had approved

for that year and which had not been contested by

any interested parties. The prosecution contended that

the 1991, 1992, and 1994 returns, filed after George

was paid the receiver fees and approximately one

year after the last receiver-ship was approved by the

court, supposedly failed to report the more than

$300,000 in receiver fees George earned during the

1991, 1992, and 1993 tax years. However, the notion

there was a supposed failure connoted there was a duty

to have reported the fees in 1991, 1992, and 1994.

The duty to report in 1994 was discharged; it was the

duty to report in 1991 and 1992 that was contested.

The government maintained that when an IRS

revenue agent initially interviewed George regarding his 1991 and 1992 returns on July 16, 1996, George

did not disclose his employment as a receiver and did

not disclose either the $90,001.42 of receiver fees from

1991 or the $125,432.66 of receiver fees from 1992.

The government further argued that during a second

interview on February 28, 1997, George admitted he

had earned the receiver fees, but only after he was

7

confronted with the allegedly fraudulent tax returns

submitted to the lender in 1994 in support of his mortgage application. However, this is only what the government maintained and argued.

What George evidenced was that the IRS agent

never asked him anything about how much he had

earned or from what. The agent’s notes of conversations

back that up. But at trial, of course, the government

would say what it wants the jury to believe, never

mind that the IRS auditor had made numerous mistakes and misrepresentations in his notes that were

easily proven to be mistakes and misrepresentations.

On August 30, 2001, George was indicted on three

tax violations. He was charged in Counts One and Two

with filing false tax returns for the tax years 1991

and 1992, respectively, in alleged violation of 26

U.S.C. § 7206(1). He was charged in Count Three with

failing to file a tax return for the tax year 1993, in

alleged violation of 26 U.S.C. § 7203.

On November 13, 2002, after a one week-jury trial,

George was convicted of all charges. On May 19, 2004,

George was sentenced to 15 months’ imprisonment, a

one-year term of supervised release, a $20,000 fine, a

special assessment of $125, and restitution in the

amount of $70,000. George appealed his conviction

and his sentence. See United States v. George, 420

F.3d 991 (9th Cir. 2005).

The Ninth Circuit Court of Appeals affirmed

George’s conviction but ordered a limited remand with

respect to his sentence under United States v. Ameline,

409 F.3d 1073 (9th Cir. 2005) (en banc). On remand, the

district court imposed the same sentence, and the Ninth

8

Circuit later affirmed in a second appeal. See United

States v. George, 226 F.App’x 771 (9th Cir. 2007).

On April 25, 2008, George filed a petition under

28 U.S.C. § 2255 to vacate his sentence, claiming that

his counsel was ineffective at trial and sentencing.

After extensive briefing, but without an evidentiary

hearing, the district court found that George had not

been prejudiced and denied his motion. On April 7,

2009, the district court granted a certificate of appealability on the issue of whether George received ineffective assistance of counsel at sentencing, but denied

a certificate of appealability on the question whether

George received ineffective assistance of counsel at

trial. See United States v. George, 411 F.App’x 31, 33

(9th Cir. 2010). George appealed both the certified

and uncertified issues. George, 411 F.App’x at 33.

Again, the Ninth Circuit affirmed the denial of relief.

Id. at 33-34.

On January 1, 2016, George filed an application

in the Ninth Circuit Court of Appeals requesting leave

to file in the district court another petition under 28

U.S.C. § 2255. This application was denied by the

Ninth Circuit on April 27, 2016, on the grounds that

Section 2255 relief was unavailable because George

had finished his sentence on the 2002 conviction, and

was no longer in custody.1 It is the Ninth Circuit’s

Section 2255 jurisprudence underlying this ruling

that George takes issue with in this present petition

to the Supreme Court of the United States.

1 George had entered custody on May 5, 2008, and had been

released and had begun his one-year term of supervised release,

on June 10, 2009.

9

After the April 27, 2016 denial of his section

2255 petition, George filed his petition for writ of

error coram nobis, seeking to vacate his 2002 convictions. The district denied the petition and the

Ninth Circuit affirmed on appeal.

ARGUMENT

I.

WHERE PETITIONER GEORGE FILED HIS PETITION

UNDER 28 U.S.C. § 2255 TO VACATE HIS SENTENCE,

CLAIMING THAT HIS COUNSEL WAS INEFFECTIVE

BOTH AT TRIAL AND AT SENTENCING, AND WHERE

HIS PETITION WAS DENIED ON THE GROUNDS THAT

SECTION 2255 RELIEF WAS UNAVAILABLE BECAUSE

HE HAD FINISHED HIS SENTENCE ON HIS CONVICTION AND WAS NO LONGER IN CUSTODY, IT IS A

VIOLATION OF HIS DUE PROCESS RIGHT TO BE

HEARD WHEN THE COURT DENIES HIS PETITION FOR

WRIT OF ERROR CORAM NOBIS, SEEKING TO

VACATE HIS CONVICTIONS

The First, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits disagree on the question whether in a

28 U.S.C. § 2255 petition a petitioner can challenge a

restitution order or order imposing costs of imprisonment based on a meritorious ineffective assistance of

counsel claim where such a challenge does not claim

a right to be released from custody. 28 U.S.C. § 2255

provides:

A prisoner in custody under sentence of a

court established by Act of Congress claiming

the right to be released upon the ground

10

that the sentence was imposed in violation

of the Constitution or laws of the United

States, or that the court was without jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum

authorized by law, or is otherwise subject to

collateral attack, may move the court which

imposed the sentence to vacate, set aside or

correct the sentence.

28 U.S.C. § 2255 (emphasis added).

By its clear terms, § 2255 is applicable only to

prisoners in custody claiming the right to be released.

This reading of the statute is shared by the First,

Fifth, Sixth, Seventh, Ninth and Eleventh Circuits.

Each has held that § 2255’s language clearly and

unambiguously limits its applicability to defendants

seeking release from custody. It is not available to

those, like Mr. George here, who challenge only fines

or restitution orders. See Smullen v. United States,

94 F.3d 20, 25-26 (1st Cir. 1996) (holding that petitioner

cannot challenge restitution order in § 2255 proceeding,

stating “we are not aware of any court of appeals

that, having addressed this issue, has reached a

contrary result”); United States v. Segler, 37 F.3d

1131, 1136 (5th Cir. 1994) (“The plain language of

§ 2255 provides only prisoners who claim a right to

be released from custody an avenue to challenge their

sentences . . . .”); United States v. Watroba, 56 F.3d

28, 29 (6th Cir. 1995) (“Watroba is precluded from

challenging the imposition of the cost of his

imprisonment and supervised release in a § 2255

petition”); Barnickel v. United States, 113 F.3d 704,

706 (7th Cir. 1997) (holding that Ҥ 2255 is not available

11

to challenge an order of restitution imposed as part

of a criminal sentence”); United States v. Kramer (9th

Cir. 1999) 195 F.3d 1129 (“by its plain terms, § 2255

is available only to defendants who are in custody

and claiming the right to be released” and “[i]t cannot

be used solely to challenge a restitution order”);

Blaik v. United States, 161 F.3d 1341, 1343 (11th Cir.

1998) (“We hold that § 2255 cannot be utilized by a

federal prisoner who challenges only the restitution

portion of his sentence because § 2255 affords relief

only to those prisoners who claim[ ] ‘the right to be

released’ from custody”).

In Kramer, supra, 195 F.3d 1129, the Ninth Circuit

held that a defendant seeking relief under 28 U.S.C.

§ 2255 not only must be in custody, he also must claim

the right to be released from custody. In that case,

the defendant’s § 2255 motion sought only vacatur of

a restitution order, not his release from custody.

Consequently, the Ninth Circuit agreed with and

affirmed the district court in ruling that § 2255 relief

was not available to such a defendant, and affirmed

the district court’s denial of the § 2255 motion.

(Kramer, supra, 195 F.3d at 1129-1130.)

When petitioner George here brought a § 2255

motion, the termination of his sentence, including

the period of supervised release, was held to have

mooted his sentencing challenge on appeal. (See United

States v. George (9th Cir. 2010) 411 F.App’x 31, 33,

citing Lane v. Williams, 455 U.S. 624, 631-34, 102

S.Ct. 1322, 71 L.Ed.2d 508 (1982); cf. United States

v. Verdin, 243 F.3d 1174, 1177-79 (9th Cir. 2001).)

Although his sentence also had included restitution

and a special assessment, the court held against George,

12

relying on Kramer, ruling that his § 2255 motion could

not be used to challenge the restitution and special

assessment aspects of his sentence. See George, supra,

411 F.App’x 31, 33, fn. 1, citing United States v.

Thiele, 314 F.3d 399 (9th Cir. 2002); United States v.

Kramer, 195 F.3d 1129 (9th Cir. 1999).

By way of contrast, in Weinberger v. United States,

268 F.3d 346 (6th Cir. 2001), the Sixth Cir-cuit, the

court was confronted with the government’s reliance

upon Kramer, supra, 195 F.3d 1129, for the proposition

that a petitioner cannot challenge a restitution order

in a § 2255 petition because such a challenge does

not claim a right to be released from custody. The

Sixth Circuit had already previously come to a

conclusion different from Kramer. In Watroba, supra,

56 F.3d 28, 29, the Sixth Circuit had rejected a

prisoner’s challenge in a § 2255 motion to the imposition

of the costs of his imprisonment and supervised

release—not a restitution order—on the grounds that

such a challenge did not meet the “in custody”

requirement of § 2255. Other circuits had relied upon

Watroba in concluding that petitioners cannot challenge

a restitution order in a § 2255 motion, because such

an order is not a sufficient restraint on liberty to

meet the “in custody” requirement. See Kramer, 195

F.3d at 1130; Blaik, supra, 161 F.3d 1341, 1343 (11th

Cir. 1998); Smullen, supra, 94 F.3d 20, 25-26 (1st

Cir. 1996). In Weinberger, supra, the Sixth Circuit

followed its own precedent in Ratliff v. United States,

999 F.2d 1023 at 1025-27, which Watroba did not

purport to overrule, allowing a petitioner to contest a

restitution order under § 2255 based on a meritorious

ineffective assistance of counsel claim. (See Weinberger,

supra, 268 F.3d 346, 351, fn. 1; see Ratliff, supra, 999

13

F.2d at 1026 (6th Cir. 1993) (“A refusal to appeal an

erroneous restitution award, which award would have

been subject to reversal on appeal, would meet the

Strickland test and would clearly constitute cause for

[the] failure to appeal the award.”)

George asks this court to adopt in this case and

to apply the Sixth Circuit’s rule in Weinberger and

Ratliff and make uniform in all circuits (including

the Ninth Circuit) the Sixth Circuit’s Weinberger rule.

In Weinberger, supra, 268 F.3d 346, the Sixth Circuit

quoted 28 U.S.C. § 2255 (“A prisoner in custody under

sentence of a [federal] court . . . claiming the right to

be released . . . may move the court which imposed

the sentence to vacate, set aside, or correct the

sentence”) and stated that a motion brought under

§ 2255 must allege one of three bases as a threshold

standard: (1) an error of constitutional magnitude; (2) a

sentence imposed outside the statutory limits; or (3)

an error of fact or law that was so fundamental as to

render the entire proceeding invalid. See Weinberger,

supra, 268 F.3d at 351, citing United States v.

Addonizio, 442 U.S. 178, 185-86, 60 L.Ed.2d 805, 99

S.Ct. 2235 (1979). George here contends that a

fundamental error of fact stands at the root of the

denial of his § 2255 motion.

That fundamental error of fact was revealed by

the existence of newly discovered evidence that George

presented in his May 16, 2016, petition for writ of

error coram nobis, brought before the district court

praying that the court would find that his attorneys

Topel & Goodman denied him effective assistance of

counsel and that he was thereby prejudiced. He brought

the petition on the grounds that his attorneys had

14

rendered ineffective assistance of counsel by having

failed to disclose newly discovered evidence that

unequivocally showed that his tax returns for 1991,

1992, 1993 and 1994 were all prepared in strict

accordance with the advice of a qualified tax advisor.

Mr. Oliver, the tax attorney and Certified Public

Accountant who gave the advice that George relied

on testified that, “Had Mr. George treated or reported

receivership fees paid to him in any other way than

he treated them on his 1991, 1992, 1993 and 1994 tax

returns, he would have been acting contrary to my

advice Mr. George acted in full accordance with my

advice.” Mr. Oliver’s testimony had never previously

been heard by the jury, by the district court, or by the

Ninth Circuit Court of Appeals, and this was solely

because of the ineffective assistance of counsel—counsel

that had performed zero investigations and zero

interviews of potential witnesses before trial. No

counsel representing George ever asked any lay witness

or expert witness to opine on the question whether

George’s tax returns conformed to advice given to

him. This left a vacuum for the government to present

its own “facts” as “proof” of nonconformity to advice.

The George panel relied on the government’s

“proofs” in formulating its opinion, which “proofs” were

actually false, a fact the government did not deny in

its brief before the Ninth Circuit. The government did

not dispute that it lied about what years various

receiverships closed and how those years related to

George’s good faith defense. The government first told

the jury, then reaffirmed in a hearing before the

district court, that all the receiverships were closed in

1994. Later, on appeal, in opposition to George’s § 2255

15

petition, the government represented to the Ninth

Circuit Court of Appeals that it had presented

“overwhelming evidence at trial . . . that two of the

receiverships (Reno and Diamond) were closed in 1992.”

The government did not dispute this; in fact, the

government affirmed that the George panel had relied

on those falsehoods as premises for its conclusions.

Specifically, the Ninth Circuit found, and the George

panel reaffirmed, that “[t]he government’s evidence

showed that two of the receiverships (Reno and

Diamond) were closed in 1992, yet George did not

report the receiver fees from these receiverships on his

1992 returns. This is fundamentally inconsistent with

George’s good faith defense that he was waiting until

the receiverships were closed to report the income.”

United States v George, 420 F.3d 991 (9th Cir. 2005).

George relied largely on (1) the Ninth Circuit

Court holding in United States v. Bishop, 91 F.3d 1100,

1106-07 (9th Cir. 2002) that a defendant “may rebut

the Government’s proof of willfulness by establishing

good faith reliance on a qualified accountant after

full disclosure of tax-related information,” and (2) the

Ninth Circuit Court decision in United States v.

George, 411 Fed Appx. 31, 33 (9th Cir. 2010) holding

that “[i]n order for this defense to succeed, and for

prejudice to be established under Strickland v.

Washington, 466 U.S. 668 (1984), there must be some

evidence of George’s reliance on any such advice.”

On June 24, 2016, the government filed a motion

to deny the petition for writ of error coram nobis. The

government argued that if George “genuinely relied

on someone’s advice, there could be nothing preventing

him from raising that subjective mental state as a

16

defense early and often.” The government further

asserted that the new evidence consisting of Mr. Oliver’s

testimony could have been, and should have been,

obtained much earlier, the government maintaining

that because it was not obtained earlier the government

was prejudiced and latches applied. The government

also argued that in contrast to George’s good faith

defense, “The government’s evidence showed that two

of the receiverships (Reno and Diamond) were closed

in 1992, yet George did not report the receiver fees

from these receiverships on his 1992 returns.”

While Mr. George opposed the government’s

motion. He did agree that Mr. Oliver’s testimony could

have and should have been obtained much earlier,

but he asserted that the failure to obtain Mr. Oliver’s

testimony earlier was solely because of the ineffective

assistance of counsel who failed to perform any investigations of any kind prior to trial, thereby prejudicing George.

George provided evidence of the falsity of the

government’s so-called “proof” that the Reno and

Diamond receiverships were closed in 1992. George

produced documents filed in Nevada and California

state courts that showed the Reno receivership was

judicially closed in 1993, not 1992, and that the

Diamond receivership commenced in 1992 and was

closed in 1994. George argued that the facts raised in

the petition for writ of error had not been used before

solely because of the ineffective assistance of counsel

who failed to perform any investigations whatsoever.

He argued that the Ninth Circuit Court of Appeals

held in United States v. Kwan, 407 F.3d 1005, 1013

(9th Cir. 2005) that latches applies only if the reason

17

for delay is unreasonable, and George argued that

here the delay was not unreasonable. He argued that

the government had made no showing how it would be

prejudiced if it had to prosecute anew. George requested

an evidentiary hearing too more fully present the

evidence. But the request was denied.

On November 9, 2016, the district court found that

George failed to show any evidence that he had relied

on Mr. Oliver’s advice, therefore his trial counsel was

not ineffective. The district court held that “[t]he only

new evidence offered to support George’s theory is a

declaration [about] a ‘tax return’ that ‘George prepared for 1993.’” The district court further found that

Mr. Oliver’s testimony did not support a finding that

George had relied on Mr. Oliver’s statements because

Mr. Oliver “does not claim to have any knowledge that

George actually filed with the IRS the return George

purportedly ‘prepared,’ which document is undated and

unsigned.” For its authority, the district court relied on

this Court’s decision in United States v. George, 411

Fed Appx. 31, 33 (9th Cir. 2010):

In order for this defense [reliance on advice

from an accountant] to succeed, and for

prejudice to be established under Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984), there must be some

evidence of George’s reliance on any such

advice. There is none.

However, (1) contrary to the district court’s holding,

the 1993 tax return indeed was dated; (2) the only

reason the 1993 tax return was not filed with the IRS

was because Attorney John Youngquist had advised

Mr. George not to file it until the controversy over the

18

1991 and 1992 tax years was resolved; (3) according

to Mr. Oliver’s testimony, the tax returns for 1991

and 1992 were indeed prepared and filed in full

compliance with his advice, fully satisfying the Ninth

Circuit’s evidentiary standard for good-faith reliance

on the advice of a qualified accountant (as recognized

by the Ninth Circuit in United States v. Bishop, 291

F.3d 1100, 1106 (9th Cir. 2002) and United States v.

Claiborne, 765 F.2d 784, 798 (9th Cir. 1985), abrogated

on other grounds, 487 U.S. 81 (1988)); and (4) the

district court was criminalizing the act of relying on

the advice of counsel in opposition to Ninth Circuit

Court’s decision in United States v. Bishop 291 F. 3d

1100 (9th Cir. 2002) and the United States Supreme

Court’s decision in Cheek v. United States, 498 U.S.

192 (1991).

A supplemental declaration from Mr. Oliver

detailed the exhaustive steps he had taken to verify

and authenticate that the 1993 tax return had been

prepared on the timeline Mr. Youngquist and Mr.

George had testified to. Mr. Oliver reaffirmed his

professional opinion that all tax returns for 1991, 1992,

1993 and 1994 had been prepared in strict compliance

with his advice.

In his May 16, 2016, petition for writ of error

coram nobis and in the subsequent appeal to the Ninth

Circuit, George presented publicly available docket

reports and documents filed in state receivership

courts to prove, beyond all doubt, that the government

had lied to the jury, had lied to the district court, and

had lied to the Ninth Circuit Court of Appeals. Those

lies were relied on by the Ninth Circuit Court of Appeal

as premises for its conclusions in its George decision.

19

George argued that a false premise cannot result in a

true conclusion. He argued that the year 1992 was a

critical year. It was one of two years that Mr. Oliver

advised were years when receiver fees were contingent

and advised that such fees should not be reported for

tax purposes until 1993 when the contingencies were

removed. That is precisely how Mr. Oliver himself

treated receiver fees on the corporate receivership tax

returns, and advised George to do likewise. But George’s

trial counsel was totally unprepared to back that up.

In the government’s own words, “The defense . . .

deduced absolutely zero evidence from anyone except

[Mr. George] to support his argument that he had

advice of a CPA or accountant . . . which is usually

the crucial evidence in such a defense.”

Having made colorable claims and after having

shown stark differences between the government’s

claims and George’s evidence, the district court refused to hold the evidentiary hearing this Court has

long held is mandatory in a Section 2255 proceeding,

the district court having evaded that requirement by

forcing Mr. George to file, pro se, a coram nobis

proceeding in which there is no requirement for an

evidentiary hearing.

It is inconceivable that the prosecution, which

spent years preparing for trial, did not possess the

publicly available docket reports of the receivership

courts proceedings and knew that Diamond commenced

in 1992 and finalized in 1994, and that Reno closed

in 1993. But it is even more astonishing that George’s

own counsel had not obtained at least those docket

reports to refute the government’s lies. That failure

was yet another example of ineffective assistance of

20

counsel in failing to perform any investigation whatsoever in preparation for trial.

During a hearing on George’s motion for new trial,

the district court chastised trial counsel for failing to

use sufficient diligence in subpoenaing documents

prior to trial:

[O]n the question of diligence, there is no

question that the defense pulled out all the

stops at one point in trying to obtain the evidence which they ultimately obtained. The

question the Court has is why they did so at

the point that they did as opposed to earlier,

. . . and why they didn’t . . . subpoena those

earlier and/or subpoena records from, if

possible, the attorneys from the receivership

. . . I am going to find in the first instance

that [they] did not use sufficient diligence to

obtain the documents. . . .

The district court later said in an Ameline remand

that it would be willing to reassess the case under a

beyond-a-reasonable-doubt standard if it could later

be shown that George was not lying on the stand about

being advised by qualified accountants. The Ninth

Circuit decision found that “the record shows that

George was advised,” but because it was a coram nobis

proceeding, that court ordered that there were to be

no further filings accepted in the matter. In other

words, because it was a coram nobis proceeding, not

a section 2255 matter, George was procedurally locked

out of seeking justice, even in light of the Ninth

Circuit’s findings and its own contradictions.

But the district court nonetheless denied the

motion for new trial “for all the reasons set forth by

21

[the government].” Those reasons, of course, happened

to be the falsehoods the government presented and

later, before the Court of Appeals did not dispute.

The district court held that the government had

established that all receiverships had been judicially

closed in 1994 and, in fact, contrary to his alleged

good faith belief, that George had not reported the

income in 1994, upon which the government argued to

the jury that he was lying.

II.

PETITIONER GEORGE’S PETITION SHOULD BE

GRANTED BECAUSE UNDER 28 U.S.C. § 2255 HE

SHOWS THAT AN ERROR OF FACT WAS SO FUNDAMENTAL AS TO RENDER THE ENTIRE PROCEEDING

INVALID

Sentencing challenges generally cannot be made

for the first time in a post-conviction § 2255 motion.

See Grant v. United States, 72 F.3d 503, 505-06 (6th

Cir. 1996). Normally, sentencing challenges must be

made on direct appeal or they are waived. See United

States v. Schlesinger, 49 F.3d 483, 485 (9th Cir.

1994). But George here argues the rule should be that

such challenges are appropriate, especially inasmuch

as the continuing onus represented by the sentence is

the functional equivalent of custody.

Weinberger argued in his case that the four

sentencing rulings forming the basis for his motion

were not challenged either at the time of his sentencing

or on direct appeal as a result of the ineffective

assistance of his trial counsel. The Supreme Court

and the Court of Appeals had held that challenges

that cannot otherwise be reviewed for the first time

on a § 2255 motion can be reviewed as part of a

22

successful claim that counsel provided ineffective

assistance under the standard set forth in Strickland

v. Washington, 466 U.S. 668, 694, 80 L.Ed.2d 674,

104 S.Ct. 2052 (1984). See United States v. Frady,

456 U.S. 152, 167-68, 71 L.Ed.2d 816, 102 S.Ct. 1584

(1982); Ratliff v. United States, 999 F.2d 1023, 1026

(6th Cir. 1993). That is the type of challenge George

has sought to pursue here.

Weinberger had presented four claims on appeal,

challenging: (1) the calculation of his offense level for

sentencing; (2) the restitution order to his fraud victims;

(3) the restitution order to the IRS; and (4) and the

method for scheduling his restitution payments.

Although Weinberger’s § 2255 motion to the district

court had been based on ineffective assistance of

counsel, he had only applied that theory explicitly to

his first and fourth claims. Weinberger did not state

the theory of ineffective assistance of counsel to support

his second and third claims. Since Weinberger had not

presented a proper basis for bringing those claims in

his § 2255 motion, the district court rejected them.

On appeal, Weinberger applied the theory of

ineffective assistance of counsel to all four of his

claims. In general, “issues not presented to the district

court but raised for the first time on appeal are not

properly before the court.” Foster v. Barilow, 6 F.3d

405, 407 (6th Cir. 1993). The Weinberger case, however,

was held to be one of those “exceptional cases” when

the rule preventing issues from being raised for the

first time on appeal would result in a “plain miscarriage

of justice.” Ibid. In light of the circumstances of that

case, including the fact that Weinberger was proceeding

pro se, the Court of Appeals concluded that Weinberger

23

could extend the issue of ineffective assistance of

counsel, already raised below on two of his claims, to

his second and third claims relating to his restitution

orders to his fraud victims and the IRS.

To establish ineffective assistance of counsel,

Weinberger was required to demonstrate “that counsel’s

performance was deficient and that the deficient performance was prejudicial.” Ratliff, 999 F.2d at 1026.

That is what George here, too, seeks to demonstrate.

In order to establish prejudice, Weinberger was required

to show, and George here must show, a reasonable

probability that, but for counsel’s errors, the sentence

imposed would have been different. See Strickland,

466 U.S. at 694.

In Weinberger, the government did not challenged

the argument that Weinberger’s trial counsel had been

deficient by not challenging the portions of Weinberger’s

sentence being appealed there, either at the time of

Weinberger’s sentencing or on direct appeal. The core

of the disagreement between Weinberger and the government was whether Weinberger had been prejudiced.

The government argued that, with regard to three of

the four sentencing rulings, Weinberger could not

demonstrate a reasonable probability that his trial

counsel’s failure to challenge these rulings would have

resulted in a different sentence. However, the government did agree with Weinberger’s objection to the

amount of his restitution order to the IRS.

Weinberger was unable to prove that he was

prejudiced with regard to two of his four sentencing

objections. Therefore, the Court of Appeals did not

need to determine if his trial counsel’s performance

was deficient with regard to the two claims in which

24

Weinberger was not prejudiced. But in terms of his

claims regarding his restitution orders to his victims

and to the IRS, Weinberger was able to demonstrate

both that his counsel’s performance was deficient and

that he was prejudiced. Weinberger v. United States

(6th Cir. 2001) 268 F.3d 346, 351-352.

III. THE COURT SHOULD ISSUE RELIEF IN THE FORM OF

A WRIT OF MANDAMUS UNDER THESE FACTS

The writ of mandamus is among “the most potent

weapons in the judicial arsenal.” Will v. United States,

389 U.S. 90, 107 (1967). Congress consolidated the

various federal courts’ mandamus powers under the

All Writs Act of 1948, 28 U.S.C. § 1651. Federal courts

have traditionally issued the writ only “to confine an

inferior court to a lawful exercise of its prescribed

jurisdiction or to compel it to exercise its authority

when it is its duty to do so.” Gulfstream Aerospace

Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988)

(quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21,

26 (1943)). “[O]nly exceptional circumstances amounting

to a judicial ‘usurpation of power’ or a ‘clear abuse of

discretion’” will justify the writ. Cheney v. U.S. Dist.

Court for Dist. of Columbia, 542 U.S. 367, 380 (2004)

(citations and quotations omitted). For a court to grant

the writ, three requirements must be satisfied: (1) the

petitioner must have no other adequate means to attain

the desired relief; (2) the petitioner must show that the

right to the relief is clear and indisputable; and (3)

exercising its discretion, the issuing court must decide

that the remedy is appropriate under the circumstances.

Id. at 380-81. Together, these safeguards ensure that

the writ does not substitute for the regular appeals

process. Ex parte Fahey, 332 U.S. 258, 260 (1947).

25

Such standards are met here. George submits both

the District Court and the Ninth Circuit Court of

Appeals committed a clear abuse of discretion under

these facts. George respectfully requests this Court

issue a writ of mandamus to the United States District

Court for the Northern District of California allowing

the hearing and granting of his petition under 28

U.S.C. § 2255 to vacate his sentence, whereby he claims

that his counsel was ineffective at trial and sentencing,

reversing the denial of his petition, which denial was

rendered on the grounds that Section 2255 relief was

unavailable because he had finished his sentence on

his conviction and was no longer in custody. George

claims that it is a violation of his Due Process right

to be heard when the court denies his petition for

writ of error coram nobis, seeking to vacate his convictions in these circumstances.

26

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

COREY EVAN PARKER, ESQ.

COUNSEL FOR PETITIONER

LAW OFFICE OF COREY EVAN PARKER

1230 ROSECRANS AVENUE, SUITE 300

MANHATTAN BEACH, CA 90266

(424) 456-3193

COREY@COREYEVANPARKERLAW.COM

JUNE 28, 2019