Petition for Writ of Certiorari — Zafar Bakhramovich Yadigarov, Petitioner v. United States
Supreme Court briefJun 7, 2021
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------ZAFAR BAKHRAMOVICH YADIGAROV,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eleventh Circuit
---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI
---------------------------------♦--------------------------------FRITZ SCHELLER, ESQUIRE
FRITZ SCHELLER, P.L.
200 East Robinson Street
Suite 1150
Orlando, Florida 32801
(407) 792-1285
fscheller@flusalaw.com
Counsel for Petitioner and of Record
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
As petitions for writs of error corum nobis are
not subject to any formal deadlines nor any statutes
of limitations, the nation’s courts generally deny relief
in the absence of any “sound reason” for delay as
suggested by this Court in United States v. Morgan,
346 U.S. 502, 512 (1954), including offering no reasons
at all, prejudice or harm to the respondent, or those
cases in which the petitioner appears to be abusing
the writ. What constitutes a “sound reason” for delay
has been left to the lower courts to answer and define
in their discretion on an ad hoc basis. Mr. Yadigarov, by
this petition, presents the question as to what should
constitute legally sufficient diligence, as a matter of
law, in the pursuit of coram nobis relief; asked
differently, what specific and express standard of care
should uniformly govern the requirement of presenting “sound reasons” for any perceived delay in filing
petitions for a writ of error corum nobis?
ii
PROCEEDINGS IN FEDERAL TRIAL
AND APPELLATE COURTS DIRECTLY
RELATED TO THIS CASE
Petitioner, Zafar Bakhramovich Yadigarov, was
the defendant and the petitioner in the district court
and the appellant in the court of appeals. Respondent,
the United States of America, was the original plaintiff
and respondent in the district court and the appellee
in the court of appeals. The related cases include the
following:
United States District Court (M.D. Fla.):
United States v. Zafar Bakhramovich Yadigarov,
No. 6:17-cr-205-Orl-40KRS
United States Court of Appeals (11th Cir.):
United States v. Zafar Yadigarov, No. 18-14405-JJ
(Feb. 13, 2019)
United States v. Zafar Yadigarov, No. 20-10857DD (Jan. 8, 2021), also available at 840 F. App’x
487 (11th Cir. 2021) (unpublished).
iii
TABLE OF CONTENTS
Page
Question Presented .............................................
i
Proceedings in Federal Trial and Appellate
Courts Directly Related to this Case ...............
ii
Table of Contents .................................................
iii
Table of Authorities .............................................
v
Petition for a Writ of Certiorari...........................
1
Opinion Below ......................................................
1
Jurisdiction ..........................................................
1
Constitutional and Statutory Provisions
Involved ............................................................
1
Statement of the Case .........................................
2
Reasons for Granting the Writ ............................
7
Whether and how to properly decide when a
petitioner, like Mr. Yadigarov, has exercised
reasonable diligence in the pursuit of corum
nobis relief so as to excuse any perceived delay
in filing is an important, nationally-relevant,
and repetitive question that this Court should
answer and define given the mandate of
United States v. Morgan, 346 U.S. 502 (1954),
to provide “sound reasons” for any set back in
seeking such relief, especially when there are
no formal time limits, statute of limitations, or
deadlines by which one must actually meet
and satisfy for purposes of filing a corum nobis
petition .............................................................
7
Framing the Question Presented .................
7
iv
TABLE OF CONTENTS – Continued
Page
Background ................................................... 10
The Accepted Principles on Corum Nobis
Relief ............................................................. 13
The Facts are Undisputed, the Record on
Appeal is Clean, and the Legal Issue is Ripe
for Review ..................................................... 21
Conclusion............................................................ 30
Appendix
Eleventh Circuit’s unpublished decision and
opinion below.................................................... App. 1
District Court’s order......................................... App. 10
v
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Alikhani v. United States,
200 F.3d 732 (11th Cir. 2000) ..................................16
Carlisle v. United States,
517 U.S. 416 (1996) .................................................10
Chaidez v. United States,
568 U.S. 342 (2013) .................................................16
Chico v. United States,
703 F. App’x 292 (5th Cir. 2017) ..............................18
Feldman v. Henman,
815 F.2d 1318 (9th Cir. 1987) ..................................26
Foont v. United States,
93 F.3d 76 (2d Cir. 1996) ....................... 13, 17, 18, 19
Fruchtman v. Kenton,
531 F.2d 946 (9th Cir. 1976) ....................................27
Gonzalez v. United States,
981 F.3d 845 (11th Cir. 2020) ....................................6
Griffith v. Kentucky,
479 U.S. 314 (1987) .................................................28
Jones v. United States,
453 F.2d 351 (5th Cir. 1972) ....................................26
Kandiel v. United States,
964 F.2d 794 (8th Cir. 1992) ....................................26
Kapral v. United States,
166 F.3d 565 (3d Cir. 1999) ............................... 12, 25
Klein v. United States,
880 F.2d 250 (10th Cir. 1989) ..................................24
vi
TABLE OF AUTHORITIES – Continued
Page
Kovacs v. United States,
744 F.3d 44 (2d Cir. 2014) .......................................17
Latham v. United States,
527 F.3d 651 (7th Cir. 2008) ....................................28
Maleng v. Cook,
490 U.S. 488 (1989) ........................................... 25, 26
Martinez v. United States,
90 F. Supp. 2d 1072 (D. Haw. 2000) ........................24
Nicks v. United States,
955 F.2d 161 (2d Cir. 1992) .....................................19
Padilla v. Kentucky,
559 U.S. 356 (2010) .................................................24
Ragbir v. United States,
950 F.3d 54 (3d Cir. 2020) ................................... 7, 20
Telnik, Inc. v. United States,
24 F.3d 42 (9th Cir. 1994) ............................ 17, 18, 19
United States v. Bejacmar,
217 F. App’x 919 (11th Cir. 2007) ...................... 17, 20
United States v. Castro,
26 F.3d 557 (5th Cir. 1994) ......................................27
United States v. Correa-De Jesus,
708 F.2d 1283 (7th Cir. 1983) ..................................24
United States v. Darnell,
716 F.2d 479 (7th Cir. 1983) .............................. 18, 19
United States v. Dyer,
136 F.3d 417 (5th Cir. 1998) .................. 11, 12, 15, 23
vii
TABLE OF AUTHORITIES – Continued
Page
United States v. Esogbue,
357 F.3d 532 (5th Cir. 2004) ........................ 17, 26, 27
United States v. Gentry,
432 F.3d 600 (5th Cir. 2005) ....................................28
United States v. Kwan,
407 F.3d 1005 (9th Cir. 2005) ..................................24
United States v. Mills,
221 F.3d 1201 (11th Cir. 2000) ...................... 2, 16, 17
United States v. Montoya,
891 F.2d 1273 (7th Cir. 1989) ..................................26
United States v. Morgan,
346 U.S. 502 (1954) ......................................... passim
United States v. Obasohan,
318 F. App’x 798 (11th Cir. 2009) ............................16
United States v. Riedl,
496 F.3d 1003 (9th Cir. 2007) ............................ 16, 19
United States v. Romero-Vilca,
850 F.2d 177 (3d Cir. 1988) .....................................26
United States v. Tucor Int’l, Inc.,
189 F.3d 834 (9th Cir. 1999) ....................................24
United States v. Verrusio,
758 F. App’x 2 (D.C. Cir. 2019) .......................... 26, 27
United States v. Yadigarov,
840 F. App’x 487 (11th Cir. 2021) .................... passim
Zapata-Banda v. United States,
2011 WL 1113586 (S.D. Tex. Mar. 7, 2011) .............14
viii
TABLE OF AUTHORITIES – Continued
Page
FEDERAL STATUTES
18 U.S.C. § 371 ..............................................................2
18 U.S.C. § 1325(c) ........................................................2
28 U.S.C. § 1254(1) ........................................................1
28 U.S.C. § 1651 ...................................... 1, 2, 11, 14, 15
28 U.S.C. § 2101 ..........................................................28
28 U.S.C. § 2241 ..........................................................11
28 U.S.C. § 2255 .................................................. passim
OTHER
S. Ct. R. 29 ....................................................................1
S. Ct. R. 30 ....................................................................1
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Zafar Bakhramovich Yadigarov respectfully petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the
Eleventh Circuit.
---------------------------------♦---------------------------------
OPINION BELOW
The Eleventh Circuit’s unpublished opinion, 840
F. App’x 487, is provided in the petition’s appendix. See
App. 1; see also United States v. Yadigarov, 840 F. App’x
487, 2021 WL 71624 (11th Cir. Jan. 8, 2021).
---------------------------------♦---------------------------------
JURISDICTION
The Eleventh Circuit issued its decision and
opinion on January 8, 2021. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1). Mr.
Yadigarov has timely filed this petition pursuant to
this Court’s Order Regarding Filing Deadlines (Mar.
19, 2020) (extending deadlines due to COVID-19) and
Supreme Court Rules 29.2 and 30.1.
---------------------------------♦---------------------------------
CONSTITUTIONAL AND STATUTORY
AND PROVISIONS INVOLVED
Under the All Writs Act, Title 28, United States
Code § 1651(a) provides, “The Supreme Court and all
courts established by Act of Congress may issue all
2
writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and
principles of law.” To be sure, federal courts have
authority to issue writs of error coram nobis under the
All Writs Act, 28 U.S.C. § 1651(a). See generally, e.g.,
United States v. Mills, 221 F.3d 1201, 1203 (11th Cir.
200).
---------------------------------♦---------------------------------
STATEMENT OF THE CASE
The government returned and filed an indictment
against the Petitioner, Mr. Zafar Yadigarov, charging
him with matters related to marriage fraud in August
2017. Without a plea agreement, Mr. Yadigarov pled
guilty on July 23, 2018, to a count of conspiracy to
commit marriage fraud as well as a substantive count
of marriage fraud. See 18 U.S.C. §§ 371 and 1325(c). As
to each count, Mr. Yadigarov was exposed to maximum
penalties of up to five years’ imprisonment. His
Sentencing Guidelines were calculated to include a
total offense level 6, a criminal history category I,
and an advisory prison range between 0 and 6
months. Sentencing was held on October 10, 2018; the
district court sentenced Mr. Yadigarov to time already
served followed by one year of supervised release. His
term of supervision expired the following year, October
10, 2019. As of this petition, Mr. Yadigarov remains at
liberty and is not under any form of court supervision
– he has completed his sentence.
3
Subsequent to his guilty plea in July 2018,
however, Mr. Yadigarov moved to withdraw his plea on
October 4, 2018, shortly before his scheduled sentencing hearing on October 10, 2018. Of several
enumerated reasons for asking permission to withdraw his guilty plea included possible immigration
consequences. See Doc. 369 (Petitioner’s written
motion to withdraw guilty plea). The district court
denied his request in a written order filed on October
9, 2018, at Doc. 364.
After the district court sentenced Mr. Yadigarov to
time served on October 10, 2018, and entered its
written judgment and sentence on October 12, 2018,
see Doc. 367, Mr. Yadigarov appealed to the Eleventh
Circuit Court of Appeals. In February 2019, Mr.
Yadigarov submitted a request to voluntarily dismiss
his direct appeal. He did so on the basis that he
thought grounds might exist to have his case reviewed
for ineffective assistance of counsel claims; arguments
that he could not ordinarily raise on direct appeal
without any developed and meaningful record to
review. His motion was granted, the appeal was
dismissed, and subsequently (during the Spring 2019)
his convictions became final. See United States v.
Yadigarov, Appeal No. 18-14405 (11th Cir. Feb. 13,
2019). Mr. Yadigarov finished serving his term of
supervised release as of October 10, 2019, essentially
eight months after his direct appeal had been
voluntarily dismissed (and roughly five months after
his convictions became final for purposes of § 2255
post-conviction proceedings).
4
Four months following the expiration of his
sentence, Mr. Yadigarov filed a petition for writ of error
coram nobis in the district court on February 12, 2020.
See Doc. 427. Mr. Yadigarov complained that he
received ineffective assistance at counsel during his
criminal case and because he had completed the terms
and conditions of his sentence and was no longer “in
custody” as that legal term of art is understood for
post-conviction proceedings under 28 U.S.C. § 2255, his
only avenue for relief was by coram nobis such that the
court should vacate and set aside his criminal
convictions. Six days later, without directing or asking
for a government response, the district court summarily dismissed Mr. Yadigarov’s petition for coram
nobis because it said that Mr. Yadigarov had not
proffered any sound reason or valid explanation as to
why he filed his petition when he did. “Petitioner failed
to seek relief under 28 U.S.C. § 2255 for the alleged
ineffective assistance of counsel,” the district court
found, “and he went so far as to dismiss his appeal.”
Doc. 428, page 6. The court continued, “A writ of coram
nobis is not intended to be a remedy of first resort.
Simply put,” the court said, “petitioner fails to provide
sound reasons for failing to seek relief earlier.” Id.
Thus, the district court dismissed Mr. Yadigarov’s
petition as untimely filed.
Mr. Yadigarov appealed the district court’s
dismissal to the appellate court, and the Eleventh
Circuit Court of Appeals upheld the lower court’s order
denying relief. Reviewing the challenge for one of an
abuse of discretion, see United States v. Yadigarov, 840
5
F. App’x 487, 489 (11th Cir. 2021) (“[w]e review a
district court’s denial of a writ of coram nobis for an
abuse of discretion”), the Eleventh Circuit said:
The district court did not abuse its discretion
in denying Yadigarov’s petition for writ of
error coram nobis because, although 28 U.S.C.
§ 2255 offered an avenue of relief, Yadigarov
failed to seek it [while under court supervision] and to provide sound reasons for
failing to do so. Yadigarov requests coram
nobis relief based on ineffective assistance of
counsel, but an ineffective assistance of
counsel claim is properly raised in a collateral
attack on the conviction under 28 U.S.C.
§ 2255. Yadigarov correctly notes that § 2255
relief was unavailable when he filed his coram
nobis petition because he was no longer “in
custody,” as is required for post-conviction
relief under § 2255. However, Yadigarov could
have raised his ineffectiveness claim under
§ 2255 until October 10, 2019, when his term
of supervised release ended. There was an
available avenue of relief for the claim
Yadigarov seeks to vindicate; he simply failed
to pursue it.
Yadigarov, 840 F. App’x at 490-491 (cleaned up).
The appellate court also found:
Yadigarov also does not offer sound reasons
for failure to seek appropriate earlier relief
[while he was under court supervision]. He
does not assert that he only learned of the
factual basis for his ineffective assistance of
6
counsel claim after he was no longer eligible
for § 2255 relief. Instead, Yadigarov argues
that he was unable to move for § 2255 relief
while his direct appeal was pending. That is
true, but Yadigarov chose to file a direct
appeal rather than raise his ineffective assistance of counsel claim in a § 2255 motion.
What’s more, Yadigarov fails to account for the
eight months after he dismissed his direct
appeal but before his supervised release term
ended. During those eight months § 2255
relief was available, yet Yadigarov provides no
valid excuse for failing to seek it. Yadigarov
also contends, without citing to authority, that
because he filed his coram nobis petition
within § 2255’s one-year limitations period,
he should not be barred from obtaining relief.
But Yadigarov’s argument is inapposite, as it
still does not explain why he failed to seek
relief under § 2255 when such relief was
available.
Id. at 491 (cleaned up).
As such, the Eleventh Circuit upheld the district
court’s dismissal and found that it had not abused its
discretion when rejecting Mr. Yadigarov’s request for
help “because [Mr. Yadigarov] was permitted to seek
relief under § 2255 and he did not provide sound
reasons for failing to do so while serving his term of
supervised release.” Id.; see also Gonzalez v. United
States, 981 F.3d 845, 852 (11th Cir. 2020) (“[t]he law
does not require a coram nobis petitioner to challenge
his conviction ‘at the earliest opportunity,’ but he must
7
have ‘sound reasons for not doing so’ ”) (quoting Ragbir
v. United States, 950 F.3d 54, 63 (3rd Cir. 2020)).
Mr. Yadigarov now petitions this Honorable Court
for relief.
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE WRIT
Whether and how to properly decide when a
petitioner, like Mr. Yadigarov, has exercised
reasonable diligence in the pursuit of corum
nobis relief so as to excuse any perceived delay
in filing is an important, nationally-relevant,
and repetitive question that this Court should
answer and define given the mandate of United
States v. Morgan, 346 U.S. 502 (1954), to provide
“sound reasons” for any set back in seeking
such relief, especially when there are no formal
time limits, statute of limitations, or deadlines
by which one must actually meet and satisfy for
purposes of filing a coram nobis petition.
Framing the Question Presented
Mr. Yadigarov pled guilty to his marriage fraud
charges in October 2018. He was sentenced to time
served on October 10, 2018 (see Doc. 366), followed by
a years’ worth of supervised release. He timely filed a
notice of appeal; however, he voluntarily dismissed his
direct appeal which the Eleventh Circuit granted in
February 2019 because he could not properly raise any
claims to ineffective assistance of counsel on direct
appeal. Following the period in which Mr. Yadigarov
8
was allowed to have filed a petition with this Court
asking for certiorari review, his criminal convictions
became final (during Spring 2019). Congress otherwise
would have permitted Mr. Yadigarov an additional
year, or at least until the following Spring 2020, in
which to pursue any relief from his judgment and
sentence on grounds such as receiving ineffective
assistance of counsel, pursuant to 28 U.S.C. § 2255(f )
(allowing for one-year limitations period from the time
a conviction becomes final by which to seek postconviction remedies and habeas review). In that Mr.
Yadigarov’s supervised release expired in October
2019, he pursued post-conviction relief by the only
procedural vehicle available to him – he filed his
petition for writ of error coram nobis in February 2020
(less than four months after his sentence was
completed and well within Congress’ anticipated yearlong limitations period for habeas review prescribed in
§ 2255(f )), more than meeting and satisfying any
legislative intent and purpose to bring post-conviction
questions to the court in a timely fashion. Said differently, Mr. Yadigarov exercised reasonable diligence
when pursuing coram nobis relief on the grounds of
ineffective assistance of counsel. The courts below,
however, said that Mr. Yadigarov had to have brought
his claims under § 2255 when serving his supervised
release (while he was “in custody” for purposes of
§ 2255), a period that lasted roughly five months from
the time his convictions became final. The lower courts’
holdings equate to actions in judicial fiat – they
effectively command that Congress’ one-year limitations period for post-conviction and habeas remedies
9
should be re-legislated, limited, and essentially truncated to a deadline of their choosing, in this instance,
to the approximate five months Mr. Yadigarov had left
to serve under his term of supervised release following
the time his convictions had become final. This Court
should intervene and grant Mr. Yadigarov’s petition so
as to proscribe any miscarriage of justice going
forward.
In a broader fashion, this petition presents the
question as to what constitutes legally sufficient
diligence in the pursuit of coram nobis relief; asked
differently, what standard of care should govern the
requirement of offering “sound reasons” that support
the filing of petitions for a writ of error corum nobis,
pursuant to United States v. Morgan, 346 U.S. 502
(1954). This Court has advised that coram nobis is a
remedy of last resort and that district courts, as part
of their gate-keeping obligations, should review the
reasons a petitioner proffers to explain any delay in
bringing such action if there were alternative means of
relief previously available (say, for example, under 28
U.S.C. § 2255). See Morgan, 346 U.S. at 512 (“[w]here it
cannot be deduced from the record whether counsel
was properly waived, we think, no other remedy being
then available and sound reasons existing for failure
to seek appropriate earlier relief, this motion in the
nature of the extraordinary writ of coram nobis must
be heard by the federal trial court”). Hence, a corum
nobis petition must state, inter alia, “sound reasons”
for the timing of its filing. See id. at 512. Corum nobis
petitions are not subject to any formal deadlines or
10
statute of limitations. On the other hand, cases in
which coram nobis relief have been denied in an
absence of any “sound reason” for delay include offering no reasons at all, prejudice or harm to the
respondent, or those cases in which the petitioner
appears to be abusing the writ. Mr. Yadigarov could not
pursue post-conviction relief under 28 U.S.C. § 2255
because he had already completed the terms and
conditions of his sentence and was no longer in custody; thus, he sought coram nobis relief, his only
available remedy. The lower courts said that he could
have brought his ineffective assistance of counsel
claims under § 2255 in the few months he served under
supervised release from the time his convictions had
become final, but didn’t; as such, he was necessarily
precluded from pursuing corum nobis relief, regardless
of the reasons he proffered in support of the timing of
his petition (which was far less than a year after his
convictions became final). He now asks of this Honorable Court to grant certiorari to specifically answer
whether his reasonable diligence in pursuing corum
nobis relief is a “sound reason” for any perceived delay
in filing his corum nobis petition and, a fortiori, to
articulate the correct standard of review to best meet
and satisfy the mandates of United States v. Morgan.
Background
Mr. Yadigarov sought the extraordinary remedy of
coram nobis relief in the district court. See Carlisle v.
United States, 517 U.S. 416, 429 (1996) (“ ‘it is difficult
to conceive of a situation in a federal criminal case
11
today where [a writ of coram nobis] would be necessary
or appropriate’ ”) (quoting United States v. Smith, 331
U.S. 469, 475 n. 4 (1947)). “In 1954, the Supreme Court’s
decision in United States v. Morgan, 346 U.S. 502, 74
S. Ct. 247, revived the ancient writ of coram nobis by
holding that the writ was available in federal courts
pursuant to the All Writs Act, 28 U.S.C. § 1651(a).
Since that time the writ has been used as an avenue of
collateral attack when [a] petitioner has completed his
sentence and is no longer ‘in custody’ for purposes of
seeking relief under either 28 U.S.C. § 2241 or § 2255.”
United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998).
Mr. Yadigarov presented a good faith ineffective
assistance of counsel claim to the district court. He
filed his petition on February 12, 2020. See Doc. 427.
Unfortunately, just six days later, the court said, on
February 18, 2020, see Doc. 428, that Mr. Yadigarov
should have previously brought his claim under § 2255
and because he hadn’t, his petition for coram nobis
could not move forward. The court used the timing of
Mr. Yadigarov’s petition (roughly filed four months
after he completed his sentence) as a shield to fend
away his complaint. The government, for its part, was
not afforded an opportunity nor received any invitation
to participate in the matter (we don’t know, for
example, whether the government would have excused
the timing of the petition or even forfeited or waived
any timing-like defense or challenge, if one exists at
all). The Eleventh Circuit agreed and upheld the
district court’s order dismissing Mr. Yadigarov’s
petition on this procedural basis. See Appendix.
12
The courts below, taking their cue from United
States v. Morgan, 346 U.S. 502, 74 S. Ct. 247 (1954),
found that Mr. Yadigarov did not provide, nor proffer,
or offer up “sound reasons” that would explain why he
waited until February 2020 to ask for coram nobis
relief (or, implicitly, why a § 2255 motion was not filed
during the time further direct review remained a
possibility).1 In other words, the courts rejected Mr.
Yadigarov’s petition for relief because they said he
could have brought his challenge in an earlier § 2255
post-conviction motion after his direct criminal appeal
had been dismissed (ineffective assistance of counsel
claims, generally, are brought in § 2255 proceedings).
Mr. Yadigarov’s explanation supporting the timing of
his petition, according to the courts below, wasn’t good
enough; the propriety of his petition did not exist given
the timing of its filing. See United States v. Dyer, 136
F.3d 417, 427-428 (5th Cir. 1998) (“[i]t has long been
recognized that a petitioner seeking coram nobis must
exercise ‘reasonable diligence’ in seeking prompt
relief ”) (footnote omitted). This case asks what may
otherwise constitute “sound reasons” for any delay in
pursuing coram nobis relief, as a matter of law, given
this Court’s discussion in Morgan. It also asks what
standard of review correctly answers whether a petitioner provides legally sufficient reasons explaining
1
See Kapral v. United States, 166 F.3d 565, 570 (3rd Cir.
1999) (a “collateral attack is generally inappropriate if the
possibility of further direct review remains open”). In Mr.
Yadigarov’s case, his appeal in Appeal No. 18-14405 (his direct
criminal appeal) was dismissed on February 13, 2019. He
completed his sentence as of October 10, 2019. See Doc. 367.
13
the timing of his or her petition, i.e., why a court should
properly accept a coram nobis petition and render a
decision on the merits. It is Mr. Yadigarov’s continued
position that given all of the surrounding circumstances to his case, there were (there are) “sound
reasons” under Morgan for having filed his petition in
February 2020, if not, moreover, acceptable reasons to
legitimately excuse any perceived delay in filing and to
accept the proceedings for review on the merits – Mr.
Yadigarov exercised reasonable diligence in pursuing
coram nobis relief. This case affords the Court an
excellent vehicle to better explore, examine, and
explain Morgan’s “sound reasons” for delay policy
concerns and to establish a definitive standard of care
the nation’s lower courts should uniformly apply when
deciding whether a procedural bar exists to block or
reject a coram nobis petition’s explanation as to why it
should be accepted and adjudicated. In short, this
Court should grant Mr. Yadigarov’s petition for certiorari – the facts are not in dispute, the record-on-appeal
as it comes to this Court is clean and without complexity, and the issue presented is one of a recurring
national question and concern.
The Accepted Principles on Corum Nobis Relief
The nation’s generally accepted jurisprudence
governing matters involving coram nobis might be
taken from the Second Circuit in Foont v. United
States. There, the court recited:
14
Coram nobis is a not a substitute for appeal,
and relief under the writ is limited to those
cases which errors of the most fundamental
character have rendered the proceeding itself
irregular and invalid. A district court may
issue a writ of error coram nobis pursuant to
the All Writs Act, 28 U.S.C. § 1651(a), where
extraordinary circumstances are present. The
proceedings leading to the petitioner’s conviction are presumed to be correct, and the burden rests on the accused to show otherwise. A
petitioner seeking such relief must demonstrate that 1) there are circumstances
compelling such action to achieve justice, 2)
“sound reasons” exist for failure to seek appropriate earlier relief, and 3) the petitioner
continues to suffer legal consequences from
his conviction that may be remedied by
granting of the writ.
93 F.3d 76, 78-79 (2nd Cir. 1996) (cleaned up); see also,
e.g., Zapata-Banda v. United States, 2011 WL 1113586,
at *3 (S.D. Texas March 7, 2011) (“[i]n United States v.
Morgan, the Supreme Court held that the writ of
coram nobis, which Federal Rule of Civil Procedure
60(b) also had abolished in civil cases, was still
available in criminal proceedings under the All Writs
Act, 28 U.S.C. § 1651(a), where it was need to fill a gap
in the federal post-conviction remedial scheme”)
(citations omitted).
The Fifth Circuit synthesized coram nobis thusly:
In Morgan, the [Supreme] Court emphasized
that the writ of coram nobis could not be used
15
as a substitute for appeal and should only be
employed to correct errors of the most
fundamental character. The Court further
admonished that continuation of litigation
after final judgment and exhaustion or waiver
of any statutory right of review should be
allowed through this extraordinary remedy
only under circumstances compelling such
action to achieve justice. The writ will issue
only when no other remedy is available and
when sound reasons exist for failure to seek
appropriate earlier relief.
United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998)
(cleaned up).
In the instant case, the Eleventh Circuit explained
the writ as such:
Federal courts have authority to issue writs of
error coram nobis under the All Writs Act, 28
U.S.C. § 1651(a). 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 custody, as is required for
post-conviction relief under 28 U.S.C. § 2255.
The writ of error coram nobis is an extraordinary remedy of last resort available only in
compelling circumstances where necessary to
achieve justice. The bar for obtaining coram
nobis relief is high, and the writ may issue
only when there is and was no other available
avenue of relief and 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
16
proceeding itself irregular and invalid. Further, courts may consider coram nobis
petitions only where the petitioner presents
sound reasons for failing to seek relief earlier.
Yadigarov, 840 F. App’x at 490; see also, e.g., United
States v. Obasohan, 318 F. App’x 798, 800 (11th Cir.
2009) (“[a] district court ‘may consider coram nobis
petitions only where no other remedy is available and
the petitioner presents sound reasons for failing to
seek relief earlier’ ”) (quoting Mills, 221 F.3d at 1204).2
Significantly, a claim for ineffective assistance of
counsel is one properly brought in a petition for a writ
of error coram nobis. See generally Chaidez v. United
States, 568 U.S. 342, 345-346 (2013); see also United
2
In the Eleventh Circuit, it is generally accepted that to
warrant coram nobis relief, a petitioner must show: (1) he was not
in custody at the time he filed the petition; (2) there is and was no
other available and adequate avenue of relief; (3) the error alleged
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; and (4) there are sound
reasons for failing to seek relief earlier. See generally United
States v. Mills, 221 F.3d 1201 (11th Cir. 2000); Alikhani v. United
States, 200 F.3d 732 (11th Cir. 2000). Here, the lower courts found
Mr. Yadigarov at fault for not filing a § 2255 petition alleging his
ineffective assistance of counsel claim any time between the
dismissal of his appeal in February 2019, and the time his
supervised release expired in October 2019. Mr. Yadigarov filed
his petition within a year of having his appeal dismissed and less
than 4 months after completing his sentence. He filed it on
February 12, 2020. See Doc. 427. The district court took the
position that by failing “to take advantage of § 2255,” Mr.
Yadigarov “render[ed] his petition frivolous.” Doc. 428, page 3.
The court did not cite any authority to support this declaration or
proposition.
17
States v. Morgan, 346 U.S. 502, 512 (1954); Kovacs v.
United States, 744 F.3d 44, 49 (2nd Cir. 2015) (“ineffective assistance of counsel is one ground for granting a
writ of coram nobis”); United States v. Esogbue, 357
F.3d 532, 534 (5th Cir. 2004) (“ineffective assistance of
counsel, if proven, can be grounds for coram nobis
relief ”). In other words, Mr. Yadigarov may properly
assert a claim for ineffective assistance of counsel in
his petition for coram nobis. See generally, e.g., United
States v. Bejacmar, 217 F. App’x 919, 921 (11th Cir.
2007) (“[w]e further assume that a claim of ineffective
assistance of counsel can supply the basis for a writ of
error coram nobis”) (citing Moody v. United States, 874
F.2d 1575, 1578 nn. 3 & 6 (11th Cir. 1989)).
“Initially,” however, “it must be decided whether [a
petitioner’s] delay in seeking coram nobis renders the
relief sought unavailable.” Foont v. United States, 93
F.3d 76, 79 (2nd Cir. 1996). The Eleventh Circuit also
says that “courts may consider coram nobis petitions
only where no other remedy is available and the
petitioner presents sound reasons for failing to seek
relief earlier.” United States v. Mills, 221 F.3d 1201,
1204 (11th Cir. 2000) (citing Morgan, 346 U.S. at 512)
(footnote omitted); see also Morgan, 346 U.S. 502, 512
(requiring “sound reasons” for a petitioner’s “failure to
seek appropriate earlier relief ”); Telnik, Inc. v. United
States, 24 F.3d 42, 47 (9th Cir. 1994) (“In requiring
reasonable diligence at all times, our holding ensures
a petitioner will not use an analogous limitations
period as a safe haven for prejudicing the government,
willfully delaying the assertion of his or her rights and
18
then raising the claim after the inexcusable delay has
impaired the government’s ability to respond to the
allegations or to proceed to retrial.”); United States v.
Darnell, 715 F.2d 479, 481 n. 5 (7th Cir. 1983) (“The
doctrine of laches adequately protects against ‘sandbagging’ and ensures that coram nobis relief will not
be granted where a petitioner’s inexcusable delay in
raising his claim has prejudiced the government.”).
It is generally accepted that “[b]ecause there is no
applicable statute of limitations for a writ of coram
nobis, a district court considering the timeliness of a
petition ‘must decide the issue in light of the circumstances of the individual case.’ ” Chico v. United States,
703 F. App’x 292, 294 (5th Cir. 2017) (quoting Foont v.
United States, 93 F.3d 76, 79 (2nd Cir. 1996)). “It is
undisputed that ‘[b]ecause a petition for writ of error
coram nobis is a collateral attack on a criminal
conviction, the time for filing a petition is not subject
to a specific statute of limitations.’ ” Foont, 93 F.3d at
79 (quoting Telnik, Inc. v. United States, 24 F.3d 42, 45
(9th Cir. 1994)). “However, an error of constitutional
dimension at the time of plea or sentence renders a
conviction voidable, not void, and coram nobis relief
may be barred by the passage of time. A district court
considering the timeliness of a petition for a writ of
error coram nobis must decide the issue in light of the
circumstances of the individual case.” Id.
Conversely, the Second Circuit in Foont recognized
that:
19
The Seventh and Ninth Circuits have compared Morgan’s “sound reasons” for delay
requirement with the doctrine of laches to
require that the government establish that its
interests were prejudiced by the defendant’s
lack of diligence in pursuing his claim. See,
e.g., Darnell, 716 F.2d at 480 (“a flexible,
equitable time limitation based on the doctrine of laches” is applicable to petitions for
coram nobis relief ); see also Telnik, 24 F.3d at
47 (same). However, we do not read Morgan as
incorporating a laches concept into the
analysis of delay in bringing a coram nobis
petition. The Morgan Court stated only that a
petitioner need demonstrate “sound reasons”
for delay, which we interpret as calling to the
attention of the district court the circumstances surrounding the petitioner’s failure to
raise the issue earlier rather than the
government’s injury that resulted from delay.
The critical inquiry, then, is whether the
petitioner is able to show justifiable reasons
for the delay.
Foont, 93 F.3d at 80; see also Nicks v. United States, 955
F.2d 161, 167 (2nd Cir. 1992) (“[t]he Supreme Court
further instructs coram nobis relief should issue only
when “sound reasons exist[ ] for failure to see appropriate relief ”) (quoting Morgan, 346 U.S. at 512); but
see United States v. Riedl, 496 F.3d 1003, 1005-1006
(9th Cir. 2007) (holding that “the equitable doctrine of
laches that [petitioner] cites under Telnik, we hold that
it does not supplant or restate the second [ ] requirement, but rather constitutes a supplemental defense
20
that the government may invoke when a petitioner
seeks coram nobis relief ”).
The Third Circuit takes a stricter view: “Coram
nobis reflects the tension that so often exists between
finality and equity.” Ragbir v. United States, 950 F.3d
54, 62-63 (3rd Cir. 2020). “While the writ has no rigid
time limit, our caselaw emphasizes that ‘[the] “sound
reason” standard is even stricter than that used to
evaluate § 2255 petitions’ because habeas is generally
the exclusive means to collaterally challenge a federal
conviction or sentence.” Id. at 63 (citation and footnote
omitted).
But, the court in Ragbir noted:
A defendant seeking to avoid the collateral
consequences of a conviction cannot postpone
seeking relief until it appears that a collateral
consequence is imminent. Still, coram nobis is
a remedy of last resort. Consistent with these
principles, a petitioner is not required to
challenge his conviction at the earliest opportunity; the writ only requires a petitioner to
have sound reasons for not doing so. . . . Given
the nature of coram nobis, we must adapt the
principle of timeliness to the facts before us.
950 F.3d at 63 (cleaned up); see also United States v.
Bejacmar, 217 F. App’x 919, 920 (11th Cir. 2007) (“a
district court may consider coram nobis petitions only
where the petitioner presents sound reasons for failing
to seek relief earlier”) (citing United States v. Morgan,
346 U.S. at 512 (holding that “where no other remedy
[is] available and sound reasons existing for failure to
21
seek appropriate earlier relief ” a defendant’s motion
for writ of coram nobis must be heard by the federal
court)).
The Facts are Undisputed, the
Record on Appeal is Clean, and the
Legal Issue is Ripe for Review
Here, the facts of the case chronologically include:
•
Mr. Yadigarov was indicted on August 30,
2017. See Doc. 1.
•
He pled guilty, without a written plea
agreement, on July 23, 2018. See Doc. 312.
•
He moved to withdraw his guilty plea on
October 4, 2018. See Doc. 363.
•
The district court denied his motion on
October 9, 2018. See Doc. 364.
•
Mr. Yadigarov was sentenced to time
served followed by one year of supervised
release on October 10, 2018. See Docs. 367
and 368.
•
Mr. Yadigarov filed his notice of appeal on
October 15, 2018. See Doc. 370.
•
His direct criminal appeal in Appeal No.
18-14405 in the Eleventh Circuit was
dismissed as of February 13, 2019.
•
Mr. Yadigarov’s term of supervised
release expired as of October 10, 2019.
See Doc. 367.
22
•
Mr. Yadigarov filed his petition for writ of
error coram nobis in the district court on
February 12, 2020. See Doc. 427.
•
The district court dismissed his petition
six days later on February 18, 2020. See
Doc. 428.
•
Mr. Yadigarov appealed the district court’s
order to the Eleventh Circuit, see Doc.
429, for which the appellate court affirmed
the lower court’s order just about a year
later in an unpublished decision and
opinion issued on January 8, 2021. See
Appendix, Appeal No. 20-10857.
Mr. Yadigarov argued in his petition:
Mr. Yadigarov is entitled to a writ of error
coram nobis. It is undisputed that Mr. Yadigarov is not in custody, and there can also be no
serious dispute that, in the absence of a
remedy under 28 U.S.C. § 2255, he has no
other available and adequate avenue of relief
from his unconstitutional conviction. In
addition, Mr. Yadigarov had sound reasons for
failing to seek relief earlier. He could not have
sought coram nobis relief while his direct
appeal was pending. And Mr. Yadigarov
sought relief within a year of the date his
conviction became final, which would render
this petition timely if it were filed under 28
U.S.C. § 2255.
Doc. 427, pages 6 and 7.
23
In other words, Mr. Yadigarov filed and sought
coram nobis relief approximately 30 months after he
was indicted; it’s approximately 2 ½ years from the
time of indictment in August 2017, to the time of Mr.
Yadigarov’s petition in February 2020; and, significantly so, Mr. Yadigarov filed his petition in less than
one year from the time his convictions became final.
(Such a filing would have met and satisfied the statute
of limitations for submitting a motion under 28 U.S.C.
§ 2255.) Indeed, one might be hard pressed to suggest
that Mr. Yadigarov did not exercise reasonable
diligence when seeking his desired relief. See Dyer, 136
F.3d at 428 (“[i]t has long been recognized that a
petitioner seeking coram nobis relief must exercise
‘reasonable diligence’ in seeking prompt relief ”). To be
sure, Mr. Yadigarov exercised great care in asking for
prompt resolution to his complaint. A fortiori, there
exists utterly no evidence in the record or slightest
suggestion that the government was prejudiced or
would have been harmed by the timing of Mr.
Yadigarov’s petition. The district court, for its part,
never afforded the government any say in the proceedings and dismissed Mr. Yadigarov’s petition in six
days! See Doc. 428. But for the surrounding circumstances to his case, coram nobis was the only available
relief – the lower courts were mistaken to say that his
failure to ask for § 2255 relief ipso facto meant no
remedy at all. Compare Dyer, 136 F.3d at 429 (“[h]ere
we are faced with nearly a decade of unjustified
delay”), with Morgan, 346 U.S. at 507 (declining to hold
petition untimely even though petitioner waited over
ten years to challenge legality of conviction); and
24
United States v. Tucor International, Inc., 189 F.3d 834,
836-838 (9th Cir. 1999) (petitioner obtained coram
nobis relief after waiting four years, even though
petitioner could have, but did not, raise the same claim
at the time of conviction).
“While courts have not elaborated on what
constitutes a ‘sound’ reason [for delay],” the Ninth
Circuit observed in United States v. Kwan, 407 F.3d
1005, 1013 (9th Cir. 2005), abrogated on other grounds
in Padilla v. Kentucky, 559 U.S. 356 (2010), its “review
of coram nobis cases reveals that courts have denied
relief on this ground where the petitioner has delayed
for no reason whatsoever, where the respondent demonstrates prejudice, or where the petitioner appears to
be abusing the writ.” Kwan, 407 F.3d at 1013; see, e.g.,
Klein v. United States, 880 F.2d 250, 254 (10th Cir.
1989) (petitioner delayed seeking coram nobis relief for
seven years without any explanation, delay caused
prejudice to the government because key witnesses
died, and petitioner was raising claims that had
already been litigated); United States v. Correa-De
Jesus, 708 F.2d 1283, 1286 (7th Cir. 1983) (petitioner
waited sixteen years to re-litigate claim that he had
raised and then dropped on direct appeal); Martinez v.
United States, 90 F. Supp.2d 1072, 1075-1077 (D. Haw.
2000) (petitioner attacking prior conviction on a
ground that he had already litigated and failed to challenge on direct appeal, failed to collaterally challenge
while in custody for that conviction, and failed to
collaterally challenge until six years after receiving
enhanced sentence for a subsequent conviction).
25
Mr. Yadigarov offered legally sufficient reasons
explaining the timing of his coram nobis petition, there
is absolutely no indication the government suffers
from or would have suffered any harm or prejudice
from the timing of Mr. Yadigarov’s petition, and there
is nothing to suggest or support any position that Mr.
Yadigarov is or was abusing the power of the writ. This
case falls squarely within the rule announced in
Morgan. Mr. Yadigarov received a sentence of time
served, to be followed by one year of supervised release.
See Doc. 367. The district court issued the judgment on
October 12, 2018. See id. On February 13, 2019, the
appeals court issued its mandate after Mr. Yadigarov
dismissed his direct appeal. See Doc. 401. Less than a
year later, on February 12, 2020, Mr. Yadigarov petitioned the district court for a writ of error coram nobis,
see Doc. 427, because by that time his sentence of
supervised release had fully expired. A habeas petitioner must be “in custody” under the conviction or
sentence subject to attack at the time the petition is
filed, pursuant to 28 U.S.C. § 2255 (a “prisoner in
custody under sentence of ” a federal court may
challenge convictions and sentences that are, among
other things, “imposed in violation of the Constitution
or laws of the United States”) (emphasis added); see
also Maleng v. Cook, 490 U.S. 488, 490-491 (1989).3
3
The Third Circuit has opined that a “collateral attack is
generally inappropriate if the possibility of further direct review
remains open.” Kapral v. United States, 166 F.3d 565, 570 (3rd
Cir. 1999). The Ninth Circuit has explained the rationale for this
rule as follows:
26
Where a habeas petitioner’s sentence has “fully
expired” at the time his § 2255 motion is filed, a district
court lacks subject matter jurisdiction to consider the
petition. See Maleng, 488 U.S. at 492-493 (“that once
the sentence imposed for a conviction has completely
expired, the collateral consequences of that conviction
are not themselves sufficient to render an individual
‘in custody’ for the purpose of a habeas attack upon it”);
United States v. Verrusio, 758 F. App’x 2, 3 (D.C. Cir.
2019) (applying Maleng to § 2255); Esogbue, 357 F.3d
at 534 (same). A petitioner’s immigration status
constitutes a collateral consequence of his conviction
that is insufficient to satisfy the “in custody” requirement for federal habeas corpus proceedings. See
Kandiel v. United States, 964 F.2d 794, 796 (8th Cir.
1992) (holding that deportation proceedings constitute
a collateral consequence of the conviction insufficient
to satisfy in custody requirement for § 2255 proceedings); United States v. Montoya, 891 F.2d 1273, 1293
(7th Cir. 1989); United States v. Romero-Vilca, 850 F.2d
A district court should not entertain a habeas corpus
petition while there is an appeal pending in [the court
of appeals] or in the Supreme Court. The reason for the
rule is that disposition of the appeal may render the
[habeas corpus writ] unnecessary. This is true if the
appeal is still pending [in the court of appeals]. . . . It is
even more appropriate . . . when review of the
conviction is pending before the Supreme Court.
Feldman v. Henman, 815 F.2d 1318, 1320-1321 (9th Cir. 1987)
(internal quotation marks and citations omitted); see also Jones
v. United States, 453 F.2d 351, 352 (5th Cir. 1972) (§ 2255 remedy
unavailable because of the pendency of petitioner’s direct
criminal appeal).
27
177, 179 (3rd Cir. 1988); Fruchtman v. Kenton, 531 F.2d
946, 949 (9th Cir. 1976); United States v. Castro, 26 F.3d
557, 559 n. 3, 561 n. 8 (5th Cir. 1994). While he faced
deportation due to his convictions, Mr. Yadigarov was
not “in custody” when he filed his petition for writ of
error coram nobis. That is because the sentence of
supervised release had fully expired when he petitioned the district court for relief, and he had no
significant impingement on his freedom of movement.
See Verrusio, 758 F. App’x at 3 (“[f ]or petitioners released from a prison or detention facility, the Supreme
Court has found custody only when they demonstrated
a significant impingement on their freedom of
movement”) (citing, inter alia, Justices of Bos. Mun. Ct.
v. Lydon, 466 U.S. 294, 300-302 (1984), and Jones v.
Cunningham, 371 U.S. 236, 238-239 (1963)). Had Mr.
Yadigarov filed the petition as a motion to vacate, set
aside or correct his conviction pursuant to § 2255, the
district court would have lacked subject matter
jurisdiction to adjudicate it. See Verrusio, 758 F. App’x
at 3. Hence, the petition for writ of error coram nobis
was the only procedural vehicle available to him, and
the courts below reversibly erred when deciding that
Mr. Yadigarov was procedurally barred from submitting the petition simply because it was filed approximately four months after his sentence was completed.
See Esogbue, 357 F.3d at 534.
Mr. Yadigarov filed his petition for writ of error
coram nobis less than one year from the date his
convictions became final during the Spring 2020,
which corresponds to the timeframe within which
28
defendants can file habeas petitions under § 2255. Mr.
Yadigarov filed his petition well before the expiration
of the one-year deadline applicable to § 2255 petitions,
which would have ordinarily begun to run 90 days4
after the dismissal of his appeal on February 13, 2018.
See generally Griffith v. Kentucky, 479 U.S. 314 (1987)
(explaining that when a defendant does not seek a
writ of certiorari, the judgment of conviction becomes
final upon the expiration of the time allowed for
certiorari review); Latham v. United States, 527 F.3d
651 (7th Cir. 2008) (following voluntary dismissal of
direct appeal, AEDPA limitation period did not begin
to run until 90 days for seeking certiorari review
expired); United States v. Gentry, 432 F.3d 600, 604 n. 2
(5th Cir. 2005); see also 28 U.S.C. § 2101(c) (allowing
for 90 days, post-conviction, for certiorari review). It
would be arbitrary and irrational to hold that
individuals such as Mr. Yadigarov, who have received
lenient sentences, are time-barred from challenging
their convictions, while other individuals, who are
identically situated but serving longer sentences, could
obtain relief under § 2255. This Court should direct
4
Noteworthy for this instant petition, this Court entered an
order in March 2020 to recognize the COVID-19 pandemic
extending the time in which to file a petition for a writ of certiorari
from 90-days up to 150-days from the date of the lower court
judgment relief is sought. See 589 U.S. ___, Court’s Order (March
19, 2020) (“[i]n light of the ongoing public health concerns relating
to COVID-19, the following shall apply to cases prior to a ruling
on a petition for a writ of certiorari: It is ordered that the deadline
to file any petition for a writ of certiorari due on or after the date
of this order is extended to 150 days from the date of the lower
court judgment”).
29
that such anomalous results should be avoided, which
would effectively truncate the time-period for an entire
class of individuals who would otherwise be permitted
to raise ineffective assistance of counsel claims.
The facts of this case as they come to the Court are
without dispute. The record on appeal is straightforward and without complexity. The issue presented
is purely legal and brings with it more than 60 years’
worth of jurisprudence by which to examine the
question. Among other requirements to filing a petition
for a writ of error corum nobis, a petitioner must
proffer “sound reasons” for any perceived delay in
pursuing the claim or claims presented. Nationally, the
courts below have discussed and explored myriad
bases that would or would not constitute “sound
reasons” as contemplated by Morgan. Here, in the case
at bar, the lower courts took a position that simply
because Mr. Yadigarov could have or at least had
available to him a small window of opportunity while
he was under court supervision to file a 28 U.S.C.
§ 2255 post-conviction motion, he should have – because he didn’t he was necessarily barred from pursuing corum nobis relief even within 4 months of
having completed his sentence, and, even within a
year’s time of his convictions having becoming final.
This Court should grant Mr. Yadigarov’s petition for a
writ of certiorari because the question presented is
nationally relevant, it is a subject ripe for review (what
is meant by a “sound reason” for delay(?)), and presents
itself as a repetitive issue this Court is best positioned
to address. Given Mr. Yadigarov’s reasonable diligence
30
in prosecuting his claims to challenge his criminal
convictions, there were certainly “sound reasons” why
his petition for corum nobis should have been accepted
and his case allowed to move forward on its merits.
---------------------------------♦---------------------------------
CONCLUSION
For the foregoing reasons, the petition should be
granted.
Respectfully submitted,
FRITZ SCHELLER, ESQ.
FRITZ SCHELLER, P.L.
200 East Robinson Street
Suite 1150
Orlando, Florida 32801
(407) 792-1285
fscheller@flusalaw.com
Counsel for Petitioner Yadigarov
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