Case 2:06-cr-00291-CDS-LRL Document 327 Filed 07/22/24 Page 1 of 4
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEVADA
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`United States of America,
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` Plaintiff
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`v.
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`Lonnie Lillard,
` Defendant
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`Case No. 2:06-cr-00291-CDS-LRL
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`Order Denying Defendant’s Petition for
`Writ of Error Coram Nobis or Motion to
`Vacate Judgment, and Motion for
`Appointment of Counsel
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`[ECF Nos. 317, 321]
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`Defendant Lonnie Lillard, currently incarcerated at Sheridan Federal Correctional
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`Institution, filed a pro se petition for writ of error coram nobis or motion to vacate judgment. ECF
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`No. 317. The Government filed a response in opposition (ECF No. 322) to which Lillard replied
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`(ECF No. 323). Lillard has also filed a motion for appointment of counsel. ECF No. 321. For the
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`reasons discussed below, Lillard’s motions are denied.
`I.
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`Background
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`On January 10, 2008, following a four-day trial, the jury found Lillard guilty of three
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`counts of the second superseding indictment, charging wire fraud (count one), in violation of 18
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`U.S.C. § 1343, conspiracy to commit wire fraud (count two), in violation of 18 U.S.C. § 371, and
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`conspiracy to commit access device fraud (count three), in violation of 18 U.S.C. § 1029(b)(2).
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`Mins. Proceedings, ECF No. 125; Verdict, ECF No. 130. The Court sentenced Lillard to 105 months
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`as to count one; 60 months as to count two; and 84 months as to count three, to run concurrently,
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`for a total of 105 months, with credit for time served. J., ECF No. 180; Am. J., ECF No. 184.
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`Lillard timely filed a direct appeal after judgment. Notice, ECF No. 183. In relevant part,
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`the Ninth Circuit found that the district court erred in sentencing Lillard to 84 months on count
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`three, in excess of the statutory maximum.1 Memo., ECF No. 201 at 5. Therefore, Lillard’s sentence
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`on count three was vacated and remanded for resentencing. Id.
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`1 “…the statute is clear that the maximum sentence for a violation of 18 U.S.C. § 1029(b)(2) is 60 months. 18
`U.S.C. § 1029(b)(2), (c)(1)(A)(i).” ECF No. 201 at 5.
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`Case 2:06-cr-00291-CDS-LRL Document 327 Filed 07/22/24 Page 2 of 4
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`On January 22, 2010, Lillard moved to waive his appearance at the resentencing. ECF No.
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`209. Lillard requested that “this Court [] enter an amended Judgment and Sentence without him
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`being present in actual court.” Id. at 3. Lillard asserted that “resentencing would have no real effect
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`on [the] ‘overall’ sentence he is now serving[]” because the Ninth Circuit had vacated only count
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`three, “thus technically his 105 month sentence is still and would be in place[.]” Id. The Court
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`granted Lillard’s motion to waive his appearance (Order, ECF No. 210) and, consistent with the
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`direction of the appeal memorandum, resentenced Lillard on count three to a term of 60 months
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`concurrent to the sentences imposed in counts one and two. Tr., ECF No. 260 at 6:12–7:4. An
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`amended judgment was entered on February 4, 2010. Am. J., ECF No. 215. Now, Lillard petitions
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`for writ of error coram nobis or motion to vacate judgment. ECF No. 317.
`II.
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`Discussion
`A. Writ of error coram nobis
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`“The writ of error coram nobis is a highly unusual remedy, available only to correct grave
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`injustices in a narrow range of cases where no more conventional remedy is applicable.” United
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`States v. Chan, 792 F.3d 1151, 1153 (9th Cir. 2015). To warrant this extraordinary remedy, the
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`petitioner must show: (1) the unavailability of a more usual remedy; (2) valid reasons for the delay
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`in challenging the conviction; (3) adverse consequences exist from the conviction sufficient to
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`satisfy the case or controversy requirement of Article III; and (4) an error of the most fundamental
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`character.” United States v. Kroytor, 977 F.3d 957, 958 (9th Cir. 2020). “Because these requirements
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`are conjunctive, failure to meet any one of them is fatal.” Matus-Leva v. United States, 287 F.3d 758,
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`760 (9th Cir. 2002).
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`Coram nobis relief is only available where “a more usual remedy is not available.” United
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`States v. Monreal, 301 F.3d 1127, 1132 (9th Cir. 2002). Where a person is in custody, a more usual
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`remedy is available because relief may be sought under 28 U.S.C. § 2255. Matus-Leva, 287 F.3d at
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`761 (“Because the more usual remedy of a habeas petition is available, the writ of error coram
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`nobis is not.”). “Motions to vacate a sentence under 28 U.S.C. § 2255 are expressly available only
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`to ‘a prisoner in custody.’” United States v. Reves, 774 F.3d 562, 565 (9th Cir. 2014).
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`Lillard raises a number of claims in his filing. Lillard argues that “counsel was ineffective
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`for allowing this court to sentence [him] in his absence.” ECF No. 317 at 8. He claims that the
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`Court could have lowered his 105-month sentence. Id. at 9. Lillard further contends that the
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`petition should be granted because his right to counsel of choice was violated. Id. at 13.
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`The Government asserts that Lillard’s motion should be denied because he fails to meet
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`two of the requirements of bringing a successful coram nobis claim. ECF No. 322 at 3. I agree.
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`Lillard has failed to demonstrate that a more usual remedy is not available. Because Lillard is in
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`federal custody he has the “more usual remedy” of seeking relief under 28 U.S.C. § 2255.
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`Generally, “a prisoner in custody under sentence of a federal court claiming the right to be
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`released upon the ground that the sentence was imposed in violation of the Constitution or laws
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`of the United States . . . may move the court which imposed the sentence to vacate, set aside or
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`correct the sentence.” Davis v. United States, 417 U.S. 333, 344–45 (1974) (explaining that
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`convictions are generally attacked with a Section 2255 motion). Only the sentencing court has
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`jurisdiction. See Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Because Lillard satisfies the
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`custody requirement of Section 2255, the more usual remedy of a habeas corpus petition is
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`available, and Lillard accordingly may not seek coram nobis relief. See Matus-Leva, 287 F.3d at 761;
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`see also Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (writ of error coram nobis affords a
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`remedy to attack a criminal conviction after petitioner has served his sentence and is no longer in
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`custody).
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`B. Motion for appointment of counsel
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`Lillard seeks post-conviction relief; however, there is no constitutional right to court
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`appointed counsel in post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)
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`(“Our cases establish that the right to appointed counsel extends to the first appeal of right, and
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`no further.”); Sanchez v. United States, 50 F.3d 1448, 1456 (9th Cir. 1995) (“there is no constitutional
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`right to counsel at a collateral, post-conviction section 2255 proceeding.”). To the extent that a
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`petition for a writ of coram nobis is analogous to a petition for habeas corpus relief, the Sixth
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`Amendment right to counsel does not apply. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986)
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`(“the Sixth Amendment right to counsel does not apply in habeas corpus actions”).
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`Under 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any
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`person unable to afford counsel.” However, the court will appoint counsel for indigent civil
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`litigants only in “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
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`(§ 1983 action). “When determining whether ‘exceptional circumstances’ exist, a court must
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`consider ‘the likelihood of success on the merits as well as the ability of the petitioner to
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`articulate his claims pro se in light of the complexity of the legal issues involved.” Id. “Neither of
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`these considerations is dispositive and instead must be viewed together.” Id.
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`I find that appointment of counsel is unwarranted in this case. The Ninth Circuit has
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`long noted that counsel should be appointed “when the complexities of the case are such that
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`denial of counsel would amount to a denial of due process.” Brown v. United States, 623 F.2d 54, 61
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`(9th Cir. 1980). The issues raised by Lillard are not so complex that he will be unable to navigate
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`them without the appointment of counsel. Lillard has been able to successfully articulate and
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`present his claims. Thus, I do not find exceptional circumstances that warrant the appointment of
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`counsel at this time, and I deny the motion without prejudice.
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`II.
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`Conclusion
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`IT IS THEREFORE ORDERED that Lillard’s motion to vacate judgment [ECF No. 317] is
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`DENIED.
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`IT IS FURTHER ORDERED that Lillard’s motion for appointment of counsel [ECF No.
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`321] is DENIED.
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`Dated: July 22, 2024
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`Cristina D. Silva
`United States District Judge
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