Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
UNITED STATES of America, Plaintiff-Appellee, v. Dennis J. SITTMAN, Defendant-Appellant.
MEMORANDUM **
Dennis Sittman appeals the district court's denial of his petition for a writ of error coram nobis and/or a writ of audita querela. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007); United States v. Hovsepian, 359 F.3d 1144, 1153 (9th Cir. 2004) (en banc), we affirm.
“A person seeking a writ of audita querela must show ․ a legal defect in the underlying sentence or conviction.” Hovsepian, 359 F.3d at 1154 (citation and internal quotation marks omitted). To establish entitlement to a writ of error coram nobis, Sittman must establish that “(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character.” Riedl, 496 F.3d at 1006 (quoting Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987)).
Thus, for Sittman to receive relief, he must establish that he faces collateral consequences. See id.; United States v. Fonseca-Martinez, 36 F.3d 62, 65 (9th Cir. 1994) (per curiam) (considering the collateral consequences “sufficient to justify issuance of the writ” of audita querela); see also Doe v. INS, 120 F.3d 200, 203 n.4 (9th Cir. 1997) (explaining that the difference between the writs “is one of timing, not substance”). He has not done so. Because only the length of the sentence is at issue, not the correctness of the conviction itself, there is no presumption of collateral consequences. See United States v. Juv. Male, 564 U.S. 932, 936, 131 S.Ct. 2860, 180 L.Ed.2d 811 (2011) (“When a defendant challenges only an expired sentence, no such presumption applies, and the defendant must bear the burden of identifying some ongoing collateral consequence that is traceable to the challenged portion of the sentence and likely to be redressed by a favorable judicial decision.” (cleaned up)). Sittman has fully served the sentence that he challenges. On appeal, he identifies only the allegedly excess time served, but granting his petition would have no effect on that consequence. Any excess time served—if there were any—would not have been credited against the supervised release time Sittman was serving at the time he filed this petition, which was for a different offense. See United States v. Johnson, 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) (“The objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of supervised release”).
AFFIRMED.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: No. 20-15125
Decided: August 06, 2021
Court: United States Court of Appeals, Ninth Circuit.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)