* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 4 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NICK AVILA, JR., Petitioner-Appellant,

v. UNITED STATES OF AMERICA, Respondent-Appellee. No. 98-1148 (D.C. No. 97-M-2648) (D.Colo.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Petitioner Nick Avila, Jr., appeals the district co urt’s denial of his petition for writ of error coram nobis. We affirm.-2-

In September 1987, Avila, a Denver attorney, was in dicted by federal grand jury on four drug-related counts. He was subsequently convicted of all four counts and was sentenced to four concurrent ten-year terms of imprisonment and was fined a total of $10,000. His convictions were affirmed on direct appeal to this court. United States v. Avila , No. 88-1427 (10th Cir. 1989). In July 1989, the Colorado Supreme Court disbarred Avila as a res ult of his convictions. People v. Avila , 778 P.2d 657 (Colo. 1989). Avila completed his period of imprisonment and, on December 18, 1997, filed a petition for writ of error coram nobis, ask ing the district court to set aside his federal convictions because “he was denied his constitutional right to an objective prosecutor at all stages of his trial pro ceedings.” In support of his petition, Avila alleged the prosecuting attorney in his case “made written and oral accusations that [Avila] attempted to murder him an d otherwise intimidate his prosecution of [Avila] just prior to the commenceme nt of the jury trial.” According to Avila, these accusations were based onthe discovery, shortly before trial, of an explosive device affixed to the prosec utor’s car, and on the fact that the prosecutor’s apartment complex was fire-bombed on the morning Avila’s trial commenced. Avila further alleged the writ was an appropriate remedy because, despite having served his period of imprisonment, h e continued to suffer criminal and civil penalties resulting from the convictions. In particular, he alleged he still-3-

owed a substantial portion of the criminal fine lev ied against him, and he was unable to regain his license to practice law becaus e of his convictions. The district court denied Avila’s petition, concluding even if Avila’s allegations were true, he had failed to demonstrate his trial was af fected in any way by the prosecutor’s personal interests or motives. The writ of coram nobis is an “extraordinary remedy ” available to a petitioner no longer in custody who seeks to vacate his conviction in circumstances where the petitioner can demonstrate that he is suffering civil disabilities as a consequence of the criminal convi ctions and that the challenged error is of sufficient magnitude to justify the extraordinary relief. United States
v. Castro , 26 F.3d 557, 559 (5th Cir. 1994). “Because the w rit continues litigation after final judgment and exhaustion of o ther remedies, relief should be ‘allowed through this extraordinary remedy only und er circumstances compelling such action to achieve justice.’” Klein v. United States , 880 F.2d 250, 253 (10th Cir. 1989) (quoting United States v. Morgan , 346 U.S. 502, 511 (1954)). Thus, “[i]t is presumed that the proceedings leading to t he conviction were correct . . . and the burden is on the petitioner to demonstrate that the asserted error is jurisdictional or constitutional and results in a c omplete miscarriage of justice.” Id. Avila contends he need not demonstrate actual preju dice flowing from the-4-

prosecutor’s alleged bias against him. Instead, he argues, the mere existence of the prosecutor’s bias is sufficient to raise due pr ocess concerns and should have required the prosecutor to recuse himself from further participation in the trial. Avila cites Young v. United States ex rel. Vuitton et Fils S.A. , 481 U.S. 787, 789 (1987), which held counsel for a party that is the beneficiary of a court order may not be appointed as special prosecutor in a contemp t action alleging violation of that order. We find Young inapposite as it involved a court’s authority to i nitiate criminal contempt proceedings and to appoint a priv ate prosecutor. Nothing in this case is remotely similar. Avila was prosecute d for drug-related crimes, not criminal contempt. The prosecutor was an AssistantUnited States Attorney, not a special prosecutor. The prosecutor’s alleged bias stems from his being the target of two apparent crimes, not from his representationof another person or entity. More on point is United States v. Lorenzo , 995 F.2d 1448 (9th Cir. 1993), where defendants were convicted for involvement in sending IRS 1099-MISC forms to government officials, including a United S tates Attorney and several assistants, and seeking tax refunds. Defendants ar gued on appeal that, because the United States Attorney and several assistants w ere “victims” of the crime, the office of the United States Attorney should have re cused itself from prosecuting the case. The Ninth Circuit rejected this argument , holding defendants had not demonstrated prejudice. Id. at 1453. Other circuits agree that a criminal-5-

defendant complaining of an appearance of conflict on the part of a prosecutor must demonstrate actual prejudice, particularly whe re the defendant’s challenge is not asserted until after conviction. See , e.g. , United States v. Lilly , 983 F.2d 300, 309-10 (1st Cir. 1992); Dick v. Scroggy , 882 F.2d 192, 197 (6th Cir. 1989); Wright v. United States , 732 F.2d 1048, 1056 n.8 (2d Cir. 1984); United States v. Heldt , 668 F.2d 1238, 1276-77 (D.C. Cir. 1981). Because Avila has not even attempted to demonstrate actual prejudice flowing from the prosecutor’s alleged bias, we agre e with the district court that Avila has failed to overcome the presumption that t he proceedings leading to his convictions were correct. AFFIRMED. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge