UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff

– Appellee,

v. ALEXANDER CHRISTIAN MILES, Defendant

– Appellant. No. 13-6110 (D.C. Nos. 5:06-CR-00096-HE-1 & 5:11-CV-00198-HE) (W.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.
Alexander Christian Miles appeals the dist rict court’s denial of his petition for a writ of error coram nobis. We have jurisdiction unde r 28 U.S.C. § 1291 and affirm.
I The parties are familiar w ith the previous proceedings and we summarize them only briefly. In July 2001, Miles applie d for a K-1 visa to bring his fiancée from Cambodia to the United States for the purpo se of marriage. He told immigration

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - officials that his bride-to-b e was aged eighteen, although he knew that she was only fourteen. The visa was gran ted and the couple married in New York later that year. In February 2002, Miles filed an applicati on for adjustment of status in which he again falsely stated his wife’s age. Mi les and his wife moved to Oklahoma that summer and shortly thereafte r he was indicted under the Mann Act for transporting a minor across state lines with the intent to engage in se xual activity. See 18 U.S.C. § 2423(a). Miles successfully challenged th e legal sufficiency of the indictment and it was dismissed without prejudice. The government obtained a new indict ment under the Mann Act that specified the underlying state crime as forcible ra pe under Okla. Stat. tit. 21, §§ 1111B and 1114. Miles moved to dismis s, this time on double jeopa rdy grounds. The district court denied the motion and we affi rmed on interlocutory review. See United States v. Miles, 327 F. App’x 797 ( 10th Cir. 2009) (unpublished). In exchange for dismissa l of the Mann Act charges, Miles pled guilty to a superseding information that charged him with knowingly making a false and material statement about his fiancée’s age on the K-1 visa a pplication in violation of 18 U.S.C. § 1001(a)(3). As part of th e agreement, Miles wa ived his right to collaterally challenge his plea or any aspect of his conviction ex cept with regard to sentencing error. He did not appeal the conviction but did unsuccessfully challenge his sentence. See United States v. Mile s, 411 F. App’x 12 6 (10th Cir. 2010) (unpublished).- 3 - Miles then filed a motion for relief under 28 U.S.C. § 2255. The district court enforced the collateral-attack waiver and denied the mo tion. This court denied Miles’ request for a certificate of appealab ility (“COA”). Unite d States v. Miles, No. 12-6011, 2012 WL 9570723 (10th Ci r. July 9, 2012) (unpublished). Upon his release from custody in Febr uary 2013, Miles filed a petition for a writ of coram nobis. The di strict court denied the writ on two grounds: (1) the petition fell within the scope of the collateral-attack wa iver contained in the plea agreement and (2) this court had rejected the same argume nts raised by Miles in our order and judgment denying a COA.
II “When reviewing a denial of a coram nobis petition, we review questions of law de novo, but review the district court’ s decision to deny the writ for an abuse of discretion.” United States v. Thody, 460 F. App’x 776, 778 (10th Cir. 2012) (unpublished). “A district c ourt abuses its discretion when it renders a judgment that is arbitrary, capricious, whim sical, or manifestly unreas onable.” United States v. Lewis, 594 F.3d 1270, 1277 (10th Ci r. 2010) (quota tion omitted). Coram nobis is an “extraordinary re medy” to be invoked “only under circumstances compelling such action to achieve justice.” United States v. Morgan, 346 U.S. 502, 511 (1954). “[ T]he burden is on the petitione r to demonstrate that the asserted error is jurisdictiona l or constitutional and results in a complete miscarriage of justice.” Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). “[A]- 4 - colorable showing of factua l innocence” demonstrates a f undamental miscarriage of justice. Beavers v. Saffle, 216 F.3d 918, 923 (10th Cir. 2000). The factual innocence “exception is intended for those rare situat ions where the [government] has convicted the wrong person of the crime.” Klein v. Neal, 45 F.3d 1395, 1400 (10th Cir. 1995) (quotation omitted). Moreover, Miles is not entitled to a writ of coram nobis “unless relief under 28 U.S.C. § 2255 was unavailable or would have been inadequa te.” United States v. Payne, 644 F.3d 1111, 1112 (10th Cir. 2011). That Miles fa iled to obtain relief “does not establish that the remedy so provided [was] either inad equate or ineffective.” Prost v. Anderson, 636 F.3d 578, 585 (1 0th Cir. 2011) (quot ation omitted), cert. denied, 132 S. Ct. 1001 (2012). Miles’ argument for issuan ce of a writ of coram nobis is based on the date of the offense in the superseding indictment. As this court explained in denying Miles’ request for a COA, “Miles had actually lied on two different documents submitted to the INS: he falsely stated his fiancee’s age on the K-1 visa application in July 2001, and then again falsely stated her age, afte r she had become his wife, on an application for adjustment of status in February 2002.” Miles, 201 2 WL 9570723, at *1. The superseding information, ho wever, “conflated the two in cidents, charging Mr. Miles with lying in connection with the K-1 visa application [in July 2001], but doing so in or about February 2002.” Id. At the time Miles entered his plea, the mistake went unnoticed.- 5 - We rejected Miles’ reque st for a COA because the collateral-attack waiver “barred his legal objections relating to the indictment and his actual-innocence claim clearly failed on the merits,” meaning it could not constitute an exception to the waiver. Id. at *3-4. Regarding the date of the offense, we concluded that “Miles himself affirmed both the alleged date a nd document in his colloquy with the court establishing the factual basi s for his plea at the plea hearing.” Id. at *1. Miles now asserts that he did not know about the error until this court issued its order and judgment in July 2012. He claims his lawyer advised him that the factual basis for his guilty plea was “intenti onally misstating the date of birth of his wife in [the February 2002 application] , whereas, according to the Tenth Circuit Court of Appeals’ July 9, 2012, Order and Judgment . . . the misstatement had been made in [the July 2001 application].” Ac cording to Miles, he was ignorant of “the true nature of the charge to which he pled guilty” until this cour t issued its July 2012 decision. We reject Miles’ argument. Setting aside the fact that Miles offers no evidence as to what his lawyer told him, the record belies his claim. For example, in his petition to enter a guilty plea, Miles wrot e: “I made a statement knowing it to be false that [my fiancée] was 18 on the visa application.” (Emphasis added.) The plea agreement itself states that the false statement was ma de in connection with “an Alien Fianceé [sic] Visa a pplication.” And the plea colloquy confirms Miles understood that the false stat ement related to the visa a pplication. Finally, Miles- 6 - acknowledged the government’s contention that he pled guilty to filing a false affidavit in connection with the visa application in the brief supporting his request for a COA. Thus, there is no meri t to Miles’ argument that he first learned of the error in July 2012.
III Because Miles had an adequate remedy under § 2255 and there was no miscarriage of justice, the judgment of th e district court is AFFIRMED . Because Miles has not advanced a reasoned, non-frivolous argumen t on appeal, his motion to proceed in forma pauperis is DENIED . See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).

Entered for the Court

Carlos F. Lucero Circuit Judge