UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

DAVID GODWIN FRANK, 

 Defendant - Appellant. 

No. 24-4021 

(D.C. No. 2:08-CR-00822-CW-1) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, EID, and ROSSMAN, Circuit Judges.**

_________________________________ 

David Godwin Frank petitioned for a writ of coram nobis, asking the district 

court to vacate his false statement conviction. The district court denied the petition, 

and we affirm. 

In late 2003, Mr. Frank provided false information to obtain three loans. This 

included fabricating a pay stub used to verify his falsely stated income. He later 

* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

** After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 12, 2024

Christopher M. Wolpert 

Clerk of Court

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defaulted. Five years later, in December 2008, a grand jury charged Mr. Frank with 

three counts of bank fraud in violation of 18 U.S.C. § 1344. Two years later, 

Mr. Frank negotiated a plea agreement by which he pled guilty to a superseding 

felony information charging him with a single count of aiding and abetting a false 

statement in violation of 18 U.S.C. §§ 1001 and 1002. In exchange for the plea, the 

government dismissed the three bank fraud counts, recommended a reduction for 

acceptance of responsibility, and recommended a sentence at the low end of the 

guideline range. 

The district court sentenced Mr. Frank to 120 days in a work release program 

and 36 months of supervised release. He did not file a direct appeal. Mr. Frank was 

released from Bureau of Prisons Custody on March 28, 2013.1

Beginning on April 17, 2014, Mr. Frank unsuccessfully moved the district 

court four times to vacate his conviction, arguing that the 2008 indictment was filed 

beyond the general 5-year federal criminal statute of limitations, 18 U.S.C. § 3282, 

and attributing his failure to earlier raise this defense to ineffective assistance of 

counsel. 

In 2017, he filed a pro se “motion for relief from judgment.” The district court 

construed the motion as a petition for relief under 28 U.S.C. § 2255 and denied it on 

1

 Mr. Frank twice violated the terms of his supervised release. The first time, 

he received six months imprisonment followed by 24 months of supervised release. 

For his second violation, he received 10 months imprisonment with no subsequent 

supervision. 

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the grounds it lacked jurisdiction due to the untimeliness of Mr. Frank’s motion and 

because he was no longer a prisoner in federal custody. 

In the motion underlying this appeal, Mr. Frank asked the district court to 

issue a writ of coram nobis vacating his conviction on the same substantive grounds. 

The district court denied relief, reasoning Mr. Frank’s “substantial unjustified 

[nine year] delay in bringing his petition constitutes a lack of due diligence and, 

therefore, disqualifies him from obtaining coram nobis relief.” Order at 4. 

Mr. Frank timely appealed. 

I. Analysis 

A. Legal Standards 

“A petition for a writ of coram nobis provides a way to collaterally attack a 

criminal conviction for a person . . . who is no longer in custody and therefore cannot 

seek habeas relief.” Chaidez v. United States, 568 U.S. 342, 345 n.1 (2013) (italics 

and quotation marks omitted). It exists to “correct errors that result in a complete 

miscarriage of justice,” Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989) 

(internal quotation marks omitted), and is limited to “extraordinary cases presenting 

circumstances compelling its use to achieve justice.” United States v. Denedo, 556 

U.S. 904, 911 (2009) (internal quotation marks omitted). “[I]t is difficult to conceive 

of a situation in a federal criminal case today where a writ of coram nobis would be 

necessary or appropriate.” Carlisle v. United States, 517 U.S. 416, 429 (1996) 

(cleaned up). 

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To receive coram nobis relief, the petitioner must exercise due diligence in 

seeking the writ. Klein, 880 F.2d at 254. The petitioner must have also had no 

“alternative remedies,” Denedo, 556 U.S. at 911, and the writ may not be used to 

litigate issues that were or could have been raised on direct appeal or in a collateral 

attack. United States v. Miles, 923 F.3d 798, 804 (10th Cir. 2019). Finally, “the 

burden is on the petitioner to demonstrate that the asserted error is jurisdictional or 

constitutional and results in a complete miscarriage of justice.” Klein, 880 F.2d 

at 253. 

We review the district court’s factual findings for clear error, its rulings on 

questions of law de novo, and its ultimate decision to deny the coram nobis writ for 

abuse of discretion. See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 

(10th Cir. 2003); United States v. Lujan, No. 22-2014, 2022 WL 17588500, at *3 

(10th Cir. Dec. 13, 2022). A district court abuses its discretion when it commits an 

error of law. Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1252 (10th Cir. 2006). 

B. Due Diligence 

To obtain coram nobis relief, a defendant first must show that he or she 

exercised due diligence in seeking the writ. Klein, 880 F.2d at 254. Mr. Frank fails 

to do so here. More than 13 years passed between the time the district court entered 

judgment against Mr. Frank and when he filed this petition. Order at 3. He filed this 

petition more than ten years after he was last held in BOP custody, and more than 

nine years after he first raised the statute of limitations issue with the court. Id. 

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Mr. Frank argues his “many years delay in bringing a writ proceeding” is 

“justified” by “ineffective assistance of counsel” because his prior attorney failed to 

advise him regarding the statute of limitations defense. Aplt. Br. at 8–9; Reply Br. 

at 2–3. But his briefing merely assumes his counsel’s conduct amounted to 

ineffective assistance—absent is any discussion of the test for evaluating such 

claims: the so-called Strickland analysis. Strickland v. Washington, 466 U.S. 668, 

687 (1984) (To prevail a petitioner must show: (1) deficient performance by counsel 

that (2) caused prejudice to the petitioner). Mr. Frank did not brief ineffective 

assistance in either his Opening or Reply brief, and inadequately briefed arguments 

are forfeited. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). In 

any event, as the district court recognized Mr. Frank first raised the statute of 

limitations defense in 2014 and most recently in 2017. He offers no properly 

supported explanation for why he waited nine years after his first filing, or six years 

after his 2017 motion, to seek the writ. 

The district court did not abuse its discretion when it denied his petition after 

concluding this substantial unjustified delay constituted a lack of due diligence. See, 

e.g., Klein, (7-year delay warranted denial); United States v. Robinson, 597 F. App’x 

551, 552 (10th Cir. 2015) (same for ten-year delay); United States v. Ballard, 317 F. 

App’x 719, 722 (10th Cir. 2008) (same for five-year delay); United States v. Gaddis, 

200 F. App’x 817, 818–19 (10th Cir. 2006) (same for two-year delay).2

2

 We cite to unpublished opinions only for their persuasive value. 

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C. Other Bases to Deny Relief 

Denying Mr. Frank coram nobis relief is also supported by a litany of other 

reasons briefed by the parties but not addressed by the district court. United States v. 

Davis, 339 F.3d 1223, 1227 (10th Cir. 2003) (appellate courts can “affirm the rulings 

of the lower court on any ground that finds support in the record, even where the 

lower court reached its conclusions from a different or even erroneous course of 

reasoning.”). These include: (1) Mr. Frank’s procedural default, (2) Mr. Frank has 

not shown other remedies or forms of relief were unavailable or inadequate, and 

(3) Mr. Frank has not established a jurisdictional or constitutional error resulting in a 

complete miscarriage of justice. 

1. Procedural Default 

To receive coram nobis relief, a petitioner also must establish the claim is not 

procedurally defaulted. See, e.g., Miles, 923 F.3d at 804; see also United States v. 

Carpenter, 24 F. App’x 899, 905 (10th Cir. 2001). To collaterally attack a plea, a 

petitioner must first challenge that plea on direct appeal. See Miles, 923 F.3d at 804 

(“[A] petition for writ of coram nobis must be rejected if the claim was raised on or 

could have been raised on direct appeal, through a § 2255 motion, or in any other 

prior collateral attack on the conviction or sentence.”); see also United States v. 

Aguayo, 2021 WL 4998920, at *2 (10th Cir. Oct. 29, 2021). Mr. Frank never made a 

direct appeal and so has procedurally defaulted. Miles, 923 F.3d at 804. 

Mr. Frank contends his procedural default is excused by him having shown 

ineffective assistance of counsel. Reply Br. at 4. A petitioner can overcome 

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procedural default by showing “cause for his failure to raise the claim in an earlier 

proceeding and resulting prejudice.” Id. at 803 (emphasis added). This argument 

fails. 

As discussed above, Mr. Frank has not “shown” ineffective assistance of 

counsel. Supra (I)(B). He has merely stated in conclusory fashion that his counsel 

was ineffective. Mr. Frank accurately quotes Rogers v. United States as stating that 

an “attorney’s error provides cause to excuse a procedural default.” 91 F.3d 1388, 

1391 (10th Cir. 1996). That is true, as far is it goes, but it presupposes attorney error. 

Indeed, in the very next sentence, Rogers lays out the Strickland test for establishing 

ineffective assistance of counsel—something Mr. Frank fails to address. Mr. Frank 

has not established ineffective assistance of counsel and so has not shown a good 

cause failure to raise the claim earlier. Miles, 923 F.3d at 803. 

But even if he had established ineffective assistance of counsel, Mr. Frank 

does not address the second requirement to overcoming procedural default: resulting 

prejudice. Id. Prejudice can be established with “evidence tending to show that had 

[Mr. Frank] been advised [properly], he would have elected to proceed to trial.” 

United States v. Harms, 371 F.3d 1208, 1212 (10th Cir. 2004). But as the 

government points out, Mr. Frank was facing three counts of bank fraud—all of 

which were timely under the relevant 10-year statute of limitations. He does not—

and presumably cannot—explain why he would have chosen to face three bank fraud 

charges rather than plead guilty to a single false statement charge and receive a 

low-end recommendation. 

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Mr. Frank’s procedural default independently supports affirming the district 

court. 3

2. § 2255 Relief 

A writ of coram nobis is also only available when other remedies and forms of 

relief are unavailable or inadequate. Miles, 923 F.3d at 804; see also Embrey v. 

United States, 240 F. App’x. 791, 794 (10th Cir. July 9, 2007). Mr. Frank’s failure to 

seek relief under § 2255 likewise supports affirming the district court. Miles, 

923 F.3d at 804 (“[A] claim pressed through a coram nobis petition is ordinarily 

barred if the petitioner . . . simply failed to pursue the claim under § 2255 when 

petitioner could have.”). 

Mr. Frank argues § 2255 relief was functionally unavailable because he did not 

learn about the statute of limitations defense until after the one-year time to file a 

§ 2255 claim had run. He cites Gibson v. Klinger and Yang v. Archuleta in support 

of the proposition that “ignorance of the law” permits equitable tolling of the time to 

file a motion under § 2255. 232 F.3d 799, 808 (10th Cir. 2000); 525 F.3d 925, 929–

30 (10th Cir. 2008). Neither case supports his position. Not only did Gibson concern 

a different statute, the Anti-Terrorism and Effective Death Penalty Act, but it also 

affirmed the district court’s dismissal of the petitioner’s habeas petition as time 

barred. 232 F.3d at 808. And Yang likewise declined to apply equitable tolling 

3

 A petitioner can overcome procedural default by demonstrating “actual 

innocence.” United States v. Hisey, 12 F.4th 1231, 1235 (10th Cir. 2021). Mr. Frank 

does not profess his actual innocence. 

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predicated on poor English-language proficiency, noting it is a “rare remedy” “not to 

be disregarded by courts out of a vague sympathy for particular litigants.” 525 F.3d 

at 929–30. 

Relief under § 2255 was neither unavailable nor inadequate merely because 

Mr. Frank failed to avail himself of it. Miles, 923 F.3d at 804 (“[A] petition for writ 

of coram nobis must be rejected if the claim was raised or could have been 

raised . . . through a § 2255 motion”); Prost v. Anderson, 636 F.3d 578, 589 

(10th Cir. 2011) (“[I]t is the infirmity of the § 2255 remedy itself, not the failure to 

use it or to prevail under it, that is determinative.”). His failure to do so likewise 

requires affirming. 

3. Fundamental Error Resulting in a Complete Miscarriage of Justice 

Finally, coram nobis relief is an “‘extraordinary remedy’ to be invoked ‘only 

under circumstances compelling such action to achieve justice.’” Rawlins v. Kansas, 

714 F.3d 1189, 1195 (10th Cir. 2013) (quoting Morgan, 346 U.S. at 511). This 

requires “demonstrate[ing] that the asserted error is jurisdictional or constitutional 

and results in a complete miscarriage of justice.” Klein, 880 F.2d at 253; see also 

Lujan, 2022 WL 17588500, at *2. A petitioner may meet this burden by “asserting 

his innocence to the charge to which he pleaded guilty.” See United States v. 

Bustillos, 31 F.3d 931, 934 (10th Cir. 1994); see also Embrey, 240 F. App’x. at 794 

(To show “a jurisdictional or constitutional error resulting in a “complete miscarriage 

of justice . . . [a] petitioner must, among other things, assert his or her ‘innocence of 

the charge.’”) (citing Bustillos, 31 F.3d at 934) (Gorsuch, J.). And “where the 

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Government has forgone more serious charges in the course of plea bargaining, 

petitioner’s showing of actual innocence must also extend to those charges.” Bousley 

v. United States, 523 U.S. 614, 624 (1998). 

Mr. Frank professes legal, not actual, innocence—asserting that his failure to 

raise the statute of limitations deprived him of a complete defense. In support, he 

cites United States v. Cooper. 956 F.2d 960, 961 (10th Cir. 1992) (“[T]he law of this 

circuit is that the statute of limitations is a bar to prosecution.”). On its face, Cooper 

supports his position. But since Cooper, the Court has held that a district court’s 

failure to consider “an unraised limitations defense” is not an error, much less the 

sort of fundamental error warranting coram nobis relief. Musacchio v. United States, 

577 U.S. 237, 247 (2016) (a statute of limitations defense “becomes part of a case 

only if the defendant presses it in the district court.”). Indeed, Musacchio expressly 

held that the general federal statute of limitations Mr. Frank relies on here, § 3282(a), 

“provides a nonjurisdictional defense, not a jurisdictional limit” and a “district 

court’s failure to enforce an unraised limitations defense under § 3282(a) cannot be a 

plain error”—let alone abuse of discretion. Id. at 248. 

Cooper is also readily distinguishable from this case. There, the defendant 

timely raised the issue in district court before direct appeal. 956 F.2d at 961. And 

unlike Cooper, Mr. Frank received—in exchange for this guilty plea—the 

government’s agreement to dismiss more serious charges which were within the 

limitations period, and to which Mr. Frank does not profess actual innocence. 

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Finally, Cooper did not concern the “‘extraordinary remedy” of coram nobis relief, 

Morgan, 346 U.S. at 511, and so was procedurally distinct. 

Mr. Frank’s arguments do not demonstrate a fundamental error warranting 

coram nobis relief. This likewise supports affirming the district court. 

II. Conclusion 

For these reasons, we affirm the district court’s order denying Mr. Frank’s 

petition for a writ of coram nobis. 

Entered for the Court 

Timothy M. Tymkovich 

Circuit Judge 

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