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 statem ent conviction. The district court denied the petition, and we affirm. In late 2003, Mr. Frank provided false in formation to obtain three loans. This included fabricating a pay stub used to veri fy his falsely stated income. He later

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellate record, th is 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 Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 12 defaulted. Five years later, in Decembe r 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 sing le 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 recommende d 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 re lease. He did not file a di rect appeal. Mr. Frank was released from Bureau of Pr isons Custody on March 28, 2013. 1 Beginning on April 17, 2014, Mr. Fra nk 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 pe tition for relief under 28 U.S. C. § 2255 and denied it on

1 Mr. Frank twice violated the terms of hi s supervised release. The first time, he received six months imprisonment followe d by 24 months of supervised release. For his second violation, he received 10 months imprisonment with no subsequent supervision. Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 23 the grounds it lacked jurisd iction due to the untimeline ss 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 co nviction on the same substantive grounds. The district court denied relief, reas oning Mr. Frank’s “subs tantial unjustified [nine year] delay in bringing his petition constitutes a lack of due diligence and, therefore, disqualifies him from obtaining coram nobis reli ef.” Order at 4. Mr. Frank timely appealed. I. Analysis A. Legal Standards “A petition for a writ of coram nobis pr ovides 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 “ext raordinary cases presenting circumstances compelling its use to achieve justice.” United States v. Denedo , 556 U.S. 904, 911 (2009) (i nternal 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). Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 34 To receive coram nobis reli ef, the petitioner must ex ercise 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 wr it 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 Ci r. 2019). Finally, “the burden is on the petitioner to demonstrate that the asserted error is jurisdictional or constitutional and results in a comp lete 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 ultimat e 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 di strict court entered judgment against Mr. Frank and wh en he filed this petition. Order at 3. He filed this petition more than ten years after he was la st held in BOP custody, and more than nine years after he first raised the statut e of limitations issue with the court. Id. Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 45 Mr. Frank argues his “many years dela y in bringing a wr it proceeding” is “justified” by “ineffective assi stance of counsel” because his prior attorney failed to advise him regarding the statute of limitatio ns defense. Aplt. Br. at 8–9; Reply Br. at 2–3. But his briefing merely assu mes his counsel’s conduct amounted to ineffective assistance—absent is any disc ussion 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 (10t h Cir. 1998). In any event, as the district court recognized Mr. Frank fi rst raised the statute of limitations defense in 2014 and most rece ntly in 2017. He offers no properly supported explanation for why he waited nine years after hi s first filing, or six years after his 2017 motion, to seek the writ. The district court did not abuse its disc retion 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) (s ame 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. Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 56 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 di strict court. United States v. Davis , 339 F.3d 1223, 1227 (10th Ci r. 2003) (appellate courts can “affirm the rulings of the lower court on any ground that finds support in the reco rd, 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 re lief were unavailable or inadequate, and (3) Mr. Frank has not established a jurisdic tional or constitutional error resulting in a complete miscarriage of justice. 1. Procedural Default To receive coram nobis relief , a petitioner also must es tablish 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 th e conviction or sentence.”); see also United States v. Aguayo , 2021 WL 4998920, at *2 (10th Cir. Oc t. 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 de fault is excused by him having shown ineffective assistance of counsel. Repl y Br. at 4. A petitioner can overcome Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 67 procedural default by showing “cause for hi s failure to raise th e claim in an earlier proceeding and resulting prejudice.” Id. at 803 (emphasis a dded). This argument fails. As discussed above, Mr. Frank has not “shown” ineffective assistance of counsel. Supra (I)(B). He has merely stated in c onclusory fashion that his counsel was ineffective. Mr. Frank accurately quotes Rogers v. United States as stating that an “attorney’s error provide s cause to excuse a proce dural default.” 91 F.3d 1388, 1391 (10th Cir. 1996). That is tr ue, 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 a ddress. Mr. Frank has not established ineffec tive 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 ineffe ctive assistance of counsel, Mr. Frank does not address the second re quirement to overcoming pro cedural default: resulting prejudice. Id. Prejudice can be establis hed with “evidence tending to show that had [Mr. Frank] been advised [properly], he w ould 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 fa cing three counts of bank fraud—all of which were timely under the relevant 10-year statute of limita tions. He does not— and presumably cannot—explain why he woul d have chosen to face three bank fraud charges rather than plead guilty to a si ngle false statement charge and receive a low-end recommendation. Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 78 Mr. Frank’s procedural default independ ently supports affirming the district

court. 3 2. § 2255 Relief A writ of coram nobis is also only availa ble when other remedies and forms of relief are unavailabl e 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 throug h a coram nobis petition is ordinarily barred if the petitioner . . . simply fail ed to pursue the claim under § 2255 when petitioner could have.”). Mr. Frank argues § 2255 reli ef was functionally unavaila ble because he did not learn about the statute of limitations defe nse until after the one-y ear 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 s upports his position. Not only did Gibson concern a different statute, the Anti- Terrorism and Effective Deat h Penalty Act, but it also affirmed the district cour t’s dismissal of the petitione r’s habeas petition as time barred. 232 F.3d at 808. And Yang likewise declined to apply equitable tolling

3 A petitioner can overcome procedur al default by demonstrating “actual innocence.” United States v. Hisey , 12 F.4th 1231, 1235 (10t h Cir. 2021). Mr. Frank does not profess his actual innocence. Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 89 predicated on poor English-la nguage proficiency, noting it is a “rare remedy” “not to be disregarded by courts out of a vague sympathy for part icular litigants.” 525 F.3d at 929–30. Relief under § 2255 was neith er 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 reje cted if the claim was rais ed or could have been raised . . . through a § 2255 motion”); Prost v. Anderson , 636 F.3d 578, 589 (10th Cir. 2011) (“[I]t is th e infirmity of the § 2255 reme dy 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 Co mplete Miscarriage of Justice Finally, coram nobis relief is an “‘extraordinary reme dy’ to be invoked ‘only under circumstances compelling such action to achieve justice.’” Rawlins v. Kansas , 714 F.3d 1189, 1195 (10t h Cir. 2013) (quoting Morgan , 346 U.S. at 511). This requires “demonstrate[ing] that the asserted error is ju risdictional 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 petitione r 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 erro r resulting in a “complete miscarriage of justice . . . [a] petitione r must, among other things, asse rt his or her ‘innocence of the charge.’”) (citing Bustillos , 31 F.3d at 934) (Gorsuch , J.). And “where the Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 910 Government has forgone more serious char ges in the course of plea bargaining, petitioner’s showing of actual innocence mu st also extend to those charges.” Bousley v. United States , 523 U.S. 614, 62 4 (1998). Mr. Frank professes legal, not actual, innocence—asserting th at 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 prosecuti on.”). On its face, Cooper supports his position. But since Cooper , the Court has held th at a district court’s failure to consider “an unraised limitations de fense” is not an error, much less the sort of fundamental error wa rranting coram nobis relief. Musacchio v. United States , 577 U.S. 237, 247 (2016) (a statute of limitations defens e “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 re lies on here, § 3282(a), “provides a nonjurisdictional defense, not a jurisdictional lim it” and a “district court’s failure to enforce an unraised lim itations defense under § 3282(a) cannot be a plain error”—let alone abuse of discretion. Id. at 248. Cooper is also readily distingui shable from this case. There, the defendant timely raised the issue in district court be fore 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. Fr ank does not profess actual innocence. Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 1011 Finally, Cooper did not concern the “‘extraordinar y remedy” of coram nobis relief, Morgan , 346 U.S. at 511, and so was procedurally distinct. Mr. Frank’s arguments do not demonstr ate a fundamental error warranting coram nobis relief. This likewise suppor ts affirming the di strict court. II. Conclusion For these reasons, we affirm the dist rict court’s order denying Mr. Frank’s petition for a writ of coram nobis.

Entered for the Court
Timothy M. Tymkovich Circuit Judge Appellate Case: 24-4021 Document: 27-1 Date Filed: 09/12/2024 Page: 11