FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 6, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-13126

Non-Argument Calendar

________________________

D. C. Docket No. 93-00068-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIUS OBASOHAN,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 6, 2009)

Before BIRCH, WILSON and FAY, Circuit Judges.

PER CURIAM:

Julius Obasohan appeals the district court’s denial of his pro se petition for
writ of error coram nobis. Obasohan challenged in his petition his 1994

conviction, pursuant to a guilty plea, for conspiracy to produce, use and traffic in

one or more counterfeit access devices, in violation of 18 U.S.C. § 1029.

Specifically, he argued that the following enumerated overt acts in furtherance of

the conspiracy were not a violation of § 1029(b)(2): (1) his co-defendant, Oromie

Ogionwo, presented a false driver’s license in the name of Robert L. Voelkell, Jr.

to a postal employee; (2) Ogionwo obtained mail containing a Discover credit card

in Voelkell’s name; and, (3) Ogionwo delivered the mail containing that Discover

credit card to Obasohan.

On appeal, Obasohan argues that his coram nobis petition was warranted

because his conduct was not a crime under 18 U.S.C. § 1029, and he is no longer in

custody. Therefore, no other remedy is available to correct his improper

conviction. Furthermore, he contends that he suffers from various continuing civil

disabilities due to his improper conviction. Obasohan argues that he did not

produce, use, and traffic in any counterfeit access device, and thus he could not

have violated 18 U.S.C. § 1029. Obasohan claims that because a major element of

§ 1029(a)(1) is that the access device or credit card be counterfeited, faked, or

forged, he could not have committed the offense because the Discover credit card

was unauthorized instead of counterfeited. Obasohan states that based on the

2
Discover credit card being unauthorized, his overt acts could only have been

charged under 18 U.S.C. § 1029(a)(2), but because he did not obtain at least $1,000

in value from the credit card, the elements of this offense were not met.

Obasohan, relying primarily on United States v. Peter, 310 F.3d 709 (11th

Cir. 2002) (per curiam), argues that because the indictment did not allege a crime,

the district court lacked jurisdiction to accept his guilty plea to a non-offense.

Obasohan concedes that he pled guilty to conspiracy under § 1029(b)(2).

However, he argues that he did not violate § 1029(a)(1). Therefore, he contends

that he could not be guilty of § 1029(b)(2) because neither the rule of law nor

evidence supported his guilt.

Obasohan also contends that he did not attack his improper conviction

earlier because his counsel misadvised him that an unauthorized access device was

also a counterfeit access device. Specifically, Obasohan states that his counsel

failed to discover that he was charged with one specific conduct, which was not

within the reach of § 1029(a)(1). Obasohan argues that, at every stage of his

criminal proceedings, his counsel provided him with ineffective representation in

violation of due process by failing to notice that there was a jurisdictional defect in

his indictment. Further, Obasohan contends that he did not discover the difference

in the two elements of § 1029(a)(1) until after reviewing his immigration appeal in

3
Obasohan v. U.S. Att’y Gen., 479 F.3d 785 (11th Cir. 2007) (hereinafter

“immigration case”), in which we stated that his conviction was premised upon one

conduct depicted in the indictment, which was contrary to the overly broad “true

name fraud” used by the district court in denying his coram nobis petition.

Obasohan contends that based on his immigration case, he has discovered that “all

credit cards are not counterfeited.” Obasohan, relying on Ninth Circuit case law,

argues that coram nobis does not require that he challenge his conviction at the

earliest possible opportunity, but only that he provide reasons for not doing so

earlier.

“Federal courts have authority to issue a writ of error coram nobis under the

All Writs Act, 28 U.S.C. 1651(a).” United States v. Mills, 221 F.3d 1201, 1203

(11th Cir. 2000). We review a district court’s denial of the writ of error coram

nobis for an abuse of discretion. Alikhani v. United States, 200 F.3d 732, 734

(11th Cir. 2000) (per curiam).

As defined in § 1029 at the time of Obasohan’s conviction, a counterfeit

access device is “any access device that is counterfeit, fictitious, altered, or forged,

or an identifiable component of an access device or a counterfeit access device.”

18 U.S.C. § 1029(e)(2). Further, an unauthorized access device is “any access

device that is lost, stolen, expired, revoked, canceled, or obtained with intent to

4
defraud.” 18 U.S.C. § 1029(e)(3).

“The writ of error coram nobis is an extraordinary remedy of last resort

available only in compelling circumstances where necessary to achieve justice.”

Mills, 221 F.3d at 1203. The bar for coram nobis is high and relief may issue only

where: (1) “there is and was no other available avenue of relief,” and (2) “the error

involves a matter of fact of the most fundamental character which has not been put

in issue or passed upon and which renders the proceeding itself irregular and

invalid.” Alikhani, 200 F.3d at 734 (internal quotation marks and citation omitted).

A district court “may consider coram nobis petitions only where no other remedy

is available and the petitioner presents sound reasons for failing to seek relief

earlier.” Mills, 221 F.3d at 1204. “[T]he concern with finality served by the

limitation on collateral attack has special force with respect to convictions based on

guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784, 99 S. Ct. 2085, 2087

(1979). In addition,“[a] claim of newly discovered evidence relevant only to the

guilt or innocence of the petitioner is not cognizable in a coram nobis proceeding.”

Moody v. United States, 874 F.2d 1575, 1577 (11th Cir. 1989).

The writ of error coram nobis is a remedy available to vacate a conviction

when the petitioner has served his or her sentence and is no longer in custody

because “the results of the conviction may persist.” United States v. Peter, 310

5
F.3d 709, 712 (11th Cir. 2002) (internal quotation marks omitted). In Peter, we

found coram nobis relief to be appropriate. Peter claimed that the facts supporting

his guilty plea did not constitute an offense in light of a Supreme Court case

decided after his sentence had expired. Id. at 711. We found that “Peter’s

innocence of the charged offense appears from the very allegations made in the

superseding information, not from the omission of an allegation requisite to

liability” and ruled as a consequence that the district court lacked jurisdiction to

accept a guilty plea to a “non-offense.” Id. at 715.

We held in Peter that “a writ of error coram nobis must issue to correct the

judgment that the court never had power to enter.” Id. at 716. In so holding, we

distinguished claims that a defendant had been charged in an indictment with

alleged conduct that was non-criminal– a jurisdictional defect– from claims

involving indictments with omissions, such as a missing element, which are not

jurisdictional defects. Id. at 714. Similarly, in United States v. Cotton, 535 U.S.

625, 630, 122 S. Ct. 1781, 1785 (2002), the Supreme Court held that an

indictment’s failure to allege an essential element of an offense did not constitute a

jurisdictional defect.

Here, Obasohan’s failure to investigate and recognize the legal significance

of his claims is not a sound reason for failing to seek relief earlier. Therefore, he

6
did not satisfy the requirements for coram nobis relief. Additionally, Obasohan’s

subject matter jurisdiction claim is distinguishable from Peter because Obasohan

was not charged with a non-offense. Therefore, the district court did not abuse its

discretion in denying Obasohan’s petition.

CONCLUSION

Upon review of the record and the parties’ briefs, we discern no reversible

error. Accordingly, we affirm.

AFFIRMED.

7