NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. KENNETH CHARLES MCNEIL, AKA Chip,
Defendant

- Appellant. No. 19

- 15111
D.C. Nos. 1:10

- cv - 00275

- ALA

- LK 1:02

- cr - 00547

- ALA

- 1

MEMORANDUM *

Appeal from the United States District Court for the District of Hawaii Susan O. Mollway, District Judge, Presiding Submitted July 9, 2020 * * Honolulu, Hawaii Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges. Appellant Kenneth Charles McNeil appeals the denial of a petition for a writ
of error c oram nobis challenging his 2003 conviction for violating 18 U.S.C. § 2262(a)(1) by traveling in interstate commerce with the i ntent to violate a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

JUL 13 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

protection order that prohibited him from being within 100 yards of a relative’s minor child, and subsequently violating th at order

. McNeil asserts that he could not have traveled with an intent to violate the protective order because h e did not
believe there would be an opportunity to violate the protective order. We review de novo a district court’s denial of a petition for writ of error coram nobis. See
United States v. Ri e dl , 496 F.3d 1003, 1005 (9th Cir. 2007) . W e now affirm the
district court’s denial of McNeil’s petition

. McNeil finished serving his sentence in 2006, and then completed his three

year term of supervised release over a decade ago. His current petition is his fourth post

- conviction motion , and his third petition for coram nobis relief

. To
obtain relief under t h is “ extraordinary writ , ” a petitioner must show that “ (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or contro versy requirement of Article III; and (4) the error is of the
most fundamental character. ” Hirabayashi v. U nited S tates , 828 F.2d 591, 604 (9th Cir. 1987)

. At a minimum, McNeil fails to satisfy requir e ments (2) and (4) of
the above.
McNeil has demonstrated no valid reason for failing to raise his arguments
earlier either on direct appeal or through a 28 U.S.C. § 2255 petition. McNeil
claims he satisfied this requirement because he “filed his [current] coram nobis3

petition with the di strict court as soon as possible” after the government allegedly
announced a new legal theory in response to his second coram nobis petition that

was never presented to the jury

. Even assuming McNeil’s characterization of the government’s actions is corre ct , c oram nobis relief is typically confined to
address ing newly discovered fundamental errors (such as factual errors, egregious legal errors, or extraordinary exculpatory evidence) that existed at the time of trial
and which are not otherwise subject to standard time constraints. S ee , e.g. , United States v. Morgan , 346 U.S. 502, 511

– 12 (1954) ( holding that writ of error coram
nobis was appropriate vehicle for prisoner’s request that prior conviction be
vacated for failure to advise him of his righ t to counsel , and where “ no other remedy [ was ] then available and sound reasons exist [ ed ] for fail ure to seek appropriate earlier relief” ) ; Hirabayashi , 828 F.2d at 593

– 94 , 601 ( finding coram
nobis relief available where pr eviously concealed documents provided irrefutable proof, unavailable during the period of defendant’s sentence , that the wartime

measures he was convicted of violating were motivated by racial bias ); Navarro v.
United States , 449 F.2d 113 , 114 (9th Cir. 1971) ( finding coram nobis relief
available where a particular legal defense was unavailable at time of defendant’s
conviction and would have provided a complete defense to defendant’s charge )

. Because nothing prevented McNeil from identifying and challenging the alleged legal error either on direct appeal or via habeas petition, he fails to demonstrate4

why his arguments could not have been raised earlier

. McNeil has also failed to meet his burden of demonstrating the jury erred at all in convicting him, much less that it was an error “of the most fundamental
character.” See Riedl , 496 F.3d at 1006 ( internal quotation marks and citation
omitted )

. The question of intent i s a factual determination to be made by the jury ,

s ee Baker v. United States , 310 F.2d 924, 930 (9th Cir. 1962) , and t he jury
instructions here were and are uncontested. Based on the evidence presented at the trial, a reasonable jury could conclude that M cNeil traveled to Hawaii with intent

to engage in conduct violat ive of the protective order. See 18 U.S.C. § 2262(a)(1 )

. This is a far cry from the highly unusual situation that would merit th is exceedingly rare form of relief

. Riedl , 496 F.3d at 1005 ; see also Carlisle v.
United States , 517 U.S. 416, 429 (1996) (“[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.” (second alteration in original ) (internal quotation marks and
citation omitted) )

. Finally, the district court made no error in denying an evidentiary hearing
because the record conclusively shows that McNeil is not entitled to relief. See 28 U.S.C. § 2255(b) ; United States v. Taylor , 648 F.2d 565, 573 n.25 (9th Cir. 1981) ( “ Whether a hearing is required on a coram nobis motion should be resolved in the same manner as habeas corp us petitions. ”)

.5

AFFIRMED.