Nasser Ghelichkhani v. United States
DueProcess HabeasCorpus Immigration
Whether a conviction, with tremendous adverse consequences, is constitutionally valid, when it is obtained through a plea (that does not waive appealing the conviction), on a charge that does not state an offense?
QUESTION PRESENTED ; As cited in Class v. United States, 583 U.S. ___ (2018), In Blacklegged v. Perry, 417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61 (1975), this Court held that where a defendant pleads guilty, but then asserts a right that would have prevented the government from prosecuting him at all— such as the right not to be vindictivély prosecuted or to be-put into double jeopardy—the assertion of that right is tiot inherently waived or foreclosed by the guilty plea. In conclusion of Class, this court held that: “Conviction on such plea is coristitutionally invalid”. Similar to class, convictions obtained on a charge that does not state an offense have always been dismissed on appeal, or such charges have been dismissed after their filling or during prosecution. See: Smiley v.. United States, 181 F.2d 505 (9th Gir, 1950) where court stated charging with statement of born.in New York does. not amount to claim to US citizenship. This could be resolved in a motion filed pre trial. See Fed.R.Crim.P. 12(b)(2) Rights enumerated in the U.S. Constitution are recognized as "fundamental" by the US. Supreme Court. In United States v. Morgan, 346 U.S. 502 (1954), this court held the writ of Coram nobis may be issued to correct a constitutional violation. id. at: 612-513. . , Ever since Morgan, Circuit courts are in conflict mainly with 11* circuit, on what standard to use in detecting and correcting a manifest injustice, in last remedy available “Writ of Coram Nobis”, In contrast to several decisions of this court. See; U.S v. Peter, 310 F.3d 709, 711, “A district court's denial of coram nobis relief is reviewed for abuse of discretion, keeping in mind that “an érror of law is-an abuse of discretion per se” See, U.S. v. CHAN, ..16-55469 (9th Circuit, 2018) ,“ We review de novoa district court’s denial of a petition fora writ of error coram nobis”. And Se, Koon, 518 U.S. at 100(’The abuse-of-discretion standard includes review to détermine that the discretion was not guided by erroneous legal conclusions’). And See, Anderson, 470.U.S. at 573-74 The reviewing court may not substitute its view for that of the district.court . Question represented: 1-Whether a conviction, with tremendous adverse consequences, is constitutionally valid, when it is obtained through a plea (that. does not waive appealing the conviction), on a charge that does not state.an offense? 2:Whether after loss of immigration status as result of conviction on above guilty plea, being informed by immigration in 2017 that immigration supervised release will stop, #e arfest and further prosecution for purpose of deportation will occur, based on policy change of a new president, previously unknown, is sound reason to trigger filling of last resort relief, “writ of Coram Nobis”, then ; and not earlier? ; 3-Whether prosecuting on.and criminalizing, a charge that does not state an: offense, plus additional constitutional rights and due process violations, qualify as fundamental errors for purpose of relief on ‘writ of Coram nobis?