1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 UNITED STATES OF AMERICA, Case No. 2:11-cr-0094-KJD-CWH 8 Plaintiff, ORDER 9 v. 10 ADAM BRENT WALLACE, 11 Defendant. 12 13 Presently before the Court are Defendant’s Motions and Petitions 14 (#159/170/175/176/177/181). Defendant’s initial appeal following his guilty plea and sentencing 15 was voluntarily withdrawn, because Defendant had knowingly waived his right to appeal his 16 conviction and low-end guideline sentence. Defendant has previously filed two (2) motions 17 arising under

. Both motions were denied: one on the merits (#66) and another 18 for failure to receive permission of the Ninth Circuit to file a second or successive petition 19 (#150) as required by

(h). Appeals of both motions were dismissed after 20 Defendant failed to obtain certificates of appealability. 21 Defendant has also filed numerous motions, post judgment, to dismiss his indictment, for 22 reconsideration, and for other forms of relief which essentially attack his conviction. Currently, 23 Defendant has filed a bevy of motions seeking relief under Civil Rule of Procedure 60, writs of 24 error coram nobis, and to reopen his original § 2255. Defendant cannot make these motions 25 under

because he is no longer in federal custody on his sentence and because 26 he has not obtained permission to file a second or successive petition in accordance with 28

(h). 28 1 Like his previous attempts, his most recent attempts at setting aside his conviction for 2 receipt of child pornography must be dismissed. First, Defendant cannot meet the high bar for 3 obtaining a writ of coram nobis. “[A] petitioner must show the following to qualify for coram 4 nobis relief: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the 5 conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the 6 case or controversy requirement of Article III; and (4) the error is of the most fundamental 7 character.” Hirabayashi v. United States,

(9th Cir. 1987). Regardless of the 8 merits of his motion, which are not good, Defendant cannot meet the second prong of 9 Hirabayashi because he failed, without cause, to raise his argument based on U.S. v. Davenport, 10

(9th Cir. 2008) earlier. Therefore, Defendant’s petition for a writ of error coram 11 nobis is denied. 12 Further, Defendant’s motion to reopen his § 2255 motion must be denied. With respect to 13 Rule 60(b), in Gonzalez v. Crosby,

(2005), the Supreme Court held that a prisoner 14 may not rely on Rule 60(b) to raise a new claim in federal habeas proceedings that would 15 otherwise be barred as second or successive under § 2254. Id. at 531. Because § 2254 is nearly 16 identical to § 2255 in substance, the Ninth Circuit and several others have applied Gonzalez to 17 Rule 60(b) motions to reopen § 2255 proceedings. See United States v. Buenrostro,

720, 722 (9th Cir. 2011) (collecting cases). Wallace has not sought the authorization necessary to 19 file a successive

petition. See

, 2255(h). Defendant’s 20 remaining arguments lack the specificity to be addressed. Therefore, Defendant’s claims under 21 Rule 60(b) and (d) are dismissed. 22 Finally, Defendant is unable to demonstrate that reasonable jurists would find the court’s 23 assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel,

473, 483-84 (2000). Therefore, the Court cannot grant Defendant a certificate of appealability. 25 Accordingly, IT IS HEREBY ORDERED that Defendant’s Motions and Petitions 26 (#159/170/175/176/177/181) are DENIED; 27 /// 28 /// 1 IT IS FURTHER ORDERED that Defendant is DENIED a Certificate of Appealability. Dated this 30th day of October, 2019.

4 t+\-- ent J. Dawson 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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