Opinion
No. 71-1928.
August 24, 1971.
Augustin Flores Chavez, in pro. per.
Harry D. Steward, U.S. Atty., Robert H. Filsinger, Chief, Crim. Div., Robert P. Risso, Asst. U.S. Atty., San Diego, Cal., for appellant.
Before CHAMBERS, HAMLEY and MERRILL, Circuit Judges.
Augustin Flores Chavez petitioned the district court for a writ of error coram nobis, challenging the lawfulness of a 1946 federal narcotics conviction. At the time of his petition, appellant was in state prison serving a sentence which had been enhanced as a result of the 1946 prior. Shortly before the hearing scheduled in the district court the state court modified appellant's sentence by disregarding the challenged federal conviction. Consequently, the district court, on motion of the United States, dismissed the coram nobis action as moot. This appeal followed.
The district court's dismissal was error. In Byrnes v. United States, 408 F.2d 599 (9th Cir. 1969) we held that a coram nobis proceeding is not moot merely because the petitioner "had long since served the sentences" imposed as a result of the challenged conviction. We stated that "a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction." 408 F.2d at 601, quoting Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The Government made no such showing.
Reversed and remanded for further proceedings.
I concur only because of our Byrnes v. United States, 408 F.2d 599, but I suggest the case represents a field from which we should remove ourselves or from which someone should remove us.