United States of America v. KENNETH CHARLES McNEIL, AKA Chip

NOT FOR PUBLICATION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. 21-16750
D.C. Nos. 1:21-cv-00212-SOM-RT
1:02-cr-00547-SOM-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, District Judge, Presiding
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Kenneth Charles McNeil appeals pro se from the district court’s orders
denying his petition for a writ of error coram nobis and motion for reconsideration.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the denial of a
petition for a writ of error coram nobis, see United States v. Riedl, 496 F.3d 1003,
* 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
MAY 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1005 (9th Cir. 2007), and for abuse of discretion the denial of a reconsideration
motion, see Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255,
1262 (9th Cir. 1993). We affirm.
McNeil contends that the district court ignored a “fundamental concept of
intent” when analyzing his claim regarding the definition of intent. However, the
court correctly concluded that this claim did not warrant coram nobis relief
because McNeil had not shown a valid reason why he did not raise it earlier. See
Riedl, 496 F.3d at 1006 (to be eligible for coram nobis relief, a petitioner must
show “valid reasons exist for not attacking the conviction earlier”). Moreover, our
review of the record shows that McNeil has not shown an error “of the most
fundamental character” with respect to his intent claim. See id.
McNeil next argues that the government made a concession in its answering
brief to a prior coram nobis appeal that constitutes impeaching evidence that
should have been disclosed under Brady v. Maryland, 373 U.S. 83 (1963), and
Giglio v. United States, 405 U.S. 150 (1972). We agree with the district court that
the statement on which McNeil relies is not evidence, see Comstock v. Humphries,
786 F.3d 701, 709 (9th Cir. 2015) (“arguments in briefs are not evidence”), and
that McNeil failed to show an error “of the most fundamental character,” Riedl,
496 F.3d at 1006. Contrary to McNeil’s contention, the district court did not err in
its analysis of this claim.

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McNeil also contends that the district court erred by deciding his petition
without conducting an evidentiary hearing. The district court did not err 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 corpus petitions.”). Contrary to McNeil’s argument, we
are bound by Taylor because McNeil has not shown that it is “clearly
irreconcilable” with intervening higher authority. See Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (en banc).
We do not consider McNeil’s claim, raised for the first time in his reply
brief, that the government’s alleged change in its theory of the case violates his
right to due process. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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