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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-7566
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PATRICK EMANUEL SUTHERLAND,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:15-cr-00225-MOC-DCK-1; 3:21-cv-
00082-MOC)
Argued: March 19, 2024 Decided: May 31, 2024
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion in which Judge Niemeyer
and Judge Gregory joined.
ARGUED: Amber Eve Donner, GAINOR & DONNER, Miami, Florida, for Appellant.
Elizabeth Margaret Greenough, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Ronald Gainor, GAINOR &
DONNER, Miami, Florida; Marcia J. Silvers, LAW OFFICE OF MARCIA J. SILVERS,
Miami, Florida, for Appellant. Dena J. King, United States Attorney, OFFICE OF
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
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AGEE, Circuit Judge:
A federal jury convicted Patrick Sutherland of three counts of filing false tax returns
and one count of obstructing an official proceeding. After this Court affirmed his
convictions on direct appeal, Sutherland filed a 28 U.S.C. § 2255 petition to vacate his
obstruction conviction and a petition for a writ of error coram nobis to vacate his tax fraud
convictions. The district court denied both petitions without holding an evidentiary hearing.
Sutherland now appeals. After a careful review of the record, we affirm.
I.
For convenience, we reproduce the underlying facts as stated in this Court’s decision
affirming Sutherland’s convictions on direct appeal:
This case involves the defendant’s attempts to avoid paying taxes, and
his subsequent efforts to cover up those crimes. Sutherland owned or
operated several insurance businesses that sold products out of the United
States and Bermuda. He routed his international transactions th[r]ough
Stewart Technology Services (STS), a Bermuda company. Defendant claims
that his sister, Beverly Stewart, owned and controlled STS, but Sutherland
actually managed all its day-to-day affairs. Despite allegedly owning a multimillion-dollar business, Stewart worked at the Best Western hotel in Cody,
Wyoming for less than $10 an hour. At one point, she was unable to pay a
$600 fee without her hotel earnings.
Between 2007 and 2011, STS sent Sutherland, his wife, or companies
that he owned more than $2.1 million in wire transfers. In each of the tax
years 2008, 2009, and 2010, STS and Sutherland treated these wire transfers
in inconsistent manners that provided Sutherland tax advantages. To wit,
Sutherland treated the vast majority of the wire transfers from STS to his
companies as bona fide loans or capital contributions, which ordinarily are
not taxable income for their recipient. By contrast, STS treated nearly all of
the wire transfers as expenses that had been paid to Sutherland. If the wire
transfers were in fact expenses paid to Sutherland, as STS recorded them,
then Sutherland and his companies should have reported the wire transfers
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as taxable income. Far from reporting them as income, however, Sutherland
either treated the transfers from STS to him and his wife as bona fide loans
or failed to account for them in his general ledger altogether. In the end,
Sutherland did not report the $2.1 million as income on his tax returns.
Sutherland’s treatment of the STS transfers mirrored his treatment of
other income. Indeed, the defendant seemed to think that marking income as
a capital contribution or loan was a foolproof scheme. For example, three
Sutherland companies—Insigne Consulting, Insigne, Inc., and XYZ
Entertainment—sent almost $42,000 to Kryotech Holdings, another
Sutherland company, between 2007 and 2009. The paying companies
recorded each transfer as a non-taxable marketing expense, while Kryotech
treated the payments as non-taxable capital contributions. The net result:
none of Sutherland’s companies would pay taxes on those funds. Similarly,
Insigne, Inc., received more than $125,000 in taxable fees from another firm,
Global Financial Synergies, between 2006 and 2010—yet Sutherland
described the majority of them as nontaxable capital contributions. Come tax
day, despite the millions of dollars flowing through his accounts, Sutherland
reported just $88,979 of income in 2008; $16,669 in 2009; and $72,415 in
2010.
But the scheme was short lived. In April 2012, Sutherland was served
with grand jury subpoenas seeking financial records from his companies,
including Insigne Consulting, Insigne Financial Services, Insigne, Inc.,
Kryotech Holdings, and XYZ Entertainment. Just three months later,
Sutherland’s attorney sent to the U.S. Attorney’s office a letter that purported
to explain away a large number of transactions relating to the subpoenaed
materials. With respect to the wire transfers from STS to Sutherland’s
companies, the letter said that each transfer was a loan that was
contemporaneously documented by written and fully-executed loan
agreements. Those agreements were attached to the letter.
In 2015, a federal grand jury indicted Sutherland for filing false
returns in the tax years 2008, 2009, and 2010, in violation of 26 U.S.C.
§ 7206(1), and for obstructing, influencing, or impeding the 2012 grand jury
investigation, or attempting to do so, in violation of 18 U.S.C. § 1512(c)(2).
The evidence at trial [in October 2016] not only outlined the financial
misdeeds described above, but also demonstrated that the loan documents
Sutherland sent to the U.S. Attorney’s office in July 2012 had been
fabricated. Read together, the documents implausibly pledged that
Sutherland would give STS 120% of the proceeds of any sale of his
businesses. While the documents had purportedly been signed by
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Sutherland’s sister, evidence revealed that Sutherland commonly signed
documents for her. The loan documents from Sutherland, moreover,
conflicted with internal accounting documents from STS (the purported
lender). Finally, the government introduced documents in which Sutherland
claimed to have made loan payments by transferring interests in his other
businesses to STS. But these related documents were bogus and backdated.
A document supposedly signed in 2011, for example, described how
Sutherland’s businesses had received loans from STS in 2011, 2012, and
2013. Legitimate documents do not reference potential future transactions in
the past tense, just as bona fide loans do not require fake payment trails.
The jury had little trouble seeing through Sutherland’s manipulations
of his accounting records and attempts to fabricate loan documents to cover
his tracks. It found Sutherland guilty on all charges.
United States v. Sutherland, 921 F.3d 421, 423–25 (4th Cir. 2019) (cleaned up).
In June 2017, Sutherland appeared before the district court for sentencing. Seeking
to mitigate the U.S. Sentencing Guidelines loss calculation in his presentence report,
Sutherland presented testimony from Jayne Frazier, a certified public accountant. Frazier
reviewed Sutherland’s tax returns for the years 2007 to 2010 and testified that Sutherland
had underreported his income by hundreds of thousands of dollars in the relevant
timeframe. Despite that fact, she testified that Sutherland’s total tax liability for that period
was less than the Government alleged because Sutherland failed to claim various business-
expense deductions in 2008, 2009, and 2010, which, if claimed, would have reduced his
taxable income for those years. Notably, however, Frazier did not independently audit
Sutherland’s tax returns, and her calculations were based largely on information provided
by Sutherland, much of which could not be corroborated by itemized receipts or other
documentation. See, e.g., J.A. 1230 (Frazier testifying that her calculations included
hundreds of thousands of dollars of unclaimed business expenses that were “all cash”). She
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also stated that her income calculations for Sutherland excluded approximately half of the
$2 million in transfers from STS to Sutherland’s companies because it was her
“understanding” that those funds came from a line of credit in favor of STS and thus would
be “treated as loan advances” and not “taxable income.” J.A. 1209.
The district court overruled Sutherland’s objection to the presentence report’s loss
calculation, finding that Sutherland’s “self-reported information” to Frazier “was not
reliable.” Sutherland v. United States, Nos. 3:21-cv-00082-MOC, 3:15-cr-00225-MOC-
DCK-1, 2021 WL 4142672, at *5 (W.D.N.C. Sept. 10, 2021). The district court then
sentenced Sutherland to a below-Guidelines term of thirty-three months’ imprisonment on
each of the four counts, to be served concurrently. The court also imposed one year of
supervised release on each of the tax fraud counts, to be served concurrently, and three
years of supervised release on the obstruction count, to run concurrently with the other
terms of supervised release.
This Court subsequently affirmed Sutherland’s convictions and the district court’s
loss calculation, Sutherland, 921 F.3d 421, and the Supreme Court denied certiorari,
Sutherland v. United States, 140 S. Ct. 1106 (2020) (mem.).
In March 2019, Sutherland was released from prison and began serving his
concurrent terms of supervised release. A year later, he completed his supervised release
terms in connection with his tax fraud convictions.
In February 2021, just before he completed his term of supervised release on the
obstruction conviction, Sutherland filed the § 2255 and coram nobis petitions now before
us. The § 2255 petition targets the obstruction conviction, whereas the coram nobis petition
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targets the tax fraud convictions. 1 In each petition, Sutherland argued that he received
ineffective assistance of counsel because his trial counsel did not call his brother Phillip
and a tax expert like Frazier to testify at trial. According to him, testimony from these two
individuals would have been material to his defense. In particular, Sutherland claimed that
Phillip’s testimony would have substantially supported his claim that the transferred funds
from STS were nontaxable loans, not income, and that a tax expert’s testimony would have
shown that either no tax or a “de minimis” tax was due for the relevant tax years. Opening
Br. 20.
The district court ordered a response from the Government, which, in turn, moved
to dismiss or deny the petitions.
Without first conducting an evidentiary hearing, the district court issued an order
dismissing and denying the § 2255 petition and denying the coram nobis petition.
Beginning with the § 2255 petition challenging the obstruction conviction, the
district court found that Sutherland had failed to properly allege how the proffered
The reason for the separate petitions stems from Sutherland’s “custody” status
1
regarding the obstruction conviction, on the one hand, and the tax fraud convictions, on the
other. When Sutherland filed both petitions in February 2021, he was still serving his term
of supervised release on his obstruction conviction. And because “[a] prisoner on
supervised release is considered to be ‘in custody’ for purposes of a § 2255 motion,” United
States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999), § 2255 provided Sutherland with the
appropriate means of collaterally attacking his obstruction conviction, see 28 U.S.C.
§ 2255(a). But since Sutherland had already completed his term of supervised release on
the tax fraud convictions, he was no longer “in custody” with respect to those convictions
and thus could no longer collaterally attack them under § 2255, leaving coram nobis as his
sole recourse. See Wilson v. Flaherty, 689 F.3d 332, 339 (4th Cir. 2012) (stating that the
writ of error coram nobis “affords a remedy to attack a conviction when the petitioner has
served his sentence and is no longer in custody” (citation omitted)).
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testimony, which concerned only the nature of the STS wire transfers and the extent of
Sutherland’s tax liability for the relevant tax years, “would have defeated the obstruction
of justice charge.” Sutherland, 2021 WL 4142672, at *7. In the district court’s view,
Sutherland’s generic claim that “had defense counsel presented evidence creating a
reasonable doubt about the government’s theory that the STS Transfers were not loans,
such evidence would have defeated all of the counts of the indictment” was “too vague and
conclusory to warrant further examination.” Id. (emphasis added) (cleaned up). Then citing
its forthcoming discussion concerning the separate coram nobis petition, the district court
ruled that Sutherland’s “counsel’s performance was not deficient in any event.” Id. The
court thus “den[ied] and dismiss[ed]” Sutherland’s § 2255 petition. Id. at *8. And further
finding that Sutherland had “not made a substantial showing of a denial of a constitutional
right,” the court denied a certificate of appealability. Id. at *10.
Turning to the coram nobis petition challenging the tax fraud convictions, the
district court found that Sutherland had not demonstrated ineffective assistance of counsel
and thus could not show an error “of the most fundamental character” warranting coram
nobis relief. Id. at *8. Applying the two-prong standard under Strickland v. Washington,
466 U.S. 668 (1984), 2 the district court first found that the decision by Sutherland’s counsel
not to call Phillip or a tax expert at trial did not reflect deficient performance but rather a
2
Under Strickland, to succeed on an ineffective assistance of counsel claim, a
petitioner “must show that (1) counsel’s performance fell below an objective standard of
reasonableness (the performance prong); and (2) the deficient representation prejudiced the
defendant (the prejudice prong).” United States v. Cannady, 63 F.4th 259, 265 (4th Cir.
2023) (citing Strickland, 466 U.S. at 687–88).
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strategic decision that “was well within the bounds of reasonable professional assistance.”
Id. at *9. The court emphasized, for example, that there were certain “risks” associated
with calling either witness, including damaging cross examination, and that there was “a
substantial question regarding whether Frazier’s testimony would have been admissible at
trial” given that it was based on unreliable “self-reported information from [Sutherland].”
Id. The district court then went on to find that, even assuming trial counsel rendered
deficient performance, Sutherland could not demonstrate any resulting prejudice under
Strickland’s second prong. Id. If both witnesses testified as Sutherland claimed they would
have done, the court explained, such testimony would have been insufficient to undermine
confidence in the outcome of the trial. Id. The court therefore denied the coram nobis
petition.
Sutherland timely appealed the district court’s denial of the coram nobis petition
and sought permission to appeal the district court’s denial of the § 2255 petition. 3 As to the
latter petition, we granted a certificate of appealability on the following issues:
(1) Whether Sutherland was denied his right to effective assistance of counsel;
and
(2) Whether the district court erred when it granted the Government’s motion to
dismiss the § 2255 motion without first conducting an evidentiary hearing.
ECF No. 12.
Our jurisdiction over this appeal lies in 28 U.S.C. §§ 1291 and 2253(c).
3
To appeal the denial of a § 2255 petition, the petitioner must first obtain a
certificate of appealability. 28 U.S.C. § 2253(c)(1)(B). No certificate of appealability is
required for a coram nobis petition, however, so Sutherland could appeal the denial of that
separate petition as of right.
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II.
We begin with the § 2255 petition, which deals solely with Sutherland’s obstruction
conviction.
Under § 2255, “[a] prisoner in custody . . . claiming the right to be released upon
the ground that the sentence was imposed in violation of the Constitution or laws of the
United States” may move “to vacate, set aside or correct the sentence.” 28 U.S.C.
§ 2255(a). Ordinarily, § 2255 requires a district court to “grant a prompt hearing [to]
determine the issues and make findings of fact and conclusions of law with respect” to the
claims. Id. § 2255(b). However, no hearing is required if “the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.” Id.
We review a district court’s denial of § 2255 relief de novo. United States v.
Pressley, 990 F.3d 383, 387 (4th Cir. 2021). Where, as here, the district court denies a
§ 2255 petition without first conducting an evidentiary hearing, “we construe the facts in
the light most favorable to the movant.” Id. Finally, we review a district court’s decision
to forego an evidentiary hearing for abuse of discretion. Conaway v. Polk, 453 F.3d 567,
582 (4th Cir. 2006).
Sutherland’s § 2255 petition is predicated on a Sixth Amendment ineffective
assistance of counsel claim. Such claims are governed by the two-prong framework set out
in Strickland. The first prong—the performance prong—requires a petitioner to
demonstrate that his attorney provided objectively unreasonable performance under
“prevailing professional norms.” Strickland, 466 U.S. at 688. On this score, the Supreme
Court has emphasized that “[j]udicial scrutiny of counsel’s performance must be highly
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deferential.” Id. at 689; accord Cannady,
63 F.4th at 268 (explaining that “counsel enjoys
the benefit of a strong presumption that the alleged errors were actually part of a sound
trial strategy” (citation omitted)). The second prong—the prejudice prong—requires the
petitioner to show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability,” Strickland instructs, “is a probability sufficient
to undermine confidence in the outcome.” Id.; see also id. at 687 (stating that the prejudice
prong “requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable”). Absent either showing, the petitioner’s
ineffective assistance of counsel claim fails. Id. at 687.
In this case, “we need not analyze the sufficiency of counsel’s performance” for
purposes of Sutherland’s § 2255 petition “since it is so clear that counsel’s purported
deficiencies did not prejudice” him. United States v. Terry, 366 F.3d 312, 315 (4th Cir.
2004); see also Strickland, 466 U.S. at 697 (stating that courts may dispose of an ineffective
assistance claim based on a “lack of sufficient prejudice” without first addressing “whether
counsel’s performance was deficient”). Put simply, Sutherland has failed to show how the
proffered testimony from Phillip and a tax expert would have in any way undermined his
obstruction conviction.
According to Sutherland, Phillip would have testified that, despite having “no
education, training or experience in bookkeeping or accounting,” he served as the
bookkeeper for Sutherland’s companies and “unintentionally made numerous mistakes and
omissions” in that role, including with respect to the STS wire transfers central to the tax
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fraud convictions. Opening Br. 12. He also would have supposedly testified concerning his
sister Stewart’s “savvy business acumen” and that “he overheard several telephone
conversations between Sutherland and Stewart discussing loans from STS to Sutherland’s
business entities.” Opening Br. 13. As Sutherland puts it, this testimony would have
“strongly supported the proposition that the subject funds were nontaxable loans and not
income which was a meritorious defense to the charges.” Opening Br. 8.
As for a tax expert, Sutherland claims that he or she would have testified at trial that
almost half of the STS wire transfers came from a line of credit in favor of STS and that
such funds were treated by STS as loans. He or she also would have allegedly testified that
Sutherland failed to deduct numerous business expenses that, if claimed, would have
reduced his total tax liability for the subject tax years. This testimony, Sutherland similarly
contends, would have “(1) strongly supported the proposition that the subject funds were
nontaxable loans and (2) provided evidence that no or only a minimal tax was due for the
years at issue.” Opening Br. 8. 4
The problem for Sutherland is that none of this alleged testimony bears any
relevance to the only conviction at issue in the § 2255 petition—the obstruction conviction.
The evidence necessary to convict Sutherland of that charge depended not on the proper
classification of the STS funds (i.e., nontaxable loans versus taxable income) or the extent
4
To be clear, Sutherland has not produced an affidavit from either Phillip or a “tax
expert” swearing as to the testimony that Sutherland says each would have offered had they
testified at trial. Nonetheless, we assume as the district court did that each would have
testified at trial consistent with Sutherland’s claims.
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of his tax liability, but on his submitting, through his attorney, fabricated loan documents
to the U.S. Attorney’s Office in response to grand jury subpoenas.
To secure a conviction for obstruction of an official proceeding under 18 U.S.C.
§ 1512(c)(2), “[t]he government must show that the defendant (1) corruptly (2) obstructed,
influenced, or impeded (3) an official proceeding, or attempted to do so. The government
must also demonstrate a nexus between the obstructive act and the official proceeding[.]”
Sutherland, 921 F.3d at 425 (cleaned up).
Here, the obstruction count of the indictment charged that Sutherland corruptly
obstructed, influenced, and impeded, or attempted to do so, a federal grand jury proceeding
by “providing one or more false and misleading documents in response to a subpoena
issued by that Grand Jury.” J.A. 23. The petit jury found Sutherland guilty of that count
based on his providing fabricated loan documents to the U.S. Attorney’s Office. And as we
observed in rejecting Sutherland’s direct appeal, that verdict was well supported by the
evidence adduced at trial:
The evidence at trial not only outlined [Sutherland’s] financial
misdeeds . . . but also demonstrated that the loan documents Sutherland sent
to the U.S. Attorney’s office in July 2012 had been fabricated. Read together,
the documents implausibly pledged that Sutherland would give STS 120%
of the proceeds of any sale of his businesses. While the documents had
purportedly been signed by Sutherland’s sister, evidence revealed that
Sutherland commonly signed documents for her. The loan documents from
Sutherland, moreover, conflicted with internal accounting documents from
STS (the purported lender). Finally, the government introduced documents
in which Sutherland claimed to have made loan payments by transferring
interests in his other businesses to STS. But these related documents were
bogus and backdated. A document supposedly signed in 2011, for example,
described how Sutherland’s businesses had received loans from STS in 2011,
2012, and 2013. Legitimate documents do not reference potential future
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transactions in the past tense, just as bona fide loans do not require fake
payment trails.
The jury had little trouble seeing through Sutherland’s manipulations
of his accounting records and attempts to fabricate loan documents to cover
his tracks.
Sutherland, 921 F.3d at 424–25 (emphases added) (cleaned up). 5
The testimony that Sutherland claims Phillip and a tax expert would have given at
trial in no way bears on Sutherland’s culpability as to the obstruction charge, let alone calls
any of the salient record evidence into question. Indeed, (admissible) testimony from these
two witnesses that (1) the STS wire transfers were really nontaxable loans as opposed to
taxable income and (2) Sutherland owed less in total taxes than the Government alleged
for the tax years at issue may have been relevant to the tax fraud counts, which were
predicated on Sutherland’s underreporting his income by mischaracterizing the STS wire
transfers. But such testimony would not have implicated the free-standing obstruction
charge, because that charge never hinged on whether Sutherland filed false tax returns.
Instead, as we have made clear, it was premised on Sutherland’s providing sham loan
documents to the U.S. Attorney’s Office in response to grand jury subpoenas—entirely
separate, and independently unlawful, conduct. And as to that distinct conduct, the
5
“[F]or all practical purposes,” this determination by our Court on direct appeal—
namely, that there was sufficient evidence for a jury to conclude that Sutherland submitted
fabricated loan documents to the U.S. Attorney’s Office—constitutes “the law of the case.”
United States v. Fulks, 683 F.3d 512, 521 (4th Cir. 2012). As such, it applies in full force
in these collateral proceedings absent limited exceptions not satisfied here. See id.
(discussing the “relationship between the direct and the collateral proceedings” and noting
that “the latter is not designed to be a rehash of the former under a more defendant-friendly
standard”); see also United States v. Lentz, 524 F.3d 501, 528 (4th Cir. 2008) (discussing
the law of the case doctrine and its exceptions).
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testimony Sutherland proffers in his § 2255 petition is silent. He makes no claim that either
potential witness had any personal knowledge regarding the loan documents, their
authenticity, or their provision to the U.S. Attorney’s Office. Thus, trial counsel’s failure
to call those two witnesses had no prejudicial effect on Sutherland’s defense with respect
to the obstruction conviction.
Sutherland muses that if the STS wire transfers were in fact properly classified as
nontaxable loans such that he did not actually underreport his taxable income and thus was
not guilty of the tax fraud counts, then there would have been “no need to cover up those
crimes” by presenting fraudulent loan documents to the U.S. Attorney’s Office. Opening
Br. 21, 26. And absent such a need to conceal any wrongdoing, Sutherland implies, he
could not have been found guilty of obstructing the grand jury investigation. We reject this
conjecture for the reasons we have just discussed. Regardless of Sutherland’s “need to
cover up” the tax fraud crimes—and indeed, regardless of his guilt of those crimes—the
evidence presented at trial concerning the fraudulent nature of the loan documents he
submitted to the U.S. Attorney’s Office in response to the grand jury subpoenas was
overwhelming and provided more than a sufficient basis for the jury to convict him of
obstruction.
Absent any showing of prejudice stemming from his trial counsel’s failure to call
Phillip and a tax expert at trial, Sutherland cannot demonstrate ineffective assistance of
counsel with respect to his obstruction conviction. The district court was therefore right to
deny § 2255 relief. And given that the record on this issue is conclusive as to that petition,
the district court did not abuse its discretion in foregoing an evidentiary hearing. See 28
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U.S.C. § 2255(b) (stating that no evidentiary hearing is required where the record
“conclusively show[s] that the prisoner is entitled to no relief”). Accordingly, we affirm
the district court’s judgment as to the § 2255 petition.
III.
We next turn to Sutherland’s separate coram nobis petition, which relates solely to
the three tax fraud convictions.
“The ancient and rare writ of coram nobis affords a district court the authority to
vacate a criminal conviction after a defendant’s sentence has been completely served.”
United States v. McDaniel, 85 F.4th 176, 180 n.2 (4th Cir. 2023). It is a “remedy of last
resort” and “is narrowly limited to extraordinary cases presenting circumstances
compelling its use to achieve justice.” United States v. Akinsade, 686 F.3d 248, 252 (4th
Cir. 2012) (cleaned up).
To obtain this extraordinary relief, a petitioner must satisfy four elements:
(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 controversy requirement of Article
III [of the U.S. Constitution]; and (4) the error is of the most fundamental
character.
Id. (citation omitted).
We review a district court’s denial of coram nobis relief for abuse of discretion.
McDaniel, 85 F.4th at 182.
Although the district court below denied Sutherland’s coram nobis petition solely
based on its finding that Sutherland could not satisfy the fourth element, we agree with the
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Government that we may affirm the district court’s order on the alternative—and, in our
view, easier—ground that Sutherland has not satisfied the second element. See Scott v.
United States, 328 F.3d 132, 137 (4th Cir. 2003) (“We are . . . entitled to affirm on any
ground appearing in the record, including theories not relied upon or rejected by the district
court.”).
On appeal, Sutherland has made no effort to demonstrate why he could not have
attacked his tax fraud convictions on ineffective assistance grounds earlier, despite the
availability of § 2255 relief while he was still in custody for those convictions. His opening
brief included no discussion of that essential element, or any of the other coram nobis
elements. Sutherland’s first mention of the coram nobis elements came in his reply brief,
after the Government raised the issue in its response brief. And even then, Sutherland did
not purport to explain why he could not have attacked his tax fraud convictions earlier.
Instead, he asserted that this element “is not at issue” because “this Court did not identify
timeliness as among the issues on appeal” in the certificate of appealability. Reply Br. 4.
But the certificate of appealability matters only for purposes of the § 2255 petition; it plays
no role in framing the issues on appeal as to the separate coram nobis petition, the denial
of which Sutherland could appeal as of right—that is, without first obtaining a certificate
of appealability. Compare 28 U.S.C. § 2253(c)(1)(B) (“Unless a circuit justice or judge
issues a certificate of appealability, an appeal may not be taken to the court of appeals from
. . . the final order in a proceeding under section 2255.”), and id. § 2253(c)(3) (requiring
the certificate of appealability to identify the “specific issue or issues” to be addressed on
appeal in connection with the § 2255 petition), with 28 U.S.C. § 1651 (All Writs Act
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empowering federal courts to issue writs of error coram nobis but including no
corresponding certificate of appealability requirement). Contrary to Sutherland’s claim,
therefore, whether valid reasons exist for not attacking the tax fraud convictions earlier is
very much “at issue” in this appeal. And Sutherland’s total failure to address that issue in
his opening brief constitutes a waiver of any argument that he may have had regarding it.
See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party waives
an argument by failing to present it in its opening brief or by failing to develop its
argument—even if its brief takes a passing shot at the issue.” (cleaned up)). That waiver
alone provides a sufficient basis to affirm the district court’s order.
Even putting the waiver issue aside, nothing in the record before us remotely
suggests that Sutherland had valid reasons for not attacking his tax fraud convictions earlier
by way of a § 2255 petition while he was still in custody for those convictions. Critically,
the facts that form the basis of his ineffective assistance of counsel claim were facts that
Sutherland knew as early as trial in October 2016 and as late as sentencing in June 2017.
Specifically, he knew that neither witness had been called to testify at trial. And he knew
that the testimony of each was potentially relevant to his defense: Phillip was available and
expected to testify at trial until the last moment and a tax expert testified at his sentencing
hearing. Despite that knowledge, Sutherland never challenged his tax fraud convictions on
the basis that counsel was ineffective for failing to call these witnesses at any point after
his convictions were final and before he was released from custody for those convictions
in March 2020. Instead, he waited until February 2021, nearly a year after he was released
from custody when § 2255 relief was no longer available, before lodging such a challenge.
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Such circumstances bear no resemblance to those in which this Court has found the second
coram nobis element satisfied. See, e.g., Bereano v. United States, 706 F.3d 568, 576 (4th
Cir. 2013) (finding that petitioner’s “reason for not launching an earlier attack on his
conviction [was] valid” because it was based on a Supreme Court decision that had been
“recently rendered”); McDaniel, 85 F.4th at 183 (“The second requirement — timeliness
— is also satisfied because McDaniel sought relief less than a year after the Supreme
Court’s Johnson decision was rendered[.]”); Akinsade, 686 F.3d at 252 (finding the second
coram nobis element satisfied where the petitioner “had no reason to challenge the
conviction” earlier “as his attorney’s advice, up to that point in time, appeared accurate”).
What’s more, even after being alerted to this issue on appeal, Sutherland still has
not provided any valid explanation for the delay in attacking the tax fraud convictions on
ineffective assistance grounds. Rather, both in his reply brief and at oral argument,
Sutherland merely asserted that “there is no deadline to file a petition for coram nobis.”
Reply Br. 7; accord Reply Br. at 4 (“[T]he time for filing a coram nobis petition is not
subject to a specific statute of limitations.”). That may be true, but it is also beside the
point. The absence of a formal “deadline” for filing a coram nobis petition does not relieve
a petitioner of his burden to affirmatively demonstrate that “valid reasons exist for not
attacking the conviction earlier.” Akinsade, 686 F.3d at 252. 6
6
Sutherland also speculates that filing a § 2255 petition would have been premature
given the pendency of his direct appeal. But as the Government notes, there is no
jurisdictional bar to filing a § 2255 petition during the pendency of a direct appeal. See
United States v. Prows, 448 F.3d 1223, 1228 (10th Cir. 2006); United States v. Rashid,
546
F. App’x 234, 235 (4th Cir. 2013) (per curiam). Thus, Sutherland could have filed a § 2255
(Continued)
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In sum, therefore, the record reveals that Sutherland had all the information he
needed to challenge his tax fraud convictions in a § 2255 petition while he was still in
custody for those convictions. Yet he waited nearly a year after his release from custody to
bring any challenge with no legitimate explanation for the delay. Consequently, even had
he not waived the issue, Sutherland’s failure to provide “valid reasons . . . for not attacking
the [tax fraud convictions] earlier,” id., would foreclose any entitlement to the
“‘extraordinary’ remedy of coram nobis relief,” Bereano, 706 F.3d at 579.
IV.
For these reasons, we affirm the district court’s order below.
AFFIRMED
petition even while his direct appeal was pending and simply moved to stay the § 2255
proceedings pending the resolution of the direct appeal. In any event, moreover, Sutherland
was still in custody for the tax fraud convictions when the Supreme Court denied certiorari
in his direct appeal, meaning that he did in fact have the opportunity to file a § 2255 petition
after his direct appeal had concluded. But, without explanation, he let that opportunity pass
him by.
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