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Serrano-Vargas v. United States

United States District Court, D. South Dakota, Southern Division

December 7, 2018

EVARISTO SERRANO-VARGAS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         This matter is before the court on the pro se petition for a writ of coram nobis by petitioner Evaristo Serrano-Vargas. See Docket No. 1. Now pending is respondent the United States of America's (hereinafter “government”) motion to dismiss Mr. Serrano-Vargas' petition without holding an evidentiary hearing. See Docket No. 10. Mr. Serrano-Vargas opposes the motion. See Docket No. 12. This matter has been referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, United States District Judge.

         FACTS

         The facts pertinent to Mr. Serrano-Vargas' petition are as follows. On January 10, 2011, he was charged by complaint and later by indictment with making a false claim to citizenship (in violation of 18 U.S.C. § 911) and knowingly using an identification document, a Social Security card, that was not issued lawfully for his use, in violation of 18 U.S.C. § 1546(b)(1). See United States v. Serrano Vargas, 4:11-cr-40010-KES, (hereinafter “CR”), Docket Nos. 1 and 18.

         On February 28, 2011, Mr. Serrano-Vargas filed a petition to plead guilty to count two of the indictment charging him with using the Social Security card unlawfully. See CR Docket No. 23. As part of his petition, Mr. Serrano-Vargas stated under oath that on July 23, 2009, he used a Social Security card which he knew had been falsely made so as to get a job in the United States. Id. at p. 13, ¶ 47. At sentencing, the district court sentenced Mr. Serrano-Vargas to time served. Id. at Docket No. 26.

         Mr. Serrano-Vargas alleges he was deported from the United States following his 2011 conviction in this court. On February 25, 2016, he was found in the Northern District of Iowa without permission to be in the United States. He was indicted for illegally re-entering the United States in the Northern District of Iowa, in violation of 8 U.S.C. § 1326(a). See United States v. Serrano-Vargas, 1:16-cr-00021-LRR (hereinafter “Iowa CR”), Docket No. 2 (N.D. Iowa Mar. 23, 2016). He pleaded guilty and was sentenced to eight months' incarceration on July 28, 2016. See Iowa CR Docket No. 22.

         Mr. Serrano-Vargas is now no longer in federal custody pursuant to either of the above convictions. He is, however, in the custody of Immigration and Customs Enforcement (ICE), presumably awaiting deportation again. He now seeks relief from his 2011 conviction pursuant to a writ of coram nobis. He alleges his 2011 conviction was invalid because a Social Security card is not an identification card under 18 U.S.C. § 1546(b)(1). See Docket No. 1. He further alleges his court-appointed counsel was ineffective in his 2011 case for advising him to plead guilty to a violation of § 1546(b)(1) for using a fraudulent Social Security card. Id.

         The government moves to dismiss Mr. Serano-Vargas' petition without a hearing. The government asserts (1) Mr. Serano-Vargas has not alleged sufficient grounds to satisfy the extraordinary requirements for issuing coram nobis relief (namely new law or newly-discovered evidence) and (2) even if he can make a threshold showing generally, he has not shown trial counsel rendered constitutionally ineffective service. See Docket No. 11. Mr. Serrano-Vargas resists the government motion. See Docket No. 12.

         DISCUSSION

         A. Standard Applicable to Petitions for Writs of Coram Nobis

          A person convicted of a federal crime who is no longer in federal custody of any kind (not even supervised release) at the time he files his § 2255 motion cannot obtain habeas relief. However, he can attack his sentence using a writ of coram nobis. Baranski v. United States, 880 F.3d 951 (8th Cir. 2018); Kandiel v. United States, 964 F.2d 794 (8th Cir. 1992). The scope of coram nobis is more limited than the scope of § 2255: “coram nobis is an extraordinary remedy available at the far end of a post-conviction continuum only for the ‘most fundamental errors,' . . .” Baranski, 880 F.3d at 956 (quoting United States v. Morgan, 346 U.S. 502, 512 (1954)).

         Citing the Baranski case, the government argues Mr. Serrano-Vargas must comply with the standard for filing a second or successive petition under 28 U.S.C. § 2255. Mr. Serrano-Vargas argues the standard for second or successive § 2255 petitions should not apply to him because he has never filed a § 2255 petition or any other request for post-conviction collateral relief before filing his petition in this case. The petitioner in Baranski, by contrast, had filed a prior § 2255 petition before filing his petition for a writ of coram nobis. Baranski, 880 F.3d at 953-54.

         In addition, Mr. Serrano-Vargas asserts he is “actually innocent.” See Docket No. 1. But he clearly is not asserting such a claim. He never argues that he did not possess a Social Security card which he knew was fraudulently issued. Rather, he argues a variety of technical innocence, not factual innocence claims. He argues that a fraudulently-issued Social Security card cannot constitute an identification document under § 1546. This does not meet the Supreme Court's definition of “actual innocence.” “Actual innocence” is not an independent constitutional claim upon which habeas relief can be granted; instead, it is “a gateway through which a habeas petitioner must pass to have his otherwise [procedurally] barred constitutional claim considered on the merits.” Schlup v. Delo, 513 U.S. 298, 315 (1995). Actual innocence means factual innocence, it does not mean mere legal insufficiency. Bousley, 523 U.S. at 623. Actual innocence claims are rarely successful as they require the petitioner to carry an exacting burden. Schlup, 513 U.S. at 324.

         In order to show actual innocence, Mr. Serrano-Vargas must (1) produce “new reliable evidence” not presented previously; and (2) he must “show that, in light of all the evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt of the crime for which he pleaded guilty and was convicted.” Schlup, 513 U.S. at 324; United States v. Apker, 174 F.3d 934, 938-39 (8th Cir. 1999).

         Evidence is “new” only if it was not available at the time of the plea and if it could not have been discovered earlier through the exercise of due diligence. Johnson v. Norris, 170 F.3d 816, 818 (8th Cir. 1999). A petitioner can make the new evidence showing only where he demonstrates that the factual basis for the evidence did not exist at the time of the plea and could not have been presented earlier. Id. The evidence must not only be “new” but it must also be “reliable.” Schlup, 513 U.S. at 324.

         Here, Mr. Serrano-Vargas cites no new evidence. Rather, he cites legal authority (discussed in detail below) which pre-dated his 2011 guilty plea by several years. Suffice it to say that Mr. Serrano-Vargas has not pleaded in his petition, or shown the court in subsequent court filings, that he has any new evidence. As such, the court disregards his claim ...


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