United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE.
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 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.
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.
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.
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.
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.
Standard Applicable to Petitions for Writs of Coram
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)).
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.
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.
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
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.
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 ...