United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR., JUDGE.
Toma Vaglarski seeks to withdraw his 2013 guilty plea and
vacate his conviction through the present petition for writ
of error coram nobis. Petitioner alleges he did not validly
waive his rights before entering the guilty plea because he
was not informed of those rights by this Court. For the
reasons set forth below, the writ is DENIED.
Vaglarski was pulled over for a broken taillight while
driving in Shasta Trinity National Forest on August 22, 2013.
He was found to have 247 grams of marijuana, 507 grams of
concentrated cannabis, and under $3, 000 in cash. He also
provided the officer with his state-issued medical marijuana
exemption card. On November 5, 2013, he pleaded guilty and
was convicted of possession of a controlled substance under 8
USC § 844.
alleges he: (1) was not advised of the immigration
consequences of his guilty plea; (2) does not recall being
asked to waive his right to counsel; and (3) was not asked to
waive his right to trial, to confront his accusers, to
cross-examine witnesses, and “other constitutional
is no extant record of the November 5, 2013 plea colloquy.
writ of coram nobis allows a court to vacate its judgment for
errors of fact that are so fundamental in character as to
render the proceeding invalid. Hirabayashi v. U.S.,
828 F.2d 591, 604 (9th Cir. 1987) (citing United States
v. Mayer, 235 U.S. 55, 69 (1914)). To qualify for coram
nobis relief, the burden falls on the petitioner to show:
“(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;
and (4) the error is of the most fundamental
entering a guilty plea, a defendant “waives several
constitutional rights, including his privilege against
compulsory self-incrimination, his right to trial by jury,
and his right to confront his accusers. For this waiver to be
valid under the Due Process Clause, it must be ‘an
intentional relinquishment or abandonment of a known right or
privilege.'” McCarthy v. U.S., 394 U.S.
459, 466 (1969) (quoting Johnson v. Zerbst, 304 U.S.
458, 464 (1938)). Where, as here, the attack on the final
judgment is collateral, the petitioner has the burden of
proving his waiver of rights was not knowing and intentional.
Parke v. Raley 506 U.S. 20, 31 (1992); Iowa v.
Tovar 541 U.S. 77, 92 (2004) (“[I]n a collateral
attack on an uncounseled conviction, it is the
defendant's burden to prove that he did not competently
and intelligently waive his right to the assistance of
difficult burden is made even more onerous because no record
of the plea colloquy exists. He contends that in light of a
silent record, courts may not assume a defendant knowingly
and competently waived his constitutional rights upon
entering a guilty plea. Boykin v. Alabama, 395 U.S.
238, 243 (1969).
the Supreme Court has distinguished Boykin, holding
that its reasoning does not translate to cases of collateral
attack. Parke v. Raley, 506 U.S. 20, 30 (1992)
(“On collateral review, we think it defies logic to
presume from the mere unavailability of a transcript
(assuming no allegation that the unavailability is due to
governmental misconduct) that the defendant was not advised
of his rights.”). The Ninth Circuit interpreted that
case to create a presumption of regularity that a defendant
intelligently and voluntarily entered a guilty plea when the
record is silent or ambiguous. U.S. v. Mulloy, 3
F.3d 1337, 1339 (9th Cir. 1993).
claim Petitioner cannot meet his burden of demonstrating
fundamental error because he cannot show he was neither
advised of nor waived his rights. Indeed, Petitioner's
declaration does not meet his burden of showing fundamental
error. U.S. v. Allen 153 F.3d 1037, 1041 (9th Cir.
1998) (citing Cuppett v. Duckworth 8 F.3d 1132, 1139
(7th Cir. 1993) (en banc) (“self-serving statements by
a defendant that his conviction was constitutionally infirm
are insufficient to overcome the presumption of regularity .
. . .”)).
claim that Rule 11 obligated the Court to inform him of the
immigration consequences of his guilty plea suffers from the
additional failing that at the time of his plea, Rule 11
contained no such requirement. Rule 11(b)(1)(O) currently
obligates district courts to inform defendants entering a
guilty plea that there are potential immigration
consequences. However, that amendment did not take effect
until December 1, 2013, nearly one month after Petitioner
entered his plea on November 5, 2013. Consequently, the Court
was not obligated to ...