United States v. Verrengia

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20885
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AUGUSTINE ANTHONY VERRENGIA,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
USDC Nos. H-97-CV-3247 & H-94-CR-37-1
April 18, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
In 1994, Augustine Anthony Verrengia pled guilty to violating
the Anti-Kickback Act of 1986.1 Verrengia neither appealed his
conviction nor sought relief under 28 U.S.C. § 2255. Verrengia paid
the required fines and restitution and has successfully completed
his term of probation.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
See 41 U.S.C. §§ 53, 54 (2001).
In 1997, Verrengia filed a motion for writ of error coram
nobis to set aside his conviction.2 He alleged various sources of
newly discovered evidence and asserted jurisdictional defects in
the original proceedings. In addition, he argued that the Anti-
Kickback Act was unconstitutional. Verrengia further argued that
his guilty plea was involuntary due to ineffective assistance of
counsel. Verrengia also contends that he suffered from impaired
mental capacity at the time of his plea due to coercive
interrogation by government agents. According to Verrengia, his
compromised mental state rendered his plea involuntary.
Coram nobis is not a substitute for appeal. The writ should
only issue to correct errors that result in a complete miscarriage
of justice.3 The coram nobis petitioner must demonstrate "that he
is suffering civil disabilities as a consequence of the criminal
conviction and that the challenged error is of sufficient magnitude
to justify the extraordinary relief."4 Courts reviewing an
application for a writ of coram nobis presume that the underlying
judicial proceedings were correct. The applicant bears the burden
of demonstrating otherwise.5
2
See 28 U.S.C. § 1651(a) (2001).
3
See United States v. Dyer, 136 F.3d 417, 422 (5th Cir.
1998).
4
United States v. Drobny, 955 F.2d 990, 996 (5th Cir. 1992).
5
See Dyer, 136 F.3d at 422.
2
At the outset, it is doubtful that Verrengia has demonstrated
a "civil disability" sufficient to support the issuance of a writ
of coram nobis.6 Nor is it clear from the record that sound reasons
exist for Verrengia's failure to seek appropriate earlier relief.7
Moreover, assuming that Verrengia's guilty plea is voluntary and
unconditional, the plea negates the validity of his remaining non-
jurisdictional arguments.8 We must therefore address Verrengia's
contention that his plea was involuntary.
A guilty plea does not waive a claim of ineffective assistance
of counsel where the inadequacy of counsel's performance renders
the plea involuntary.9 Verrengia must show that "there is a
reasonable probability that, but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to trial."10
The district court found that the assistance provided by
Verrengia's lawyer, Scott, was constitutionally adequate, falling
within the realm of "strategic decisions within the attorney's
discretion." Upon review of the record, we can not say that this
conclusion was erroneous. We find no error in the court's
determination that Verrengia was competent to plead and that he
6
See id. at 425, 429-30.
7
See id. at 422.
8
See United States v. Wise, 179 F.3d 184, 186 (5th Cir.
1999).
9
See Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983).
10
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
3
entered into an informed and voluntary guilty plea. The court based
its findings on Scott's affidavit and on its previous observations
of Verrengia at the rearraignment hearing. Although the district
court did not conduct a hearing on the coram nobis motion, the
affidavit submissions and the court's observations of the defendant
at the time he entered his plea amply justify denial of the
requested writ.11
Finally, we find Verrengia's jurisdictional arguments to be
without merit. They are either conclusory in nature or merely
support his contention that no crime was committed. We further note
that Verrengia waived his claim that the Anti-Kickback Act is
unconstitutional by failing to raise the issue before the district
court.12 We emphasize the extraordinary nature of the writ
requested; the decidedly narrow circumstances under which such a
writ may issue are not before us today. In light of the preceding,
we hereby AFFIRM the district court's denial of Verrengia's coram
nobis motion.
AFFIRMED.
11
See Owens v. United States, 551 F.2d 1053, 1054 (5th Cir.
1977) (holding that a district court may rely on affidavit and
record evidence to support its denial of relief under 28 U.S.C. §
2255).
12
See United States v. Samuels, 59 F.3d 526, 529-30 (5th Cir.
1995).
4