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U.S. v. ALFARO-HERRERA

United States District Court, N.D. Illinois, Eastern Division


October 18, 2004.

UNITED STATES OF AMERICA, Respondent,
v.
ERNESTO ALFARO-HERRERA, Petitioner.

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge

MEMORANDUM ORDER

Ernesto Alfaro-Herrera ("Alfaro")*fn1 has filed a pro se document captioned "Petition for Writ of Nature Coram Nobis To Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 1651" ("Petition"), in which he (not a United States citizen) seeks relief because he was not advised of his potential removal (formerly deportation) in consequence of his having pleaded guilty to a drug offense charged in a superseding information. Because Alfaro has already served his 24-month custodial sentence, habeas relief is unavailable to him — hence his attempted invocation of a writ of error coram nobis.

But in that respect Alfaro cannot surmount the legal hurdles in his path:

1. Like habeas corpus, the coram nobis remedy requires a showing that the petitioner has suffered a violation of his constitutional rights (see, e.g., United States v. Scherer, 673 F.2d 176, 178 (7th Cir. 1982)). On that score Alfaro has acknowledged that neither his defense counsel nor this Court had a constitutionally-mandated obligation to apprise him of that collateral consequence of his felony conviction. As to defense counsel, see, e.g., Santos v. Kolb, 880 F.2d 941, 944-45 (7th Cir. 1989). And as to this Court, even apart from the fact that no case suggests the existence of such a judicial obligation, the first time that a district judge normally learns of a defendant's status as a noncitizen (except where the criminal offense itself is a function of such alienage) is on receipt of the presentence investigation report — well after the entry of a guilty plea. To this Court's recollection, that was the case here.
2. If the Petition were to be looked at instead simply as a motion challenging Alfaro's sentence, this Court would be without jurisdiction to grant such relief (see Fed.R. Crim. P. 35).
Accordingly the Petition must be, and it is, denied summarily.


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