United States District Court, N.D. Illinois, Eastern Division
October 18, 2004.
UNITED STATES OF AMERICA, Respondent,
ERNESTO ALFARO-HERRERA, Petitioner.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
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
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.