United States v. Garcia

Full title: UNITED STATES OF AMERICA, Plaintiff, v. MARSIAL GARCIA, Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Date published: Jun 4, 2021

Case No. CR-13-191-F (W.D. Okla. Jun. 4, 2021)

Opinion

CR-13-191-F

06-04-2021

UNITED STATES OF AMERICA, Plaintiff, v. MARSIAL GARCIA, Defendant.

STEPHEN P. FRJOT, UNITED STATES DISTRICT JUDGE

ORDER

STEPHEN P. FRJOT, UNITED STATES DISTRICT JUDGE

Defendant Marsial Garcia, appearing pro se, has filed a motion for a writ of coram nobis pursuant to 28 U.S.C.§ 1651. Doc. no. 216. Plaintiff United States of America has responded, opposing the requested relief. Doc. no. 237. Defendant has replied. Doc. no. 239.¹ Upon due consideration, the court finds defendant's motion should be denied.

1 Although defendant, in document number 239, asks for an emergency summary judgment, the court construes the document as a reply in support of defendant's motion rather than a motion for summary judgment. “‘[T]here is no summary judgment procedure in criminal cases.'” United States v. Rodrigues, 847 Fed.Appx. 609 (11^th Cir. 2021) (quoting United States v. Critzer, 951 F.2d 306, 307 (11^th Cir. 1992)).

At the outset, “a petition for a writ of coram nobis is available only to a person ‘who is no longer “in custody” and therefore cannot seek habeas relief.'” United States v. Palmer, 802 Fed.Appx. 315, 317 (10^th Cir. 2020) (quoting Chaidez v. United States, 568 U.S. 342, 345 n.1 (2013)). Defendant is currently in custody serving the sentence imposed by the court. Therefore, defendant is ineligible for a writ of coram nobis.

In addition, a court may not grant a writ of coram nobis on grounds defendant “could have . . . raised on direct appeal, through a [28 U.S.C.] § 2255 motion, or in any other prior collateral attack on the conviction or sentence.” United States v. Miles, 923 F.3d 798, 804 (10^th Cir.), cert denied, 140 S.Ct. 470 (2019). The grounds raised by defendant in his motion are grounds that could have been raised on direct appeal or through a § 2255 motion.²

2 The fact that plaintiff may have raised waiver of appellate and post-conviction rights to preclude relief on direct appeal or through a § 2255 motion does not authorize defendant to challenge his conviction or sentence through a writ of coram nobis. See, United States v. Vasquez, 515 Fed.Appx. 757, 758 (10^th Cir. 2013) (unpublished decision cited as persuasive pursuant to 10^th Cir. R. 32 1(A)).

Accordingly, the motion of defendant Marsial Garcia for a writ of coram nobis pursuant to 28 U.S.C. § 1651 (doc. no. 216) is DENIED.