Opinion
SA-21-CV-610-XR SA-12-CR-642-XR-2
01-18-2022
OMAR JOSE CALZADA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE
Before the Court are Movant Omar Jose Calzada's “Petition for Writ of Error Coram Nobis to Remedy Void Order and Fraud Upon the Court” (ECF No. 174), the Government's Response in Opposition Thereto (ECF No. 182); and Calzada's Reply (ECF No. 183). Also before the Court are Calzada's “Emergency Motion for a Temporary Restraining Order and Preliminary Injunction” and Supplement (ECF Nos. 177 & 178); “Motion to Set Hearing Date” and Supplement (ECF Nos. 184 & 188); “Motion for Partial Summary Judgment” (ECF No. 185), and “Motion for Directed Verdict” (ECF No. 186). For the following reasons, Calzada's Petition seeking a writ of error coram nobis is DENIED and all remaining motions are DISMISSED AS MOOT.
BACKGROUND
The following factual background was derived from Calzada's Plea Agreement. (ECF No. 81). In March of 2012, San Antonio Police Department (SAPD) Narcotics Detectives began an investigation of an alleged marijuana grow at 10211 Dancing Brook in San Antonio, Texas. Surveillance revealed two individuals associated with this house: Omar Jose Calzada and Frank Ybarra III. Both Calzada and Ybarra were observed individually entering and exiting the house.
The lease for the house and the utilities for the location were in Ybarra's name. During periods of surveillance, Calzada was seen at the house more frequently than Ybarra.
On June 28, 2012, SAPD detectives obtained and executed a state search warrant at 10211 Dancing Brook. Prior to executing the warrant, officers observed Calzada arrive at the residence, go inside for a short time and then leave, locking the front door behind him. Officers stopped Calzada a short time later and discovered a mason jar filled with buds of hydroponic marijuana in a bag in his vehicle. Calzada was returned to the residence on Dancing Brook.
Upon executing the search warrant, officers found 715 live marijuana plants, along with paraphernalia for harvesting, drying, and packaging marijuana in the house. In addition, officers found $4,000.00 in U.S. currency in the coffee table drawer downstairs where the marijuana was being dried and packaged. Officers also found receipts in Calzada's name on the kitchen counter, relating to the purchase of components used to grow the marijuana.
Based on the execution of the warrant, the Government filed a criminal Complaint charging Calzada with possession with intent to distribute 100 or more marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). (ECF No. 1). On July 11, 2012, a grand jury returned a two-count Indictment charging Calzada with conspiracy to manufacture more than 100 marijuana plants in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 (Count One) and aiding and abetting the manufacture of more than 100 marijuana plants in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2 (Count Two). (ECF No. 23). Calzada retained attorney Jorge G. Aristotelidis to represent him. (ECF No. 9).
Through counsel, Calzada filed a motion to suppress evidence discovered at 10211 Dancing Brook following the execution of the search warrant, records obtained regarding electricity usage, the jar containing hydroponic marijuana found in Calzada's vehicle, a key to the house found on Calzada's person, and statements Calzada made following his arrest. (ECF No. 35). Calzada challenged the validity of the affidavit in support of the search warrant on the grounds that it was a “bare bones” affidavit lacking in probable cause and that the good-faith exception to the exclusionary rule did not apply. (Id.). As an exhibit to his suppression motion, Calzada submitted a copy of the Bexar County search warrant along with the sworn affidavit completed by SAPD Detective Chad Culp, the detective who initiated the investigation. (ECF No. 35 at 26-28). The warrant and affidavit bore warrant log #979036 as well as the signature of the issuing judge and the seal of the District Clerk of Bexar County, Texas.
In Response, the Government, through Assistant United States Attorney (AUSA) Karen Norris, argued that the affidavit contained sufficient probable cause to support the search warrant and that Calzada lacked standing to challenge the search and the inclusion of electrical use figures contained in the warrant affidavit because he had no reasonable expectation of privacy at the Dancing Brook residence. (ECF No. 40). As an exhibit to its Response, the Government also submitted a copy of the search warrant and affidavit. (ECF No. 40-1).
On March 12, 2013, after the parties submitted additional briefing, the Court held a hearing on the motion to suppress. (ECF No. 92). Calzada testified during this hearing pursuant to Simmons v. United States, 390 U.S. 377 (1968), and the Government called Detective Culp to testify. At the hearing, Ms. Norris moved to admit the actual warrant and affidavit. (ECF No. 92 at 76). Mr. Aristotelidis did not object. (Id.). The Court admitted the exhibit into evidence (Id. at 77).
The Court concluded that Calzada had standing to contest the search of the house but denied the motion to suppress. (ECF No. 62). The Court determined that the affidavit in support of the search warrant was not a “bare bones” affidavit and that Calzada had no standing to challenge the disclosure of electricity records to the police. The Court further concluded, in the alternative, that Calzada had no legitimate expectation of privacy in this data. The Court further found that the “good-faith exception” to the exclusionary rule applied, and in the alternative, there was probable cause to support the issuance of the warrant. The Court further found that Calzada's arrest was supported by probable cause.
Calzada pleaded guilty to Count One of the Indictment pursuant to a conditional Plea Agreement. (ECF No. 81). Pursuant to his guilty plea, Calzada admitted that he and Ybarra together leased the house for the purpose of conducting a marijuana growing operation. Calzada faced a Guidelines imprisonment range of 24-30 months based on a total offense level of 17 and a criminal history category of I. (ECF No. 129 at 40). On August 21, 2014, the Court sentenced Calzada to time-served, a four-year term of supervised release, and a $100.00 special monetary assessment. (ECF No. 115).
Calzada appealed this Court's denial of the motion to suppress on the grounds that the only support for the search warrant was a “bare bones” affidavit that presented misleading information to the magistrate judge, and as a result, this Court erred in applying the good-faith exception to the exclusionary rule. United States v. Calzada, No. 14-50925 (5th Cir. 2015). On November 6, 2015, the Fifth Circuit affirmed this Court's denial of the motion to suppress. (ECF No. 160). The appeals court concluded that Detective Culp's affidavit “is far from wholly conclusional and thus does not constitute a bare bones affidavit.” (Id. at 3). The Fifth Circuit further held that this Court did not err in concluding that the good-faith exception applied. (Id.).
While Calzada's direct appeal was pending, the Government moved to revoke his term of supervised release for failure to complete his intermittent confinement. (ECF No. 146). Following a hearing, the Court revoked Calzada's term of supervised release on January 26, 2015, and re-sentenced him to time-served and a forty-eight-month term of supervised release. (ECF No. 150).
On May 2, 2016, the Supreme Court denied Calzada's Petition for Writ of Certiorari. (ECF No. 161). Calzada completed his term of supervision on January 21, 2019.
On April 29, 2021, Calzada filed a self-styled “Motion to Vacate Judgment-Rule 60(b)(4)” and supplement thereto asserting that this Court was without jurisdiction to deny the motion to suppress because the state search warrant and affidavit were improperly admitted into evidence at his suppression hearing. (ECF No. 164). The Court construed the motion as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and provided Calzada the notice required by Castro v. United States, 540 U.S. 375, 383 (2003). (ECF No. 166). Thereafter, Calzada filed a supplement to the motion (ECF No. 167), an amended § 2255 motion and supplement (ECF Nos. 168 & 169), and a self-styled “Notice of Retaliation- Federal Criminal Offense pursuant to 18 U.S. Code § 1513” and supplement. (ECF Nos. 170 & 171).
After entering the order construing Calzada's self-styled Rule 60(b) motion as § 2255 motion, the Court was informed that Calzada completed his term of supervised release on January 21, 2019, and was released from custody. Accordingly, the Court dismissed the amended § 2255 motion without prejudice to filing a petition for a writ of error coram nobis, which is the proper avenue for collateral attack by a person who has been released from custody. (ECF No. 172).
Calzada then filed the pending “Petition for Writ of Error Coram Nobis to Remedy Void Order and Fraud Upon the Court, ” which is forty-eight pages in length and contains 351 pages of exhibits. (ECF No. 174). The Government filed a Response to the Petition (ECF No. 182), and Calzada filed a Reply. (ECF No. 183).
Although Calzada makes myriad allegations, the gravamen of his coram nobis claim is that the state search warrant and affidavit were improperly admitted into evidence at the hearing on his motion to suppress. According to Calzada, the search warrant and affidavit were inadmissible under Federal Rule of Evidence 902(4) because although they contained the seal of the District Clerk of Bexar County, they did not contain a certificate of authentication or testimony of the designated state court custodian of records from the Bexar County Clerk's Office. Calzada further claims that Ms. Norris fraudulently moved to admit the exhibit at the suppression hearing in violation of Rule 60(b) of the Federal Rules of Civil Procedure.
Fed.R.Evid. 902(4) provides that “a copy of an official record--or a copy of a document that was recorded or filed in a public office as authorized by law” requires no extrinsic evidence of authenticity “if the copy is certified as correct by:(A) the custodian or another person authorized to make the certification; or(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.”
Calzada further asserts that the warrant and affidavit did not qualify as certified copies of public records pursuant to Rule 902(4) because they were never logged or filed in the Bexar County District Clerk's Office. Calzada alleges that he conducted an “audit” of the Bexar County District Clerk in 2019, wherein he discovered that the warrant qualifier logbook does not show that a state officer applied for search warrant #979036. He also claims that the Certified Criminal History Record Information Data Sheet for Bexar County Court does not show that Calzada was arrested or booked based on warrant #979036, no state police report of his June 28, 2012 arrest was filed, and there was no witness to the filing of the warrant.
Calzada further alleges that the Bexar County District Clerk refused to provide a certified copy of the warrant #979036 in connection with his purported audit. Based on his belief that he was arrested without a valid warrant, Calzada argues that this Court lacked jurisdiction to deny his motion to suppress, which renders the Court's order denying his motion to suppress void under Rule 60(b)(3) and (4) of the Federal Rules of Civil Procedure.
Calzada also alleges the existence of a broad conspiracy wherein employees of the Bexar County District Clerk's Office fabricate warrant documents that were not issued by a magistrate as required by Chapter 18 of the Texas Code of Criminal Procedure. Calzada maintains that the search warrant in his case was one such fabricated document, and the Bexar County Clerk's Office, the AUSA, and Calzada's own counsel conspired to admit the fraudulent document at his suppression hearing. According to his own submissions, Calzada's quest to obtain information from the Bexar County Clerk in connection to his purported audit resulted in the filing of criminal harassment charges against him. Calzada alleges the harassment charges are retaliatory and seeks an injunction from this Court to “halt state court proceedings” in the harassment case. (ECF No. 174 at 45).
In response, the Government argues that there are no circumstances that compel granting the writ because Calzada was properly convicted, his challenges to the search warrant have been thoroughly litigated, and he does not demonstrate the kind of fundamental error that supports coram nobis relief. The Government further asserts that the search warrant and affidavit do in fact exist in the Bexar County records. AUSA Matthew Lathrop obtained a copy of the warrant and affidavit along with the certification of a deputy district clerk from Bexar County and submitted the document with the Government's Response. (ECF No. 182-1). The Government further asserts that Calzada's allegations of a conspiracy between his attorney, the prosecuting AUSA, and the Bexar County Clerk's Office are baseless. Moreover, the Government argues that the coram nobis Petition is untimely.
In his Reply to the Government's Response, Calzada argues that the copy of the warrant produced by AUSA Lathrop is invalid according to Texas state criminal procedure because the name of the magistrate judge is not printed below the signature line and because no search warrant return was included in the filing.
In addition to the coram nobis Petition, Calzada filed various motions and notices regarding the harassment charges brought against him in state court. (ECF Nos. 170, 171, 176, 177 & 178). Calzada asserts he is a federal “victim/witness” pursuant to 18 U.S.C. § 1513 because his “audit” of the Bexar County District Clerk's Office was performed in connection with this federal criminal case. (ECF No. 176 at 2). Calzada alleges that state officers filed harassment charges against him and initiated a competency proceeding in retaliation for Calzada exposing a “warrant scandal” at the Bexar County Clerk's Office.
Calzada moves this Court for a temporary restraining order and preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure enjoining the “USA Attorney, District Clerk of Bexar County, Tx, District Attorney of Bexar County, Tx and all Bexar County State Judges presiding over State courts in use of the District Clerk's Warrant system of Bexar County and all persons acting on behalf, from Issuing, executing or performing any form of an arrest warrant, capias warrant or any form of a restraint/arrest of any nature on Plaintiff-Omar Jose Calzada until this Court reaches a resolution for the Coram Nobis Cause of Action.” (ECF No. 177 at 1).
LEGAL STANDARDS
“The writ of coram nobis is an extraordinary remedy available to a petitioner no longer in custody who seeks to vacate a criminal conviction in circumstances where the petitioner can demonstrate civil disabilities as a consequence of the conviction, and that the challenged error is of sufficient magnitude to justify the extraordinary relief.” Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996) (citation omitted). A petitioner seeking the writ must show: (1) a continuing civil disability as a consequence of her prior conviction, United States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994); that (2) she exercised “reasonable diligence in seeking prompt relief, ” United States v. Dyer, 136 F.3d 417, 427 (5th Cir. 1998) (internal quotations omitted) (citing United States v. Morgan, 346 U.S. 502, 512 (1954)); (3) no other remedy is available, id. at 422 (citing Morgan, 346 U.S. at 512); and (4) unless relief is granted, there will be “a complete miscarriage of justice, ” Castro, 26 F.3d at 559. The writ's purpose is not to burden courts with the rendition of “futile decrees.” Rener v. United States, 475 F.2d 125, 127 (5th Cir. 1973) (citations omitted). “[C]ourts must be cautious so that the extraordinary remedy of coram nobis issues only in extreme cases.” United States v. Denedo, 556 U.S. 904, 916 (2009).
DISCUSSION
The Court first addresses the Government's argument that the Petition is untimely and barred by laches. Specifically, the Government argues that Calzada failed to exercise reasonable diligence in seeking prompt relief and that “[s]ignificant prejudice to the government would result” if Calzada's conviction were overturned or the case were presented at trial. (ECF No. 182 at 13). The Government further argues that Calzada makes no explanation for his delay in seeking to challenge the existence of the warrant other than to claim he is proceeding with an audit of the Bexar County Records system and citing to cases that are not in any way related to his case. (Id. at 13-14).
Calzada asserts he exercised reasonable diligence in seeking prompt relief because he initiated an “audit” of Bexar County court records and only recently discovered new evidence. (ECF No. 174 at 4). He further argues that the laches doctrine does not apply because the Government “intentionally deceived the federal court [into] believing [it] has jurisdiction, ” and there is no statute of limitations applicable to fraud claims pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. (ECF No. 183 at 26-27).
The law does not require a coram nobis petitioner to challenge his conviction at the earliest opportunity, but he must have “sound reasons” for not doing so. Morgan, 346 U.S. at 512. The Fifth Circuit has recognized that a petitioner seeking coram nobis relief must exercise “reasonable diligence” in seeking prompt relief. Dyer, 136 F.3d at 427. The issue of delay requires inquiry into the circumstances surrounding the petitioner's failure to raise the issue earlier and is similar to the inquiry about whether a federal prisoner who moves to vacate his sentence pursuant to § 2255 could have discovered earlier, through the exercise of due diligence, the facts supporting his motion. Because there is no applicable statute of limitations for a writ coram nobis, a district court considering the timeliness of a petition “must decide the issue in light of the circumstances of the individual case.” Chico v. United States, 703 Fed.Appx. 292, 294 (5th Cir. 2017) (unpublished opinion) (quoting Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996)).
Calzada fails to show sound reasons exist for his failure to seek appropriate earlier relief. Calzada's claim for coram nobis relief hinges on his assertion that the search warrant and affidavit admitted at his suppression hearing were not properly authenticated. The facts giving rise to this claim were discoverable at the time of the suppression hearing in 2013. Calzada did not challenge the admission of the document at the hearing. Moreover, despite vigorously challenging the validity of the search warrant on appeal, Calzada did not specifically challenge the admissibility of the warrant and affidavit on these particular grounds.
Calzada did not file a § 2255 motion asserting this claim while he was serving his term of supervised release from August 21, 2014, to January 21, 2019. He did not assert this claim until he filed his first post-conviction motion to vacate on April 29, 2021. Calzada has failed to show he was reasonably diligent in seeking prompt relief. Calzada's argument that there is no time limit applicable to fraud claims pursuant to Rule 60(b)(4) or (d)(3) of the Federal Rules of Civil Procedure is unavailing because this is a coram nobis proceeding challenging his criminal conviction, not a civil Rule 60(b) motion challenging a civil judgment.
Even assuming purely for the sake of argument that his Petition was timely filed, Calzada fails to demonstrate fundamental error because the search warrant and affidavit were properly authenticated pursuant to Fed.R.Evid. 902(1), which provides as follows:
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:
(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and
(B) a signature purporting to be an execution or attestation.
The warrant documents bore the seal of the District Clerk of Bexar County and the signature of the issuing judge. (ECF No. 35 at 26-28). The warrant documents were therefore admissible without certification.
Moreover, even if the admission was in error, the Government has since obtained and produced a certified copy of the warrant from the Bexar County Clerk's Office, which satisfies Fed.R.Evid. 902(4). (ECF No. 182 at 1-7). Calzada fails to establish the existence of fundamental error resulting in a complete miscarriage of justice. The Fifth Circuit affirmed the validity of the warrant and affidavit on appeal. Accordingly, Calzada fails to demonstrate he is entitled to the extraordinary remedy of coram nobis relief.
CONCLUSION
Calzada fails to demonstrate entitlement to coram nobis relief. Moreover, his motion seeking a temporary restraining order and preliminary injunction is not properly before the Court.
Accordingly, IT IS ORDERED that Omar Jose Calzada's “Petition for Writ of Error Coram Nobis to Remedy Void Order and Fraud Upon the Court” (ECF No. 174) is DENIED.
IT IS FURTHER ORDERED that all pending motions, if any, are DISMISSED AS MOOT, and this case is now CLOSED.
It is so ORDERED.