United States v. Verrengia

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 19, 2001
• Docket: 00-20885
• Status: Unpublished

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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).