Garcia-Trigo v. U.S., GARCIA-TRIG
| Decision Date | 22 March 1982 |
| Docket Number | P,GARCIA-TRIG,No. 81-2135,81-2135 |
| Citation | 671 F.2d 147 |
| Parties | Fideletitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lee J. Teran, San Antonio, Tex., for petitioner-appellant.
John M. Potter, Asst. U. S. Atty., Houston, Tex., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before BROWN, POLITZ and WILLIAMS, Circuit Judges.
On September 5, 1980, appellant, Fidel Garcia-Trigo, was arrested by officers of the United States Border Patrol driving a vehicle in which several other aliens were passengers. They were read their "Miranda " rights in English and Spanish as a group. Each of these, including appellant, signed a Spanish language statement indicating that these rights were understood. Part of this statement was a "Request for Return to Mexico", which was also signed separately by the appellant. Appellant remained in jail in Hebbronville, Texas, from sometime about the middle of the night September 5 until Monday, September 8.
On September 8, Garcia-Trigo and the other aliens arrested with him were brought before a United States Magistrate in Laredo, Texas. He was charged with the offense of "unlawfully entering the United States by wading the river, 8 U.S.C. § 1325." The others arrested with him were also charged with this offense, with one exception not relevant to appellant's situation. Appellant and the others were in essence arraigned as a group by the magistrate. Appellant, pleading separately, pled guilty and was sentenced to sixty days in jail. He has served this sentence.
The day after Garcia-Trigo's plea of guilty and sentence, while he was in custody, his wife telephoned the border patrol and notified them that instead of being an undocumented alien, appellant in fact was an authorized permanent resident of the United States and had lived in this country for ten years. At this point, it became obvious that appellant was in more serious legal difficulty since he was now subject to possible deportation. He has now been served with an Order to Show Cause why he should not be deported under 8 U.S.C. § 1251(a)(2) (entry without inspection).
Appellant brought this proceeding seeking to vacate his conviction by way of a Writ of Error Coram Nobis. 28 U.S.C. § 1651. His basic assertion is that in his arraignment and plea of guilty, the strict requirements of Fed.R.Crim.P. 11 were not followed. He particularly singles out assertions that the nature of his offense and consequences of his plea of guilty were not adequately described to him and that he was not informed that he was entitled to be supplied with an attorney.
The record reveals that the full and complete requirements of Rule 11 were not followed. If this were an appeal from a conviction, it is possible that the conviction would have to be reversed as not in compliance with each of the core concerns of the rule. United States v. Dayton, 604 F.2d 931 (5th Cir. 1979) (en banc). It is not necessary, however, to evaluate the entire record of the proceedings on September 8, 1981, with this in mind. We do not imply that the departure from strict step by step compliance with Rule 11 must be viewed as having resulted in a serious miscarriage of justice in this case. Rather, Dayton also recognizes that a full technical compliance is not necessary if the errors are harmless. Id. at 939.
What is critical in this case is the fact that a collateral attack upon a criminal conviction demands a high standard of proof by the petitioner that fundamental rights were violated, and also petitioner must show some present or prospective adverse effect. Cline v. United States, 453 F.2d 873 (5th Cir. 1972). The proceedings must be so fundamentally defective as to result in a "complete miscarriage of justice", or be inconsistent with the rudimentary demands of fair procedure. "... (C)ollateral relief is not available when all that is shown is a failure to comply with the formal requirements of the Rule." United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979); Allen v. United States, 634 F.2d 316, 317 (5th Cir. 1981).
The critical findings of fact by Judge Kazen in the district court with respect to the procedures followed in the arraignment and plea of guilty and the possible resulting prejudice bear repetition in full:
6. On Monday, September 8, 1981, Petitioner was brought before the Honorable Tom N. Goodwin, United States Magistrate, in Laredo, Texas. He was charged with the offense of "unlawfully entering the United States by wading the river", in violation of 8 U.S.C. § 1325. This crime is a petty offense, as that term is defined in 18 U.S.C. § 1(3). Petitioner was arraigned along with five other aliens charged with the identical offense and a sixth alien charged with obtaining entry into the United States by presentation of a counterfeit immigration form.
7. The defendants on that occasion were essentially arraigned as a group. The Magistrate advised the Petitioner that he was charged with entering the United States "illegally by wading". Each defendant...
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