United States District Court, D. Arizona
Luis Cano-Mendoza, a.k.a. Leonel Cano-Mendoza, Petitioner,
United States of America, Respondent.
REPORT AND RECOMMENDATION
BRIDGET S. BADE, Magistrate Judge.
Luis Cano-Mendoza (Petitioner) has filed a Petition for Writ of Error Coram Nobis pursuant to the All Writs Act, 28 U.S.C. § 1651(a). (Doc. 1.) The United States (Respondent) has filed a response. (Doc. 7.) Petitioner has not filed a reply and the time to do so has passed. As set forth below, the Petition should be denied because Petitioner has not established the requirements for coram nobis relief.
I. Petitioner's Claims of Fundamental Error in the 1995 Criminal Matter.
Petitioner argues that this Court should find that fundamental error occurred in the 1995 criminal matter before this Court, United States v. Leonel Cano-Mendoza, CR 95-00032-MS, in which he pleaded guilty to entering the United States without inspection, a misdemeanor, in violation of 8 U.S.C. § 1325(a). (Doc. 1 at 10, Exs. C and D.) Petitioner asserts that he was convicted as Leonel Cano-Mendoza, which he states is his brother's name, and that he was prejudiced because if the matter had proceeded against him under his true name, Luis Cano-Mendoza, his status as a legal permanent resident (LPR) would have precluded the "illegal entry" charge. (Doc. 1 at 11.) Specifically, Petitioner argues that his Sixth Amendment rights were violated because his attorney failed to investigate his true identity and determine his immigration status. ( Id. at 8.) He also argues that the government violated his Fifth Amendment due process rights by prosecuting him for illegal entry because it knew or should have known he had LPR status. ( Id. at 10.) Therefore, Petitioner asserts that his 1995 conviction is invalid and should be "dismissed." ( Id. at 11.)
In response, Respondent argues that Petitioner is not entitled to coram nobis relief because he has not demonstrated good reason for the eighteen-year delay in challenging his conviction and sentence, other remedies exist, and Petitioner has not established fundamental error because he was properly convicted in the 1995 matter. (Doc. 7 at 4-5.) Respondent argues that Petitioner's assertion that he was an LPR in 1995 is immaterial because such status would not have precluded the charge for entering without inspection. (Doc. 7 at 5.) The Court considers these issues below in Section III, after discussing Petitioner's underlying criminal conviction.
II. Petitioner's 1995 Misdemeanor Conviction under § 1325(a)
On January 17, 1995, Immigration and Naturalization Service (INS) agents arrested Petitioner after they observed him at the airport handing what appeared to be airline tickets to suspected illegal aliens. (Doc. 7, Ex. 1.) Petitioner identified himself as "Leonel Cano-Mendoza" and provided the agents an Arizona identification card and driver's license with that name. (Doc. 7, Ex. 4 at 7.) Petitioner told the agents that he was an LPR, but they were unable to find any records indicating that Leonel Cano-Mendoza was a legal resident. ( Id. ) They determined that Petitioner was eligible for voluntary removal to Mexico, which he accepted, and he was removed on January 17, 1995. (Doc. 7, Ex. 1 at 1, and Ex. 4 at 7.)
A few days later, on January 20, 1995, Petitioner's wife, Maria Cano-Mendoza, reported to INS agents that Petitioner had returned to Phoenix and resumed his alien smuggling activities. (Doc 7, Ex. at 2, Ex. 4 at 20-23.) INS agents began surveillance and arrested Petitioner on January 31, 1995 after observing him transporting fifteen illegal aliens to the airport. (Doc. 7, Ex. 1 at 2-5; Ex. 4 at 16.) Petitioner told the agents that he entered the United States illegally on January 20, 1995, and he admitted that he was transporting illegal aliens. (Doc. 7, Ex. 1 at 5.) Petitioner identified himself to agents as Leonel Cano-Mendoza and stated "several times" that Luis Cano-Mendoza was his brother. (Doc. 7, Ex. 4 at 19.) Petitioner asserts that he was a LPR at the time of his January 20, 1995 entry into the United States and his January 31, 1995 arrest. (Doc. 1, Ex. B.)
On February 1, 1995, the government filed a complaint against Petitioner, identifying him as "Leonel Cano-Mendoza AKA Luis Manuel Cano-Mendoza, " and charging him with transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(B) and (C), a felony offense. (Doc. 7, Ex. 1.) Pursuant to a plea agreement, Petitioner agreed to plead guilty to an information charging him with entering the United States without inspection, a misdemeanor, in violation of 8 U.S.C. § 1325(a), and the government agreed to dismiss the felony § 1324 charge. (Doc. 7, Ex. 2 at 1-2.)
Petitioner signed his name on the plea agreement as Leonel Cano-Mendoza. ( Id. ) In the plea agreement, Petitioner admitted that he was not a citizen of the United States and that he had entered the United States without inspection on January 20, 1995. ( Id. ) At the change of plea hearing, Petitioner stated his name, under oath, as Leonel Cano-Mendoza. (Doc. 7, Ex. 3 at 8.) He admitted that he had entered the United States "through a hole" and that he knew was entering the United States illegally. ( Id. at 3-4.) At the sentencing hearing, he again admitted that he entered the United States illegally "through a tunnel which is the drainage that carries waste and everything." (Doc. 7, Ex. 4 at 26.)
At the sentencing hearing, the government presented extensive evidence through the testimony of an INS agent to establish that Petitioner's true name was Luis Cano-Mendoza and that Leonel Cano-Mendoza was his brother's name. ( Id. at 5-23.) In his testimony, the agent described the name and identification cards that Petitioner provided when he was arrested, that another agent had reviewed Petitioner's photograph and identified him as Luis Cano-Mendoza, and that Petitioner's wife had identified him as Luis Cano-Mendoza and told agents that he was using his brother's name. ( Id. at 9-11, 18-23.) At the conclusion of the sentencing hearing, the government argued "it's clear that Mr. Cano-Mendoza has used the name Leonel and Luis. And it's our contention that his real name is Luis." ( Id. at 24.)
Throughout the sentencing hearing, defense counsel maintained that his client was Leonel, not Luis. ( Id. at 26-30.) He argued to the Court that "about this false name stuff[, ] Leonel has come clean and said, I'm Leonel, this is my name. I have a brother named Luis." ( Id. at 28.) He further argued that Petitioner "claimed he was Leonel from the start, ... he never claimed to be Luis." ( Id. ) Finally, he argued that "whether or not a false name has been used, that's something that's not unusual when people cross over and try to remain in the country." ( Id. at 29.)
The parties were addressing Petitioner's identity in the context of sentencing to determine if he was the person who was arrested on August 26, 1994 for transporting illegal aliens. ( Id. at 10-11, 28.) This information was significant because the parties had agreed that the government could argue that the Court should consider any past arrests in determining the appropriate sentence. (Doc. 7, Ex. 3 at 5-6.)
The Court sentenced Petitioner to ninety days' incarceration and dismissed the original complaint. (Doc. 7, Ex. 4 at 32.) Petitioner did not appeal his conviction or sentence to the Ninth Circuit and did not file a motion ...