United States v. Dominquez ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30464
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO DOMINGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court for the
Eastern District of Louisiana
( 92-161-H)
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January 10, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Guillermo Dominguez appeals the district court's order
dismissing his petition for a writ of error coram nobis. Dominguez
pleaded guilty to conspiracy with intent to distribute cocaine, a
violation of 21 U.S.C. § 846. Dominguez did not appeal his
conviction, but filed a petition for a writ of error coram nobis.
In the petition, Dominguez argued that his conviction violated
double jeopardy because he previously had been subjected to
"civil/administrative forfeiture of the sum of $2,000.00 that was
taken by U.S. Customs in April of 1991 and over 30 other civil
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
forfeitures after that date." According to Dominguez, law
enforcement officers "seized monies from [him] for nearly 2 years
under cover of [a] sting operation. Ultimately, all of the
property, automobiles, heavy equipment, office equipment,
etc. . . . was all seized by the Federal Government."
The district court dismissed Dominguez's petition on the basis
of Rule 60(b) of the Federal Rules of Civil Procedure, which
abolishes the writ of coram nobis. The Fifth Circuit has held that
the relief formerly available through such a writ remains available
under the All Writs Act, 28 U.S.C. § 1651. United States v.
Drobny, 955 F.2d 990, 996 (5th Cir. 1992). Coram nobis relief is
available, however, only to a defendant who is no longer in
custody. Id. Dominguez cannot proceed under the All Writs Act
because he is serving the prison sentence imposed pursuant to his
plea agreement.
Construing Dominguez's petition liberally as a motion under 28
U.S.C. § 2255, we are unable to reach the merits because of an
insufficiently developed record. In general, a guilty plea
forecloses a double jeopardy claim unless the movant challenges the
validity of the plea or the face of the indictment or record
establishes that the convictions violate the constitutional
prohibition against double jeopardy. United States v. Broce, 488
U.S. 563, 569, 574-75 (1989). Dominguez did not challenge the
validity of his guilty plea. His double jeopardy challenge
conceivably could fall within the other exception to the guilty-
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plea bar, in that "judged on its face, the charge is one which the
[government] may not constitutionally prosecute." Broce, 488 U.S.
at 575. Before making this determination, it is necessary to
ascertain whether the civil forfeitures to which Dominguez alleges
he was subjected constituted "punishment" for purposes of double
jeopardy.1
The "punishment" analysis varies depending on the particular
subparagraph of 21 U.S.C. § 881(a) under which the alleged
forfeitures occurred. In United States v. Tilley, 18 F.3d 295, 298
(5th Cir. 1994), cert. denied sub. nom., 115 S. Ct. 573 and cert.
denied, 115 S. Ct. 574, this court applied the proportionality
framework established by the Supreme Court in United States v.
Halper, 490 U.S. 435 (1989), to determine whether the civil
forfeiture of drug proceeds pursuant to 21 U.S.C. § 881(a)(6) was
"punishment" for purposes of double jeopardy. In a recently
decided case, the Fifth Circuit held that this proportionality
analysis is inapplicable to forfeitures under 21 U.S.C. § 881(a)(4)
and § 881(a)(7). United States v. Perez, No. 94-60788, slip op.
962, 966 (5th Cir. Nov. 21, 1995). Forfeitures under these
subparagraphs are per se "punishments" for purposes of double
jeopardy regardless of the value of the property involved. Id.
Because the record on appeal does not demonstrate conclusively
1
Dominguez also will have to show that he had an ownership
interest in the items allegedly seized and that he made a claim in
the civil forfeiture proceedings. See United States v. Arreola-
Ramos, 60 F.3d 188, 192-93 (5th Cir. 1995).
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that Dominguez's double jeopardy argument lacks merit, we VACATE
the district court's order and REMAND for consideration of
Dominguez's petition as a motion under 28 U.S.C. § 2255 consistent
with this opinion.2
VACATED and REMANDED.
2
On remand the district court should allow the government to
argue that Dominguez's double jeopardy claim is barred because of
his failure to raise it on direct appeal. See United States v.
Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc), cert. denied,
502 U.S. 1076 (1992).
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