                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 13 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TOMA VAGLARSKI,                                 No.    17-16514

                Plaintiff-Appellant,            D.C. No.
                                                2:15-cv-01987-MCE-KJN
 v.

MATTHEW G. WHITAKER, Acting                     MEMORANDUM*
Attorney General and BENJAMIN
WAGNER,

                Defendants-Appellees.

                  Appeal from the United States District Court
                      for the Eastern District of California
                Morrison C. England, Jr., District Judge, Presiding

                          Submitted December 20, 2018**
                             San Francisco, California

Before: BOGGS,*** PAEZ, and OWENS, Circuit Judges.

      Toma Vaglarski appeals the denial of his petition for writ of error coram



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
                                          1
nobis. We have jurisdiction pursuant to 28 U.S.C. § 1291. Applying de novo

review, United States v. Chan, 792 F.3d 1151, 1153 (9th Cir. 2015), we vacate and

remand with instructions to conduct an evidentiary hearing.

      1. Vaglarski is a lawful permanent resident of the United States. In August

2013, Vaglarski was arrested in the Shasta Trinity National Forest for possession

of marijuana. On November 5, 2013, Vaglarski appeared before a magistrate

judge, pleaded guilty to 21 U.S.C. § 844, and was sentenced to pay a fine of

$1,000. There is no transcript or audio recording of what transpired during the

hearing.

      Shortly after paying the fine in March 2014, Vaglarski applied to naturalize

as a U.S. citizen. About a year later, the U.S. Citizenship and Immigration

Services denied Vaglarski’s naturalization application, explaining that the 2013

conviction is a bar to good moral character, thereby rendering Vaglarski ineligible

for naturalization pursuant to 8 U.S.C. § 1101(f)(3) and 8 C.F.R. § 316.10.

Vaglarski subsequently filed a petition for writ of error coram nobis with the

district court, arguing that he should be allowed to withdraw his plea because he

had not been advised of his right to an attorney, his trial rights, or the immigration

consequences of his plea. As a result of the conviction, Vaglarski is considered

removable under 8 U.S.C. § 1227(a)(2)(B)(i) and he is unable to petition on behalf

of his noncitizen wife for lawful permanent residence status.


                                           2
      2. “[T]he writ of error coram nobis is a highly unusual remedy, available

only to correct grave injustices in a narrow range of cases where no more

conventional remedy is applicable.” Chan, 792 F.3d at 1153 (internal citation and

quotation marks omitted). To obtain relief, the petitioner must show: “(1) a more

usual remedy is not available; (2) valid reasons exist for not attacking the

conviction earlier; (3) adverse consequences exist from the conviction sufficient to

satisfy the case or controversy requirement of Article III; and (4) the error is of the

most fundamental character.” Hirabayashi v. United States, 828 F.2d 591, 604

(9th Cir. 1987). The only issue in dispute is whether Vaglarski can show a

fundamental error, i.e., an invalid guilty plea.

      “It is beyond dispute that a guilty plea must be both knowing and voluntary”

because “a guilty plea constitutes a waiver of three constitutional rights: the right

to a jury, the right to confront one’s accusers, and the privilege against self-

incrimination.” Parke v. Raley, 506 U.S. 20, 28–29 (1992) (citing Boykin v.

Alabama, 395 U.S. 238, 242–43 (1969)). Thus, a guilty plea without an

affirmative showing that the plea was knowing and voluntary constitutes a due

process violation. Boykin, 395 U.S. at 242. On collateral attack, however, there is

a presumption of regularity to silent records and so the burden shifts to a

defendant, such as Vaglarski, to make an affirmative showing of an invalid waiver.

Parke, 506 U.S. at 36–37; United States v. Mulloy, 3 F.3d 1337, 1339 (9th Cir.


                                           3
1993); see also United States v. Allen, 153 F.3d 1037, 1041 (9th Cir. 1998), as

amended (Sept. 22, 1998).

      3. The district court relied on Parke, Mulloy and Allen to conclude that

Vaglarski could not meet his burden through his “self-serving declaration.” This

analysis, however, was incomplete. Rather than viewing Vaglarski’s declaration in

isolation, the district court should have weighed all the evidence put forward by

Vaglarski and the government in the context of the entire court record. See Parke,

506 U.S. at 36–37; Mulloy, 3 F.3d at 1340–42; see also Allen, 153 F.3d at 1041–

42.

      First, it was insufficient for the court to dismiss Vaglarski’s declaration as

“self-serving,” without making findings regarding the credibility of the assertions

in the declaration. See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5

F.3d 1255, 1264 (9th Cir. 1993) (“The district court must make a finding of fact

that the affidavit was a ‘sham.’”) (internal citation omitted); see also SEC v. Phan,

500 F.3d 895, 909 (9th Cir. 2007) (noting “[t]hat an affidavit is selfserving [sic]

bears on its credibility, not on its cognizability”) (internal citation omitted).

      Second, Vaglarski submitted other evidence that was not considered by the

district court, such as a copy of his N-400 naturalization application, which

indicated that at the time Vaglarski applied for citizenship, he erroneously believed

that he had not been convicted. Moreover, neither the petty offense docket nor the


                                            4
Central Violations Bureau Citation Information mentions a guilty plea or the

statute to which Vaglarski had pleaded. Vaglarski was 24 years old at the time,

and the event was his first encounter with the criminal justice system. These

circumstances tend to corroborate Vaglarski’s assertions that he did not understand

that he was giving up his trial rights when he pled guilty.1 See United States v.

Fuller, 941 F.2d 993, 996 (9th Cir. 1991) (finding no basis for knowing waiver of

counsel by noncitizen defendant “[g]iven [her] unfamiliarity with English, her

young age [of 23] and lack of experience within the legal system”); see also Parke,

506 U.S. at 37.

      4. Given the state of the record, we remand for an evidentiary hearing and

factual findings regarding the circumstances of Vaglarski’s plea. See, e.g., United

States v. Larson, 302 F.3d 1016, 1022 (9th Cir. 2002) (citing Mulloy, 3 F.3d at

1341–42 in support of remand for an evidentiary hearing). Although there is no



1
  The dissent completely disregards the additional evidence submitted by Vaglarski
to corroborate his declaration. Compare Mulloy, 3 F.3d at 1340 (acknowledging
that the defendant “presented a considerable amount of evidence considering the
circumstances of his [earlier] conviction, even though no transcript could be
produced,” including his young age at the time, and the fact that he was arraigned,
pleaded guilty and was sentenced all in one hearing on the same day), with Parke,
506 U.S. at 36–37 (noting there was enough evidence in the record to uphold the
defendant’s conviction because he was represented by counsel, had signed a form
specifying the charges to which he agreed to plea guilty, and had prior experience
with the criminal justice system). For the same reasons, the dissent’s concern
about a “parade of horribles,” is unwarranted because our disposition is limited to
the record presented here.

                                          5
transcript or audio recording of the hearing, the government could submit evidence

about the usual customary procedures on the petty offense docket and any other

evidence relevant to Vaglarski’s plea. If the district court finds that Vaglarski did

not knowingly and voluntarily plead to the 2013 conviction without understanding

the nature of the charges or his right to counsel or Boykin trial rights, then he has

shown a fundamental error and his plea should be withdrawn and the conviction

vacated. See, e.g., United States v. Kwan, 407 F.3d 1005, 1018 (9th Cir. 2005).

      VACATED and REMANDED. Each party shall bear their own costs.




                                           6
                                                                         FILED
Vaglarski v. Whitaker, 17-16514                                           FEB 13 2019
                                                                     MOLLY C. DWYER, CLERK
Boggs, Circuit Judge, dissenting:                                      U.S. COURT OF APPEALS


      I appreciate the important considerations that are well set out in the majority

opinion. However, I cannot agree that those considerations overcome the fairly clear

mandate in Parke v. Raley, 506 U.S. 20, 30–31 (1992), that there is a substantial

difference between a Boykin claim that is raised on direct appeal, and one that is

raised in a collateral proceeding. On direct appeal, warning of constitutional rights

cannot be presumed from a silent record. Boykin v. Alabama, 395 U.S. 238, 243

(1969). Under Parke, 506 U.S. at 29–30, on collateral attack, a court may presume

that the final judgment of conviction was validly obtained, even when the record is

silent or ambiguous. See also United States v. Mulloy, 3 F.3d 1337, 1339 (9th Cir.

1993) (explaining that Boykin’s presumption of invalidity does not apply on

collateral review).

      Here, we have a federal proceeding, albeit one involving “petty offenses,” to

which I would think that some presumption of regularity should attach. It is true

that, despite their best efforts, the United States and Petitioner cannot locate a

transcript or audio recording of the proceedings. While I would not discount

Petitioner’s statements simply because they are self-serving, he provides no details

beyond a flat denial that he ever signed a plea form or waived his Boykin rights. Nor

is there any indication of an attempt to procure evidence, other than Petitioner’s
requests to the Clerk’s Office to confirm that no records exist. Petitioner has not

sought evidence from other individuals who could shed some light on the

proceedings, such as the magistrate judge or the assistant United States Attorney.

See Mulloy, 3 F.3d at 1341 (affidavits from the prosecutor and defense counsel);

United States v. Robinson, 12 F.3d 1110, at *3 (9th Cir. 1993) (affidavit from the

sentencing judge concerning custom in sentencing proceedings). Petitioner must

carry the “burden of proving the constitutional invalidity” of his conviction. Mulloy,

3 F.3d at 1339. I am not convinced that he has done so.

      While I do not wish to introduce a “parade of horribles,” it would appear that,

under the majority’s interpretation of Parke, whenever a record of a federal-court

proceeding cannot be found, a convicted person can deny that he has received the

proper warnings, shift the burden of proof to the government, and trigger a new sent

of proceedings on his offense. Mulloy dictates that a defendant cannot satisfy his

burden simply by pointing to a “silent or ambiguous record.” Ibid. While resolving

a case with an entirely silent record presents a close question, Parke requires more

from Petitioner than simply his assertion that regular order in a federal court was not

followed. 506 U.S. at 29–30.

      I therefore respectfully dissent.




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