The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH PREJUDICE OR, IN THE ALTERNATIVE, OPPOSITION TO PETITION FOR WRIT OF ERROR CORAM NOBIS (Doc. No. 9.)
Presently before the Court is Defendant United States of America's (Defendant) motion to dismiss with prejudice or, in the alternative, opposition to petition for writ of error coram nobis. (Doc. No. 9 (Mot. to Dismiss).) Also before the Court is Plaintiff Norma Luna's (Luna) response in opposition. (Doc. No. 12 (Opp'n).) For the reasons stated below, Defendant's motion is GRANTED.
Twenty-three years after pleading guilty to alien-smuggling charges, Luna now files a petition for writ of error coram nobis pursuant to 28 U.S.C. § 1651(a). (Doc. No. 1 (Compl.).) Pursuant to this writ, Luna requests the Court void her alien-smuggling conviction. (Compl. at 7.)
Luna's story begins in late 1987. On August 23, Luna, Pedro Torres-Ortiz, and Delfina Ramos-Manzo attempted to enter the United States via vehicle at the San Ysidro port of entry. (Mot. to Dismiss, Ex. A & B.) At the time, Luna, in the passenger seat, presented a lawfully issued border cross card. (Id.) And Torres-Ortiz, the driver, presented valid documentation indicating his status as a United States citizen. (Id.) Problems arose only when Ramos-Manzo, sitting in the back seat, presented a photo-altered Mexican passport. (Id.)
At that moment, Luna and Torres-Ortiz became defendants in an alien-smuggling case, and Ramos-Manzo the principal witness against them. Luna and Torres-Ortiz were apprised of their Miranda rights and both agreed to speak with United States customs inspectors without an attorney. (Id.) Luna stated that she was aware Ramos-Manzo was attempting to enter the United States illegally. (Id.) She was aware of this because she had met Ramos-Manzo on August 22 near a grocery store, and at that time, an unknown Mexican male "stated to [Luna] that RamosDiaz [sic] wanted to enter the United States and was going to use the passport of another Mexican National to attempt that entry." (Id.)
Ramos-Manzo, the principal witness, confirmed Luna's story. And according to RamosManzo, Luna assisted in the scheme by taking Ramos-Manzo to a "nearby photo studio to have her photo taken." (Id.) Luna then gave the photograph to an the unknown Mexican male, presumably to create a photo-altered Mexican passport. (Id.)
On August 24, 1987, the day after the attempted entry, the United States filed a complaint against Luna and Torres-Ortiz, alleging two counts: Bringing in Alien(s), a felony in violation of 8 U.S.C. § 1324(a)(2)(B)(ii), and Bringing in Alien(s), a misdemeanor in violation of 8 U.S.C. § 1324(a)(2)(A). (Mot. to Dismiss, Ex. A.) Luna was informed of the charges, her right to trial, and her right to counsel. (Id.) An attorney from the Federal Defenders was appointed to her, and she consented to be tried by magistrate. (Id.) Luna then pled guilty to the misdemeanor offense. (Id.) After two days in jail, the execution of the sentence was suspended, and Luna was deported. (Id.; Compl., Luna Decl. ¶ 10.) In a letter dated August 25, 1987, the Immigration and Naturalization Service (INS) advised Luna of her right to appeal her deportation. (Mot. to Dismiss, Ex. D.) She never did.
All was quiet on the western front until 1993. That year, Luna re-entered the United States without first being inspected by an officer of the INS. (Compl., Luna Decl. ¶ 11.) That same year, she married Juan Carlos Luna, a lawful permanent resident. (Compl. at 3.) The couple now has four children, all born in the united states. Luna "has no criminal record other than the instant conviction." (Id.) "She and her husband own a home and a catering business and they pay taxes accordingly." (Id.)
On February 23, 2007, Luna signed a Form I-485 application to register permanent residence or adjust status. (Mot. to Dismiss, Ex. E.) The application was rejected because of her alien smuggling conviction. (Mot. to Dismiss, Ex. F.) On April 21, 2008, immigration authorities began removal proceedings against Luna. She was ordered removed on June 15, 2009. (Mot. to Dismiss, Ex. G.)
One year later, on July 29, 2010, Luna filed the present petition for writ of error coram nobis. Luna argues that during her 1987 criminal proceeding, defense counsel failed to properly advise Luna "regarding the immigration consequences of a guilty plea." (Reply at 4.) And this failure to advise constituted ineffective assistance of counsel. As a result, Luna seeks to void her prior conviction.
"Statute of limitation issues must be resolved before the merits of individual claims." Rodriguez-Lugo v. United States, 2010 WL 3167545 (S.D. Cal. Aug. 9, 2010) (citing White v. Klitzkie, 281 F.3d 920, 921--22 (9th Cir. 2002)).
The parties agree that 28 U.S.C. § 2255(f)'s one-year statute of limitations applies to Luna's coram nobis petition. (Opp'n at 2.) The disagreement is when the one-year period begins. (Id.) Section 2255(f) provides, in relevant part, that the limitation period shall run from the latest of (1) the date on which the judgment of conviction becomes final; or (3) the date on which the right asserted was initially recognized by the Supreme Court, if that ...