The opinion of the court was delivered by: Peter C. Lewis U.S. Magistrate Judge United States District Court
PETITION FOR WRIT OF ORDER DENYING AMENDED [DOC. 8.]
Petitioner Francisco Javier Madrigal-Maya ("Petitioner") has filed a Motion to Vacate his guilty plea, and in the alternative, a Petition for Writ of Error Coram Nobis to vacate his conviction. [Doc. 5.] Petitioner contends that he was denied his Sixth Amendment right to effective assistance of counsel because he was not advised of immigration consequences associated with his guilty plea. (Id. at 6.) On June 7, 2012, Petitioner filed an Amended Petition for Writ of Error Coram Nobis on the same ground. [Doc. 8.] On September 7, 2012, the United States of America ("Respondent") filed a response to Petitioner's motion arguing that Petitioner's claims are: (1) barred by the doctrine of laches, and (2) fail to state a prima facie case for relief. [Doc. 16.] To support their claims, Respondent filed several affidavits including the arresting agent's report, trial court transcripts, and deportation hearing transcripts. [Doc. 18-1-18.] On October 1, 2012 Petitioner filed a Reply to Respondent's Response arguing that Petitioner's claims are not barred by the doctrine of laches because he was reasonably diligent in seeking coram nobis relief. [Doc. 19.]
The Court has reviewed Petitioner's Motion for Writ of Error Coram Nobis, Respondent's Response, Petitioner's Reply, and all attached documents. For the reasons discussed below, Petitioner's Writ of Error Coram Nobis is DENIED.
On December 30, 1991, Border Patrol Agents patrolling in the Highway 111/Bombay Beach area observed two vehicles traveling in tandem. [Doc. 16.] Agents initiated a traffic stop in which Petitioner was a passenger. (Id. at 3.) Petitioner was a legal permanent resident alien having resided in the United States since 1984. [Doc. 5 at 10.] Through interviews with material witnesses, the agents determined that Petitioner was assisting his brother in law, who was assisting a friend, transport aliens past a border patrol check point. (Id.) As a result, agents placed Petitioner under arrest. (Id.) On January 2, 1992, Petitioner was charged with the following violations: Count I, 18 U.S.C. § 1324 (a)(1)(B), Illegal Transportation of Aliens; and Count II, 18 U.S.C. § 2 and 8 U.S.C. § 1325, Aiding and Abetting Illegal Entry. [Doc. 1; Doc. 8, at 1.] On the same date, Petitioner pled no contest*fn1 pursuant to a plea agreement and was convicted of Aiding and Abetting Illegal Entry, a misdemeanor. [Doc. 18-2 at 5; Doc. 8, at 1.] Count I, the felony charge was dismissed. (Id.) On February 19, 1992 the court placed Petitioner on a two-year unsupervised probation on the condition that he obey all laws and not associate with illegal aliens or smugglers. [Doc. 8, at 19.] According to Petitioner's Motion, Petitioner completed his probation and has not been in custody since 1994. [Doc. 8, at 3.]
On the same day Petitioner was sentenced, he was served with an Order to Show Cause and Notice of Hearing regarding a deportation hearing. [Doc. 18-4 at 2-3.] Pursuant to the Order, the hearing was held on May 29, 1992, to determine if Petitioner was required to be deported from the United States. [Doc. 18-5 at 3.] The court continued the hearing to June 29, 1992 because Petitioner indicated he wished to seek relief under Section 212(c) of the Immigration and Nationality Act. [Doc. 18-5 at 11-12.] On June 29, 1992 and July 6, 1992, Petitioner's deportation hearings were continued again for reasons not relevant to this case. [Doc. 18-6; Doc. 18-8.] The final hearing was held on December 18, 1992. [Doc. 18-11.] There, the court found that Petitioner was subject to mandatory deportation since Petitioner's crime of aiding and abetting illegal entry made him ineligible for a Section 212(c) waiver. [Doc. 18-11 at 6, 8.] Furthermore, the court found that Petitioner was ineligible for voluntary departure because Petitioner's crime was considered a crime of moral turpitude. [Doc. 18-11 at 9.]
On August 24, 1993, Petitioner did not appear for his court ordered deportation and a Warrant of Deportation was issued. [Doc. 18-15; Doc. 18-16.] Almost twelve years later, on August 11, 2005, Petitioner was found, detained and deported to Mexico. [Doc. 18-16.] For the reasons stated below, this
DENIES Petitioner's request for a Writ of Error Coram Nobis.
II. WRIT OF ERROR CORAM NOBIS
A writ of error coram nobis affords a remedy to vacate a judgment of conviction and sentence when the individual has fully served his sentence and is no longer in custody. See United States v. Montreal, 301 F.3d 1127, 1131-32 (9th Cir. 2002); Estate of McKinney v. United States, 71 F.3d 779, 781 (9th Cir. 1995); TELINK, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994). Coram nobis relief is available to vacate judgments in cases "[where the errors are of the most fundamental character, such that the proceeding itself is rendered invalid. . . ." Estate of McGivney, 71 F.3d 779 (quoting Hirabayashi, 828 F.2d at 604) (internal quotation marks omitted).
Timeliness of the Writ of Error Coram Nobis
1. Statute of Limitations
The United States Supreme Court has repeatedly held that AEDPA's statute of limitations does not apply to petitions for writ of error coram nobis. See Morgan, 346 U.S. at 507 (determining that the writ of error coram nobis is allowed without limitation of time); United States v. Kwan, 407 F.3d 1005, 1012 (9th Cir. 2005) ("[T]he time for filing a petition is not subject to a specific statute of imitations."), abrogated on other grounds by Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Similarly, the Ninth Circuit has held that AEDPA's one-year statute of limitations does not apply to coram nobis petitions. See Rodriguez-Lugo v. United States, 458 Fed. App'x ...