United States District Court, S.D. California
ORDER DENYING PETITIONER'S PETITION FOR WRIT OF
MARILYN L. HUFF, DISTRICT JUDGE UNITED STATES DISTRICT COURT
November 8, 2018, Petitioner Cesar Rojo-Moreno, represented
by counsel, filed his petition for writ of coram nobis
pursuant to the All Writs Act, 28 U.S.C. § 1651. (Doc.
No. 1.) On May 1, 2019, the Government filed its response to
the petition. (Doc. No. 10.) Per the Court's scheduling
order, Petitioner's reply was due on or before June 5,
2019, (Doc. No. 6), but Petitioner has not filed any reply.
For the following reasons, the Court denies Petitioner's
petition for writ of coram nobis.
of error coram nobis permits a criminal defendant to attack a
conviction after he has served his sentence and is no longer
in custody. Telink, Inc. v. United States, 42 F.3d
42, 45 (9th Cir. 1994). “The writ provides a remedy for
those suffering from the ‘lingering collateral
consequences of an unconstitutional or unlawful conviction
based on errors of fact' and ‘egregious legal
errors.'” United States v. Walgren, 885
F.2d 1417, 1420 (9th Cir. 1989) (quoting Yasui v. United
States, 772 F.2d 1496, 1499 (9th Cir. 1985)).
“Thus, the coram nobis writ allows a court to vacate
its judgments ‘for errors of fact . . . in those cases
where the errors are of the most fundamental character, that
is, such as rendered the proceeding itself
invalid.'” Hirabayashi v. United States,
828 F.2d 591, 604 (9th Cir. 1987) (internal alteration
omitted) (quoting United States v. Mayer, 235 U.S.
55, 69 (1914)). In order to succeed on a writ of error coram
nobis, a 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.” United States v.
McClelland, 941 F.2d 999, 1002 (9th Cir.1991) (quoting
Hirabayashi, 828 F.2d at 604). “It is presumed
the proceedings were correct and the burden rests on the
accused to show otherwise.” United States v.
Morgan, 346 U.S. 502, 512 (1954).
April 15, 1997, Petitioner, a citizen of Mexico, entered the
United States with 27.66 kilgrams of marijuana. (United
States v. Rojo Moreno, 3:97-cr-2002-H-1, Doc. No. 9.)
Petitioner was arrested and charged with violating 21 U.S.C.
§ 952 and § 960. (Id.) Petitioner states
that his lawyer at the time advised him to plead guilty and
did not inform him of possible immigration consequences of
the plea agreement. (Doc. No. 1 at 3.) Petitioner pled guilty
and was sentenced on December 22, 1997 to 12 months in prison
and 2 years on supervised release. (United States v. Rojo
Moreno, 3:97-cr-2002-H-1, Doc. No. 20.) Now, after
serving his sentence, Petitioner seeks writ of error coram
nobis arguing that his underlying conviction is invalid
pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010)
because he was not advised of the potential immigration
consequences of his guilty plea. (Doc. No. 1.) Petitioner
states that as a result of his conviction, he may be
precluded from becoming a U.S. citizen and may be deported.
(Id. at 1-4.)
review of the parties' arguments, the Court concludes
that Petitioner is not entitled to writ of coram nobis
relief. In Padilla, the Supreme Court held that the
Sixth Amendment requires defense counsel to “inform a
client whether his plea carries a risk of deportation.”
559 U.S. at 356. Subsequently, the Supreme Court has held
that Padilla does not apply retroactively to
defendants whose convictions became final prior to
Padilla. Chaidez v. United States, 568 U.S.
342, 358 (2013); see United States v. Herzer, 676
Fed.Appx. 673 (9th Cir. 2017) (denying coram nobis petition
based on Padilla because the petitioner pled guilty
and was convicted in 1992). Here, Petitioner pled guilty and
his conviction became final in 1997, well before
Padilla was decided in 2010. Because the Supreme
Court has held that Padilla does not apply
retroactively, Petitioner cannot benefit from its holding.
See Chaidez, 568 U.S. at 358. Therefore, Petitioner
has failed to show that any fundamental error occurred.
See Morgan, 346 U.S. at 512. Further, the Court also
notes that Petitioner has waited over 20 years to attack his
conviction and has failed to provide valid reasons for not
attacking the conviction earlier. See id.
has failed to show that he is entitled to writ of error coram
nobis relief. Accordingly, for the foregoing reasons, the
Court denies Petitioner's petition for writ of coram
nobis. The Clerk of Court is directed to close the case.