FILED
NOT FOR PUBLICATION MAY 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-57131
Plaintiff - Appellee, D.C. Nos. 2:85-cr-00810-WPG-4
2:85-cr-00810-WPG-4
v.
VICTOR MARTINEZ-PEREZ, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Submitted May 15, 2014**
Pasadena, California
Before: KOZINSKI, Chief Judge, and WARDLAW and FISHER, Circuit Judges.
Petitioner Victor Martinez-Perez appeals the district court’s denial of his
petition for writ of error coram nobis. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. Martinez-Perez has not established valid reasons for failing to
challenge his conviction earlier. Assuming his delay was excused until his
application for lawful permanent residency was denied in 1993, nearly 20
additional years passed before he filed this petition. Martinez-Perez’s explanation
that he was unable to afford the $50,000.00 to $100,000.00 retainer fees he was
quoted is not persuasive. He has not provided any detail about the extent of his
efforts to find affordable counsel and therefore has failed to establish that he could
not have acted earlier. See United States v. Riedl, 496 F.3d 1003, 1006-07 (9th Cir.
2007). In any event, inability to afford litigation is a generally invalid reason for
delay. See id. at 1007; cf. Danjaq LLC v. Sony Corp., 263 F.3d 942, 954-55 (9th
Cir. 2001).
2. The district court did not abuse its discretion by applying laches. It
permissibly concluded that the government has been prejudiced by the delay, both
because evidence it would ordinarily use to respond to Martinez-Perez’s petition is
no longer available, as evidenced by his counsel’s declaration, and because of the
difficulty of reprosecuting him for events that took place in 1985, should his
conviction be vacated. See Telink, Inc. v. United States, 24 F.3d 42, 47-48 (9th
Cir. 1994). Martinez-Perez’s offers to waive attorney-client privilege and to take a
polygraph test do not rebut this prima facie showing of prejudice, and he has not
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established reasonable diligence for the reasons explained above. See id.; see also
Riedl, 496 F.3d at 1008.
AFFIRMED.
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