FILED
NOT FOR PUBLICATION
JAN 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO ROCHA, No. 14-56908
Petitioner - Appellant, D.C. No. 2:12-cv-03797-CBM
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted June 10, 2016
Pasadena, California
Before: RAWLINSON and BEA, Circuit Judges and SEEBORG,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Seeborg, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
1
Appellant Julio Rocha (“Rocha”) appeals the denial of his petition for a writ
of error coram nobis seeking to vacate his prior convictions on the ground he
received ineffective assistance of counsel. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
A defendant who has fully served his sentence may invalidate his conviction
through a petition for a writ of error coram nobis. To qualify for such relief, Rocha
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 fourth element is solely at issue in
this appeal, and it may be satisfied if Rocha received ineffective assistance of
counsel. See United States v. Kwan, 407 F.3d 1005, 1014 (9th Cir. 2005),
amended on reh’g, No. 03-50315, 2005 WL 1692492 (9th Cir. July 21, 2005), and
abrogated by Padilla v. Kentucky, 559 U.S. 356 (2010).
To succeed on his ineffective assistance claim, Rocha must show his
attorney’s representation “fell below an objective standard of reasonableness,” and
he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687–88
(1984). Under the standard prevailing in 2002, in the context of plea negotiations,
2
an attorney is deficient if he affirmatively misadvises a defendant regarding the
immigration consequences of pleading guilty. See Kwan, 407 F.3d at 1015–16.
Rocha’s attorney, Michael S. Evans (“Evans”), did not render affirmative
misadvice. The key statement on which Rocha focuses is that Evans told him to
sign the plea agreement because “[i]t will help me not to be deported” given “we
were going to have, if anything, less than a year in prison”. Rocha insists that
advice was incorrect because his immigration status turned solely on the loss
amount, in particular, whether or not it exceeded $10,000, which rendered him an
aggravated felon and therefore automatically removable.
Rocha, however, was not misled into thinking the agreement might provide
some help in avoiding deportation. Evans recognized if Rocha received a
probationary sentence—which is a possible sentence under one year contemplated
in the plea agreement—he likely could avoid the virtually automatic removal that
would be triggered if Rocha entered federal custody. To call this benefit of the
plea agreement accidental or illusory, as Rocha does, is strained. Indeed, the
agreement made it possible for Rocha to argue for probation, which is the result he
obtained. Further, to deconstruct the precise nature and forum for the promised
benefit, as Rocha presses, takes things too far, as Rocha acknowledged Evans
correctly advised him the agreement broadly would “help” or “allow” him to avoid
3
deportation.
Rocha concedes Evans explained the convictions could subject him to
deportation and never promised Rocha at any time he would not be deported.
Accordingly, the district court concluded correctly there was no affirmative
misadvice, and did not err in denying Rocha’s petition for coram nobis relief.1
AFFIRMED.
1
As Rocha must satisfy both factors of Strickland, we need not reach
prejudice. See Kwan, 407 F.3d at 1014.
4