NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-56254
Plaintiff-Appellee, D.C. No. 8:93-cr-00130-JVS
v.
MEMORANDUM*
RAFAEL BUSTAMANTE, a.k.a.
Ralph Bustamante,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Former federal prisoner Rafael Bustamante appeals from the district court’s
order denying his petition for a writ of error coram nobis. We have jurisdiction
under 28 U.S.C. § 1291. We review the denial of a coram nobis petition de novo,
see United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007), and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Bustamante contends that he is entitled to coram nobis relief because
counsel was ineffective for failing to secure a sentence that would have made him
eligible for relief from deportation under former Immigration Nationality Act
§ 212(c). The record does not support Bustamante’s claim that counsel could have
negotiated a disposition that would have qualified him for § 212 relief.
Bustamante also argues, for the first time on appeal, that his attorney
affirmatively misled him regarding the immigration consequences of pleading
guilty. Even if this claim is properly before this court, see Beets v. County of Los
Angeles, 669 F.3d 1038, 1043 (9th Cir. 2012), the record shows that Bustamante
was advised, and understood, that the conviction could subject him to deportation.
Contrary to Bustamante’s contention, the record is sufficiently developed to make
this determination, and his alternative request that this court remand for further
proceedings is, accordingly, denied.
Because Bustamante has not shown that his counsel’s performance was
neither deficient nor prejudicial, he has not established an error “of the most
fundamental character” entitling him to a writ of error coram nobis. See Riedl, 496
F.3d at 1005-06.
AFFIRMED.
2 16-56254