NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-17544
Plaintiff-Appellee, D.C. Nos. 1:17-cv-00008-SOM
1:12-cr-00693-SOM
v.
NGANATATAFU AHOLELEI, a.k.a. John MEMORANDUM*
Aholeilei, a.k.a. Paul Aholeilei, a.k.a. Sione
Aholeilei, a.k.a. Sione Kaufasi, a.k.a. John
Ngana, a.k.a. Tino Niumata, a.k.a. Sione
Toetuu,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Susan O. Mollway, District Judge, Presiding
Submitted December 17, 2018 **
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Nganatatafu Aholelei challenges the district court’s order denying his
collateral attack of his 2013 guilty-plea conviction for being a felon in possession
*
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).
of explosives, in violation of 18 U.S.C. § 842(i)(1). We have jurisdiction under 28
U.S.C. §§ 1291 and 2253, and we affirm.
Aholelei first contends that the district court erred by construing his petition
as a motion under 28 U.S.C. § 2255 rather than a petition for a writ of error coram
nobis. Contrary to Aholelei’s contentions, he is in custody in connection with his
2013 conviction because he is still subject to the term of supervised release
imposed in connection with that conviction. See United States v. Monreal, 301
F.3d 1127, 1132 (9th Cir. 2002). Therefore, the district court properly construed
his filing as a section 2255 motion rather than a coram nobis petition. See Matus-
Leva v. United States, 287 F.3d 758, 761 (9th Cir. 2002). Aholelei’s reliance on
United States v. Johnson, 529 U.S. 53 (2000), which analyzed when supervised
release commences rather than whether a defendant is “in custody” within the
meaning of section 2255, is misplaced.
Aholelei next contends that the district court erred by denying his motion as
untimely. We review the denial of a section 2255 motion on timeliness grounds de
novo and the underlying findings of fact for clear error. See United States v.
Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010).
The one-year limitation period began to run, at the latest, on the date
Aholelei discovered or could have discovered through the exercise of due diligence
the facts supporting his ineffective assistance of counsel claim under Padilla v.
2 17-17544
Kentucky, 559 U.S. 356 (2010). See 28 U.S.C. § 2255(f)(4). It is undisputed that,
in the fall of 2013, Aholelei spoke to his newly retained immigration counsel and
learned that his guilty-plea conviction involved an aggravated felony that would
almost certainly result in removal. Thus, Aholelei knew, or through due diligence
could have discovered, the facts supporting his claim more than one year before he
filed his petition in January 2017. See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3
(9th Cir. 2011). He has not demonstrated “extraordinary circumstances” sufficient
to warrant equitable tolling. See Aguirre-Ganceda, 592 F.3d at 1045-46.
Therefore, the district court did not err by denying his motion as untimely. See 28
U.S.C. § 2255(f).
AFFIRMED.
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