PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 11-3958
__________
MARIO MENDOZA,
Appellant,
v.
UNITED STATES OF AMERICA
__________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 3:11-cv-03540)
District Judge: Hon. Joel A. Pisano
__________
Submitted under Third Circuit LAR 34.1(a)
June 22, 2012
Before: AMBRO, VANASKIE and ALDISERT, Circuit
Judges
(Filed: June 28, 2012)
Thomas R. Ashley, Esq.
Law Offices of Thomas R. Ashley, Esq.
50 Park Place, Suite 1400
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Newark, New Jersey 07102
Attorney for Appellant
Paul J. Fishman, United States Attorney
Mark E. Coyne, Chief of Appeals Division
Office of the United States Attorney
970 Broad Street, Suite 700
Newark, New Jersey 07102-2535
Norman Gross, Assistant United States Attorney
Office of the United States Attorney
Camden Federal Building and U.S. Courthouse
401 Market Street, Fourth Floor
Camden, New Jersey 08101-2098
Attorneys for Appellee
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OPINION OF THE COURT
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ALDISERT, Circuit Judge.
In 2006 Mario Mendoza pleaded guilty to an
aggravated felony and, as a result, now faces imminent
removal from the United States. He appeals from the United
States District Court for the District of New Jersey’s order
denying his petition for a writ of error coram nobis, in which
he sought to vacate his plea due to his counsel’s failure to
apprise him that his conviction would lead to deportation. For
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the reasons that follow, we will affirm the judgment of the
District Court.
I.
Mendoza was born in Ecuador and lives in New
Jersey. From 1996 to 2001, while working as a licensed
realtor, he helped borrowers obtain federally insured
mortgages. His behavior led the government to charge him
with conspiring to fraudulently induce the Federal Housing
Authority to insure mortgage loans, in violation of 18 U.S.C.
§§ 371 and 1001. Mendoza’s counsel, Glen Cavanagh,
explained to him he could avoid prison by pleading guilty.
Cavanagh did not, however, apprise Mendoza that, as an
aggravated felony, his crime would lead to mandatory
deportation. See 8 U.S.C. § 1227(a)(2)(A)(iii).
Mendoza entered his plea on March 29, 2006. Prior to
sentencing on September 11, 2006, Mendoza learned from his
Presentence Investigation Report (“PSR”) that his conviction
might result in removal. The District Court sentenced
Mendoza to two years’ probation and ordered him to pay
$100,000 in restitution. As a condition of his probation,
Mendoza was required to cooperate with immigration
officials.
Sometime after Mendoza received his sentence, the
government instituted removal proceedings and ordered him
to leave the country. On January 14, 2010, after completing
his sentence, Mendoza filed a motion pursuant to 28 U.S.C.
§ 2255 and Rule 32(d) of the Federal Rules of Criminal
Procedure to vacate his sentence and withdraw his plea. In it,
Mendoza contended that Cavanagh did not warn him of the
immigration implications of pleading guilty to an aggravated
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felony and noted that it was an open question whether a
lawyer renders constitutionally deficient performance by
failing to highlight a plea’s immigration consequences. On
March 31, 2010, the Supreme Court answered that question in
the affirmative. See Padilla v. Kentucky, 130 S. Ct. 1473
(2010). Five months later, on September 9, 2010, Mendoza
withdrew his motion to vacate his plea.
Nine months after that, on June 8, 2011, Mendoza
repackaged these same arguments in a petition for a writ of
error coram nobis. Mendoza contended that, had he been
aware that a guilty plea would subject him to deportation, he
would not have pleaded guilty and would have instead
attempted to negotiate a better deal or risked trial. On
September 21, 2011, after noting the issue of Mendoza’s
counsel’s ineffectiveness, the District Court denied
Mendoza’s petition on the alternative grounds that he filed
after an unreasonable delay and did not assert his innocence.
Mendoza timely appealed.
II.
The District Court had jurisdiction over the petition
under 28 U.S.C. § 1651(a), in aid of its jurisdiction pursuant
to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C.
§ 1291. We review the District Court’s legal conclusions de
novo and its factual findings for clear error. See United States
v. Orocio, 645 F.3d 630, 635 (3d Cir. 2011).
III.
Notwithstanding Mendoza’s counsel’s deficient
performance, we agree with the District Court that Mendoza’s
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unreasonable delay in filing his coram nobis petition
forestalls his efforts to seek relief. The rare remedy of a writ
of error coram nobis may be “used to attack allegedly invalid
convictions which have continuing consequence, when the
petitioner has served his sentence and is no longer ‘in
custody’ for purposes of 28 U.S.C. § 2255.” United States v.
Stoneman, 870 F.2d 102, 105-106 (3d Cir. 1989). Such relief
is appropriate, however, only “[(a)] to correct errors for which
there was no remedy available at the time of trial and [(b)]
where ‘sound reasons’ exist for failing to seek relief earlier.”
Id. at 106 (quoting United States v. Morgan, 346 U.S. 502,
512 (1954)). This “sound reason” standard is even stricter
than that used to evaluate § 2255 petitions. Id. Indeed, “‘it is
difficult to conceive of a situation in a federal criminal case
today where a writ of coram nobis would be necessary or
appropriate.’” Carlisle v. United States, 517 U.S. 416, 429
(1996) (quoting United States v. Smith, 331 U.S. 469, 475 n.4
(1947)).
Although Mendoza’s counsel’s deficient performance
may have precluded him from seeking relief at the time of his
plea, Mendoza cannot show any “sound reasons” for his
lengthy delay in seeking relief since that time. Mendoza
became aware of his plea’s deportation consequences in
September 2006 via his PSR, yet did not allege until 2010
that his counsel was ineffective. He attributes this four-year
delay to a combination of: (a) his (mistaken) belief that his
cooperation with immigration officials would stave off his
deportation, and (b) the absence of Supreme Court precedent
regarding a counsel’s duty to warn of a plea’s immigration
consequences—only after the Supreme Court decided Padilla,
Mendoza contends, could he have known that his counsel was
ineffective.
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These are not “sound reasons.” First, Mendoza’s
cooperation was a condition of his probation, not of his
remaining in the country, and any indications to the contrary
were not of the government’s making. Second, we have held
that Padilla did not create a “new rule” for retroactivity
purposes precisely because lawyers in the Third Circuit have
long been expected to advise clients of a plea’s deportation
implications. See Orocio, 645 F.3d at 640 (“Lower court
decisions not in harmony with Padilla were, with few
exceptions, decided before 1995 and pre-date the professional
norms that . . . had long demanded that competent counsel
provide advice on the removal consequences of a client’s
plea.”). 1 Indeed, Orocio involved a petition for a writ of error
1
On April 30, 2012, the United States Supreme Court granted
certiorari on the issue of whether Padilla created a “new rule,”
see Teague v. Lane, 489 U.S. 288, 301 (1989), and thus,
would not apply retroactively on collateral review. See
Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011),
cert. granted, 132 S. Ct. 2101 (2012) (No. 11-820). Although
this question has split the circuits, compare Orocio, 645 F.3d
630 (holding that Padilla is retroactive), with Chaidez, 655
F.3d 684 (holding that Padilla does not apply retroactively)
and United States v. Chang Hong, 671 F.3d 1147 (10th Cir.
2011) (same), its resolution has no bearing on Mendoza’s
claim, which falls short regardless. If the Supreme Court were
to overrule Orocio and conclude that Padilla did, in fact,
create a “new rule,” such a ruling may strengthen Mendoza’s
argument that he was previously unaware of the rule, but
would also preclude him from invoking Padilla retroactively,
effectively foreclosing his claim. See, e.g., Orocio, 645 F.3d
at 637-641.
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coram nobis based on facts almost identical to those here,
except Orocio filed his petition alleging deficient
performance before the Supreme Court decided Padilla, based
on existing precedent, and did so immediately upon learning
of his impending deportation. Mendoza was not as diligent.
Mendoza has known of the threat of removal since at least
2006, and his § 2255 motion to vacate his conviction because
of ineffective assistance—filed six months before Padilla was
decided and a full year-and-a-half before his present
petition—demonstrated that he did not need the Supreme
Court’s clarification to have raised his present contentions.
That the law is unsettled does not justify a delay in filing a
coram nobis petition, cf. Bousley v. United States, 523 U.S.
614, 623 (1998) (“[F]utility cannot constitute cause . . . if it
means simply that a claim was unacceptable to that particular
court at that particular time.” (quotation omitted)), nor does
the record reveal any other “sound reason” for waiting so
long to seek relief.
Finally, even if Mendoza had properly and timely
raised his ineffective assistance claims, we note that his
underlying efforts to withdraw his plea would almost
certainly fail. To withdraw a plea of guilty, a defendant must:
(1) demonstrate strong reasons for the withdrawal (2) assert
his innocence, and (3) show that the withdrawal will not
unduly prejudice the government. See United States v. Jones,
336 F.3d 245, 252 (3d Cir. 2003) (citing United States
v. Brown, 250 F.3d 811, 815 (3d Cir. 2001); United States
v. Huff, 873 F.2d 709, 711 (3d Cir. 1989)). Cavanagh’s
egregious error and Mendoza’s looming removal surely
constitute a strong reason to withdraw the plea. See United
States v. Trott, 779 F.2d 912 (3d Cir. 1985) (discussing how
allegations of a plea’s involuntariness relate only to the
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strength of the defendant’s reasons for withdrawal). But
Mendoza has not asserted his innocence; rather, he has
claimed merely that he would have sought a more favorable
plea deal or risked trial. It does not appear that such a
speculatively favorable plea deal existed, nor that a trial
would have resulted in anything less than a conviction for an
aggravated felony. More importantly, the government would
certainly be unduly prejudiced by the re-prosecution of a case
involving facts nearly a decade dormant.
IV.
Mendoza’s delay in pursuing relief was unreasonable
and bars his petition for a writ of error coram nobis. For that
reason and the others discussed in this opinion, the judgment
of the District Court will be AFFIRMED.
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