16‐3192‐cr
United States v. Guzman‐Ferreiras
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 16th day of October, two thousand seventeen.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JANE A. RESTANI,
Judge.*
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UNITED STATES OF AMERICA,
Appellee,
16‐3192‐cr
v.
LUIS RODRIGUEZ‐HILARIO,
Defendant,
SERGIO DONATO GUZMAN‐FERREIRAS,
Defendant‐Appellant.
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Jane A. Restani, Judge for the United States Court of International Trade, sitting by
*
designation.
FOR APPELLEE: Barbara A. Masterson and Gregory L. Waples,
Assistant United States Attorneys, for Eugenia
A.P. Cowles, Acting United States Attorney for
the District of Vermont, Burlington, Vermont.
FOR DEFENDANT‐APPELLANT: Labe M. Richman, New York, New York.
Appeal from the United States District Court for the District of Vermont
(Murtha, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant Sergio Donato Guzman‐Ferreiras (ʺGuzmanʺ)
appeals the order of the district court entered July 21, 2016, denying his petition for a
writ of error coram nobis vacating his conviction. Guzmanʹs petition arose from his
March 19, 2004, judgment of conviction upon his guilty plea to transportation of illegal
aliens within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Guzman is no
longer in custody, and is facing deportation as he has been ordered removed from the
United States. Guzman argues that his trial counsel failed to advise him accurately
about the immigration consequences of his guilty plea. We assume the partiesʹ
familiarity with the facts, procedural history, and issues on appeal.
We review the district courtʹs decision denying a writ of error coram nobis
for abuse of discretion. Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996). ʺA writ of
error coram nobis is an ʹextraordinary remedy,ʹ typically available only when habeas
relief is unwarranted because the petitioner is no longer in custody.ʺ Kovacs v. United
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States, 744 F.3d 44, 49 (2d Cir. 2014) (internal citation omitted). To obtain coram nobis
relief, a petitioner must show ʺ1) there are circumstances compelling such action to
achieve justice, 2) sound reasons exist for failure to seek appropriate earlier relief, and
3) the petitioner continues to suffer legal consequences from his conviction that may be
remedied by granting of the writ.ʺ Id. (quoting Foont, 93 F.3d at 79).
The district court did not abuse its discretion in denying Guzmanʹs
petition for a writ of error coram nobis based on the claimed error in the advice he was
given about the immigration consequences of his guilty plea. First, the record
establishes that Guzman was advised by his counsel and the district court that his
guilty plea ʺmay result in deportation.ʺ Guzmanʹs written plea agreement, which he
and his trial counsel both signed, stated that ʺ[t]he defendant is aware that, if he is an
alien . . . , the guilty plea may result in deportation.ʺ App. 101. Moreover, at Guzmanʹs
plea hearing on November 4, 2003, the district court asked Guzman if he was aware his
ʺguilty plea may result in . . . deportation,ʺ App. 28‐29, and Guzman responded that he
understood. The district court confirmed with Guzmanʹs counsel that she had
ʺreviewed with [Guzman] the charge to which he is pleading guilty as well as each and
every paragraph of the plea agreement.ʺ App. 36. These warnings were sufficient to
satisfy counselʹs obligations, prior to Padilla v. Kentucky, 559 U.S. 356 (2010), to advise
Guzman of the immigration consequences of his guilty plea. See Chaidez v. United States,
568 U.S. 342 (2013) (holding that Padilla could not be applied retroactively to cases
which became final before the case was decided); see also United States v. Couto, 311 F.3d
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179, 187 (2d Cir. 2002) (ʺWe have held that an attorneyʹs failure to inform a client of the
deportation consequences of a guilty plea, without more, does not fall below an
objective standard of reasonableness.ʺ), abrogated by Padilla, 559 U.S. at 370.1
Second, Guzmanʹs petition is untimely. He has not provided a sound
reason as to why he delayed for over twelve years in bringing the petition. See Foont, 93
F.3d at 79 (ʺ[C]oram nobis relief may be barred by the passage of time.ʺ). Guzman pled
guilty on November 4, 2003. He did not file a motion to set aside his guilty plea. Nor
did he file a motion to set aside the sentence pursuant to 28 U.S.C. § 2255. It was only
on March 10, 2016, that Guzman filed his petition for a writ of error coram nobis. In fact,
Guzmanʹs trial counsel specifically identified the passage of time as a barrier to her
recalling specifically what advice she gave Guzman. Accordingly, the district court did
not abuse its discretion in denying Guzmanʹs petition for a writ of error coram nobis.
We have considered all of Guzmanʹs remaining arguments and conclude
they are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
1 We note that this case does not involve a situation where counsel made an affirmative
misrepresentation that a conviction would not result in immigration consequences. See e.g.,
Kovacs v. United States, 744 F.3d 44, 50‐51 (2d Cir. 2014). Moreover, while cases have held that
where deportation is mandatory, it is objectively unreasonable post‐Padilla to fail to inform a
client that deportation is certain, see Rodriguez v. New York, No. 16‐cv‐5615, 2017 WL 1655217, at
*9 (E.D.N.Y. May 2, 2017) (collecting cases), the conviction here became final long before Padilla.
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United States v. Guzman-Ferreiras
Combined Opinion