United States v. Catalino Ortiz ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-16703
Plaintiff-Appellee, D.C. Nos. 4:19-cv-00235-KAW
5:00-cr-20277-SVK-1
v.
CATALINO ORTIZ, AKA Marco Polo MEMORANDUM*
Rodriguez, Jr.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Susan van Keulen, Magistrate Judge, Presiding
Submitted May 13, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, MILLER, Circuit Judge, and RESTANI,***
Judge.
Catalino Ortiz (“Ortiz”) seeks reversal of the district court’s denial of his
*
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).
***
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
petition for a writ of error coram nobis. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and review de novo. United States v. Kroytor, 977 F.3d 957, 961 (9th Cir.
2020). The district court concluded that Ortiz was not entitled to coram nobis relief
because his delay in filing the petition was not justified. We agree.
Ortiz is a Mexican citizen who in September 2000 pleaded guilty to
possession of a false identification document with intent to defraud the United
States, in violation of 18 U.S.C § 1028(a)(4). More than nineteen years later, Ortiz
filed a petition for a writ of error coram nobis seeking to vacate his conviction on
the grounds that he was denied effective assistance of counsel because his attorney
did not advise him of the immigration consequences of his plea.
Coram nobis relief is an “extraordinary remedy” and should be granted
“only under circumstances compelling such action to achieve justice.” Kroytor,
977 F.3d at 961 (citation omitted). A petitioner is entitled to coram nobis relief
only if he or she can provide a valid reason justifying the delay in challenging the
conviction. Id. at 961 (citing United States v. Kwan, 407 F.3d 1005, 1012 (9th Cir.
2005)). Ortiz claims that his attorney’s failure to advise him of the collateral
consequences of his conviction and a recent change in the law justify his delay and
entitle him to relief.
Neither reason excuses his delay in seeking to expunge his conviction. Ortiz
relies on Padilla v. Kentucky, 559 U.S. 356 (2010) as a recent change in law to
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excuse his delay.1 Padilla does not apply retroactively to Ortiz’s conviction.
Chaidez v. United States, 568 U.S. 342, 358 (2013) (“[D]efendants whose
convictions became final prior to Padilla therefore cannot benefit from its
holding.”). Furthermore, the relevant pre-Padilla rule under Kwan does not apply
either because Ortiz does not allege that his attorney affirmatively misrepresented
the immigration consequences of his conviction. Kwan, 407 F.3d at 1015–17
(holding that affirmative misrepresentations by defense counsel regarding
immigration consequences could support ineffective assistance of counsel claims);
see also United States v. Chan, 792 F.3d 1151, 1158 (9th Cir. 2015) (giving
retroactive effect to the rule in Kwan). Thus, Ortiz’s argument that his delay was
justified by a recent change in applicable law is unpersuasive.
A petitioner who could have reasonably asserted the basis of a coram nobis
petition earlier has no valid justification for delay, and therefore, is disqualified
from receiving coram nobis relief. Kroytor, 977 F.3d at 961 (citing United States v.
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Padilla held that defense counsel’s failure to advise a client about the potential
immigration consequences of entering a guilty plea constitutes ineffective
assistance of counsel under the Sixth Amendment. 559 U.S. at 374. Padilla was
decided in 2010 and therefore, is not applicable “recently changed” law. See
Kroytor, 977 F.3d at 961–963 (holding that a two-year delay based on uncertainty
in the law was unjustified, and a one-year delay after an affirmative decision
clarifying the law was unjustified, thus disqualifying a petitioner for coram nobis
relief).
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Riedl, 496 F.3d 1003, 1006 (9th Cir. 2007)). Ortiz provides no valid justification
for his almost twenty-year delay in seeking to expunge his conviction. He states
only that he was not aware that his conviction permanently barred him from
gaining permanent resident status in the United States pursuant to 8 U.S.C. §
1182(a)(6)(C)(ii). In situations such as this one, relief may be denied because of
unjustified delay where “the petitioner has delayed for no reason whatsoever[.]”
Kroytor, 977 F.3d at 961 (quoting Kwan, 407 F.3d at 1013). Ortiz’s delay appears
to have resulted from his failure to exercise due diligence and is insufficient to
warrant relief in these circumstances. See Riedl, 496 F.3d at 1007 (rejecting coram
nobis relief where petitioner failed to demonstrate that “valid reasons exist for not
attacking the conviction[s] earlier” based on precedent rejecting coram nobis
petitions for unjustifiable delay) (alteration in original) (citation omitted).
Accordingly, we affirm the district court’s denial of Ortiz’s petition for a writ of
error coram nobis.
AFFIRMED.
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