United States v. Bernardo Herzer , 676 F. App'x 673 ( 2017 )

FILED
NOT FOR PUBLICATION JAN 23 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-56105
Plaintiff-Appellee, D.C. No. 3:91-cr-00571-LAB
v.
MEMORANDUM*
BERNARDO HERZER,
Defendant-Appellant,
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Bernardo Herzer appeals from the district court’s order denying his petition
for a writ of error coram nobis attacking his 1992 guilty-plea conviction for
attempted possession of marijuana with intent to distribute, in violation of 21
U.S.C. §§ 841(a)(1) and 846. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo, Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002),
and we affirm.
Herzer contends that his trial counsel provided ineffective assistance under
Padilla v. Kentucky, 559 U.S. 356 (2010), when he failed to inform Herzer that his
guilty-plea conviction would be a bar to citizenship. During the pendency of this
appeal, the Supreme Court held that Padilla does not apply retroactively to cases
on collateral review. See Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013).
Because Herzer’s conviction became final before Padilla was decided, his
contention is foreclosed by Chaidez. See id.
Although Herzer argues on appeal that he is alleging affirmative
misrepresentations falling under this court’s decision in United States v. Kwan, 407
F.3d 1005 (9th Cir. 2005), rather than a failure to inform arising under Padilla, his
amended petition specifically alleges that his trial counsel did not affirmatively
misadvise him as to the immigration consequences of his guilty plea.
Because we conclude that Herzer’s contention of error is foreclosed by
Chaidez, we do not reach the issue of whether his petition was timely filed. See
Matus-Leva, 287 F.3d at 760 (elements for coram nobis relief are conjunctive and
“failure to meet any one of them is fatal”).
AFFIRMED.
2 11-56105