United States v. Glenn Wiersma ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 30 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-55421
Plaintiff-Appellee, D.C. No.
2:92-cr-00979-JFW-2
v.
GLENN ALBERT WIERSMA, AKA MEMORANDUM*
Johnell G. Davis,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted May 11, 2023
Pasadena, California
Before: HURWITZ and R. NELSON, Circuit Judges, and KANE,** District Judge.
Glenn Wiersma appeals from the district court’s denial of a coram nobis
petition. In 1995, Wiersma pleaded guilty to conspiracy to defraud the United States
in violation of 18 U.S.C. § 286. Over twenty-five years later, he petitioned for coram
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
nobis relief, seeking to vacate his conviction based on the contention that he received
ineffective assistance of counsel because his previous attorney did not warn that the
conviction rendered him deportable.
We have jurisdiction under 28 U.S.C. § 1291 and review the denial of coram
nobis relief de novo. United States v. Kroytor, 977 F.3d 957, 961 (9th Cir. 2020).
We affirm because Wiersma did not show that his former attorney provided
constitutionally deficient performance.1
1. Padilla v. Kentucky instructs that counsel “must inform her client
whether his plea carries a risk of deportation.” 559 U.S. 356, 374 (2010). But
Padilla does not apply retroactively because it announced a “new rule” that broke
with nearly all lower courts—including the Ninth Circuit—which “excluded advice
about collateral matters from the Sixth Amendment’s ambit.” Chaidez v. United
States, 568 U.S. 342, 352 (2013); see United States v. Fry, 322 F.3d 1198, 1200 (9th
Cir. 2003). Thus, Padilla offers no basis for coram nobis relief from Wiersma’s
1995 conviction.
2. Before Padilla, we created an exception to our general rule, recognizing
that counsel can provide ineffective assistance by “affirmatively misleading” a client
about immigration consequences. United States v. Kwan, 407 F.3d 1005, 1008 (9th
1
We GRANT Wiersma’s unopposed motion for judicial notice of various court
records from Wiersma’s prior appeal. Dkt. No. 22.
2 22-55421
Cir. 2005), abrogated in part by Padilla, 559 U.S. at 374. For the first time on
appeal, Wiersma contends that his prior lawyer “affirmatively misadvised” him
about his conviction’s immigration consequences. But Wiersma points to no
affirmative misrepresentation. Quite the contrary, Wiersma’s petition says his
lawyer “never discussed the immigration consequences of the federal plea” with
him.
Instead, Wiersma relies on a provision of his plea agreement stating that the
government “will not oppose” certain “conditions of release” allowing Wiersma “to
complete [his] schooling by the end of March 1995.” Wiersma contends that this
provision meant to say “March 1996” and governed the conditions of his release
after his incarceration. According to Wiersma, this provision is misleading because
federal law did not allow his release to the community after his incarceration but
rather rendered him automatically deportable.
Even assuming that this theory was not forfeited, it lacks merit. For one thing,
it requires us to rewrite the plea agreement’s unambiguous terms, which we decline
to do. Moreover, no reasonable reader would consider this provision to be a
misrepresentation about immigration consequences: it is a representation from the
government (not Wiersma’s attorney), makes no mention about immigration status,
and appears to reflect precisely what later occurred.
3. Wiersma also argues that his counsel provided ineffective assistance by
3 22-55421
violating California professional standards. According to Wiersma, since the 1980s,
California law has required criminal defense attorneys to investigate and advise their
clients about a criminal conviction’s immigration consequences. Wiersma says it
was unreasonable for his attorney not to fulfill these state-law obligations,
particularly when the attorney was also representing Wiersma in state criminal
proceedings. But Wiersma is in federal court seeking federal relief from a federal
conviction. Before Padilla, the availability of a federal constitutional remedy for
ineffective assistance of counsel turned on the “distinction between direct and
collateral consequences,” not on whether a “reasonably competent lawyer [would]
tell a non-citizen client about a guilty plea’s deportation consequences.” Chaidez,
568 U.S. at 357–58 (citing Fry, 322 F.3d at 1200–01). No matter what state law
obligated Wiersma’s attorney to do in state court,2 federal law viewed immigration
consequences as “collateral to the criminal prosecution” and thus outside the Sixth
Amendment’s purview. Id.
4. Finally, Wiersma contends that the district court abused its discretion
by resolving the coram nobis petition without an evidentiary hearing. As discussed,
Wiersma’s petition fails as a matter of law, and he does not articulate how further
2
It is also not obvious that California law even imposed the duty that Wiersma
claims. See, e.g., People v. Vivar, 43 Cal. App. 5th 216, 226 (2019) (“[P]rior to
Padilla, it remained an open question in California whether defense counsel had an
affirmative duty to advise about immigration consequences of a plea.”), reversed on
other grounds, 485 P.3d 425 (Cal. 2021).
4 22-55421
factual development would change the outcome. See Runningeagle v. Ryan, 825
F.3d 970, 990 (9th Cir. 2016) (“Where documentary evidence provides a sufficient
basis to decide a petition, the court is within its discretion to deny a full hearing.”).
AFFIRMED.
5 22-55421