US v. Juan Hernandez-Monreal

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00337-LMB-1,1:10-cv-00618-LMB Copies to all parties and the district court/agency. [998478981] [10-4777]

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US v. Juan Hernandez-Monreal Doc. 0 Case: 10-4777 Document: 8 Date Filed: 12/06/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4777 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUAN ANTONIO HERNANDEZ-MONREAL, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:07-cr-00337-LMB-1; 1:10-cv-00618-LMB) Submitted: September 28, 2010 WYNN, Circuit Decided: Judges, and December 6, 2010 HAMILTON, Senior Before DAVIS and Circuit Judge. Affirmed in part; dismissed in part by unpublished per curiam opinion. Juan Antonio Hernandez-Monreal, Appellant Pro Se. Bibighaus Hammerstrom, OFFICE OF THE UNITED STATES Alexandria, Virginia, for Appellee. Stephanie ATTORNEY, Unpublished opinions are not binding precedent in this circuit. Dockets.Justia.com Case: 10-4777 Document: 8 Date Filed: 12/06/2010 Page: 2 PER CURIAM: Juan Hernandez-Monreal seeks to appeal the district court's order summarily dismissing his petition for a writ of error coram nobis and dismissing as untimely his 28 U.S.C.A. 2255 (West Supp. 2010) motion. For the reasons explained below, we affirm the trial court's dismissal of the petition for a writ of error coram nobis, deny a certificate of appealability, and dismiss the remainder of this appeal. Although the district court erred when it summarily dismissed Hernandez-Monreal's petition for a writ of error coram nobis as inapplicable to a criminal judgment, that error was harmless. Contrary to the district court's reasoning, both the United States Supreme Court and this court have granted relief to federal prisoners under the writ of error coram nobis. See United States v. Morgan, 346 U.S. 502, 506-07, 512-13 (1954) (noting the continued viability of the writ of error coram nobis under the All Writs Act, 28 U.S.C. 1651(a) (2006), and affirming a district court's issuance of a writ of error coram nobis to vacate a conviction after the completion of the petitioner's term of imprisonment); United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988) (same). The district court's error was was harmless because Hernandez-Monreal's petition ultimately meritless. Hernandez-Monreal relied upon the United States Supreme Court's 2 Case: 10-4777 Document: 8 Date Filed: 12/06/2010 Page: 3 recent decision in Padilla v. Kentucky to argue ineffective assistance of counsel. See Padilla, 599 U.S. ___, ___, 130 S. Ct. 1473, 1486 (2010) (holding "counsel must inform her client whether his plea carries a risk of deportation"). however, shows that during his Rule his 11 hearing, The record, Hernandezthat his Monreal affirmatively acknowledged understanding plea "could definitely make it difficult, if not impossible, for [him] to successfully stay legally in the United States." Hence, the trial court's failure to consider Hernandez-Monreal's petition for a writ of error coram nobis was harmless. Next, we conclude that the trial court's determination that Hernandez-Monreal's 2255 motion was untimely is neither debatable nor wrong. district justice court's or judge To the extent it denied habeas relief, the is a not appealable of unless a circuit 28 order issues certificate appealability. U.S.C. 2253(c)(1) (2006). not issue absent "a A certificate of appealability will showing of the denial of a substantial constitutional right." 28 U.S.C. 2253(c)(2) (2006). When the district court denies relief on the merits, a prisoner satisfies Furthermore, nothing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review. See Mandel, 862 F.2d at 1075 (affirming district court's grant of a writ of error coram nobis vacating convictions in light of a retroactive and dispositive Supreme Court decision). 3 Case: 10-4777 Document: 8 Date Filed: 12/06/2010 Page: 4 this standard by demonstrating that reasonable jurists would find that the district court's assessment of the constitutional claims is debatable or wrong. 484 (2000); see Miller-El v. Slack v. McDaniel, 529 U.S. 473, Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. 529 U.S. at 484-85. Slack, We have independently reviewed the record and conclude that Hernandez-Monreal has not made the requisite showing. Accordingly, we affirm the district court's denial of a writ of error coram nobis, deny a certificate of appealability, and dismiss the appeal as to the denial of habeas relief. legal before We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional contentions the court would process. AFFIRMED IN PART; DISMISSED IN PART 4

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