Monsivais v. United States of America

Filing 6

ORDER on Application for Writ of Error Coram Nobis 1 , signed by District Judge Anthony W. Ishii on 8/7/17. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARIA RUBI MONSIVAIS,

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CASE NO. 1:15-CV-1930 AWI
(Criminal Case No. 1:05-CR-368 AWI-5)

Petitioner,
v.

ORDER ON APPLICATION FOR WRIT
OF ERROR CORAM NOBIS

UNITED STATES OF AMERICA,
Respondent.

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On October 4, 2006, Maria Monsivais (“Petitioner”) pled guilty pursuant to a violation of

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18 U.S.C. §§ 2 and 1018, aiding and abetting the production of a false official certificate, pursuant

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to a plea agreement. See Crim. Doc. Nos. 56, 57. On December 18, 2006, Petitioner was

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sentenced to 12 months of probation. See Crim. Doc. No. 69. Judgment and commitment were

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entered on December 27, 2006. See Crim. Doc. No. 72. Petitioner did not appeal her sentence.

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On December 28, 2015, Petitioner filed this application for a writ of error coram nobis.

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See Civ. Doc. No. 1. Petitioner states that her conviction makes her unable to prove that she has

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“good character” for purposes of § 212 of the Immigration and Nationalization Act. See id.

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Petitioner states that she discovered that she could not become a citizen due to her 2006 conviction

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in 2015, when she was denied citizenship. See id.

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“Coram nobis is an extraordinary writ, used only to review errors of the most fundamental

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character.” Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002). “To warrant coram

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nobis relief, the petitioner must establish that: (1) a more usual remedy is not available; (2) valid

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reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the

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conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error

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is of a fundamental character.” United States v. Monreal, 301 F.3d 1127, 1132 (9th Cir. 2002). A

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writ of error coram nobis may be denied without a hearing if the petition’s allegations fail to show

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an adequate basis for issuance of the writ. See Maghe v. United States, 710 F.2d 503, 503-04 (9th

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Cir. 1983). A writ of error coram nobis must be filed in the sentencing court. See Monreal, 301

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F.3d at 1131.

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The petition is based on two general grounds. However, the Court finds that neither
ground is sufficient to warrant relief.

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First, Petitioner contends that her counsel was ineffective by not informing her of the

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immigration consequences of her guilty plea. It is true that the Supreme Court has held that the

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failure of counsel to inform her client of the possibility of deportation arising from a guilty plea

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can constitute ineffective assistance of counsel for purposes of the Sixth Amendment. See Padilla

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v. Kentucky, 559 U.S. 356, 366 (2010). However, the Supreme Court has also held that Padilla

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announced a new rule and that “defendants whose convictions became final prior to Padilla

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therefore cannot benefit from its holding.” Chaidez v. United States, 568 U.S. 342, 358 (2013).

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In United States v. Herzer, 676 F. App’x 673 (9th Cir. 2017), the Ninth Circuit addressed a request

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for coram nobis relief based on counsel’s alleged failure to inform Herzer that his guilty plea

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conviction would be a bar to citizenship. Because Herzer’s conviction was final before Padilla

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was decided, Chaidez foreclosed any relief. Herzer, 676 F. App’x at 673. Here, Petitioner’s case

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is indistinguishable from Herzer. Petitioner’s conviction became final in 2007 and Padilla was

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decided in 2010. Therefore, Chaidez bars Petitioner from obtaining relief based on her counsel’s

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failure to advise her of immigration consequences, and more specifically the bar to citizenship,

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resulting from her guilty plea.1 See Chaidez, 568 U.S. at 358; Herzer, 676 F. App’x at 673.

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Second, Petitioner contends that at the time she entered her plea, she was under extreme
stress and anxiety and that she did not understand the rights she was waiving. Petitioner’s
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Petitioner relies heavily on United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005). Kwan found that an attorney who
affirmatively misadvised a client about the immigration consequences of a guilty plea was deficient. See Kwan, 407
F.3d at 1015-16; see also Herzer, 676 F. App’x at 674; Rocha v. United States, 675 F. App’x 713, 714 (9th Cir. 2017).
However, the petition in this case is based on a failure to inform, not affirmative misleading. See Civ. Doc. No. 1.
Therefore, Kwan does not apply. See Herzer, 676 F. App’x at 674.

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declaration states in part that: she was “stressed and anxious” due to her son’s condition brain

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damaged condition; she was under extreme emotion distress from the death of her brain-damaged

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son; her daughter died in May 2007 (about a year after her son); she suffered from extreme

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tightness in muscles, pneumonia, and seizures; she does not remember what she signed as a Plea

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Agreement; and because of these issues she did not understand the rights she was waiving. See

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Monsavais Dec. ¶¶ 9-12. However, a review of the change of plea hearing and sentencing hearing

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does not reveal any of these matters. The transcript of the plea hearing shows Plaintiff was

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assisted by an interpreter and her counsel. See Crim. Doc. No. 103. The transcript also shows

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inter alia that: Plaintiff affirmatively stated that she had not recently been treated for any mental

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illness, she had fully reviewed and discussed the misdemeanor information with her attorney, she

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fully discussed and reviewed a translated copy of the plea agreement (and its consequences) with

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her attorney, she understood all of the terms of the plea agreement, she pled guilty because she

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was guilty, she waived appellate and trial rights after having those rights explained by the Court,

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and she agreed to the factual basis of the charged offense. See id. In other words, Petitioner’s

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rights were explained and she stated that she understood her rights. Similarly, at the sentencing

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hearing, Petitioner stated that she had fully discussed the presentence report, and when asked if

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she wanted to anything about the report or sentence, she said, “No. Everything’s fine.” Doc. No.

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104. Thus, there was ample opportunity for Petitioner to raise any questions regarding the rights

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that she was waiving, or to inform the Court of any undue stress that could be affecting her

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understanding of what she was doing. The change of plea transcript demonstrates a knowing and

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voluntary guilty plea, and the sentencing transcript indicates that the matter was proceeding as

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expected. See id. Additionally, courts have recognized that it is highly unlikely that depression,

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stress, or anxiety, or some combination of the three, will render a guilty plea involuntary or

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unknowing. See Tanner v. McDaniel, 493 F.3d 1135, 1145-46 (9th Cir. 2007); Miles v. Dorsey,

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61 F.3d 1459, 1470 (10th Cir. 1995); Simon v. Valenzuela, 2017 U.S. Dist. LEXIS 46863, *13-

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*14 (C.D. Cal. Jan. 27, 2017). Although Petitioner has submitted information that indicates that

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her son suffered a catastrophic brain injury, there is no indication that Petitioner was taking any

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medications or undergoing any kind of treatment to cope with that situation or any other situation.
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Also, the Court does not trivialize and is sympathetic to the pain that is caused from the death of a

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child, let alone the deaths of two children. However, the plea agreement was signed and the

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change of plea hearing both occurred on October 4, 2006. Petitioner states that her daughter died

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in an accident in May 2007. Because the accidental death had not yet occurred, the death of

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Petitioner’s daughter in no way could have affected Petitioner’s plea. Further, Petitioner states

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that her son died about one year before her daughter, which would be about May 2006. This is

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five months prior to the October 2006 plea. With the death of her son, there would no longer be

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the stress associated with caring for his needs. Although the death itself could reasonably be

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expected to affect Petitioner in October 2006, again, there is no indication that Petitioner sought

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any treatment or was taking any medications to deal with her stress. Therefore, there is an

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insufficient indication that Petitioner’s plea was involuntary. See Tanner, 493 F.3d at 1145-46.

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Because Petitioner has not shown that a fundamental error affected her conviction, the
Court will not issue a writ of error coram nobis.

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ORDER
Accordingly, IT IS HEREBY ORDERED that Petitioner’s application for a writ of error
coram nobis is DENIED.

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IT IS SO ORDERED.
Dated: August 7, 2017
SENIOR DISTRICT JUDGE

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