Rodriguez v. USA

Filing 6

MEMORANDUM DECISION AND ORDER Rodriguez-Trujillo's § 2255 Motion (Civil Dkt. 1 ) is DISMISSED as untimely. Rodriguez-Trujillo's Petition for Writ of Coram Nobis (Civil Dkt. 4 ) is DENIED. Rodriguez-Trujillo's Motion to Proceed I n Forma Pauperis (Civil Dkt. 5 ) is DEEMED MOOT as there is no fee to file a § 2255 motion. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,

Case No. 4:11-cv-00593-BLW

Plaintiff-Respondent,

4:08-cr-00240-BLW

v.
FRANCISCO RODRIGUEZ-TRUJILLO,

MEMORANDUM DECISION &
ORDER

Defendant-Movant.
INTRODUCTION
Before the Court is Francisco Rodriguez-Trujillo’s Petition for Writ of Error
Coram Nobis (Civil Dkt. 4 1). As explained below, coram nobis is not available to
movant. The Court will therefore treat the petition as a response to this Court’s earlier
order, which directed Rodriguez-Trujillo to show cause as to why his earlier-filed § 2255
motion should not be dismissed as untimely. See Order, Civil Dkt. 3. Having considered
the briefing and the record, the Court will dismiss Rodriguez-Trujillo’s § 2255 motion as
untimely.
1

Citations to the Civil Docket refer to entries in this civil matter – Case No. 4:11-cv-00593-BLW.
Citations to the Criminal Docket refer to entries in the criminal matter – Case No. 4:08-cr-00240-BLW.

MEMORANDUM DECISION & ORDER - 1

BACKGROUND
In August 2009, Rodriguez-Trujillo, a lawful permanent resident of the United
States, pleaded guilty to one count of unlawfully using a communication facility under 21
U.S.C. § 843(b). On January 27, 2010, this Court sentenced Rodriguez-Trujillo to 24
months in prison, to be followed by a one-year term of supervised release.
Rodriguez-Trujillo alleges that in April 2011, the Department of Homeland
Security initiated removal proceedings based on his conviction. 2 Several months later, in
December 2011, he filed a motion to vacate, set aside, or correct his sentence based on 28
U.S.C. § 2255. See Civil Dkt. 1. Rodriguez-Trujillo alleged, among other things, that in
light of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), his attorney deficiently performed
by failing to advise him that his guilty plea would make his deportation presumptively
mandatory.
Shortly after Rodriguez-Trujillo filed his § 2255 motion, this Court notified him
that his motion would be dismissed as untimely under § 2255’s one-year statute of
limitations unless he presented evidence that he had diligently pursued his rights and
extraordinary circumstances prevented him from timely filing his motion. See Jan. 7,
2012 Order, Civil Dkt. 1. Rodriguez-Trujillo responded with his pending Petition for
Writ of Error Coram Nobis. See Civil Dkt. 4.
ANALYSIS
2

The petition alleges that the Rodriguez-Trujillo received a notice of removal proceedings on April 8,
2011. The notice to appear attached to the petition, however, is dated August 8, 2011. See Aug. 8, 2011
Notice of Removal, Civil Dkt. 4-2. This discrepancy does not affect the Court’s analysis; either way
Rodriguez-Trujillo is not entitled to relief.

MEMORANDUM DECISION & ORDER - 2

1. Rodriguez-Trujillo Was “In Custody” When He Filed His § 2255 Motion and
His Coram Nobis Petition
Coram nobis 3 is an extraordinary writ, used only to review errors of the most
fundamental character. District courts have the power to issue the writ under the All
Writs Act, 28 U.S.C. § 1651(a). United States v. Morgan, 346 U.S. 502, 506-07 (1954).
To warrant coram nobis relief, a petitioner must establish that: (1) a more usual remedy is
not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse
consequences exist from the conviction sufficient to satisfy the case or controversy
requirement of Article III; and (4) the error is of a fundamental character. Matus-Leva v.
United States, 287 F.3d 758, 760 (9th Cir. 2002). Because these requirements are
conjunctive, failure to meet any one of them is fatal. Id.
Rodriguez-Trujillo cannot satisfy the first requirement – that a more usual remedy
is unavailable – because he was still in custody when he filed his December 2011 § 2255
motion and his February 2012 coram nobis petition. “A person in custody may seek
relief pursuant to 28 U.S.C. § 2255.” Id. Thus, “[b]ecause the more usual remedy of a
habeas petition is available, the writ of error coram nobis is not.” Id. This is true even if
a § 2255 motion would be time-barred. Id. As the Ninth Circuit has explained:
A petitioner may not resort to coram nobis merely because he has failed to
meet the AEDPA’s[ 4] gatekeeping requirements. To hold otherwise would
3

Coram nobis means, literally, “before us.” Black’s Law Dictionary 388 (9th ed. 2009). Historically,
coram nobis was a writ of error taken from a judgment of the King’s bench. Id. Today, it is a “writ or
error directed to a court for review of its own judgment and predicated on alleged errors of fact.” Id.
4

AEDPA refers to the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, signed into
law on April 24, 1996.

MEMORANDUM DECISION & ORDER - 3

circumvent the AEDPA’s overall purpose of expediting the presentation of
claims in federal court and enable prisoners to bypass the limitations and
successive petitions provisions.
Id. at 761.
The Court’s records do not reflect when Rodriguez-Trujillo completed his prison
term, but, regardless, he was on supervised release until at least August 7, 2012. See
Discharge Order, Criminal Dkt. 533 (October 12, 2012 order terminating supervised
release, which expired on August 7, 2012). Being “in custody” is not limited to actual,
physical custody. See Jones v. Cunningham, 371 U.S. 236, 239 (1963). Rather, a person
is “in custody” if is serving a term of supervised release because he has restrictions on his
liberty that are not “not shared by the public generally.” Id. at 240; see also, e.g., MatusLeva, 287 F.3d at 761 (9th Cir. 2002) (petitioner was on supervised release and therefore
“in custody”). Further, the time for determining custody is the time when the § 2255
motion is filed. See Spencer v. Kemna, 523 U.S. 1, 7 (1998); see also Bawaneh v.
United States, 2011 WL 1465775, at *6 (C.D. Cal. Apr. 18, 2011) (determining that
coram nobis was unavailable to a defendant who filed his § 2255 motion a month before
probation ended). Coram nobis is thus unavailable to Rodriguez-Trujillo.
2.

Timeliness of the § 2255 Motion
The next question is whether Rodriguez-Trujillo’s § 2255 motion is timely. There

is a one-year limitation period for these motions, which runs from the latest of
(1)

the date on which the judgment of conviction becomes final;
...

MEMORANDUM DECISION & ORDER - 4

(3)

the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or

(4)

the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f)(1), (3), and (4). 5
Because Rodriguez-Trujillo’s judgment became final on February 10, 2010, his
deadline to file a § 2255 motion was February 10, 2011. See Order, Civil Dkt. 3. His
December 2011 motion is thus untimely under subsection (f)(1).
The motion is also untimely under subsection (f)(3), which deals with “newly
recognized” rights that are retroactively applicable. First, to the extent RodriguezTrujillo argues Padilla v. Kentucky created a “newly recognized right,” he was required
to file his § 2255 motion within one year of the decision. See Dodd v. United States, 545
U.S. 353, 357 (2005). He did not. Padilla was decided in March 2010 and RodriguezTrujillo filed his petition in December 2011. Moreover, the Supreme Court recently held
that Padilla is not retroactively applicable to cases on collateral review. See Chaidez v.
United States, ___ S. Ct. ___, 2013 WL 610201, at *10 (Feb. 20, 2013) (“defendants
whose convictions became final prior to Padilla therefore cannot benefit from its
holding”).
Rodriguez-Trujillo’s motion is also untimely under subsection (f)(4). Subsection
(f)(4) is, effectively, a tolling statute. Clarke v. United States, --- F.3d ---, 2013 WL
5

Subsection (f)(2) is not applicable here.

MEMORANDUM DECISION & ORDER - 5

85935, at *2 (7th Cir. 2013). Under § 2255(f)(4), the limitation period begins running on
“the date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.” 28 U.S.C. § 2255(4). A lawyer’s
failure to inform his client about adverse immigration consequences could be a “fact”
supporting a claim of ineffective assistance of counsel. See id.; see generally Padilla v.
Kentucky, 130 S. Ct. 1473 (2010).
Rodriguez-Trujillo does not directly invoke subsection (f)(4), but he generally
argues that his motion is timely because he did not become aware that his counsel had
rendered ineffective assistance until “he was actually detained . . . .” Petition, Civil Dkt.
4, at 8. (Presumably, the reference to being “detained” refers to the August 2011 notice
Rodriguez-Trujillo received from the Department of Homeland Security. See August 8,
2011 Notice to Appear, Ex. A to Petition, Civil Dkt. 4-2). So, under subsection (f)(4)’s
tolling provisions, the key question is when Rodriguez-Trujillo could have discovered
facts supporting a claim that his attorney failed to advise him that he would likely be
deported as a result of his guilty plea.
The timing is fairly straightforward. On August 11, 2009 – well over a year
before he filed his § 2255 motion – Rodriguez-Trujillo pleaded guilty. During the plea
hearing, Judge Shubb advised Rodriguez-Trujillo that his guilty plea could result in
deportation:
Court:

Do you understand that your plea of guilty could result in
your being deported from the United States?

Rodriguez:

Yes, I understand.

MEMORANDUM DECISION & ORDER - 6

Transcript of Hearing, Criminal Dkt. 530, at 7:23-25.
So by August 11, 2009, Rodriguez-Trujillo should have known that his attorney
had failed to advise him of the immigration consequences of his plea. Other district
courts facing similar factual situations have also pegged the plea hearing date as the time
when the one-year period under § 2255(f)(4) begins to run. See, e.g., Tavira v. United
States, 2011 WL 5975817 (M.D. Fla. Nov. 28, 2011); Gacko v. United States, 2010 WL
2076020, at *2 (E.D.N.Y. May 20, 2010); Tacata v. United States, 2007 WL 1303018 (D.
Haw. May 2, 2007); Salama v. United States, 2005 WL. 1661830 (E.D.N.Y. July 15,
2005).
The Seventh Circuit also addressed a somewhat similar scenario in Clarke v.
United States, --- F.3d ---, 2013 WL 85935 (7th Cir. 2013). In Clarke, the defendant’s
attorney “mentioned possible immigration consequences” to her before she pleaded
guilty. Id. at *2. As is the case here, however, the defendant did not file her § 2255
motion until a few months after the Department of Homeland Security instituted removal
proceedings. Id. at *1. The court rejected defendant’s § 2255(f)(4) tolling argument,
holding that “the date of her guilty plea was the date on which her duty of diligent inquiry
arose. She had loads of time to discover the possible immigration consequences of her
plea of guilty.” Id. at *2 (internal citations omitted).
The same is true here. On August 11, 2009, when Judge Shubb told RodriguezTrujillo he could be deported as a result of pleading guilty, his duty of diligent inquiry
arose. Yet he did not file a § 2255 motion until over two years later, in December 2011.

MEMORANDUM DECISION & ORDER - 7

The Court therefore concludes that his § 2255 motion is time barred. 6 Cf. United States
v. Battles, 362 F.3d 1195, 1198 (9th Cir. 2004) (rejecting a § 2255(f)(4) tolling argument,
observing that “[s]urely due diligence requires Battles to consult his own memory of the
trial proceedings”).
Finally, Rodriguez-Trujillo’s reliance on United States v. Kwan, 407 F.3d 1005
(9th Cir. 2005), overruled on other grounds by Padilla v. Kentucky, 130 S. Ct. 1473
(2010), is unavailing. Kwan dealt with a properly filed coram nobis petition. Unlike
§ 2255 motions, coram nobis petitions are not governed by any a statute of limitations.
Rather, petitioners must only show “sounds reasons” for not attacking their convictions
earlier. Id. at 1014. As already explained, Rodriguez-Trujillo cannot properly bring a
coram nobis petition and is therefore governed by § 2255’s one-year statute of
limitations.
CERTIFICATE OF APPEALABILITY
The Court denies any request for a certificate of appealability. To pursue an
appeal from the denial or dismissal for writ of habeas corpus brought by a federal
prisoner under 28 U.S.C. § 2255, the movant must first obtain a certificate of
appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). When a district court
denies a § 2255 motion on a procedural ground, without reaching the underlying
constitutional claim, a certificate of appealability should issue only if (1) “jurists of

6

For essentially the same reasons, the Court determines that equitable tolling – which requires a diligent
pursue of rights – is not available to Rodriguez-Trujillo. See generally United States v. Aguirre-Ganceda,
592 F.3d 1043, 1045 (9th Cir. 2010).

MEMORANDUM DECISION & ORDER - 8

reason” would find the district court’s procedural ruling debatable, and (2) the petition
states a valid claim that constitutional rights were denied. See Slack v. McDaniel, 529
U.S. 473, 484 (2000).
Here, the Court does not believe reasonable jurists would debate the Court’s
procedural ruling regarding the untimeliness of the § 2255 motion. The Court therefore
declines to issue a certificate of appealability.
ORDER
IT IS ORDERED THAT:
1. Rodriguez-Trujillo’s § 2255 Motion (Civil Dkt. 1) is DISMISSED as
untimely.
2. Rodriguez-Trujillo’s Petition for Writ of Coram Nobis (Civil Dkt. 4) is
DENIED.
3. Rodriguez-Trujillo’s Motion to Proceed In Forma Pauperis (Civil Dkt. 5) is
DEEMED MOOT as there is no fee to file a § 2255 motion.
4. The Court DENIES any request for a Certificate of Appealability. RodriguezTrujillo is advised that he may still request a certificate of appealability from
the Ninth Circuit Court of Appeals, pursuant to Federal Rule of Appellate
Procedure 22(b) and Local Ninth Circuit Rule 22-1. To do so, he must file a
timely notice of appeal.
5. If Rodriguez-Trujillo files a timely notice of appeal, and not until such time,
the Clerk of Court shall forward a copy of the notice of appeal, together with

MEMORANDUM DECISION & ORDER - 9

this Order, to the Ninth Circuit Court of Appeals. The district court’s file in
this case is available for review online at www.id.uscourts.gov.
6. The Court will enter judgment separately.

DATED: March 28, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION & ORDER - 10