VILLEDA v. UNITED STATES OF AMERICA

Filing 9

MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 1/16/2014. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSE MONROY VILLEDA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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CIVIL ACTION NO. 12-7449 (MLC)
MEMORANDUM OPINION

COOPER, District Judge
Petitioner, Jose Monroy Villeda, with the assistance of counsel, petitions for a writ
of error coram nobis, asking this Court to set aside his 1992 state court conviction for a
felony drug trafficking offense. That state conviction eventually resulted in his
deportation, but he re-entered the United States without authorization. He was then
prosecuted in this Court for illegal re-entry of a felon, in violation of 8 U.S.C. §§ 1326(a)
and 1326(b)(2). While that federal prosecution was pending on our criminal docket here,
petitioner filed this petition for writ of coram nobis, seeking to vacate the earlier state
court conviction that caused his deportation. For the reasons stated, we will dismiss the
petition for lack of subject matter jurisdiction.
BACKGROUND
Petitioner is a citizen of Honduras who entered the United States illegally and was
residing in New Jersey prior to the events described here. He states that on December 2,

1991, he pleaded guilty in the Superior Court of New Jersey to the offense of possessing a
controlled dangerous substance, cocaine, with intent to distribute within 1,000 feet of a
school, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-7. (Petition, dkt. entry no. 1 at 4.)
He states that his attorney did not advise him, prior to entering that plea, that a conviction
on the charges would result in his deportation, and he was unaware of that fact. The
judgment of conviction based upon that plea was entered on January 17, 1992. (Id. at 29.)
As he later learned, that offense of conviction is an aggravated felony under federal law
that rendered him subject to mandatory deportation. (Id. at 3-4.) Approximately fourteen
years later, on or about June 6, 2005, deportation proceedings were commenced against
him. He was ordered deported to Honduras on or about October 5, 2006. (Id. at 5-6.)
Petitioner re-entered the United States without authorization and returned to New
Jersey, where his wife and children reside as United States citizens. He was apprehended
and detained by Immigration and Customs Enforcement in or about October, 2011. (Id. at
5-6.) He filed this civil petition for coram nobis on November 30, 2012. (Id. at 1.)
Petitioner did, meanwhile, enter a guilty plea to a one-count Information charging
him with illegal re-entry in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). That
criminal case was also docketed in this Court. (See Information, filed in United States v.
Jose Monroy-Villeda, Crim. No. 12-570 (MLC) (“Crim. dkt.”), at crim. dkt. entry no. 1.)
He was in custody and pending sentencing in that criminal case when he filed this coram

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nobis petition on November 30, 2012.1 In that federal criminal case he was sentenced
here on March 13, 2013, receiving a sentence of time served and three years of supervised
release. (Judgment of Conviction, crim. dkt. entry no. 21.) Petitioner expected to be
deported upon release from his criminal incarceration; it is likely that the deportation
occurred soon after his sentencing. That criminal case is now final, petitioner not having
appealed.
Petitioner contends in his coram nobis petition that he received ineffective
assistance of counsel when he entered his guilty plea in state court in 1991, because that
counsel failed to advise him about the immigration consequences of his guilty plea to the
drug trafficking charge. He seeks to have this Court “grant a writ of coram nobis to
vacate [that] guilty plea and sentence.” (Dkt. entry no. 1 at 2.)
Respondent filed an answer in January, 2013, in which it addressed the
jurisdictional issue presented by this petition, and also discussed the substantive holding
in Padilla v. Kentucky, 559 U.S. 356 (2010). (Dkt. entry no. 7.) Thereafter, when the
Supreme Court announced its decision in Chaidez v. United States, 133 S.Ct. 1103
(2013), respondent filed a supplemental letter brief pointing out the Chaidez ruling “that
‘Padilla does not have retroactive effect.’” (Dkt. entry no. 8.) This matter is thus fully
briefed. The Court will address the issues raised in the petition without oral argument.
See L.Civ.R. 78.1(b).
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Petitioner is represented by private retained counsel in this coram nobis action. He was
represented by the Federal Public Defender in the federal prosecution for illegal re-entry.
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DISCUSSION
“Coram nobis is an extraordinary remedy that ‘has traditionally been used to attack
[federal] convictions with continuing consequences when the petitioner is no longer ‘in
custody’ for purposes of 28 U.S.C. § 2255.’” United States v. Rhines, 640 F.3d 69, 71
(3d Cir. 2011). However, it is well settled in the Third Circuit that coram nobis is not
available in a federal court as a means of attack on a state criminal judgment. Obado v.
New Jersey, 328 F.3d 716, 718 (3d Cir. 2003). As the Obado court indicated, a coram
nobis applicant must seek relief only in the court that issued the judgment that he seeks to
attack, and if that is a state court judgment, petitioner “can seek coram nobis relief only in
state court.” Id.
Applying this principle here, it is clear that petitioner is seeking to attack the guilty
plea from 1991 and the resulting conviction that he sustained in the Superior Court of New
Jersey in 1992. His coram nobis petition, or its equivalent in state court practice, would
accordingly have to be filed and litigated in the state court that issued that judgment.
The fact that petitioner was in federal custody in 2012, being prosecuted for the
federal crime of illegal re-entry, at the time he filed his coram nobis petition in this Court,
does not confer subject matter jurisdiction upon this Court to entertain this petition. The
nature of the coram nobis writ, while somewhat “murky” in the jurisprudence, id., does
require that the court that issued the conviction be the court to which the coram nobis
petition be directed. “[T]he ‘usages and principles of law’ send an applicant seeking

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coram nobis to the court that issued the judgment.” In re Thompson, 449 Fed. Appx. 110,
111 (3d Cir. 2011) (quoting Lowery v. McCaughtry, 954 F.2d 422, 423 (7th Cir. 1992)).
We will accordingly dismiss the petition without prejudice for lack of subject matter
jurisdiction. The substantive claims of the petition will not be addressed here.
CONCLUSION
Petitioner seeks a writ of coram nobis, asking this Federal District Court to vacate
and set aside his 1992 conviction entered in the Superior Court of New Jersey. He claims
that his state court guilty plea and conviction were based upon ineffective assistance of
defense counsel because that counsel failed to inform him of the immigration
consequences of such a conviction. Since then, he has been deported and has re-entered
the United States illegally, and he has been prosecuted in this Court for the illegal re-entry.
We conclude that this Court lacks subject matter jurisdiction to adjudicate a
petition seeking to set aside the 1992 state court conviction by writ of coram nobis.
Therefore, the petition must be dismissed. The dismissal will be without prejudice so that
petitioner may seek to file a similar petition in state court.
The Court will issue an appropriate Order and Judgment.

s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: January 16, 2014

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