Rivera-Esquivel v. United States

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 14, 1999
• Docket: 99-2034
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 14 1999 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk

FERNANDO RIVERA-ESQUIVEL,

Plaintiff-Appellant,

v. No. 99-2034 (D. N.M.) UNITED STATES OF AMERICA, (D.Ct. No. CIV-98-1179-LH/RLP)

Defendant-Appellee. ____________________________

ORDER AND JUDGMENT *

Before BRORBY, EBEL, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Appellant Fernando Rivera-Esquivel appeals the district court’s decision

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. dismissing his petition for a writ of coram nobis. In his writ, Mr. Rivera-Esquivel

seeks to vacate his conviction on grounds of ineffective assistance of counsel.

We affirm the decision of the district court.

In March of 1993, federal agents at a border patrol check-point arrested Mr.

Rivera-Esquivel after discovering fifty-seven bundles of marijuana concealed in

the truck he drove. After agents advised Mr. Rivera-Esquivel of his rights, he

admitted knowing the truck contained the marijuana. Thereafter, Mr. Rivera-

Esquivel pled guilty to a charge of possession with intent to distribute more than

fifty kilograms of marijuana. The district court sentenced Mr. Rivera-Esquivel to

thirty months imprisonment and three years supervised release.

After Mr. Rivera-Esquivel completed his prison sentence and probation, the

Immigration and Naturalization Service ordered his deportation to Mexico based

on his criminal conviction. In an effort to avoid deportation, Mr. Rivera-Esquivel

filed his petition for a writ of coram nobis, seeking to vacate his guilty plea and

conviction. In support of his petition, Mr. Rivera-Esquivel alleged ineffective

assistance of counsel because his attorney failed to: (1) research immigration law

concerning the immigration consequences of pleading guilty; (2) attempt a plea-

bargain minimizing the adverse immigration consequences; and (3) advise him of

-2- the deportation consequences of pleading guilty. Mr. Rivera-Esquivel claimed he

would not have pled guilty if he had known about the possibility of deportation.

The government filed a motion to dismiss, arguing Mr. Rivera-Esquivel’s

petition for a writ of coram nobis was an inappropriate vehicle for the relief

requested because the issues he presented involved legal and not factual

questions. The district court denied the government’s motion to dismiss, finding

a writ of coram nobis “remains viable in the criminal context under the All Writs

Act, particularly where the sentence has been served.” 1 The district court then

considered the merits of Mr. Rivera-Esquivel’s petition and dismissed the appeal.

Relying on our decision in Varela v. Kaiser, 976 F.2d 1357 (10th Cir. 1992), cert.

denied, 507 U.S. 1039 (1993), the district court determined the voluntariness of

Mr. Rivera-Esquivel’s plea depended on whether his counsel’s advice was within

the range of competence demanded of attorneys in criminal cases. Because we

have held this advice does not extend to the collateral consequences of a guilty

1 The All Writs Act, 28 U.S.C. § 1651(a), provides federal courts with authority to grant writs of coram nobis in instances where, like here, a habeas corpus writ is an inadequate remedy because Mr. Rivera-Esquivel is no longer serving his sentence or in custody. See Carter v. Attorney General, 782 F.2d 138, 141 (10th Cir. 1986). We note a writ of coram nobis is an extraordinary form of relief which we grant only under circumstances compelling such action to achieve justice. Id. (quotation marks and citation omitted).

-3- plea, including the possibility of deportation, 976 F.2d at 1358, the district court

determined counsel’s alleged failure to advise Mr. Rivera-Esquivel of possible

deportation consequences did not amount to ineffective assistance of counsel.

On appeal, Mr. Rivera-Esquivel contends the district court erred in finding

deportation was not a direct consequence of a guilty plea in light of new laws

requiring deportation for specified criminal offenses. Specifically, Mr. Rivera-

Esquivel argues that because certain provisions of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 and the Antiterrorism and Effective

Death Penalty Act of 1996 require deportation, deportation is no longer a

collateral, but a direct consequence of pleading guilty.

We review de novo the district court’s determination of legal issues in

denying a petition for a writ of error coram nobis. See Blanton v. United States,

94 F.3d 227, 230 (6th Cir. 1996). While Mr. Rivera-Esquivel’s legal argument on

the passage of new legislation is novel, it misses the point. Regardless of whether

the new Acts in some way change deportation from a collateral to a direct

consequence of pleading guilty, Mr. Rivera-Esquivel brings his petition for writ

of coram nobis under the auspices of an ineffective assistance of counsel claim

arising from his counsel’s conduct in 1992 – at the time of his guilty plea and

-4- well before passage of both Acts. At that time, his counsel was under no duty to

advise Mr. Rivera-Esquivel of the collateral consequence of his deportation. See

Varela, 976 F.2d at 1358. For the same reasons, no ineffective assistance claim

exists for Mr. Rivera-Esquivel’s counsel’s alleged failure to research the

immigration consequences of pleading guilty.

Accordingly, the judgment of the district court is AFFIRMED.

Entered by the Court:

WADE BRORBY United States Circuit Judge

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