United States v. Zavalidroga

53 F. App'x 411

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2002
• Docket: No. 01-10432; D.C. No. CR-96-00146-MMS
• Status: Published

Opinion

MEMORANDUM

**

Former federal prisoner Jon Zavalidroga appeals pro se the district court’s denial of his petition for writ of coram nobis, challenging his conviction for transmitting a threatening communication in interstate commerce in violation of 18 U.S.C. § 875(c). We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing de novo, see United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir.1989), we affirm.

Zavalidroga contends that the district court erred in denying his writ for coram nobis as time-barred under 28 U.S.C. § 2255, because he has never attacked his conviction pursuant to a § 2255 motion in the district court.

In this case, Zavalidroga raises the same claims he previously raised in a time-barred writ of mandamus while he was in federal custody.¹ Because Zavalidroga may not now circumvent § 2255’s statute of limitations by filing a writ of coram nobis, the district court properly denied the instant writ. Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir.) (stating that a “petitioner may not resort to coram nobis merely because he has failed to meet the AEDPA’s gatekeeping requirements.”), cert. denied, — U.S. —, 123 S.Ct. 544, 154 L.Ed.2d 431 (2002).

To the extent Zavalidroga alleges that he did not file a timely petition because he relied on his appellate counsel’s promise to file a § 2255 motion on his behalf, this claim fails. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (recognizing that a prisoner does not have a constitutional right to counsel on collateral review); see also Wainwright v. Torna, 455 U.S. 586, 587-588, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (per curiam) (deciding that a prisoner could not be deprived of effective assistance of counsel during a proceeding where there is no constitutional right to counsel).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . United States v. Zavalidroga, No. 00-10324, 2 Fed. Appx. 787, 2001 WL 68337, at *1 (9th Cir.2001) (memorandum) (deciding that it would be futile to construe Zavalidroga's petitions as motions under § 2255 because the statute of limitations had expired).