NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-55421 Plaintiff-Appellee, D.C. No. 2:92-cr-00979-JFW-2 v. GLENN ALBERT WIERSMA, AKA MEMORANDUM* Johnell G. Davis, Defendant-Appellant. Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding Argued and Submitted May 11, 2023 Pasadena, California Before: HURWITZ and R. NELSON, Circuit Judges, and KANE,** District Judge. Glenn Wiersma appeals from the district court’s denial of a coram nobis petition. In 1995, Wiersma pleaded guilty to conspiracy to defraud the United States in violation of 18 U.S.C. § 286. Over twenty-five years later, he petitioned for coram * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation. nobis relief, seeking to vacate his conviction based on the contention that he received ineffective assistance of counsel because his previous attorney did not warn that the conviction rendered him deportable. We have jurisdiction under 28 U.S.C. § 1291 and review the denial of coram nobis relief de novo. United States v. Kroytor, 977 F.3d 957, 961 (9th Cir. 2020). We affirm because Wiersma did not show that his former attorney provided constitutionally deficient performance.1 1. Padilla v. Kentucky instructs that counsel “must inform her client whether his plea carries a risk of deportation.” 559 U.S. 356, 374 (2010). But Padilla does not apply retroactively because it announced a “new rule” that broke with nearly all lower courts—including the Ninth Circuit—which “excluded advice about collateral matters from the Sixth Amendment’s ambit.” Chaidez v. United States, 568 U.S. 342, 352 (2013); see United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003). Thus, Padilla offers no basis for coram nobis relief from Wiersma’s 1995 conviction. 2. Before Padilla, we created an exception to our general rule, recognizing that counsel can provide ineffective assistance by “affirmatively misleading” a client about immigration consequences. United States v. Kwan, 407 F.3d 1005, 1008 (9th 1 We GRANT Wiersma’s unopposed motion for judicial notice of various court records from Wiersma’s prior appeal. Dkt. No. 22. 2 22-55421 Cir. 2005), abrogated in part by Padilla, 559 U.S. at 374. For the first time on appeal, Wiersma contends that his prior lawyer “affirmatively misadvised” him about his conviction’s immigration consequences. But Wiersma points to no affirmative misrepresentation. Quite the contrary, Wiersma’s petition says his lawyer “never discussed the immigration consequences of the federal plea” with him. Instead, Wiersma relies on a provision of his plea agreement stating that the government “will not oppose” certain “conditions of release” allowing Wiersma “to complete [his] schooling by the end of March 1995.” Wiersma contends that this provision meant to say “March 1996” and governed the conditions of his release after his incarceration. According to Wiersma, this provision is misleading because …
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