NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NILESH BHARATKUMAR KUMAR, No. 18-55972 Petitioner-Appellant, D.C. Nos. 8:18-cv-00421-RGK 8:09-cr-00132-RGK-3 v. UNITED STATES OF AMERICA, MEMORANDUM* Respondent-Appellee. Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding Submitted July 11, 2019** Pasadena, California Before: M. SMITH and FRIEDLAND, Circuit Judges, and SIMON,*** District Judge. Nilesh Bharatkumar Kumar appeals the district court’s denial of his petition for a writ of error coram nobis. Kumar, a citizen of the United Kingdom, pleaded * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. guilty in January 2010 to one count of conspiring to use and possess unauthorized access devices under 18 U.S.C. § 1029(b)(2). He was sentenced in April 2010 to 24 months imprisonment and two years of supervised release, and he was ordered to pay restitution. Kumar now seeks to collaterally attack his conviction, arguing that he received ineffective assistance of counsel because his counsel failed to advise him—and then misadvised him—about the immigration consequence of his plea. The district court denied Kumar’s petition. Reviewing de novo, see United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007), we affirm. To prevail on a petition for a writ of error coram nobis, a petitioner must show four things: “(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 the most fundamental character.” Id. at 1006 (quoting Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987)). A petitioner may “satisfy the fundamental error requirement by establishing that he received ineffective assistance of counsel.” United States v. Kwan, 407 F.3d 1005, 1014 (9th Cir. 2005), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010). To establish ineffective assistance of counsel, Kumar must show: (1) “that his counsel’s performance fell below an objective standard of reasonableness,” and (2) “that the deficiency in his counsel’s 2 performance prejudiced him.” Id. at 1014-15 (citing Strickland v. Washington, 466 U.S. 668, 688, 692 (1984)). Even assuming Kumar has established his counsel’s deficient performance, he has not established prejudice. To establish prejudice, a petitioner must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” United States v. Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir. 2015) (quoting Strickland, 466 U.S. at 694). A “different result” for purposes of establishing prejudice in this context “means that but for counsel’s errors, [the petitioner] ...
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