NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 25 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ARNOU AGHAMALIAN, AKA Arnou No. 18-56345 Aghomolian, D.C. Nos. 2:17-cv-08289-PA Petitioner-Appellant, 2:98-cr-01038-PA-1 v. MEMORANDUM* UNITED STATES OF AMERICA, Respondent-Appellee. Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding Argued and Submitted July 11, 2019 Pasadena, California Before: M. SMITH and FRIEDLAND, Circuit Judges, and SIMON,** District Judge. Arnou Aghamalian appeals the district court’s denial of his petition for a writ of error coram nobis to vacate his 1998 conviction for access device fraud. Aghamalian alleges that he received ineffective assistance of counsel because he * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. was affirmatively misadvised about the immigration consequences of his guilty plea. The district court dismissed Aghamalian’s petition on the grounds that its filing was unduly delayed; that Aghamalian had failed to establish that his counsel performed deficiently; and that Aghamalian had failed to establish prejudice. Reviewing de novo, see United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007), we reverse. 1. “[T]he writ of error coram nobis is a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable.” Id. 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 fourth factor, “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, 558 U.S. 356 (2010). To establish ineffective assistance of counsel, Aghamalian must establish: “1) that his counsel’s performance fell below an objective standard of reasonableness, and 2) that the 2 deficiency in his counsel’s performance prejudiced him.” Id. at 1014-15 (citing Strickland v. Washington, 466 U.S. 668, 688, 692 (1984)). The Government argues that Aghamalian’s petition was untimely filed and that he has failed to establish either prong of ineffective assistance of counsel. 2. Aghamalian did not unduly delay the filing of his petition. “[T]he time for filing a [writ of error coram nobis] petition is not subject to a specific statute of limitations.” Id. at 1012 (quoting Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994)). Rather, “courts have required coram nobis petitioners to provide valid or sound reasons ...
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