NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-16703 Plaintiff-Appellee, D.C. Nos. 4:19-cv-00235-KAW 5:00-cr-20277-SVK-1 v. CATALINO ORTIZ, AKA Marco Polo MEMORANDUM* Rodriguez, Jr., Defendant-Appellant. Appeal from the United States District Court for the Northern District of California Susan van Keulen, Magistrate Judge, Presiding Submitted May 13, 2021** San Francisco, California Before: THOMAS, Chief Judge, MILLER, Circuit Judge, and RESTANI,*** Judge. Catalino Ortiz (“Ortiz”) seeks reversal of the district court’s denial of his * 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 Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. petition for a writ of error coram nobis. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo. United States v. Kroytor, 977 F.3d 957, 961 (9th Cir. 2020). The district court concluded that Ortiz was not entitled to coram nobis relief because his delay in filing the petition was not justified. We agree. Ortiz is a Mexican citizen who in September 2000 pleaded guilty to possession of a false identification document with intent to defraud the United States, in violation of 18 U.S.C § 1028(a)(4). More than nineteen years later, Ortiz filed a petition for a writ of error coram nobis seeking to vacate his conviction on the grounds that he was denied effective assistance of counsel because his attorney did not advise him of the immigration consequences of his plea. Coram nobis relief is an “extraordinary remedy” and should be granted “only under circumstances compelling such action to achieve justice.” Kroytor, 977 F.3d at 961 (citation omitted). A petitioner is entitled to coram nobis relief only if he or she can provide a valid reason justifying the delay in challenging the conviction. Id. at 961 (citing United States v. Kwan, 407 F.3d 1005, 1012 (9th Cir. 2005)). Ortiz claims that his attorney’s failure to advise him of the collateral consequences of his conviction and a recent change in the law justify his delay and entitle him to relief. Neither reason excuses his delay in seeking to expunge his conviction. Ortiz relies on Padilla v. Kentucky, 559 U.S. 356 (2010) as a recent change in law to 2 excuse his delay.1 Padilla does not apply retroactively to Ortiz’s conviction. Chaidez v. United States, 568 U.S. 342, 358 (2013) (“[D]efendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.”). Furthermore, the relevant pre-Padilla rule under Kwan does not apply either because Ortiz does not allege that his attorney affirmatively misrepresented the immigration consequences of his conviction. Kwan, 407 F.3d at 1015–17 (holding that affirmative misrepresentations by defense counsel regarding immigration consequences could support ineffective assistance of counsel claims); see also United States …
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