127 F. 3d 1107 - United States of America v. John Gadwah

MEMORANDUM*

John Gadwah appeals pro se the district court's denial of his petition for a writ of error coram nobis seeking to vacate his 1982 conviction for bank embezzlement. We affirm.

Gadwah contends that he is entitled to issuance of the writ because his counsel was ineffective in failing to advise him of the deportation consequences of his guilty plea. We reject this contention.

In order to qualify for coram nobis relief, a petitioner must demonstrate, among other factors, that "the error is of the most fundamental character." See Hirabavashi v. United States, 828 F.2d 591, 604 (9th Cir.1987). We agree with the district court that Gadwah failed to satisfy this requirement because counsel's failure to advise him that he could be subject to deportation, a collateral consequence of his guilty plea, did not constitute ineffective assistance. See Torrey v. Estelle, 842 F.2d 234, 237 (9th Cir.1988) (counsel's failure to advise a defendant of a collateral consequence of pleading guilty does not amount to defective performance); Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir.1976) (becoming subject to deportation is a collateral consequence of entering a guilty plea).

Gadwah also contends that the district court should have construed his petition for writ of error coram nobis as a habeas petition. The district court properly concluded that it lacked jurisdiction to grant relief under 28 U.S.C. § 2255 because Gadwah was not in custody at the time he filed his petition. See Hirabayashi, 828 F.2d at 604.