                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                              NOV 21 2011

                                                                            MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

ANTONIO RODRIGUEZ-LUGO,                          No. 10-56424

              Petitioner - Appellant,            D.C. No. 3:09-cv-02174-BEN-
                                                 AJB
  v.

UNITED STATES OF AMERICA,                        MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                     Argued and Submitted November 15, 2011
                               Pasadena, California

Before: GOODWIN, W. FLETCHER, and RAWLINSON, Circuit Judges.

       Appellant Antonio Rodriguez-Lugo (Lugo), who pled guilty in 1975 to

possession of marijuana with intent to distribute, challenges the district court’s

dismissal of his petition for writ of error coram nobis premised on ineffective

assistance of counsel and an allegedly defective plea colloquy.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Dismissal of Lugo’s coram nobis petition was proper, as the petition was

barred by laches. Lugo failed to exercise reasonable diligence in delaying until

2009 to challenge his 1975 guilty plea. See Telink, Inc. v. United States, 24 F.3d

42, 48 (9th Cir. 1994). The government was prejudiced by Lugo’s delay, as the

record no longer permits the government to effectively rebut Lugo’s claims. See

id. (“But for [Lugo’s] delay, the government would have preserved its case, [and]

reprosecution (if necessary) would have occurred earlier . . .”); see also United

States v. Riedl, 496 F.3d 1003, 1008-09 (9th Cir. 2007). The district court,

therefore, properly dismissed Lugo’s petition as barred by laches. See id.1

      AFFIRMED.




      1
         The parties agree that the district court erred in dismissing Lugo’s coram
nobis petition pursuant to the Anti-Terrorism and Effective Death Penalty Act’s
statute of limitations. See United States v. Kwan, 407 F.3d 1005, 1012 (9th Cir.
2005), as amended, abrogated on other grounds by Padilla v. Kentucky, 130 S.Ct.
1473, 1484 (2010) (“Because a petition for writ of error coram nobis is a collateral
attack on a criminal conviction, the time for filing a petition is not subject to a
specific statute of limitations.”) (citations omitted).
                                          2
