                 Case: 12-12096         Date Filed: 01/18/2013    Page: 1 of 4

                                                                      [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________

                                       No. 12-12096
                                   Non-Argument Calendar
                                 ________________________

                            D.C. Docket Nos. 1:11-cv-20773-UU,
                                   1:01-cr-00360-UU-1

ROLANDO VALDES,

llllllllllllllllllllllllllllllllllllllllPetitioner - Appellant,

versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllllRespondent - Appellee.
                                      ________________________

                        Appeal from the United States District Court
                            for the Southern District of Florida
                              ________________________

                                        (January 18, 2013)

Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

         Petitioner-Appellant Rolando Valdes appeals the district court’s denial of

his counseled motion for a writ of error coram nobis, 28 U.S.C. § 1651. On
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appeal, Valdes argues that the writ was necessary to remedy a violation of the rule

in Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010),

that counsel is ineffective for failing to advise a client of the immigration

consequences of pleading guilty. He also asserts that, had his counsel informed

him of the immigration consequences of his plea, he would not have pled guilty

and would have proceeded to trial.

        We review the denial of a writ of error coram nobis for abuse of discretion,

“keeping in mind that an error of law is an abuse of discretion per se.” United

States v. Peter, 310 F.3d 709, 711 (11th Cir. 2002) (internal quotation marks

omitted). The All Writs Act, 28 U.S.C. § 1651(a), gives federal courts the

authority to issue writs of error coram nobis. United States v. Mills, 221 F.3d

1201, 1203 (11th Cir. 2000). The writ serves as a remedy available to vacate a

conviction when the movant has served his sentence and is no longer in custody,

unlike post-conviction relief under 28 U.S.C. § 2255. Peter, 310 F.3d at 712.

Coram nobis is “an extraordinary remedy of last resort available only in

compelling circumstances where necessary to achieve justice.” Mills, 221 F.3d at

1203.

        A movant establishes an ineffective assistance of counsel claim when he

shows that (1) counsel’s performance was deficient, and (2) the deficient

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performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064, 80 L. Ed. 674 (1984). Prejudice requires the defendant to

show that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694, 104 S.

Ct. at 2068. The Court defined “reasonable probability” as a “probability

sufficient to undermine the confidence in the outcome.” Id. The Supreme Court

in Padilla held that, to provide effective assistance, a criminal defense attorney

must advise his client that the pending criminal charges against him may carry a

risk of adverse collateral immigration consequences. 559 U.S. at         , 130 S. Ct. at

1483.

        Here, assuming without deciding that Padilla applies retroactively, we

conclude from the record that Valdes has not shown that any prejudice resulted

from his counsel’s failure to advise him of the immigration consequences of his

guilty plea. The district court at the plea hearing, and the presentence

investigation report (“PSI”) prepared for sentencing, informed Valdes of the

immigration consequences of his plea, yet he persisted in pleading guilty. These

circumstances thus belie the statement in his affidavit that he would have

proceeded to trial had his attorney advised him of the consequences of his plea.

        Accordingly, we affirm the district court’s order denying Valdes’s motion

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for a writ of error coram nobis.

      AFFIRMED.




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