     Case: 16-50098      Document: 00514098737         Page: 1    Date Filed: 08/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 16-50098
                                                                                  Fifth Circuit

                                                                                FILED
                                                                           August 2, 2017

MARIA CHICO,                                                               Lyle W. Cayce
                                                                                Clerk
              Petitioner - Appellant

v.

UNITED STATES OF AMERICA,

              Respondent - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:15-CV-301


Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.
PER CURIAM:*
       Two years after Petitioner-Appellant Maria Chico pleaded guilty to
encouraging and inducing an alien to enter the United States, she filed for a
writ of coram nobis, claiming that she had received ineffective assistance of
counsel. The district court denied the writ as untimely filed. We AFFIRM.
             I.     BACKGROUND AND PROCEDURAL HISTORY
       On May 11, 2013, Customs and Border Protection (“CBP”) officers
arrested Chico as she attempted to reenter the United States through a port-


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 16-50098
of-entry in El Paso, Texas. At the time, Chico was driving a minivan containing
her two minor children and one adult male, Angel Duarte-Cervantes. During
the inspection, Chico told CBP officers that Duarte-Cervantes was her
husband and presented them with a passport issued to Jesus Chico Escobedo.
Upon questioning Chico, however, the agents discovered Duarte-Cervantes’s
true name and that he was a Mexican national who did not have the legal
documents necessary to cross the border. Chico further admitted that Duarte-
Cervantes was not her husband and that she knew he was in fact a Mexican
citizen who could not legally enter the United States.
       Chico was charged with encouraging and inducing an alien to enter the
United States in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv), (B)(ii). On the advice
of trial counsel, Chico believed that a conviction would not render her
deportable.     Accordingly, on September 3, 2013, Chico pleaded guilty as
charged, without a plea agreement. On October 30, 2013, the district court
sentenced Chico to time served and did not impose a term of supervised release.
Thereafter, believing she was not subject to deportation, Chico went to an
Immigration and Customs Enforcement (“ICE”) field office in El Paso, Texas
to obtain a travel permit. She was immediately detained and held at the El
Paso Processing Center to begin removal proceedings. 1
       On October 14, 2015, approximately two years after she discovered her
conviction rendered her deportable, Chico filed a petition for a writ of coram
nobis, challenging her conviction on the grounds that her trial counsel
rendered ineffective assistance and that she would not have pleaded guilty but
for trial counsel’s ineffective assistance.         Reasoning that “a [coram nobis]



       1Chico does not state in her initial petition or appellate brief when this incident
occurred. She does, however, explain that she “first became aware that she potentially faced
removal or deportation from the United States after receiving a letter dated October 18, 2013
from her trial counsel.”
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                                  No. 16-50098
petitioner should at least meet the same standards of diligence as others
seeking collateral relief through a habeas corpus petition,” the district court
denied the motion, finding that Chico had failed to file her petition within the
one-year statute of limitations period applicable to 28 U.S.C. § 2255 (detailing
requirements for a writ of habeas corpus). Chico v. United States, No. EP-15-
CV-301-FM, 2015 WL 7301184 (W.D. Tex. Feb. 3, 2016)
      Chico timely appealed.
                               II.   DISCUSSION
      We review a district court’s denial of a writ of coram nobis for abuse of
discretion. Santos-Sanchez v. United States, 548 F.3d 327, 330 (5th Cir. 2008),
vacated on other grounds, 559 U.S. 1046 (2010).
      The writ of coram nobis is an “extraordinary remedy” that allows a
person no longer in custody to vacate or modify her prior criminal conviction.
United States v. Morgan, 346 U.S. 502, 511–12 (1954); United States v. Dyer,
136 F.3d 417, 422 (5th Cir. 1998). A petitioner seeking the writ must show:
(1) a continuing civil disability as a consequence of her prior conviction, United
States v. Castro, 26 F.3d 557, 559 (5th Cir. 1994); that (2) she exercised
“reasonable diligence in seeking prompt relief,” Dyer, 136 F.3d at 427 (internal
quotations omitted) (citing Morgan, 346 U.S. at 512); (3) no other remedy is
available, id. at 422 (citing Morgan, 346 U.S. at 512); and (4) unless relief is
granted, there will be “a complete miscarriage of justice,” Castro, 26 F.3d at
559. Because there is no applicable statute of limitations for a writ coram
nobis, a district court considering the timeliness of a petition “must decide the
issue in light of the circumstances of the individual case.” Foont v. United
States, 93 F.3d 76, 79 (2d Cir. 1996). “[I]neffective assistance of counsel, if
proven, can be grounds for coram nobis relief.” United States v. Esogbue, 357
F.3d 532, 534 (5th Cir. 2004); see also Castro, 26 F.3d at 559–60.


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      On appeal, Chico raises two issues of ineffective assistance. First, she
asserts that the Government could not have proven beyond a reasonable doubt
that Chico actually violated 8 U.S.C. § 1324(a)(1)(A)(iv) because the evidence
does not prove she “encouraged” Duarte-Cervantes to enter the United States,
a point her trial counsel failed to make. Second, she alleges that her trial
counsel told her that she would not be deported if she pleaded guilty—had
counsel not given her this assurance, Chico explains, she would not have
pleaded guilty.   Assuming Chico’s allegations are true, her trial counsel
rendered ineffective assistance in misadvising her of her guilty plea’s possible
deportation consequences. See Padilla v. Kentucky, 559 U.S. 356, 369–70
(2010). Because she waited over two years to seek the writ, however, whether
she has “exercise[d] reasonable diligence in seeking prompt relief” presents a
closer issue. See Dyer, 136 F.3d at 427 (internal quotation removed).
      On appeal, Chico does not allege any “sound reasons” for delay; rather,
she merely asserts that “there is not [a filing] deadline for a writ [of] coram
nobis” and argues that the district court abused its discretion in holding Chico
to § 2255’s one-year statute of limitations period. Chico is correct that a person
seeking relief through a writ of coram nobis is not subject to a strict statute of
limitations period. See Morgan, 346 U.S. at 507 (stating that filing a coram
nobis petition is “without limitation of time”); Foont, 93 F.3d at 79 (“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.” (quoting Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir.
1994))). Nevertheless, she must show that she acted with reasonable diligence
in promptly pursuing her rights. Dyer, 136 F.3d at 427.
      In this case, Chico discovered that counsel had misadvised her of her
guilty plea’s deportation consequences on October 18, 2013, nearly two years
before she filed her petition with the district court. “[Chico] did not, and has
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                                  No. 16-50098
not, attempted to explain the delay.” See id. at 428. Therefore, under the facts
and circumstances of this case, Chico has failed to demonstrate reasonable
diligence, and the district court did not abuse its discretion in denying her
petition as untimely. See Foont, 93 F.3d at 79–80.
                              III.   CONCLUSION
      Because the particular facts and circumstances surrounding this case
indicate that Chico failed to exercise reasonable diligence in seeking relief, her
petition for a writ of coram nobis was untimely filed. Accordingly, the district
court’s judgment dismissing the writ is AFFIRMED.




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