                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                       DEC 20 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.   17-17544

                Plaintiff-Appellee,              D.C. Nos. 1:17-cv-00008-SOM
                                                           1:12-cr-00693-SOM
 v.

NGANATATAFU AHOLELEI, a.k.a. John                MEMORANDUM*
Aholeilei, a.k.a. Paul Aholeilei, a.k.a. Sione
Aholeilei, a.k.a. Sione Kaufasi, a.k.a. John
Ngana, a.k.a. Tino Niumata, a.k.a. Sione
Toetuu,

                Defendant-Appellant.

                    Appeal from the United States District Court
                             for the District of Hawaii
                    Susan O. Mollway, District Judge, Presiding

                          Submitted December 17, 2018 **

Before:      WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

      Nganatatafu Aholelei challenges the district court’s order denying his

collateral attack of his 2013 guilty-plea conviction for being a felon in possession



      *
             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).
of explosives, in violation of 18 U.S.C. § 842(i)(1). We have jurisdiction under 28

U.S.C. §§ 1291 and 2253, and we affirm.

      Aholelei first contends that the district court erred by construing his petition

as a motion under 28 U.S.C. § 2255 rather than a petition for a writ of error coram

nobis. Contrary to Aholelei’s contentions, he is in custody in connection with his

2013 conviction because he is still subject to the term of supervised release

imposed in connection with that conviction. See United States v. Monreal, 301

F.3d 1127, 1132 (9th Cir. 2002). Therefore, the district court properly construed

his filing as a section 2255 motion rather than a coram nobis petition. See Matus-

Leva v. United States, 287 F.3d 758, 761 (9th Cir. 2002). Aholelei’s reliance on

United States v. Johnson, 529 U.S. 53 (2000), which analyzed when supervised

release commences rather than whether a defendant is “in custody” within the

meaning of section 2255, is misplaced.

      Aholelei next contends that the district court erred by denying his motion as

untimely. We review the denial of a section 2255 motion on timeliness grounds de

novo and the underlying findings of fact for clear error. See United States v.

Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010).

      The one-year limitation period began to run, at the latest, on the date

Aholelei discovered or could have discovered through the exercise of due diligence

the facts supporting his ineffective assistance of counsel claim under Padilla v.


                                          2                                      17-17544
Kentucky, 559 U.S. 356 (2010). See 28 U.S.C. § 2255(f)(4). It is undisputed that,

in the fall of 2013, Aholelei spoke to his newly retained immigration counsel and

learned that his guilty-plea conviction involved an aggravated felony that would

almost certainly result in removal. Thus, Aholelei knew, or through due diligence

could have discovered, the facts supporting his claim more than one year before he

filed his petition in January 2017. See Hasan v. Galaza, 254 F.3d 1150, 1154 n.3

(9th Cir. 2011). He has not demonstrated “extraordinary circumstances” sufficient

to warrant equitable tolling. See Aguirre-Ganceda, 592 F.3d at 1045-46.

Therefore, the district court did not err by denying his motion as untimely. See 28

U.S.C. § 2255(f).

      AFFIRMED.




                                         3                                   17-17544
