                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 23 2017

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-56105

              Plaintiff-Appellee,                D.C. No. 3:91-cr-00571-LAB

 v.
                                                 MEMORANDUM*
BERNARDO HERZER,

              Defendant-Appellant,


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                           Submitted January 18, 2017**

Before:      TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

      Bernardo Herzer appeals from the district court’s order denying his petition

for a writ of error coram nobis attacking his 1992 guilty-plea conviction for

attempted possession of marijuana with intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1) and 846. We have jurisdiction under 28 U.S.C. § 1291. We

      *
        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).
review de novo, Matus-Leva v. United States, 287 F.3d 758, 760 (9th Cir. 2002),

and we affirm.

      Herzer contends that his trial counsel provided ineffective assistance under

Padilla v. Kentucky, 559 U.S. 356 (2010), when he failed to inform Herzer that his

guilty-plea conviction would be a bar to citizenship. During the pendency of this

appeal, the Supreme Court held that Padilla does not apply retroactively to cases

on collateral review. See Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013).

Because Herzer’s conviction became final before Padilla was decided, his

contention is foreclosed by Chaidez. See id.

      Although Herzer argues on appeal that he is alleging affirmative

misrepresentations falling under this court’s decision in United States v. Kwan, 407

F.3d 1005 (9th Cir. 2005), rather than a failure to inform arising under Padilla, his

amended petition specifically alleges that his trial counsel did not affirmatively

misadvise him as to the immigration consequences of his guilty plea.

      Because we conclude that Herzer’s contention of error is foreclosed by

Chaidez, we do not reach the issue of whether his petition was timely filed. See

Matus-Leva, 287 F.3d at 760 (elements for coram nobis relief are conjunctive and

“failure to meet any one of them is fatal”).

      AFFIRMED.


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