                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 10-4777


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JUAN ANTONIO HERNANDEZ-MONREAL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.       Leonie M. Brinkema,
District Judge. (1:07-cr-00337-LMB-1; 1:10-cv-00618-LMB)


Submitted:   September 28, 2010            Decided:   December 6, 2010


Before DAVIS and    WYNN,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Juan Antonio Hernandez-Monreal, Appellant Pro Se.             Stephanie
Bibighaus Hammerstrom, OFFICE OF THE UNITED STATES            ATTORNEY,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Juan    Hernandez-Monreal           seeks       to   appeal     the    district

court’s order summarily dismissing his petition for a writ of

error coram nobis and dismissing as untimely his 28 U.S.C.A.

§ 2255 (West         Supp.   2010)     motion.          For    the       reasons    explained

below, we affirm the trial court’s dismissal of the petition for

a   writ      of     error     coram     nobis,         deny         a    certificate      of

appealability, and dismiss the remainder of this appeal.

             Although the district court erred when it summarily

dismissed Hernandez-Monreal’s petition for a writ of error coram

nobis as inapplicable to a criminal judgment, that error was

harmless.      Contrary to the district court’s reasoning, both the

United States Supreme Court and this court have granted relief

to federal prisoners under the writ of error coram nobis.                                 See

United States v. Morgan, 346 U.S. 502, 506-07, 512-13 (1954)

(noting the continued viability of the writ of error coram nobis

under   the     All    Writs     Act,    28       U.S.C.      § 1651(a)       (2006),     and

affirming a district court’s issuance of a writ of error coram

nobis   to    vacate     a    conviction          after    the       completion      of   the

petitioner’s term of imprisonment); United States v. Mandel, 862

F.2d 1067, 1075 (4th Cir. 1988) (same).

              The     district    court’s          error       was       harmless     because

Hernandez-Monreal’s            petition           was         ultimately           meritless.

Hernandez-Monreal relied upon the United States Supreme Court’s

                                              2
recent    decision       in    Padilla   v.       Kentucky       to       argue    ineffective

assistance of counsel.             See Padilla, 599 U.S. ___, ___, 130 S.

Ct. 1473, 1486 (2010) (holding “counsel must inform her client

whether his plea carries a risk of deportation”).                                  The record,

however,       shows   that     during    his      Rule     11       hearing,        Hernandez-

Monreal affirmatively            acknowledged        his    understanding               that   his

plea “could definitely make it difficult, if not impossible, for

[him]     to    successfully      stay    legally          in    the        United      States.”

Hence, the trial court’s failure to consider Hernandez-Monreal’s

petition for a writ of error coram nobis was harmless. ∗

               Next, we conclude that the trial court’s determination

that Hernandez-Monreal’s § 2255 motion was untimely is neither

debatable nor wrong.            To the extent it denied habeas relief, the

district       court’s    order    is    not       appealable             unless    a    circuit

justice    or    judge    issues    a    certificate            of    appealability.            28

U.S.C. § 2253(c)(1) (2006).              A certificate of appealability will

not   issue     absent    “a    substantial        showing           of   the     denial   of    a

constitutional right.”            28 U.S.C. § 2253(c)(2) (2006).                        When the

district court denies relief on the merits, a prisoner satisfies


      ∗
        Furthermore, nothing in the Padilla decision indicates
that it is retroactively applicable to cases on collateral
review.     See Mandel, 862 F.2d at 1075 (affirming district
court’s grant of a writ of error coram nobis vacating
convictions in light of a retroactive and dispositive Supreme
Court decision).



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this    standard      by     demonstrating          that    reasonable         jurists      would

find that the district court’s assessment of the constitutional

claims is debatable or wrong.                   Slack v. McDaniel, 529 U.S. 473,

484    (2000); see          Miller-El      v.   Cockrell,          537   U.S.       322,   336-38

(2003).        When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive

procedural ruling is debatable, and that the motion states a

debatable claim of the denial of a constitutional right.                                   Slack,

529 U.S. at 484-85.                We have independently reviewed the record

and conclude that Hernandez-Monreal has not made the requisite

showing.

               Accordingly, we affirm the district court’s denial of

a     writ     of     error        coram    nobis,          deny     a        certificate     of

appealability, and dismiss the appeal as to the denial of habeas

relief.        We dispense with oral argument because the facts and

legal    contentions         are    adequately        presented          in    the    materials

before       the    court    and    argument        would    not     aid      the    decisional

process.

                                                                         AFFIRMED IN PART;
                                                                         DISMISSED IN PART




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