                                                                               FILED
                           NOT FOR PUBLICATION                                 DEC 02 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-16991

              Plaintiff - Appellee,              D.C. Nos.    2:10-cv-01366-GEB-
                                                 DAD
  v.                                                          2:96-cr-00088-GEB-
                                                 DAD
CALS IFENATUORA,

              Defendant - Appellant.             MEMORANDUM*


                   Appeal from the United States District Court
                       for the Eastern District of California
              Garland E. Burrell, Jr., Senior District Judge, Presiding

                    Argued and Submitted November 20, 2014
                            San Francisco, California

Before: GOULD and WATFORD, Circuit Judges, and OLIVER, Chief District
Judge.**

       Cals Ifenatuora (“Ifenatuora”) seeks a writ of error coram nobis pursuant to

the All Writs Act, 28 U.S.C. § 1651(a), arguing that he received ineffective

assistance of counsel because his counsel affirmatively misled him regarding the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
immigration consequences of his guilty plea, in violation of Strickland v.

Washington, 466 U.S. 668, 688, 692 (1984), and United States v. Kwan, 407 F.3d

1005, 1014 (9th Cir. 2005), abrogated on other grounds by Padilla v. Kentucky,

559 U.S. 356 (2010). The district court denied Ifenatuora’s motion, and he timely

appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      We review the denial of a coram nobis motion de novo, Kwan, 407 F.3d at

1011, though we review any findings of fact for clear error. Hirabayashi v. United

States, 828 F.2d 591, 594 (9th Cir. 1987). As we have consistently held:

      [A movant] must show the following to qualify for coram nobis relief:
      (1) a more usual remedy is not available; (2) valid reasons exist for
      not attacking the conviction earlier; (3) adverse consequences exist
      from the conviction sufficient to satisfy the case or controversy
      requirement of Article III; and (4) the error is of the most fundamental
      character.

United States v. Riedl, 496 F.3d 1003, 1006 (9th Cir. 2007) (quoting Hirabayashi,

828 F.2d at 604). Ineffective assistance of counsel can satisfy the fourth coram

nobis requirement, Kwan, 407 F.3d at 1014, but Ifenatuora does not meet his

burden of proving that the necessary fundamental error occurred.

      The district court made two critical factual findings: that Ifenatuora’s

testimony was not credible, and that, absent his testimony, the credible record was

insufficient to show that Ifenatuora’s trial counsel misadvised him of the



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consequences of his guilty plea. Both findings have ample support in the record

and are not clearly erroneous. Under Strickland, Ifenatuora bears the burden of

proving ineffective assistance of counsel. 466 U.S. at 690, 693. In light of the

above conclusions, he does not carry that burden, and does not show that a

fundamental error occurred.1 The district court properly denied his coram nobis

motion.

AFFIRMED.




      1
        As we conclude that Ifenatuora does not carry his burden of proving that
he was misadvised, we need not reach his argument that the holding of Kwan can
be applied retroactively to his conviction, notwithstanding the Supreme Court’s
decisions in Padilla and Chaidez v. United States, 568 U.S. — ,133 S. Ct. 1103,
1113 (2013).

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