State v. Diaz

We find that a public reprimand is too lenient given the facts
and circumstances of this case. We therefore impose a 30-day
suspension from the practice of law.
CONCLUSION
Based upon our consideration of the record in this case,
this court finds that Seyler has violated §§ 3-501.1, 3-501.3,
3-501.4, and 3-508.40 and his oath of office as an attorney. We
order that Seyler should be and hereby is suspended from the
practice of law for a period of 30 days, effective immediately.
Seyler shall comply with Neb. Ct. R. § 3-316 and, upon fail-
ure to do so, shall be subject to a punishment for contempt of
this court.
At the end of the 30-day suspension period, Seyler shall be
automatically reinstated to the practice of law, provided that
he has demonstrated his compliance with § 3-316 and further
provided that the Counsel for Discipline has not notified this
court that Seyler has violated any disciplinary rule during his
suspension. We also direct Seyler to pay costs and expenses in
accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue
2007) and Neb. Ct. R. §§ 3-310(P) and 3-323(B) within 60
days after an order imposing costs and expenses, if any, is
entered by this court.
Judgment of suspension.
Wright, J., not participating.
state of nebraska , appellee , v. servio diaz , appellant.
808 N.W.2d 891
Filed March 2, 2012. 	No. S-11-254.
1. Judgments: Proof: Appeal and Error. One seeking a writ of error coram nobis
has the burden to prove entitlement to such relief.
2. Judgments: Appeal and Error. The findings of the district court in connection
with its ruling on a motion for a writ of error coram nobis will not be disturbed
unless they are clearly erroneous.
3. Appeal and Error. An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court.
4. Judgments: Constitutional Law: Legislature: Appeal and Error. The common-
law writ of error coram nobis exists in this state under Neb. Rev. Stat. § 49-101
414 	283 NeBRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:42 AM CST

(Reissue 2010), which adopts english common law to the extent that it is not
inconsistent with the Constitution of the United States, the organic law of this
state, or any law passed by our Legislature.
5. Judgments: Evidence: Appeal and Error. The purpose of the writ of error
coram nobis is to bring before the court rendering judgment matters of fact
which, if known at the time the judgment was rendered, would have prevented its
rendition. It enables the court to recall some adjudication that was made while
some fact existed which would have prevented rendition of the judgment but
which, through no fault of the party, was not presented.
6. Convictions: Proof: Appeal and Error. The burden of proof in a proceeding to
obtain a writ of error coram nobis is upon the applicant claiming the error, and
the alleged error of fact must be such as would have prevented a conviction. It is
not enough to show that it might have caused a different result.
7. Judgments: Evidence: Appeal and Error. A writ of error coram nobis reaches
only matters of fact unknown to the applicant at the time of judgment, not dis-
coverable through reasonable diligence, and which are of a nature that, if known
by the court, would have prevented entry of judgment.
8. Judgments: Appeal and Error. The writ of error coram nobis is not available to
correct errors of law.
9. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact, and, in particular, determi-
nations regarding whether counsel was deficient and whether the defendant was
prejudiced are questions of law.
Appeal from the District Court for Colfax County: mary C.
gilbride, Judge. Affirmed.
Mark Porto, of Shamberg, Wolf, McDermott & Depue, for
appellant.
Jon Bruning, Attorney General, and James D. Smith for
appellee.
heaviCan, 	C.J., 	C onnolly, 	stephan, 	mCC ormaCk , 	and
miller-lerman, JJ., and irWin and moore , Judges.
miller-lerman, J.
NATURe OF CASe
Servio Diaz appeals the order of the district court for Colfax
County which denied his motion for a writ of error coram
nobis. Diaz sought relief on the basis that his counsel was inef-
fective when counsel failed to advise Diaz of potential depor-
tation consequences of the plea that he entered in connection
with his plea-based conviction in 2000. The court determined
STATe v. DIAz 	415
Cite as 283 Neb. 414

that Diaz had not established entitlement to relief and denied
the motion. We conclude that the error asserted by Diaz is not
an appropriate basis for relief by a writ of error coram nobis.
Therefore, although based on different reasoning, we affirm the
district court’s denial of Diaz’ motion.
STATeMeNT OF FACTS
Diaz is a Honduran disaster refugee with authorization to
reside in the United States. He has resided in the United States
since 1994. In 2000, pursuant to a plea agreement, Diaz pled
guilty to misdemeanor charges of attempted possession of a
controlled substance, cocaine, and driving while intoxicated.
He was sentenced to 2 years’ probation, and his probation was
terminated in 2002.
On September 30, 2010, Diaz filed a motion by which he
sought to vacate the plea-based judgment. Diaz asserted that
“his attorney failed to correctly advise him of the presump-
tively mandatory consequences he would face with regard to
deportation when he entered his guilty plea.” Diaz asserted
that his conviction for attempted possession of cocaine was
a deportable offense under federal law. Diaz asserted that
he had received ineffective assistance of counsel and cited
Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 1486, 176
L. ed. 2d 284 (2010), in which the U.S. Supreme Court stated
that “counsel must inform her client whether his plea carries
a risk of deportation.” Diaz finally asserted that he was “cur-
rently in removal proceedings pending removal to Honduras
as a result of the conviction in this matter.” Diaz prayed the
court to vacate the judgment, thus allowing him to withdraw
the plea.
In an order granting an evidentiary hearing, the court charac-
terized Diaz’ motion and stated that “his motion is, in essence,
a writ of error coram nobis.” Following the hearing, the court
entered an order denying the relief requested by Diaz. The
court noted that Diaz was no longer in custody and therefore
not eligible for postconviction relief under Neb. Rev. Stat.
§ 29-3001 (Reissue 2008). The court determined that evidence
adduced at the hearing demonstrated that under federal law,
Diaz was deportable as a result of the conviction for attempted
416 	283 NeBRASkA RePORTS

possession of cocaine. However, the court determined that Diaz
had not demonstrated that he was not advised that his convic-
tion could have immigration consequences. The court stated
that counsel should be presumed to have rendered competent
advice at the time of a plea, and the court noted that “[t]he only
evidence on this allegation is [Diaz’] self-serving statement
that he received no advisement.” The court noted that Diaz had
not shown “that deportation proceedings have been initiated or
that such proceedings are reasonably certain to be initiated”
and that he had offered no evidence, other than his own testi-
mony, regarding his immigration status. The court determined
that Diaz had not established entitlement to relief by a writ of
error coram nobis and denied the motion.
Diaz appeals the denial of his motion.
ASSIGNMeNT OF eRROR
Diaz claims that the district court erred when it denied his
motion for a writ of error coram nobis.
STANDARDS OF ReVIeW
[1,2] One seeking a writ of error coram nobis has the bur-
den to prove entitlement to such relief. See State v. Lotter, 266
Neb. 245, 664 N.W.2d 892 (2003). In postconviction appeals,
a defendant requesting postconviction relief must establish
the basis for such relief, and the findings of the district court
will not be disturbed unless they are clearly erroneous. State
v. Lee, 282 Neb. 652, 807 N.W.2d 96 (2011). We logically
extend this standard to the findings of the district court in con-
nection with its ruling on a motion for a writ of error coram
nobis, and such findings will not be disturbed unless they are
clearly erroneous.
ANALYSIS
As an initial matter, we note that the State suggests that
Diaz’ motion should be considered by this court as a motion
to withdraw his plea rather than a motion for a writ of error
coram nobis and contends that the district court lacked jurisdic-
tion. We reject this suggestion. The State argues that because
Diaz completed his sentence in 2002, the district court in 2010
lacked jurisdiction over a motion to withdraw his plea. The
STATe v. DIAz 	417
Cite as 283 Neb. 414

State cites State v. Rodriguez-Torres, 275 Neb. 363, 368, 746
N.W.2d 686, 690 (2008), for the proposition that absent a leg-
islatively authorized procedure, there is no recourse for defend-
ants to withdraw their pleas and vacate judgments “years after
having completed [their] sentences.”
In response, Diaz argues that the State ignores our discus-
sion of Rodriguez-Torres in State v. Yos-Chiguil, 278 Neb. 591,
772 N.W.2d 574 (2009). In Yos-Chiguil, we noted that the sole
basis alleged by the defendant for withdrawal of the plea in
Rodriguez-Torres was Neb. Rev. Stat. § 29-1819.02 (Reissue
2008), which requires the trial court, before accepting a plea,
to advise a defendant that a conviction may have immigra-
tion consequences. In Yos-Chiguil, we further commented that
in Rodriguez-Torres, we had held that § 29-1819.02 “did not
create a statutory procedure pursuant to which a plea entered
before July 20, 2002, could be withdrawn after the person con-
victed of the crime had already served his sentence.” 278 Neb.
at 595, 772 N.W.2d at 578. We further noted in Yos-Chiguil
that “[b]ecause the issue was not presented to us [in Rodriguez-
Torres], we did not address whether a common-law remedy
existed for withdrawal of the plea in that circumstance.” 278
Neb. at 595, 772 N.W.2d at 578. The issue was also not pre-
sented or decided in Yos-Chiguil.
We recently decided State v. Gonzalez, 283 Neb. 1, 807
N.W.2d 759 (2012), involving a motion to withdraw a plea. In
Gonzalez, the defendant asserted that she received ineffective
assistance of counsel in connection with a plea because counsel
failed to inform her of the immigration consequences of her
plea. We concluded in Gonzalez that, even after final judg-
ment, the trial court had jurisdiction to consider the defendant’s
motion to withdraw her plea on the basis of such alleged inef-
fective assistance of counsel. Regardless of whether the distinc-
tion makes a difference, we note that the defendant in Gonzalez
had not completed her sentence at the time she filed her motion
to withdraw her plea, whereas Diaz had completed his sentence
years before he sought relief in the case before us.
[3] Contrary to the State’s argument, we do not consider
the present case as involving a ruling on a motion to with-
draw a plea; instead, it involves the appeal from an order
418 	283 NeBRASkA RePORTS

denying a request for a writ of error coram nobis, and we
analyze it on this basis. An appellate court will not consider
an issue on appeal that was not presented to or passed upon
by the trial court. State v. Rogers, 277 Neb. 37, 760 N.W.2d
35 (2009).
The district court stated in an order granting the evidentiary
hearing that Diaz had urged that his motion be considered as a
motion for a writ of error coram nobis, and the court thereafter
treated and disposed of the motion on this basis. Therefore, we
consider only whether the court properly denied Diaz’ motion
for a writ of error coram nobis. We do not speculate on whether
the court had authority to consider Diaz’ claim through some
other mechanism such as the motion to withdraw a plea that we
recently found viable in State v. Gonzalez, supra, wherein the
defendant had not completed her sentence.
Considering Diaz’ motion as a motion for a writ of error
coram nobis, as explained below, we conclude that error coram
nobis was not a proper mechanism to raise the issue asserted
by Diaz. Although our reasoning differs from that of the dis-
trict court, we conclude that the district court properly denied
the motion.
Diaz cites federal cases such as U.S. v. Kwan, 407 F.3d
1005 (9th Cir. 2005), abrogated on other grounds, Padilla v.
Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. ed. 2d 284
(2010), and U.S. v. Esogbue, 357 F.3d 532 (5th Cir. 2004), in
support of his position that coram nobis relief is available for
a defendant facing deportation to withdraw his or her plea on
the basis of ineffective assistance of counsel. Diaz also notes
that at least one state holds a similar view of the availability
of coram nobis relief. See State v. Tran, 145 N.M. 487, 200
P.3d 537 (N.M. App. 2008) (relying on state rule of civil pro-
cedure that abolished and replaced common-law coram nobis).
However, the common law in Nebraska and other states has
not taken the same approach as the federal law in the develop-
ment of coram nobis. See People v. Hyung Joon Kim, 45 Cal.
4th 1078, 202 P.3d 436, 90 Cal. Rptr. 3d 355 (2009). See, also,
Com. v. Morris, 281 Va. 70, 705 S.e.2d 503 (2011).
[4-6] The common-law writ of error coram nobis exists in
this state under Neb. Rev. Stat. § 49-101 (Reissue 2010), which
STATe v. DIAz 	419
Cite as 283 Neb. 414

adopts english common law to the extent that it is not incon-
sistent with the Constitution of the United States, the organic
law of this state, or any law passed by our Legislature. State v.
Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003). The purpose of
the writ of error coram nobis is to bring before the court ren-
dering judgment matters of fact which, if known at the time the
judgment was rendered, would have prevented its rendition. Id.
It enables the court to recall some adjudication that was made
while some fact existed which would have prevented rendition
of the judgment but which, through no fault of the party, was
not presented. Id. The burden of proof in a proceeding to obtain
a writ of error coram nobis is upon the applicant claiming the
error, and the alleged error of fact must be such as would have
prevented a conviction. See id. It is not enough to show that it
might have caused a different result. Id.
[7,8] We have stated that a writ of error coram nobis reaches
only matters of fact unknown to the applicant at the time of
judgment, not discoverable through reasonable diligence, and
which are of a nature that, if known by the court, would have
prevented entry of judgment. State v. Cottingham, 226 Neb.
270, 410 N.W.2d 498 (1987). See State v. Wilson, 194 Neb.
587, 234 N.W.2d 208 (1975) (discussing fact not in existence
at time of conviction). The writ of error coram nobis is not
available to correct errors of law. State v. El-Tabech, 259 Neb.
509, 610 N.W.2d 737 (2000). Regarding errors of law in the
coram nobis context, we have concluded that where a criminal
defendant alleged he was denied the right to be present at a
suppression hearing, the “allegations present[ed] no fact or
facts unknown to the defendant and his counsel and not rea-
sonably discoverable by the defendant, and the existence of
which would have prevented the judgment,” and that, instead,
the allegations “present[ed] at most a question of error of law,
which is not reachable by writ of error coram nobis.” State v.
Turner, 194 Neb. 252, 257-58, 231 N.W.2d 345, 349 (1975).
Although the instant case does not concern a motion alleging
legal error by a trial court, for completeness, we note that we
have also concluded that a writ of error coram nobis is not the
appropriate remedy for an alleged failure of the trial court to
properly inform a defendant of his or her constitutional rights,
420 	283 NeBRASkA RePORTS

because such error would clearly be an error of law. State v.
Wilson, supra.
[9] Diaz seeks coram nobis relief based on his assertion that
his counsel provided ineffective assistance when counsel failed
to advise him of potential deportation consequences. We have
stated that a claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact and that, in
particular, determinations regarding whether counsel was defi-
cient and whether the defendant was prejudiced are questions
of law. See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832
(2011). Granting relief to Diaz would run contrary to State v.
Schnatz, 194 Neb. 516, 518, 233 N.W.2d 778, 780 (1975), in
which the defendant sought to vacate his original county court
judgment “because his attorney did not fully explain his legal
rights”; we stated that the issue was a question of law that “is
not cognizable under a writ of error coram nobis.” Similar to
the appellant in Schnatz, Diaz seeks relief from an error of law,
not an error of fact, and his claim is not cognizable under a
writ of error coram nobis.
Courts in other states agree that claims of ineffective assist-
ance of counsel are not appropriate for coram nobis relief. The
California Supreme Court observed: “That a claim of ineffec-
tive assistance of counsel, which relates more to a mistake
of law than of fact, is an inappropriate ground for relief on
coram nobis has long been the rule.” People v. Hyung Joon
Kim, 45 Cal. 4th 1078, 1104, 202 P.3d 436, 454, 90 Cal. Rptr.
3d 355, 376 (2009). See, also, Com. v. Morris, 281 Va. 70,
705 S.e.2d 503 (2011) (stating that alleged ineffective assist-
ance of counsel with regard to immigration consequences is
not error of fact). Because Diaz’ challenge to his plea-based
conviction involves a question of law and not solely an error
of fact, relief was not available in a motion for a writ of error
coram nobis.
The California Supreme Court, in a case where the defend-
ant sought coram nobis relief from a plea-based conviction,
observed:
To qualify as the basis for relief on coram nobis, newly
discovered facts must establish a basic flaw that would
have prevented rendition of the judgment. . . . New facts
STATe v. DIAz 	421
Cite as 283 Neb. 414

that would merely have affected the willingness of a
litigant to enter a plea, or would have encouraged or con-
vinced him or her to make different strategic choices or
seek a different disposition, are not facts that would have
prevented rendition of the judgment.
People v. Hyung Joon Kim, 45 Cal. 4th at 1103, 202 P.3d at
453, 90 Cal. Rptr. 3d at 375. We agree with the reasoning in
Hyung Joon Kim and apply it to this case.
If Diaz had been aware of the possible deportation conse-
quences of his plea, it might have caused him to make different
strategic choices, but it would not have prevented the court
from rendering judgment. Diaz did not claim that judgment
could not be entered due to an overriding legal impediment or
flaw that would have prevented the court from rendering judg-
ment. Diaz’ motion for a writ of error coram nobis was not an
appropriate method to resolve the issue he raises.
Because the ineffective assistance of counsel claim Diaz
raises is not cognizable by a writ of error coram nobis, the
district court should have denied the motion on this basis.
Nevertheless, its denial was not error. In view of our analysis
and disposition, we find it unnecessary to review the factual
findings made by the trial court.
CONCLUSION
We conclude that a writ of error coram nobis was not an
appropriate method for Diaz to raise a challenge to his plea-
based conviction on the basis that he received ineffective assist-
ance when counsel allegedly failed to advise him of potential
immigration consequences of his plea. Because coram nobis
was not an appropriate vehicle for Diaz’ claims, we conclude
that the district court properly denied the motion. Although our
reasoning differs from that of the district court, we affirm the
denial of Diaz’ motion for a writ of error coram nobis.
affirmed.
Wright, J., not participating.
422 	283 NeBRASkA RePORTS