Lazara Rodriguez v. USA

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14112
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D. C. Docket Nos. 1:10-cv-23718-WKW ; 1:83-cr-00993-DLG-2
LAZARA RODRIGUEZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 24, 2012)
Before DUBINA, Chief Judge, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 11-14112 Date Filed: 10/24/2012 Page: 1 of 2

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After the instant appeal, this court issued its decision in Figuereo-Sanchez v.
United States, 678 F.3d 1203 (11th Cir. 2012). There, we held that the Supreme
Court decision in Padilla v. Kentucky, __ U.S. __, 130 S. Ct. 1473 (2010), is not
retroactively applicable to cases on collateral review. For this reason, Appellant is
not entitled to relief pursuant to the writ of error coram nobis. See United States v.
Swindall, 107 F.3d 831, 834 (11th Cir. 1997) (holding that a rule of law which is
not retroactively applicable to cases on collateral review is “clearly outside the
extremely limited scope of a writ of error coram nobis”). Even if Appellant were
deemed to be in custody for purposes of § 2255 (as the Government has conceded),
Appellant would be entitled to no relief under § 2255 for the reasons set out in the
controlling opinion in Figuero-Sanchez.1
AFFIRMED.
Alternatively, we hold on the instant facts that any writ of coram nobis would be1
untimely in light of Appellant’s 25-year delay. Appellant’s argument in this case is not merely
that her counsel failed to inform her with respect to the immigration consequences. Rather, her
assertion is that counsel actually misinformed her in that regard. Therefore, her argument was
not foreclosed, because our opinion in United States v. Campbell, 778 F.2d 764 (11th Cir. 1985),
held that an attorney’s actual erroneous advice with respect to the immigration consequences in
such a context could rise to the level of ineffective assistance of counsel. Accordingly, the
ineffective assistance of counsel claim which Appellant asserts in the instant petition has been
available to Appellant since the issuance of our Campbell decision. Appellant’s extensive delay
would render any petition for the writ of coram nobis untimely.
2
Case: 11-14112 Date Filed: 10/24/2012 Page: 2 of 2

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