[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14688

Non-Argument Calendar

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MELCHOR MUNOZ, 

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA, 

 Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket Nos. 4:18-cv-00489-RH-MAF,

4:11-cr-00037-RH-MAF-2

____________________

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2 Opinion of the Court 20-14688

Before WILLIAM PRYOR, Chief Judge, LUCK, and LAGOA, Circuit 

Judges.

PER CURIAM:

Our previous opinion in this appeal issued on October 12, 

2021. The Court sua sponte vacates that opinion and substitutes

the following opinion in its place.

Melchor Munoz, a federal prisoner, appeals the denial of his 

motion to vacate his sentence. 28 U.S.C. § 2255. Munoz, a naturalized citizen, arguesthat his trial counsel was ineffective for advising 

him that he “could,” instead of that he “would,” have his citizenship revoked for failing to disclose his drug crimes in his application 

for naturalization. We affirm the denial of Munoz’s motion.

Munoz illegally entered the United States from Mexico in 

1992 and, after becoming a legal resident in 2004, began trafficking 

drugs. In 2011, Munoz was indicted for conspiring to distribute five 

or more kilograms of cocaine and 100 or more kilograms of marijuana between June 1, 2008, and May 30, 2011. 21 U.S.C. 

§§ 841(a)(1), 846. In his written agreement with the government, 

Munoz acknowledged that his plea of guilty “specifically excludes 

and does not bind any other state or federal agency, including other 

United States Attorneys . . . from asserting any civil, criminal, or 

administrative claim against [him].” Munoz also acknowledged 

“that [his] conviction may adversely affect [his] immigration status 

and may lead to revocation of his citizenship and deportation.”

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20-14688 Opinion of the Court 3

During Munoz’s change of plea hearing, the prosecutor 

highlighted that Munoz “is a nationalized citizen of the United 

States, originally from Mexico” and “[t]he law provides that, if 

someone was engaged in criminal activity and thus not of good 

moral character as they professed when becoming a citizen, that 

that citizen is subject to revocation.” The prosecutor stated that 

“one of the potential consequences of [the] plea of guilty is that the 

government may seek to revoke Mr. Munoz's citizenship and have 

him deported at the conclusion of his sentence” and that “[t]he decision has not been made whether or not to do that, but that is a 

possibility in this case.” The district court asked whether it 

“need[ed] to talk to Mr. Munoz about that” and defense counsel 

responded “that was in the plea agreement. It was reviewed in detail and discussed with my client.” Nevertheless, the district court 

told Munoz that his plea of guilty “could have an effect on your 

citizenship status,” but the district court “[did]n’t know that it will” 

or whether “it won’t.” The district court asked Munoz whether 

“anybody made any promises to [him] one way or the other . . . 

about whether or not this will affect your citizenship status,” and 

Munoz responded, “no.” And when the district court asked Munoz 

if he was “pleading guilty because [he is], in fact, guilty of this 

charge,” he replied, “Yeah, I’m guilty.”

In 2012, the district court sentenced Munoz to 188 months

of imprisonment. Munoz did not appeal. In 2016, Munoz succeeded in having his sentence reduced to 151 months of imprisonment. See 18 U.S.C. § 3582(c)(2).

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4 Opinion of the Court 20-14688

In 2018, Munoz moved to vacate his conviction. He argued 

that his trial counsel was ineffective for misrepresenting what effect 

his conviction would have on his U.S. citizenship. Munoz attached 

to his motion affidavits from his trial counsel stating that his advice 

was consistent with what he was told in his plea agreement and by 

the district court and from his postconviction counsel stating that 

Munoz “was not properly advised of the immediate immigration 

consequences of his plea.” Munoz also submitted a copy of a complaint filed in July 2018 to revoke his United States citizenship for 

participating in a conspiracy to traffic drugs and filing an application for naturalization that falsely denied involvement in any criminal activities. See 8 U.S.C. § 1451(a).

The government opposed Munoz’s motion as untimely and, 

in the alternative, as without merit. The government argued that

Munoz failed to exercise due diligence to challenge his conviction 

when he knew of the potential effect his guilty plea would have on 

his status as a U.S. citizen before his change of plea hearing. See 28 

U.S.C. § 2255(f)(1). The government also argued that Munoz was 

dilatory in filing his postconviction motion more than a year after 

the Department of Justice mailed him a letter dated September 25, 

2017, when his immigration lawyer responded to the letter on October 26, 2017. See id. § 2255(f)(4). Alternatively, the government 

argued that Munoz’s counsel did not perform deficiently by misjudging the immigration consequences of his guilty plea and that 

Munoz suffered no prejudice given that he submitted no evidence

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20-14688 Opinion of the Court 5

that he had pleaded guilty to retain his citizenship and overwhelming evidence supported his conviction.

The government attached to its response the letter that the 

Department sent Munoz. The letter warned that the Department

“plan[ned] to bring denaturalization proceedings against [Munoz]

to revoke your United States citizenship.” The letter stated that 

Munoz had “illegally obtained . . . citizenship” by “engag[ing] in . . . 

[a] conspiracy to distribute and possess cocaine and marijuana . . . 

during the period in which Congress required you to have good 

moral character” and by “conceal[ing] and misrepresent[ing] your 

criminal misconduct during the naturalization process.” The letter

explained that Munoz’s “Application for Naturalization (Form N400), [falsely] attest[ed] that [he] had not knowingly committed any 

crime for which [he] had not been arrested, and that [he] never sold 

or smuggled controlled substances, illegal drugs, or narcotics” and 

that, during his interview “on July 6, 2009,” he “affirmed . . . [those 

false] answers.” The letter offered to “explore the possibility of settlement prior to filing proceedings against [Munoz],” but it was 

“not negotiable” that “any settlement must, at a minimum, include 

that [he] give up . . . [his] United States citizenship.”

The government also submitted correspondence that 

Munoz’s immigration attorney sent the Department. In a letter 

dated October 26, 2017, Munoz’s immigration attorney stated his 

firm is “now the attorney of record and request[ed] any further 

matters [be] forwarded to our attention.”

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6 Opinion of the Court 20-14688

A magistrate judge recommended that the district court 

deny Munoz’s motion as untimely, but the district court denied the 

motion on the merits. The district court ruled that Munoz could 

not prove trial counsel performed deficiently because he provided 

accurate advice that loss of citizenship was a possibility but not a 

certainty. The district court determined that counsel’s advice was 

accurate because the government exercised some discretion in revoking citizenship for a drug crime and because Munoz admitted 

specifically to wrongdoing in 2011, but not in the five years before 

he applied for citizenship. The district court ruled that reasonable 

jurists could disagree about its decision and granted Munoz a certificate of appealability.

The decision to deny Munoz’s claim of ineffectiveness of 

trial counsel is subject to plenary review. We review findings of fact 

for clear error and the application of the law to those facts de novo. 

Hollis v. United States, 958 F.3d 1120, 1122 (11th Cir. 2020). “Regardless of the ground stated in the district court’s order or judgment, we may affirm on any ground supported by the record.” Beeman v. United States, 871 F.3d 1215, 1221 (11th Cir. 2017) (internal 

quotation marks omitted and alteration adopted).

A federal prisoner has one year from the latest of four specified events to file a postconviction motion seeking relief from his 

sentence. 28 U.S.C. § 2255(f). The one-year period commences, for 

purposes of this appeal, on either “the date on which the judgment 

of conviction becomes final” or “the date on which the facts supporting the claim or claims presented could have been discovered 

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20-14688 Opinion of the Court 7

through the exercise of due diligence.” Id. § 2255(f)(1), (4). Due diligence required Munoz “to make reasonable efforts” to discover 

the facts supporting his claim for relief. See Aron v. United States, 

291 F.3d 708, 712 (11th Cir. 2002).

Munoz’s motion to vacate is untimely. Munoz was warned 

before and during his change of plea hearing of the possibility that 

his citizenship could be revoked due to his conviction, but he made 

no efforts to discover whether his citizenship was in jeopardy in the 

more than five years between his conviction and the commencement of revocation proceedings. See 28 U.S.C. § 2255(f)(1). But 

even if we assume that the multiple warnings Munoz received 

were insufficient to trigger the one-year deadline, he knew to a certainty that the Department would revoke his citizenship when he 

received its letter dated September 25, 2017. Munoz made no “reasonable effort” to challenge his conviction promptly. See Aron, 291 

F.3d at 712. Munoz’s immigration attorney responded to the letter 

from the Department on October 26, 2017, but Munoz waited until 

October 29, 2018, to file his postconviction motion, more than a 

year after receiving the letter from the Department. See 28 U.S.C. 

§ 2255(f)(4). The district court correctly denied Munoz’s motion.

We AFFIRM the denial of Munoz’s motion to vacate. 

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