2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-1-2012

Mario Mendoza v. USA

Precedential or Non-Precedential: Precedential

Docket No. 11-3958

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Mario Mendoza v. USA" (2012). 2012 Decisions. Paper 503.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/503
1

 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 11-3958

__________

MARIO MENDOZA,

Appellant,

v.

UNITED STATES OF AMERICA

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 3:11-cv-03540)

District Judge: Hon. Joel A. Pisano

__________

Submitted under Third Circuit LAR 34.1(a)

June 22, 2012

Before: AMBRO, VANASKIE and ALDISERT, Circuit 

Judges

(Filed: June 28, 2012)

Thomas R. Ashley, Esq.

Law Offices of Thomas R. Ashley, Esq.

50 Park Place, Suite 1400
2

Newark, New Jersey 07102

Attorney for Appellant

Paul J. Fishman, United States Attorney

Mark E. Coyne, Chief of Appeals Division

Office of the United States Attorney

970 Broad Street, Suite 700

Newark, New Jersey 07102-2535

Norman Gross, Assistant United States Attorney

Office of the United States Attorney

Camden Federal Building and U.S. Courthouse

401 Market Street, Fourth Floor

Camden, New Jersey 08101-2098

Attorneys for Appellee

____________

OPINION OF THE COURT

____________

ALDISERT, Circuit Judge.

In 2006 Mario Mendoza pleaded guilty to an 

aggravated felony and, as a result, now faces imminent 

removal from the United States. He appeals from the United 

States District Court for the District of New Jersey’s order 

denying his petition for a writ of error coram nobis, in which 

he sought to vacate his plea due to his counsel’s failure to 

apprise him that his conviction would lead to deportation. For 
3

the reasons that follow, we will affirm the judgment of the 

District Court.

I.

Mendoza was born in Ecuador and lives in New 

Jersey. From 1996 to 2001, while working as a licensed 

realtor, he helped borrowers obtain federally insured 

mortgages. His behavior led the government to charge him 

with conspiring to fraudulently induce the Federal Housing 

Authority to insure mortgage loans, in violation of 18 U.S.C. 

§§ 371 and 1001. Mendoza’s counsel, Glen Cavanagh, 

explained to him he could avoid prison by pleading guilty. 

Cavanagh did not, however, apprise Mendoza that, as an 

aggravated felony, his crime would lead to mandatory 

deportation. See 8 U.S.C. § 1227(a)(2)(A)(iii). 

Mendoza entered his plea on March 29, 2006. Prior to 

sentencing on September 11, 2006, Mendoza learned from his 

Presentence Investigation Report (“PSR”) that his conviction 

might result in removal. The District Court sentenced 

Mendoza to two years’ probation and ordered him to pay 

$100,000 in restitution. As a condition of his probation, 

Mendoza was required to cooperate with immigration 

officials.

Sometime after Mendoza received his sentence, the 

government instituted removal proceedings and ordered him 

to leave the country. On January 14, 2010, after completing 

his sentence, Mendoza filed a motion pursuant to 28 U.S.C. 

§ 2255 and Rule 32(d) of the Federal Rules of Criminal 

Procedure to vacate his sentence and withdraw his plea. In it, 

Mendoza contended that Cavanagh did not warn him of the 

immigration implications of pleading guilty to an aggravated 
4

felony and noted that it was an open question whether a 

lawyer renders constitutionally deficient performance by 

failing to highlight a plea’s immigration consequences. On 

March 31, 2010, the Supreme Court answered that question in 

the affirmative. See Padilla v. Kentucky, 130 S. Ct. 1473 

(2010). Five months later, on September 9, 2010, Mendoza 

withdrew his motion to vacate his plea. 

Nine months after that, on June 8, 2011, Mendoza 

repackaged these same arguments in a petition for a writ of 

error coram nobis. Mendoza contended that, had he been 

aware that a guilty plea would subject him to deportation, he 

would not have pleaded guilty and would have instead 

attempted to negotiate a better deal or risked trial. On 

September 21, 2011, after noting the issue of Mendoza’s 

counsel’s ineffectiveness, the District Court denied 

Mendoza’s petition on the alternative grounds that he filed 

after an unreasonable delay and did not assert his innocence. 

Mendoza timely appealed.

II.

The District Court had jurisdiction over the petition 

under 28 U.S.C. § 1651(a), in aid of its jurisdiction pursuant 

to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. 

§ 1291. We review the District Court’s legal conclusions de 

novo and its factual findings for clear error. See United States 

v. Orocio, 645 F.3d 630, 635 (3d Cir. 2011).

III.

Notwithstanding Mendoza’s counsel’s deficient 

performance, we agree with the District Court that Mendoza’s
5

unreasonable delay in filing his coram nobis petition 

forestalls his efforts to seek relief. The rare remedy of a writ 

of error coram nobis may be “used to attack allegedly invalid 

convictions which have continuing consequence, when the 

petitioner has served his sentence and is no longer ‘in 

custody’ for purposes of 28 U.S.C. § 2255.” United States v. 

Stoneman, 870 F.2d 102, 105-106 (3d Cir. 1989). Such relief 

is appropriate, however, only “[(a)] to correct errors for which 

there was no remedy available at the time of trial and [(b)] 

where ‘sound reasons’ exist for failing to seek relief earlier.” 

Id. at 106 (quoting United States v. Morgan, 346 U.S. 502, 

512 (1954)). This “sound reason” standard is even stricter 

than that used to evaluate § 2255 petitions. Id. Indeed, “‘it is 

difficult to conceive of a situation in a federal criminal case 

today where a writ of coram nobis would be necessary or 

appropriate.’” Carlisle v. United States, 517 U.S. 416, 429 

(1996) (quoting United States v. Smith, 331 U.S. 469, 475 n.4 

(1947)).

Although Mendoza’s counsel’s deficient performance 

may have precluded him from seeking relief at the time of his

plea, Mendoza cannot show any “sound reasons” for his 

lengthy delay in seeking relief since that time. Mendoza 

became aware of his plea’s deportation consequences in 

September 2006 via his PSR, yet did not allege until 2010 

that his counsel was ineffective. He attributes this four-year 

delay to a combination of: (a) his (mistaken) belief that his 

cooperation with immigration officials would stave off his 

deportation, and (b) the absence of Supreme Court precedent 

regarding a counsel’s duty to warn of a plea’s immigration 

consequences—only after the Supreme Court decided Padilla, 

Mendoza contends, could he have known that his counsel was 

ineffective. 
6

These are not “sound reasons.” First, Mendoza’s 

cooperation was a condition of his probation, not of his 

remaining in the country, and any indications to the contrary 

were not of the government’s making. Second, we have held 

that Padilla did not create a “new rule” for retroactivity 

purposes precisely because lawyers in the Third Circuit have 

long been expected to advise clients of a plea’s deportation 

implications. See Orocio, 645 F.3d at 640 (“Lower court 

decisions not in harmony with Padilla were, with few 

exceptions, decided before 1995 and pre-date the professional 

norms that . . . had long demanded that competent counsel 

provide advice on the removal consequences of a client’s 

plea.”).1 Indeed, Orocio

 1 On April 30, 2012, the United States Supreme Court granted 

certiorari on the issue of whether Padilla created a “new rule,” 

see Teague v. Lane, 489 U.S. 288, 301 (1989), and thus, 

would not apply retroactively on collateral review. See

Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), 

cert. granted, 132 S. Ct. 2101 (2012) (No. 11-820). Although 

this question has split the circuits, compare Orocio, 645 F.3d 

630 (holding that Padilla is retroactive), with Chaidez, 655 

F.3d 684 (holding that Padilla does not apply retroactively) 

and United States v. Chang Hong, 671 F.3d 1147 (10th Cir. 

2011) (same), its resolution has no bearing on Mendoza’s 

claim, which falls short regardless. If the Supreme Court were 

to overrule Orocio and conclude that Padilla did, in fact, 

create a “new rule,” such a ruling may strengthen Mendoza’s 

argument that he was previously unaware of the rule, but 

would also preclude him from invoking Padilla retroactively, 

effectively foreclosing his claim. See, e.g., Orocio, 645 F.3d 

at 637-641.

involved a petition for a writ of error 
7

coram nobis based on facts almost identical to those here, 

except Orocio filed his petition alleging deficient 

performance before the Supreme Court decided Padilla, based 

on existing precedent, and did so immediately upon learning 

of his impending deportation. Mendoza was not as diligent. 

Mendoza has known of the threat of removal since at least 

2006, and his § 2255 motion to vacate his conviction because 

of ineffective assistance—filed six months before Padilla was 

decided and a full year-and-a-half before his present 

petition—demonstrated that he did not need the Supreme 

Court’s clarification to have raised his present contentions. 

That the law is unsettled does not justify a delay in filing a 

coram nobis petition, cf. Bousley v. United States, 523 U.S. 

614, 623 (1998) (“[F]utility cannot constitute cause . . . if it 

means simply that a claim was unacceptable to that particular 

court at that particular time.” (quotation omitted)), nor does 

the record reveal any other “sound reason” for waiting so 

long to seek relief. 

Finally, even if Mendoza had properly and timely 

raised his ineffective assistance claims, we note that his 

underlying efforts to withdraw his plea would almost 

certainly fail. To withdraw a plea of guilty, a defendant must: 

(1) demonstrate strong reasons for the withdrawal (2) assert 

his innocence, and (3) show that the withdrawal will not

unduly prejudice the government. See United States v. Jones, 

336 F.3d 245, 252 (3d Cir. 2003) (citing United States 

v. Brown, 250 F.3d 811, 815 (3d Cir. 2001); United States 

v. Huff, 873 F.2d 709, 711 (3d Cir. 1989)). Cavanagh’s 

egregious error and Mendoza’s looming removal surely 

constitute a strong reason to withdraw the plea. See United 

States v. Trott, 779 F.2d 912 (3d Cir. 1985) (discussing how 

allegations of a plea’s involuntariness relate only to the 
8

strength of the defendant’s reasons for withdrawal). But 

Mendoza has not asserted his innocence; rather, he has 

claimed merely that he would have sought a more favorable 

plea deal or risked trial. It does not appear that such a 

speculatively favorable plea deal existed, nor that a trial 

would have resulted in anything less than a conviction for an 

aggravated felony. More importantly, the government would 

certainly be unduly prejudiced by the re-prosecution of a case 

involving facts nearly a decade dormant. 

IV.

Mendoza’s delay in pursuing relief was unreasonable 

and bars his petition for a writ of error coram nobis. For that 

reason and the others discussed in this opinion, the judgment 

of the District Court will be AFFIRMED.