IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10876

Summary Calendar

SADIQ OLASUNKA ADELEKE,

Petitioner-Appellant

v.

UNITED STATES OF AMERICA,

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:11-CV-2543

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM: *

Sadiq Olasunka Adeleke, formerly federal prisoner # 27944-077 and 

now Texas prisoner #792196, appeals the district court’s denial of his petition 

for writ of coram nobis. In that petition, Adeleke challenged his 1996 guilty 

plea convictions for making a false statement in an application for a passport 

and falsely representing himself to be a United States citizen. 1 He alleged 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be 

published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

1 In September 2011, Adeleke filed a pro se § 2255 motion challenging his federal convictions. As he 

was no longer in federal custody having served his federal sentence, the district court properly 

United States Court of Appeals

Fifth Circuit

FILED

December 30, 2013

Lyle W. Cayce

Clerk

 

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that counsel failed to advise him of the deportation consequences of his guilty 

plea, denying him effective assistance of counsel and rendering his guilty plea 

not knowing and voluntary, and that counsel failed to advise him of the effect 

his guilty plea would have on his pending state charge, denying him effective 

assistance of counsel. He contended that he did not know that he could 

challenge his conviction on ineffective assistance grounds until March 2010 

when he read of the Supreme Court’s decision in Padilla v. Kentucky, 559 

U.S. 356 (2010).

A certificate of appealability is not required to appeal the district 

court’s judgment. See United States v. Dyer, 136 F.3d 417, 429 n.32 (5th Cir. 

1998) (distinguishing coram nobis remedy from habeas corpus); United States 

v. Guerra, 187 F. App’x 414, 415-16 (5th Cir. 2006). We review factual 

findings for clear error, questions of law de novo, and the district court’s 

ultimate decision to deny the writ of coram nobis for abuse of discretion. 

Santos–Sanchez v. United States, 548 F.3d 327, 330 (5th Cir. 2008), vacated 

on other grounds, 559 U.S. 1046 (2010).

Adeleke argues that the district court erred in finding that the new rule 

of constitutional law outlined in Padilla, 559 U.S. at 388 – attorney’s failure 

to advise criminal defendant about potential immigration consequences of 

guilty plea could give rise to ineffective assistance of counsel claim – was not 

retroactively applicable on collateral review. The district court was correct. 

See Chaidez v. United States, 133 S. Ct. 1103, 1107-14 (2013) (“[U]nder the 

principles set out in Teague . . . Padilla does not have retroactive effect); 

construed his § 2255 motion as a petition for writ of error coram nobis. See United States v. Esogbue, 

357 F. 3d 532 (5th Cir. 2004) (“a writ of error coram nobis is the remedy available to vacate a 

conviction when the petitioner has served his sentence and is no longer in custody, as is required for 

post-conviction relief under 28 U.S.C. § 2255”) (quotation marks and citation omitted). Adeleke does 

not challenge the district court’s construction of his § 2255 motion as a petition for writ of error 

coram nobis.

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United States v. Amer, 681 F.3d 211, 213-14 (5th Cir. 2012) (holding that 

Padilla does not apply retroactively to cases on collateral review); SantosSanchez v. United States, 482 F. App’x 953, 954 (5th Cir. 2012) (unpublished) 

(on appeal after remand from the Supreme Court to consider Padilla, 

affirming denial of petition for coram nobis). As Padilla lacks retroactive 

effect, this court’s prior decisions apply. Prior to Padilla, this court held that 

failure of counsel to advise his client of other collateral consequences did not 

violate the Sixth Amendment. See United States v. Banda, 1 F.3d 354, 355-

356 (5th Cir. 1993). Accordingly, the district court did not abuse its 

discretion by denying coram nobis relief without a hearing.

Relying on the Criminal Justice Act (CJA), 18 U.S.C. § 3006A, Adeleke 

contends that the district court abused its discretion by denying his motions 

for appointment of counsel without a hearing and without stating reasons. 

The record belies his assertion that the district court failed to state reasons. 

We review de novo the legal question of whether an appointment for the 

purpose for which the movant seeks counsel complies with the CJA. United 

States v. Garcia, 689 F.3d 362, 363 (5th Cir. 2012). CJA provides that an 

attorney shall be appointed for a financially eligible person who is in certain 

criminal proceedings, “from his initial appearance . . . through appeal,

including ancillary matters appropriate to the proceedings,” or who “is 

entitled to appointment of counsel under the sixth amendment to the 

Constitution.” § 3006(a)(1)(H), (c). Postconviction proceedings are not 

“ancillary proceedings” for purposes of § 3006A, and there is no constitutional 

right to counsel in postconviction proceedings. Garcia, 689 F.3d at 364-65. A 

court may appoint counsel “for any financially eligible person who . . . is 

seeking relief under section 2241, 2254, or 2255 of title 28” when it 

“determines that the interests of justice so require.” § 3006A(a)(2)(B). As 

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discussed above, a writ of coram nobis may be sought only when no other 

remedy, such as § 2255, is available. United States v. Esogbue, 357 F.3d 532,

534. Thus, under the plain language of the CJA, appointment of counsel was 

neither required nor permitted. The district court therefore did not abuse its 

discretion by denying Adeleke’s motions for appointment of counsel without a 

hearing. Adeleke’s motions in this court for the appointment of appellate 

counsel and for remand to the district court are denied.

Adeleke brings to this court’s attention the Supreme Court’s decisions 

in Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 

1376 (2012), both of which were decided on March 21, 2012, months before 

Adeleke filed his constructive coram nobis petition in September 2012. As 

the issues underlying these cases have not been addressed, either in district 

court or on appeal, we decline to address them further.

AFFIRMED; MOTIONS DENIED.

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