NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

GLENN ALBERT WIERSMA, AKA 

Johnell G. Davis, 

Defendant-Appellant.

No. 22-55421 

D.C. No. 

2:92-cr-00979-JFW-2 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted May 11, 2023

Pasadena, California

Before: HURWITZ and R. NELSON, Circuit Judges, and KANE,** District Judge.

Glenn Wiersma appeals from the district court’s denial of a coram nobis

petition. In 1995, Wiersma pleaded guilty to conspiracy to defraud the United States 

in violation of 18 U.S.C. § 286. Over twenty-five years later, he petitioned for coram 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Yvette Kane, United States District Judge for the 

Middle District of Pennsylvania, sitting by designation.

FILED

MAY 30 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 22-55421 

nobis relief, seeking to vacate his conviction based on the contention that he received 

ineffective assistance of counsel because his previous attorney did not warn that the 

conviction rendered him deportable. 

We have jurisdiction under 28 U.S.C. § 1291 and review the denial of coram 

nobis relief de novo. United States v. Kroytor, 977 F.3d 957, 961 (9th Cir. 2020). 

We affirm because Wiersma did not show that his former attorney provided

constitutionally deficient performance.1 

1. Padilla v. Kentucky instructs that counsel “must inform her client 

whether his plea carries a risk of deportation.” 559 U.S. 356, 374 (2010). But 

Padilla does not apply retroactively because it announced a “new rule” that broke

with nearly all lower courts—including the Ninth Circuit—which “excluded advice 

about collateral matters from the Sixth Amendment’s ambit.” Chaidez v. United 

States, 568 U.S. 342, 352 (2013); see United States v. Fry, 322 F.3d 1198, 1200 (9th 

Cir. 2003). Thus, Padilla offers no basis for coram nobis relief from Wiersma’s

1995 conviction.

2. Before Padilla, we created an exception to our general rule, recognizing 

that counsel can provide ineffective assistance by “affirmatively misleading” a client 

about immigration consequences. United States v. Kwan, 407 F.3d 1005, 1008 (9th 

1 We GRANT Wiersma’s unopposed motion for judicial notice of various court 

records from Wiersma’s prior appeal. Dkt. No. 22.
3 22-55421 

Cir. 2005), abrogated in part by Padilla, 559 U.S. at 374. For the first time on 

appeal, Wiersma contends that his prior lawyer “affirmatively misadvised” him 

about his conviction’s immigration consequences. But Wiersma points to no

affirmative misrepresentation. Quite the contrary, Wiersma’s petition says his 

lawyer “never discussed the immigration consequences of the federal plea” with 

him. 

Instead, Wiersma relies on a provision of his plea agreement stating that the 

government “will not oppose” certain “conditions of release” allowing Wiersma “to 

complete [his] schooling by the end of March 1995.” Wiersma contends that this 

provision meant to say “March 1996” and governed the conditions of his release 

after his incarceration. According to Wiersma, this provision is misleading because 

federal law did not allow his release to the community after his incarceration but 

rather rendered him automatically deportable.

Even assuming that this theory was not forfeited, it lacks merit. For one thing, 

it requires us to rewrite the plea agreement’s unambiguous terms, which we decline 

to do. Moreover, no reasonable reader would consider this provision to be a

misrepresentation about immigration consequences: it is a representation from the 

government (not Wiersma’s attorney), makes no mention about immigration status,

and appears to reflect precisely what later occurred.

3. Wiersma also argues that his counsel provided ineffective assistance by 
4 22-55421 

violating California professional standards. According to Wiersma, since the 1980s,

California law has required criminal defense attorneys to investigate and advise their 

clients about a criminal conviction’s immigration consequences. Wiersma says it 

was unreasonable for his attorney not to fulfill these state-law obligations, 

particularly when the attorney was also representing Wiersma in state criminal 

proceedings. But Wiersma is in federal court seeking federal relief from a federal 

conviction. Before Padilla, the availability of a federal constitutional remedy for 

ineffective assistance of counsel turned on the “distinction between direct and 

collateral consequences,” not on whether a “reasonably competent lawyer [would] 

tell a non-citizen client about a guilty plea’s deportation consequences.” Chaidez, 

568 U.S. at 357–58 (citing Fry, 322 F.3d at 1200–01). No matter what state law 

obligated Wiersma’s attorney to do in state court,2federal law viewed immigration 

consequences as “collateral to the criminal prosecution” and thus outside the Sixth 

Amendment’s purview. Id.

4. Finally, Wiersma contends that the district court abused its discretion 

by resolving the coram nobis petition without an evidentiary hearing. As discussed, 

Wiersma’s petition fails as a matter of law, and he does not articulate how further 

2

It is also not obvious that California law even imposed the duty that Wiersma 

claims. See, e.g., People v. Vivar, 43 Cal. App. 5th 216, 226 (2019) (“[P]rior to 

Padilla, it remained an open question in California whether defense counsel had an 

affirmative duty to advise about immigration consequences of a plea.”), reversed on 

other grounds, 485 P.3d 425 (Cal. 2021).
5 22-55421 

factual development would change the outcome. See Runningeagle v. Ryan, 825 

F.3d 970, 990 (9th Cir. 2016) (“Where documentary evidence provides a sufficient 

basis to decide a petition, the court is within its discretion to deny a full hearing.”).

AFFIRMED.