Felon who had fully served his state sentence and was in federal custody facing deportation was unable to vacate plea based on ineffective assistance of counsel (IAC) because all potential remedies were unavailable. Aguilar, a lawful resident alien, pled nolo contendere to illegal possession of a gun in 2005. He completed his one day in custody and three years’ probation. He was later taken into federal custody to face deportation because of the conviction. He filed a motion in state court to vacate the plea based on IAC because his attorney failed to advise him of the immigration consequences of the conviction. The trial court denied the motion for lack of jurisdiction because Aguilar was in federal custody and not present; Aguilar appealed. Held: Affirmed. The Court of Appeal did not address the jurisdictional question because, even with jurisdiction, the trial court lacked the discretion to grant the requested relief. When a noncitizen who has been convicted of a felony based on a guilty or no contest plea claims that he was not advised of the immigration consequences of his plea, he has three possible remedies: (1) appeal from the judgment if the record reflects the facts on which the claim is based; (2) file a statutory motion under Penal Code section 1016.5, which requires a trial court to advise a defendant of the immigration consequences of a plea; (3) petition for a writ of habeas corpus raising the IAC issue. All these potential remedies were foreclosed in Aguilars case. The factual grounds for Aguilar’s motion did not support a section 1016.5 claim, as the trial court did advise Aguilar of the immigration consequences of his plea. Habeas relief was also unavailable because a defendant who is in federal custody but no longer in state custody as a result of an earlier conviction is ineligible for habeas relief. (People v. Villa (2009) 45 Cal.4th 1063.)
Coram nobis relief is not available where defendant alleges that counsel rendered IAC by failing to fully advise him of the immigration consequences of a plea. One of the three requirements for the nonstatutory remedy of coram nobis is that the petitioner must show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial, and which if presented would have prevented the rendition of the judgment. It does not lie to correct errors of law, such as a claim of IAC for failure to advise of immigration consequences. (People v. Kim (2009) 45 Cal.4th 108.) The facts on which Aguilar based his claim were insufficient to satisfy the minimum requirements for coram nobis relief because the alleged new facts (that trial counsel failed to adequately advise him about concerning the immigration consequences of his plea) involved only the legal effect of his guilty plea. If the facts had been known at the time of his plea, they would only have affected his willingness to enter into the plea and were not facts that would have prevented rendition of judgment.
Aguilar is not entitled to nonstatutory relief based on a claim of ineffective assistance of counsel. A defendant may pursue a claim for relief where counsel misadvised him regarding the immigration consequences of a plea even when the court gave the required section 1016.5 advisement. But a nonstatutory motion to vacate a plea is essentially a petition for writ of error coram nobis. Aguilar’s entry of a plea resulting from his ignorance of the immigration consequences is not a mistake of fact, but a mistake of law, for which coram nobis is unavailable. The decision in Padilla v. Kentucky (2010) 559 U.S. 356 (claim of IAC may be based on misadvising or failing to advise defendant of immigration consequences of plea) does not compel the conclusion that a state court retains jurisdiction to vacate a long final judgment when a state provides a means to do so, but the time limits for seeking various remedies have passed.
