Opinion
Civil Action 2:13-cv-816
2013-10-21
NOEL COVARRUBIA, Petitioner, v. STATE OF OHIO, Respondent.
Judge Graham
Magistrate Judge King
REPORT AND RECOMMENDATION
Petitioner has filed a petition for a writ of error coram nobis, Petition for a Writ of Error Coram Nobis, Doc. No. 1, in which Petitioner appears to challenge the constitutionality of his 1997 state court conviction on charges of assault and criminal mischief based on his guilty plea. Petitioner, a citizen of Venezuela, specifically alleges that his 1997 guilty plea was not knowing and voluntary and that his defense counsel did not render effective assistance of counsel because Petitioner was not advised that his conviction could subject him to deportation.
Petitioner's claim is based on Padilla v. Kentucky, 559 U.S. 356 (2010), in which the United States Supreme Court held that the failure of a defense attorney to inform an alien of the immigration consequences flowing from a guilty plea may rise to the level of ineffective assistance of counsel. However, the Supreme Court recently held that Padilla does not apply retroactively to convictions entered prior to March 31, 2010. Chaidez v. United States, -- U.S. --, 133 S. Ct. 1103, 1105 (2013). Petitioner, whose conviction became final prior to Padilla, therefore cannot benefit from its holding. See Teague v. Lane, 489 U.S. 288 (1989).
It is therefore RECOMMENDED that this action be dismissed.
If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed'n of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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Norah McCann King
United States Magistrate Judge