Noelia Tanguma MARROQUIN, Plaintiff-Appellant v. UNITED STATES of America, Defendant-Appellee, 480 F. App'x 294

PER CURIAM: Plaintiff-Appellant Noelia Tanguma-Marroquin petitioned the district court for writ of coram nobis, alleging ineffective assistance of counsel and seeking to vacate her criminal conviction for one count of transporting an undocumented alien for financial gain. The district court denied the petition, finding that Appellant had failed to demonstrate prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We affirm.

I Appellant pled guilty by written plea agreement to one count of transporting an illegal alien within the United States for financial gain in violation of 8 U.S.C. § 1324(a)(l)(A)(ii). The district court sentenced Appellant to serve ten months in the United States Bureau of Prisons, with no term of supervised release. Appellant did not appeal the judgment or move to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Upon her release, United States Immigration and Customs Enforcement (“ICE”) immediately took custody of Appellant, pursuant to an outstanding immigration detainer.

While in ICE custody, Appellant filed a petition for writ of coram nobis. Appellant alleged (1) that the Supreme Court’s decision in Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), applied retroactively to her petition, and her counsel therefore had a constitutional obligation to inform her regarding potential deportation consequences of a guilty plea; and (2) that her counsel failed to so inform her, constituting prejudice under Strickland.

The district court agreed with Appellant that Padilla applied retroactively to her case, but concluded that she had not met her burden under Strickland. First, the district court concluded that Appellant’s counsel demonstrated at sentencing that he was aware of the immigration consequences of her guilty plea, consistent with a presumption “that counsel satisfied [his] obligation to render competent advice at the time [his] client[ ] considered pleading guilty.” Padilla, 130 S.Ct. at 1485 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

Second, the district court concluded that, even if counsel failed to inform her of potential deportation, Appellant did not suffer prejudice because the sentencing court advised her of the risk of deportation at rearraignment.

On appeal, Appellant (1) contends that the district court should have granted co-ram nobis relief without requiring her to meet Strickland’s two prong test; (2) reasserts her argument that Padilla applies retroactively to her petition; (3) argues that the district court did not automatically cure any prejudice by its advisals regarding deportation; and (4) requests that this court remand to the district court to for an evidentiary hearing.

In reviewing a district court’s denial of a petition for writ of coram nobis, this court reviews factual findings for clear error, questions of law de novo, and the ultimate decision to deny the writ for abuse of discretion. Santos-Sanchez v. United States, 548 F.3d 327, 330 (5th Cir.2008) II Appellant first contends that the district court should not have required her to meet Strickland’s two prong test because her counsel failed to subject the prosecution’s case to any meaningful adversarial testing. See United States v.

Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (holding that counsel’s failure to subject prosecution’s case to adversarial testing amounts to constructive denial of counsel, and a reviewing court should not require petitioner to show prejudice); Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir.1998) (holding that “the constructive-denial claim is a very narrow exception to the Strickland prejudice requirement”). However, Appellant only urged the district court to apply Strickland, and she makes the “constructive denial” argument for the first time on appeal. We therefore decline to address it.

See Flores-Garza v. I.N.S., 328 F.3d 797, 804 n. 7 (5th Cir.2003) (“It is well established that this court ordinarily does not consider issues raised by the appellant for the first time on appeal.”). Appellant also reasserts that Padilla applies retroactively. However, this argument has been squarely foreclosed by a published decision of this court in the time since this appeal was filed. In United States v.

Amer, 681 F.3d 211, 214 (5th Cir.2012), this court held, as a matter of first impression, that “the rule announced in Padilla is ‘new’ ... and accordingly, it does not apply retroactively....” Appellant’s remaining arguments (that the district court’s advisals did not cure Strickland prejudice and that the district court should have conducted an evidentia-ry hearing to determine whether counsel advised her on deportation) also depend on Padilla and are therefore infirm.

Ill Appellant’s aforementioned arguments do not demonstrate that the district court abused its discretion in denying her petition for writ of coram nobis. We AFFIRM. 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. . "In 1954, the Supreme Court’s decision in United States v.

Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), revived the ancient writ of coram nobis by holding that the writ was available in federal courts pursuant to the All Writs Act, 28 U.S.C. § 1651(a). Since that time the writ has been used as an avenue of collateral attack when the petitioner has completed his sentence and is no longer 'in custody’ for purposes of seeking relief under either 28 U.S.C. § 2241 or § 2255.” United States v. Dyer, 136 F.3d 417, 422 (5th Cir.1998). . On this question, circuit courts are split, and a petition for certiorari is presently pending before the Supreme Court.

Compare United States v. Orocio, 645 F.3d 630 (3d Cir.2011) (holding that Padilla applies retroactively), with United States v. Hong, 671 F.3d 1147 (10th Cir.2011), and Chaidez v. United States, 655 F.3d 684 (7th Cir.2011), cert. granted, - U.S. -, 132 S.Ct. 2101, 182 L.Ed.2d 867 (2012) (No. 11-820).