Covarrubia v. State of Ohio
Filing
5
REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Noel Covarrubia. It is RECOMMENDED that this action be dismissed. Objections to R&R due by 11/8/2013. Signed by Magistrate Judge Norah McCann King on 10/21/2013. (pes1)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
NOEL COVARRUBIA,
Petitioner,
vs.
Civil Action 2:13-cv-816
Judge Graham
Magistrate Judge King
STATE OF OHIO,
Respondent.
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.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
28
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).
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
October 21, 2013
(Date)
2
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