                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS                   July 9, 2012
                               TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                   Clerk of Court


 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,                     No. 11-2193
                                             (D.C. No. 1:05-CR-02366-JEC-1)
 v.                                                 (D. New Mexico)
 JULIO GUERRERO-CASTRO,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and O’BRIEN, Circuit Judges.


      Petitioner Julio-Guerrero Castro appeals the denial of his petition for writ

of error coram nobis by the United States District Court for the District of New

Mexico. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      On December 8, 2005, Petitioner pleaded guilty in federal district court to

one count of possession with intent to distribute 100 kilograms or more of

marijuana. See 21 U.S.C. § 841. The court sentenced him to 60 months’

      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
imprisonment followed by four years of supervised release. After his release

from prison in February 2010, the Immigration and Customs Enforcement Agency

(ICE) took him into immigration custody, and the Department of Homeland

Security commenced removal proceedings against him, charging him as

removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

      Following the Supreme Court’s decision in Padilla v. Kentucky, 130 S. Ct.

1473 (2010), which held that defense counsel may render ineffective assistance by

failing to advise the defendant that his guilty plea would subject him to

deportation, id. at 1482–84, Petitioner filed a “Petition for Relief From Judgment

Pursuant to N.M. Dist. Ct. P.C.P. 1-060(b)(6),” Supp. R., Vol. II at 1. He argued

that his attorney had provided ineffective assistance of counsel because he failed

to advise him of the immigration consequences of his guilty plea and failed to

consult with him about filing a notice of appeal. The district court denied his

petition because his “allegations amount[ed] to a collateral attack on his sentence,

which he may prosecute only in a motion to vacate, set aside, or correct sentence

under 28 U.S.C. § 2255.” Id. at 5. It declined to construe the petition as a § 2255

motion because it was filed after the expiration of the one-year limitations period

under that statute.

      On May 31, 2011, Petitioner filed his coram nobis petition in district court,

again arguing that his attorney was ineffective for failing to advise him of the

immigration consequences of a guilty plea. On September 16 the court denied the

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petition, adopting the magistrate judge’s report and recommendation (R&R)

because neither of the parties had filed objections. Petitioner filed a motion to

reconsider that decision, claiming that he had never received a copy of the R&R

filed in district court. He also filed a notice of appeal to this court, but on

September 30 we filed an order abating his appeal pending the district court’s

resolution of his motion to reconsider. The district court granted Petitioner’s

motion to reconsider on October 19. On the same day, however, it rejected his

objections to the R&R, adopted the R&R, and denied his petition. It concluded

that his claims failed because he had not shown that he was prejudiced by his

attorney’s ineffectiveness and because the Tenth Circuit had recently held that the

rule from Padilla invoked by Petitioner did not apply retroactively, see United

States v. Hong, 671 F.3d 1147, 1150 (10th Cir. 2011).

      On October 26, 2011, we vacated the abatement of Petitioner’s appeal, and

his counsel filed a brief. He argues that the district court erred in concluding (1)

that he did not suffer prejudice because of his attorney’s alleged failure to advise

him of the immigration consequences of a guilty plea and (2) that Padilla does

not apply retroactively.

      We review a district court’s decision on a writ of error coram nobis for

abuse of discretion. See United States v. Haga, 931 F.2d 642, 645 (10th Cir.

1991). We may “affirm a district court decision on any grounds for which there

is a record sufficient to permit conclusions of law, even grounds not relied upon

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by the district court.” United States v. Sandia, 188 F.3d 1215, 1217 (10th Cir.

1999) (internal quotation marks omitted).

      “The exclusive remedy for testing the validity of a judgment and sentence,

unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.”

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (internal quotation marks

omitted); United States v. Payne, 644 F.3d 1111, 1112 (10th Cir. 2011)

(“[Defendant] is not entitled to [coram nobis] relief unless relief under 28 U.S.C.

§ 2255 was unavailable or would have been inadequate.”) Petitioner has failed to

explain why § 2255 did not provide an adequate and effective remedy, even after

the government argued in its response brief that § 2255 offered such a remedy and

that he failed to use it. And we see no reason why proceeding under § 2255

would have been inadequate or ineffective. Even if Petitioner’s § 2255 motion

would have been barred as untimely if he had filed it in place of his coram nobis

petition, see 28 U.S.C. § 2255(f)(1), “[i]t is irrelevant [to the issue of whether

§ 2255 is inadequate or ineffective] that a § 2255 motion would have been

untimely by the time he filed his petition for a writ of coram nobis.” Payne, 644

F.3d at 1113.

      Further, Petitioner cannot challenge his conviction in a coram nobis

proceeding because he was still “in custody” when he filed his petition. See

United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (“[A] prisoner may

not challenge a sentence or conviction for which he is currently in custody

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through a writ of coram nobis.”) Although Petitioner’s federal incarceration had

ended when he filed his coram nobis petition, he was still subject to a term of

supervised release. For the purposes of habeas-corpus relief, “[c]ustody is not

limited to physical confinement; it exists whenever conditions have been imposed

which significantly confine and restrain (the movant’s) freedom.” United States

v. Condit, 621 F.2d 1096, 1098 (10th Cir. 1980) (internal quotation marks

omitted). Thus, “probation, like parole, constitutes ‘custody.’” Id. at 1098;

United States v. Fabiano, 42 F. App’x 408, 411 (10th Cir. 2002) (when a prisoner

is subject to supervised release, he is still “‘in custody’” for § 2255 purposes).

We hold that Petitioner was still “in custody” for purposes of his coram nobis

petition because he was subject to the conditions of his supervised release.

      Moreover, even if we were to construe Petitioner’s petition as a § 2255

motion, it would be barred as untimely. True, § 2255(f)(3) provides that the one-

year limitations period for filing a § 2255 does not begin until “the date on which

the right asserted was initially recognized by the Supreme Court, if that right has

been newly recognized by the Supreme Court and made retroactively applicable to

cases on collateral review.” Id. But Padilla did not decide that its ruling applied

retroactively to collateral attacks. See 130 S. Ct. 1473. Indeed, we recently held

that it does not apply retroactively. See Hong, 671 F.3d at 1150. Petitioner was




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required to file his § 2255 motion within one year of the date his conviction

became final, see 28 U.S.C. § 2255(f)(1), which he clearly failed to do.

      We AFFIRM the judgment of the district court.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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