USCA11 Case: 20-14688 Date Filed: 10/12/2021 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14688
Non-Argument Calendar
____________________
MELCHOR MUNOZ,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket Nos. 4:18-cv-00489-RH-MAF,
4:11-cr-00037-RH-MAF-2
____________________
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2 Opinion of the Court 20-14688
Before WILLIAM PRYOR, Chief Judge, LUCK, and LAGOA, Circuit
Judges.
PER CURIAM:
Melchor Munoz, a federal prisoner, appeals the denial of his
motion to vacate his sentence.
28 U.S.C. § 2255. Munoz, a natural-
ized citizen, argues that his trial counsel was ineffective for advising
him that he “could,” instead of that he “would,” have his citizen-
ship revoked for failing to disclose his drug crimes in his application
for naturalization. We affirm the denial of Munoz’s motion.
Munoz illegally entered the United States from Mexico in
1992 and, after becoming a legal resident in 2004, began trafficking
drugs. In 2011, Munoz was indicted for conspiring to distribute five
or more kilograms of cocaine and 100 or more kilograms of mari-
juana between June 1, 2008, and May 30, 2011.
21 U.S.C.
§§ 841(a)(1), 846. In his written agreement with the government,
Munoz acknowledged that his plea of guilty “specifically excludes
and does not bind any other state or federal agency, including other
United States Attorneys . . . from asserting any civil, criminal, or
administrative claim against [him].” Munoz also acknowledged
“that [his] conviction may adversely affect [his] immigration status
and may lead to revocation of his citizenship and deportation.”
During Munoz’s change of plea hearing, the prosecutor
highlighted that Munoz “is a nationalized citizen of the United
States, originally from Mexico” and “[t]he law provides that, if
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20-14688 Opinion of the Court 3
someone was engaged in criminal activity and thus not of good
moral character as they professed when becoming a citizen, that
that citizen is subject to revocation.” The prosecutor stated that
“one of the potential consequences of [the] plea of guilty is that the
government may seek to revoke Mr. Munoz's citizenship and have
him deported at the conclusion of his sentence” and that “[t]he de-
cision has not been made whether or not to do that, but that is a
possibility in this case.” The district court asked whether it
“need[ed] to talk to Mr. Munoz about that” and defense counsel
responded “that was in the plea agreement. It was reviewed in de-
tail and discussed with my client.” Nevertheless, the district court
told Munoz that his plea of guilty “could have an effect on your
citizenship status,” but the district court “[did]n’t know that it will”
or whether “it won’t.” The district court asked Munoz whether
“anybody made any promises to [him] one way or the other . . .
about whether or not this will affect your citizenship status,” and
Munoz responded, “no.” And when the district court asked Munoz
if he was “pleading guilty because [he is], in fact, guilty of this
charge,” he replied, “Yeah, I’m guilty.”
In 2012, the district court sentenced Munoz to 188 months
of imprisonment. Munoz did not appeal. In 2016, Munoz suc-
ceeded in having his sentence reduced to 151 months of imprison-
ment. See
18 U.S.C. § 3582(c)(2).
In 2018, Munoz moved to vacate his conviction. He argued
that his trial counsel was ineffective for misrepresenting what effect
his conviction would have on his U.S. citizenship. Munoz attached
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4 Opinion of the Court 20-14688
to his motion affidavits from his trial counsel stating that his advice
was consistent with what he was told in his plea agreement and by
the district court and from his postconviction counsel stating that
Munoz “was not properly advised of the immediate immigration
consequences of his plea.” Munoz also submitted a copy of a com-
plaint filed in July 2018 to revoke his United States citizenship for
participating in a conspiracy to traffic drugs and filing an applica-
tion for naturalization that falsely denied involvement in any crim-
inal activities. See
8 U.S.C. § 1451(a).
The government opposed Munoz’s motion as untimely and,
in the alternative, as without merit. The government argued that
Munoz failed to exercise due diligence to challenge his conviction
when he knew of the potential effect his guilty plea would have on
his status as a U.S. citizen before his change of plea hearing. See
28
U.S.C. § 2255(f)(1). The government also argued that Munoz was
dilatory in filing his postconviction motion more than a year after
his immigration lawyer responded on October 26, 2017, to a letter
dated September 25, 2017, from the Department of Justice warning
that Munoz faced revocation of his citizenship. See
id. § 2255(f)(4).
Alternatively, the government argued that Munoz’s counsel did
not perform deficiently by misjudging the immigration conse-
quences of his guilty plea and that Munoz suffered no prejudice
given that he submitted no evidence that he had pleaded guilty to
retain his citizenship and overwhelming evidence supported his
conviction.
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20-14688 Opinion of the Court 5
The government attached to its response the letter that the
Department sent Munoz. The letter warned that the Department
“plan[ned] to bring denaturalization proceedings against [Munoz]
to revoke your United States citizenship.” The letter stated that
Munoz had “illegally obtained . . . citizenship” by “engag[ing] in . . .
[a] conspiracy to distribute and possess cocaine and marijuana . . .
during the period in which Congress required you to have good
moral character” and by “conceal[ing] and misrepresent[ing] your
criminal misconduct during the naturalization process.” The letter
explained that Munoz’s “Application for Naturalization (Form N-
400), [falsely] attest[ed] that [he] had not knowingly committed any
crime for which [he] had not been arrested, and that [he] never sold
or smuggled controlled substances, illegal drugs, or narcotics” and
that, during his interview “on July 6, 2009,” he affirmed . . . [those
false] answers.” The letter offered to “explore the possibility of set-
tlement prior to filing proceedings against [Munoz],” but it was
“not negotiable” that “any settlement must, at a minimum, include
that [he] give up . . . [his] United States citizenship.”
The government also submitted correspondence that
Munoz’s immigration attorney sent the Department. In a letter
dated October 26, 2017, Munoz’s immigration attorney stated his
firm is “now the attorney of record and request[ed] any further
matters [be] forwarded to our attention.”
A magistrate judge recommended that the district court
deny Munoz’s motion as untimely, but the district court denied the
motion on the merits. The district court ruled that Munoz could
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6 Opinion of the Court 20-14688
not prove trial counsel performed deficiently because he provided
accurate advice that loss of citizenship was a possibility but not a
certainty. The district court determined that counsel’s advice was
accurate because the government exercised some discretion in re-
voking citizenship for a drug crime and because Munoz admitted
specifically to wrongdoing in 2011, but not in the five years before
he applied for citizenship. The district court ruled that reasonable
jurists could disagree about its decision and granted Munoz a cer-
tificate of appealability.
The decision to deny Munoz’s claim of ineffectiveness of
trial counsel is subject to plenary review. We review findings of fact
for clear error and the application of the law to those facts de novo.
Hollis v. United States,
958 F.3d 1120, 1122 (11th Cir. 2020). “Re-
gardless of the ground stated in the district court’s order or judg-
ment, we may affirm on any ground supported by the record.” Bee-
man v. United States,
871 F.3d 1215, 1221 (11th Cir. 2017) (internal
quotation marks omitted and alteration adopted).
A federal prisoner has one year from the latest of four speci-
fied events to file a postconviction motion seeking relief from his
sentence.
28 U.S.C. § 2255(f). The one-year period commences, for
purposes of this appeal, on either “the date on which the judgment
of conviction becomes final” or “the date on which the facts sup-
porting the claim or claims presented could have been discovered
through the exercise of due diligence.”
Id. § 2255(f)(1), (4). Due dil-
igence required Munoz “to make reasonable efforts” to discover
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20-14688 Opinion of the Court 7
the facts supporting his claim for relief. See Aron v. United States,
291 F.3d 708, 712 (11th Cir. 2002).
Munoz’s motion to vacate is untimely. Munoz was warned
before and during his change of plea hearing of the possibility that
his citizenship could be revoked due to his conviction, but he made
no efforts to discover whether his citizenship was in jeopardy in the
more than five years between his conviction and the commence-
ment of revocation proceedings. See
28 U.S.C. § 2255(f)(1). But
even if we assume that the multiple warnings Munoz received
were insufficient to trigger the one-year deadline, he knew to a cer-
tainty that the Department would revoke his citizenship when he
received its letter dated September 25, 2017. Munoz made no “rea-
sonable effort” to challenge his conviction promptly. See Aron,
291
F.3d at 712. Munoz’s immigration attorney responded to the letter
from the Department by October 26, 2017. Even using that date,
Munoz missed the one-year deadline by waiting until October 29,
2018, to file his postconviction motion. See
28 U.S.C. § 2255(f)(4).
The district court correctly denied Munoz’s motion.
We AFFIRM the denial of Munoz’s motion to vacate.