JOHN G. HEYBURN, II, District Judge.
Some five and a half years after his sentencing, Petitioner has moved to vacate the final judgment where he had pled guilty to an aggravated felony. His motion is based upon not being informed that his guilty plea would have negative consequences to his immigration status and the recent Supreme Court decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), holding that failure to provide such information could constitute ineffective assistance of counsel.
The circumstances are these. Plaintiff pled guilty on December 18, 2006, to conspiracy to harbor aliens in violation of federal law. He was sentenced to time served and a period of supervised release. On November 13, 2008, he completed his term of supervised release. The United States Immigration and Customs Enforcement ("ICE") determined that pursuant to Section 101(a)(43) of the Immigration and Nationality Act, Petitioner's plea on the "harboring" charge constituted an "aggravated felony", making him ineligible for asylum status. As a result, he is automatically deportable.
This Court must address three issues in deciding Petitioner's motion: whether the motion is procedurally proper; whether this Court believes that the Padilla holding is retroactive and therefore applicable to Petitioner's case; and if so, whether, under the circumstances of Petitioner's legal representation, Petitioner received ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution.
Petitioner's motion did not identify the precise federal statute or rule supporting it. This presents an unusual and unclear procedural posture. The Court will first discuss the proper context of Petitioner's motion in these unusual circumstances.
Though Petitioner's original motion to vacate did not so specify, the Court assumes that it was intended as a 28 U.S.C. § 2255 motion.
Although this is certainly an unusual procedural posture, the Sixth Circuit has recognized the possibility of treating a petitioner's § 2255 motion as a writ for error coram nobis in the proper circumstances. See Wood v. United States, 909 F.2d 1485, at *1 (6th Cir. 1990)(unpublished)("Finally, the district court did not err by refusing to treat his § 2255 petition as a motion for a writ of error coram nobis because Wood is currently serving the sentences which form the basis of his petition."). Moreover, in the seminal coram nobis case, United States v. Morgan, the Supreme Court dealt with the following situation:
346 U.S. 502, 505 (1954). Accordingly, the Court concludes that the proper approach here is to treat the § 2255 motion as a writ for error coram nobis.
The Government argues that Petitioner delayed too long to file his motion, and that laches now bars the relief. See Craven v. United States, 26 F. App'x 417, 419 (6th Cir. 2001). To avoid laches, "a coram nobis petitioner must demonstrate that sound reasons exist for not seeking appropriate relief previously as a lengthy delay prejudices the government's ability to respond to the petition and to reprosecute a meritorious case." Id. Here, the Court does not find that the delay is either material or prejudicial. According to Petitioner's affidavit, he did not realize the consequence of his plea until ICE recently determined that he was not eligible for asylum status. This determination makes Petitioner now subject to deportation at any time. Petitioner filed this motion shortly after being made aware of the negative consequences of his conviction for an aggravated felony, and has thus shown sound reason for not seeking relief at an earlier time.
The Court must next determine whether the writ of error coram nobis is actually warranted in this case. A writ of error coram nobis is an extraordinary writ, available only to review errors "of the most fundamental character, that is, such as rendered the proceeding itself invalid." Blanton v. United States, 94 F.3d 227, 231 (6th Cir. 1996)(quoting Flippins v. United States, 747 F.2d 1089, 1091 (6th Cir. 1984)). Petitioner argues that the Padilla decision is such a watershed moment and so influential on his particular case that it justifies the writ of coram nobis. This could be so only if Padilla applies retroactively to Petitioner. Therefore, this Court must determine whether the Padilla holding was an extension of already existing precedents dictated by the law.
In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court outlined the rules concerning the retroactivity of its own holdings. The Supreme Court determined that a new constitutional rule was not retroactively applicable. Without specifically defining the contours of a "new rule," the Court set forth that a rule is new when it "breaks new ground or imposes a new obligation on the States or the Federal Government." Id. at 300. To be sure, the holding of a new rule is retroactively applicable to a case on direct review, but it has retroactive applicability for cases on collateral review only under a set of two very narrow circumstances that are not relevant here. Id. On the other hand, an old rule, or a rule that was dictated by precedent, is retroactively applicable in all cases. Id. at 305-309.
In Padilla, the Supreme Court announced for the first time that "advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel," thus opening the door for convicted offenders to assert an ineffective assistance of counsel claim against their legal representatives for failure to discuss the consequences of their convictions on deportation. Padilla, 130 S.Ct. at 1480-82. The Padilla holding has retroactive applicability only if it can be considered an extension of already existing precedent.
Petitioner argues that the Supreme Court previously announced its general rule regarding constitutionally ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984), and that Padilla merely elaborated upon this already existing rule. Because Padilla did not announce a "new rule," therefore, its holding should be applied retroactively here.
This Court has previously considered this question. Under a very similar circumstance, in United States v. Lin, 2011 WL 197206 (W.D. Ky. Jan. 20, 2011), this Court held that Padilla "does not create a new rule or criminal constitutional law and, therefore, Padilla governs petitions for postconviction relief filed after the court's decision." Id. at *1. Since that time, three Courts of Appeals and one state Supreme Court, in addition to dozens of other district and lower state courts, have also addressed the issue with mixed results. Compare Chaidez v. United States, 655 F.3d 684, 692 (7th Cir. 2011)(holding that "in 2004, a jurist could reasonably have reached a conclusion contrary to the holding in Padilla, such that Padilla announced a new rule for purposes of Teague") with United States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011)(holding that "because Padilla followed directly from Strickland and long-established professional norms, it is an "old rule" for Teague purposes and is retroactively applicable on collateral review") and Commonwealth v. Clarke, 949 N.E.2d 892, 904 (Mass. 2011)(holding that "the holding in Padilla is to be applied retroactively to criminal convictions"). Notably, the Supreme Court granted a writ of certiorari to answer this question and heard oral arguments on the case on November 1, 2012. It has yet to render its decision. See Chaidez v. United States, 132 S.Ct. 2101 (2012).
After thoroughly examining decisions handed down after this Court's decision in Lin, this Court reaffirms its earlier decision that Padilla is not a "new rule" and therefore applicable to the present case. Strickland was a broad outline of the two-step procedure necessary to establish a constitutionally ineffective assistance of counsel claim, under which the Petitioner must prove (1) "that counsel's performance was deficient" and (2) "that the deficient performance prejudiced the defense." Strickland, 446 U.S. at 687. Padilla merely further articulated that a petitioner could satisfy the first prong of this test by establishing that petitioner's counsel failed to warn of the deportation consequences of conviction, because "[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." Padilla, 130 S.Ct. at 1482.
Moreover, language in the Padilla opinion shows that the Supreme Court contemplated the retroactivity of this decision. Indeed, "[t]he Padilla court went to great lengths to advise that its decision will not `open the flood gates' to a significant number of new post-conviction petitions. This extensive discussion would not be necessary or make sense if Padilla only applied prospectively." Lin, 2011 WL 197206, at *2. The Court will not, as the Government requests, delay its decision until such time as the Supreme Court has issued its judgment in Chaidez because of the irresolute ground upon which Petitioner stands due to the constant threat of deportation. The Court is concerned that Petitioner is subject to deportation while a reasonable likelihood exists that the Supreme Court may confirm belatedly that the relief he seeks is appropriate.
The Court is also mindful of the possibility that the Supreme Court's decision will fall the other way. Under such a circumstance, the Government may either appeal this decision or move for reconsideration of it, whichever may be most appropriate. In any event, the Court now will apply the Padilla holding retroactively in this case.
Finally, the Court must examine whether counsel rendered Petitioner was ineffective under Strickland. First, Petitioner must prove that counsel's performance was deficient, under an objective reasonableness standard. Strickland, 446 U.S. at 687. According to Petitioner's affidavit, his counsel never informed him of the negative impact of a guilty plea to an aggravated felony upon his citizenship status and the likelihood of his deportation. The Government does not dispute this contention. For the reasons stated in Padilla, the failure of counsel to inform Petitioner of the grave immigration consequences of the guilty plea was grossly violative of the professional standards at the time of the plea, sufficient to satisfy the first prong of the Strickland test.
The second prong of the Strickland test requires that the deficient performance prejudice the defendant. Id. To satisfy the second prong, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 53, 59 (1985). According to Petitioner's undisputed affidavit, he would not have pleaded guilty to the offense if he was aware of the negative consequences on his immigration status. He claims to have been lured by the plea agreement that sentenced him to time served and supervised release, among other things, and essentially allowed him immediate release. Petitioner has thus satisfied the second Strickland requirement.
In sum, a writ of error coram nobis should only be granted under extraordinary circumstances where justice so requires and no other remedy is available. United States v. Morgan, 346 U.S. 502 (1954). Although Petitioner was convicted of a serious crime, his personal situation illustrates the extraordinary circumstance he faces. Petitioner is a Chinese national who has lived in the United States for 19 years. Petitioner has a wife seeking citizenship and two children who are United States citizens. Forced removal would tear apart the family and potentially have significant repercussions for Petitioner. For all these reasons, the Court concludes that under the authority of Padilla applied here, Petitioner is entitled to the relief requested.
Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that all parties will file all subsequent documents pertaining to this action in docket number 3:12-CV-813-H, restyled as Jian Tian Lin v. United States.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter the following documents, currently in docketed under 3:06-CR-90-H, in the 3:12-CV-813-H docket: Motion to Vacate Final Judgment (DN 69), Motion for Extension of Time to File Response to Motion by the United States (DN 70), Order on 8/24/2012 granting Motion for Extension of Time (DN 71), Filing of Official Transcript of Change of Plea (DN 72), Motion for Extension of Time to File Response/Reply to Motion by the United States (DN 74), Order on 10/5/2012 granting Motion for Extension of Time to File Response (DN 75), Response to Motion by USA (DN 76), Motion for Extension of Time to File Response/Reply by Jian Tian Lin (DN 77), Order on 11/14/2012 granting Motion for Extension of Time (DN 79), and Reply to Response by Jian Tian Lin (DN 80).
IT IS FURTHER ORDERED that Petitioner's writ of error coram nobis is SUSTAINED and that on or before
IT IS FURTHER ORDERED that on or before
Comes the Defendant, Jian Tian Lin, and respectfully requests this Court to vacate his judgment of conviction, previously entered herein. As grounds therefore, Defendant states that, at the time of his plea, Defendant was not advised by his counsel that "removal" (i.e., deportation) was a consequence of his offense of conviction. Given that Defendant was known to be an undocumented alien, the failure to apprise the Defendant of this consequence is fatal to his plea, and the judgment of conviction herein should be vacated.
Comes the Defendant, Jian Tian Lin, by counsel, and after being duly sworn, states as follows:
1. My name is Jian Tian Lin, and I was the Defendant in the above action.
2. On December 18, 2006, judgment was entered as a result of my plea of guilty to Counts 2 and 9 of the indictment. Count 2 of the indictment charged me with knowingly conspiring to conceal, harbor and shield from detection persons who were aliens. (Count 9 was a criminal forfeiture offense). I was sentenced to a total term of seven (7) months imprisonment, followed by a 2 year term of supervised release. I had already served the 7 months, and after my guilty plea, I was released on these charges.
3. On November 13, 2008, this Court terminated my supervised release.
4. Recently, I was denied asylum status, but only due to my conviction under 8 USC §1324(a)(1)(A)(v)(I) and §1324 (a)(1)(B)(i), for allegedly harboring aliens. The United States Immigration and Customs Enforcement (I.C.E.) determined that, pursuant to Section 101(a)(43) of the Immigration and Nationality Act, because a conviction for harboring constitutes an "aggravated felony," I am not eligible for asylum status. Harboring aliens is an automatically deportable (or "removable") offense.
5. I am a Chinese national, and have lived in the United States for 19 years. I am 39 years old, and I am married to Ling Li, who is a lawful resident alien who is seeking citizenship. We have two young children who are U.S. citizens. My oldest son attends public school in Radcliff, and my younger son is pre-school age.
6. At no time during my lawyer's negotiation of a plea agreement, or at the time of my guilty plea, did my lawyer ever advise me that harboring aliens was an aggravated felony under the immigration laws, or that I would be subject to automatic removal. I was told that if I pleaded guilty, I could be released immediately. I did not know to inquire about the consequences of my guilty plea. While in China before my entry into the United States, I only finished middle school, or the equivalent of 9th grade in the U.S., and in China, I was educated not to question those in authority.
7. Because of my marital status and my family, preservation of my right to stay in the United States is more important to me than the 7 month jail sentence I received. I would not have pleaded guilty if I understood the consequences of my plea with regard to my immigration status. If I am returned to China, I would face imprisonment for leaving the country illegally, as well as being subject to a mandatory vasecetomy for violating China's "one child" policy. My wife and children would likely have to remain in the United States.
8. I was especially harmed by my guilty plea because, in fact, I did not harbor any aliens. My brother, Jian Chai Lin, operated a Chinese restaurant in Radcliff, Kentucky (the "Golden China Buffet"). I began working for my brother as a cook in the restaurant in 2001.
9. My brother was charged with the same offenses, but his plea agreement allowed him to plead guilty only to "hiring" offenses, rather than "harboring." Since hiring is not an "aggravated" felony, my brother is not subject to deportation.
10. If I had proceeded to trial, the evidence would have demonstrated that I did not
11. I pleaded guilty only because I had been detained for 7 months, and was told that I would be released if I pleaded guilty.
Comes the Defendant, Jian Tian Lin, and in support of his Motion to Vacate the Final Judgment herein, submits the following Memorandum:
It is now clear that a defense attorney is required to advise a defendant about the possible immigration consequences that may result from entering a guilty plea. Padilla vs. Kentucky 559 U.S. ___, 130 S.Ct. 1473 (2010). Because the failure to do so amounts to ineffective assistance of counsel in violation of the Defendant`s Sixth Amendment rights, Defendant`s conviction must be vacated.
The Defendant, Jian Tian Lin, is a 39 year old Chinese national who has lived in the United States for 19 years. [Affidavit of Jian Tian Lin, attached hereto, ¶4]. He is married to Ling Li, a lawful resident alien. [Id]. Defendant and Ling Li have two young children who are U.S. citizens. Their oldest son attends public school in Radcliff, and their younger son is pre-school age. [Id].
The Defendant`s brother, Jian Chai Lin, operated a Chinese restaurant in Radcliff, Kentucky (the "Golden China Buffet"). He began working for his brother as a cook in the restaurant in 2001. [Affidavit of Jian Tian Lin, ¶8].
In 2006, Defendant was indicted for various offenses, including transporting and harboring illegal aliens. However, had the case proceeded to trial, the evidence would have shown that, in fact, Defendant did not harbor any aliens, but instead, was the one being harbored. [Affidavit of Jian Tian Lin, ¶10]. Nor did he conceal or shield any aliens, but instead, was the one being concealed and shielded from detection. [Id].
Defendant`s brother, Jian Chai Lin, who owned the restaurant and hired Defendant, was charged with the same offenses, but his plea agreement allowed him to plead guilty only to "hiring" offenses, rather than "harboring." Since hiring is not an "aggravated" felony, Jian Chai Lin was not subject to deportation. [Affidavit of Jian Tian Lin, ¶9].
On December 18, 2006, judgment was entered as a result of Defendant`s plea of guilty to Counts 2 and 9 of the indictment. [Affidavit of Jian Tian Lin, ¶2]. Count 2 of the indictment charged him with knowingly conspiring to conceal, harbor and shield from detection persons who were aliens. Count 9 was a criminal forfeiture offense. Defendant was sentenced to a total term of seven (7) months imprisonment, followed by a 2 year term of supervised release. Because Defendant had already served the 7 months, he was released from custody after his guilty plea. [Affidavit of Jian Tian Lin, ¶2]. [Id]. On November 13, 2008, this Court terminated Defendant`s supervised release. [Affidavit of Jian Tian Lin, ¶3].
Recently, Defendant was denied asylum status, due only to his conviction under 8 USC §1324(a)(1)(A)(v)(I) and §1324 (a)(1)(B)(i), for allegedly harboring aliens. [Affidavit of Jian Tian Lin, ¶4]. The United States Immigration and Customs Enforcement (I.C.E.) determined that, pursuant to Section 101(a)(43) of the Immigration and Nationality Act, because Defendant`s conviction for harboring constitutes an "aggravated felony," he is not eligible for asylum status. [Affidavit of Jian Tian Lin, ¶4]. Harboring aliens is an automatically deportable (or "removable") offense. [Id].
At no time during his lawyer`s negotiation of his plea agreement, or at the time of his guilty plea, was Defendant ever advised that harboring aliens was an aggravated felony under the immigration laws, or that he would be subject to automatic removal. [Affidavit of Jian Tian Lin, ¶6]. Defendant was only told that if he pleaded guilty, he would be released immediately. [Id]. Defendant did not know to inquire about the consequences of his guilty plea. [Id]. While in China, before his entry into the United States, Defendant only finished middle school (the equivalent of 9th grade in the U.S.). [Id]. In China, Defendant was educated not to question those in authority. [Id].
Defendant pleaded guilty only because he had been detained for 7 months, and was told that he would be released if he pleaded guilty. [Affidavit of Jian Tian Lin, ¶11]. Defendant was especially prejudiced by his guilty plea because, in fact, he was
Because of his marital status and his family, preservation of the Defendant`s right to stay in the United States is more important to him than the 7 month jail sentence he received. [Affidavit of Jian Tian Lin, ¶7]. He would not have pleaded guilty if he understood the consequences of his plea with regard to his immigration status. [Id]. If Defendant is returned to China, he will face imprisonment for leaving the country illegally, as well as being subject to a mandatory vasecetomy for violating China`s "one child" policy. [Id]. Defendant`s wife and children would likely have to remain in the United States. [Id].
Padilla v. Kentucky, U.S. ___, 130 S.Ct. 1473 (2010), is dispositive of Defendant`s right to have been informed of the consequences of his plea with regard to his immigration status. Jose Padilla was a native of Honduras who came to the United States in the 1960s. He served in the United States military during the Vietnam War. In September 2001, Padilla was arrested for transporting marijuana. Padilla pled guilty to drug charges in exchange for a recommended sentence of five years to serve, after which he would remain on probation for another five years. Under federal law, Padilla`s felony drug conviction was an aggravated felony and a deportable crime. See 8 U.S.C. §§§ 1101(a)(43)(B), 1227(a)(2)(A)(iii), 1227(B)(i).
Padilla filed a motion for post-conviction relief, alleging that he had received ineffective assistance of counsel in that his attorney had misadvised him regarding the potential for deportation as a result of his guilty plea.
The Supreme Court of Kentucky ruled that counsel`s failure to advise Padilla of "collateral consequences" of his plea, and even counsel`s "misadvice" regarding those consequences, did not provide a basis for post-conviction relief.
The United States Supreme Court granted Padilla`s petition for a writ of certiorari. The Court reversed Padilla`s conviction based upon Padilla`s Sixth Amendment right that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." The Court had already interpreted the Sixth Amendment to require that defendants receive "effective assistance of counsel." See e.g., Gideon v. Wainwright, 372 U.S. 335; McMann v. Richardson, 397 U.S. 759 (1970).
In Padilla, the U.S. Supreme Court reversed the Kentucky Supreme Court, holding that "constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation." The Court determined that deportation is an integral part—indeed, some-times the most important part—of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. "The severity of deportation — `the equivalent of banishment or exile,' (cite omitted) — only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation." Id at ___. The Court noted that it had never drawn a distinction between direct and collateral consequences when defining what constituted reasonable assistance of counsel, and held that "the weight of prevailing professional norms supports the view that
When the deportation consequences are clear, as they were in Defendant`s case herein, defense counsel must correctly advise a defendant of those consequences. In this case, Defendant was undoubtedly prejudiced. As noted herein, Defendant pleaded guilty only because he was told he would be released from custody after having been detained for 7 months. He pleaded guilty, and as promised, he was released. Now, however, he faces deportation to China, a consequence about which he was
In Strickland v. Washington, the U.S. Supreme Court adopted a two-prong test to determine whether a defendant received ineffective assistance of counsel. First, the defendant must establish that his counsel`s representation was objectively unreasonable. See Strickland v. Washington, 446 U.S. 668, 687 (1984). Based upon Padilla, Defendant herein has met this prong.
Second, a defendant must demonstrate that he was prejudiced as a result of his counsel`s ineffective representation. To satisfy this prong, the defendant must show that counsel`s errors were serious enough to undermine confidence in the result of the trial. Id. The Strickland standard also applies to the entry of guilty pleas. See e.g., Hill v. Lockhart, 474 U.S. 52 (1985). The prejudicial error test is satisfied if there is a reasonable probability that the defendant would not have pleaded guilty but for his counsel`s erroneous advice. Here, the Defendant undoubtedly could not have been convicted of harboring, concealing or shielding, since he was the one being harbored. Furthermore, Defendant would not have pleaded guilty but for his ignorance of the immigration consequences of his plea. Consequently, Defendant has met the second prong of Strickland, as well.
For the foregoing reasons, Defendant respectfully requests this Court to grant this motion and vacate the judgment of conviction previously entered herein. Defendant also requests that this Court set a date for further proceedings in this case.
Upon Motion of the Defendant, Jian Tian Lin, to vacate his judgment of conviction previously entered herein, and the Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED THAT Defendant's Motion is GRANTED. The final judgment previously entered herein, and Defendant's plea of guilty, are VACATED.
This matter is set for further proceedings on the Indictment on the _____ day of __________, 2012 at _______ a.m./p.m.
Comes the United States of America, by counsel, and respectfully moves this Honorable Court for an extension of time to respond to Defendant's Motion to Vacate Final Judgment. In support of it's motion, the United States would show this Honorable Court the following:
On July 3, 2012, the Defendant filed a Motion to Vacate Final Judgment. Soon after, the undersigned AUSA had conversations with the Defendant's attorney with reference to an extension of time to respond, in addition to arranging a time so the parties could try and resolve the issue. Unfortunately, at the time of these conversations, the undersigned AUSA was in the middle of preparing for an 8 defendant marriage fraud conspiracy trial that was set for August 13, 2012. As a result, the undersigned AUSA did not make sure that the parties agreement to extend time for the United States to respond was memorialized in writing and filed with the court. The undersigned AUSA apologizes to the court for this oversight.
Upon reviewing the Defendant's Motion to Vacate Final Judgement, the undersigned AUSA will need to obtain transcripts of the change of plea and subsequent sentencing hearings that were conducted in this case to properly address the issues in the Defendant's Motion. Therefore, the United States is moving the court for a two week extension of time to respond to Defendant's Motion to Vacate Final Judgement, beginning from the time that the transcripts become available to the United States.
Upon the unopposed motion of the United States for an extension of time to respond to Defendant's Motion to Vacate Final Judgment, and the Court being otherwise sufficiently advised,
Proceedings recorded by mechanical stenography, transcript produced by computer.
(The interpreter, sworn before the proceedings commenced, interpreted the following testimony from Chinese into English.)
(Begin proceedings in open court at 11:43 a.m.)
DEPUTY CLERK: Next case, Your Honor?
THE COURT: Yes.
DEPUTY CLERK: United States of America v. Jian Tian Lin, Case Number 3:06-CR-90-01-H.
MR. KINNICUTT: Daniel Kinnicutt for the United States Government.
THE COURT: All right. We're here for a plea?
MR. WESTBERRY: Yes, Judge.
THE COURT: Okay.
MR. WESTBERRY: And we have signed a plea agreement, as well as a preliminary order of forfeiture. I can tender them to the court, if you would like.
THE COURT: All right.
MR. WESTBERRY: Thank you.
THE COURT: Mr. Lin, before I allow you to enter your guilty plea, I'm going to need to ask you a number of questions to make sure you understand your constitutional rights, the consequences of waiving them, and to make sure you're doing it voluntarily. Before we go any further, I'm going to ask the clerk to administer the oath to you.
DEPUTY CLERK: Yes, Your Honor. Raise your right hand, please.
MR. WESTBERRY: He agrees.
THE INTERPRETER: He agrees.
(Defendant sworn.)
THE COURT: Would you please state your full name and address, please.
THE DEFENDANT: My name is Jian Tian Lin.
THE COURT: Okay. And what's your local address?
THE DEFENDANT: It's in Kentucky. I'm not quite — I couldn't quite remember the exact address or the street name. Plus, I do not speak English.
THE COURT: Does anyone have any doubt as to the defendant's competence to change his plea?
MR. WESTBERRY: I do not, Judge. Other than the obvious language barrier, he does understand with the help of an interpreter.
THE COURT: Okay. Mr. Kinnicutt?
MR. KINNICUTT: No, Your Honor.
THE COURT: Okay. The court finds that defendant is competent to change his plea.
By the way, Mr. Lin, if at any time you don't understand what's going on, raise your hand. We'll stop the proceedings and make sure that you do. All right?
THE DEFENDANT: Yes, sir.
THE COURT: Or you can also tell your interpreter at any time if you're not understanding.
THE DEFENDANT: Good.
THE COURT: Have you had plenty of opportunity to discuss this case with your attorney?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. Do you understand your constitutional rights, your right to trial? THE DEFENDANT: Yes, Your Honor, I know.
THE COURT: The fact that you are presumed innocent and must be proven guilty beyond a reasonable doubt?
THE DEFENDANT: I understand that.
THE COURT: All right. The interpreter has to speak a little louder so the court reporter can take —
THE INTERPRETER: Sure.
THE COURT: And you understand that no one can force you to testify or testify against yourself?
THE DEFENDANT: I understand that, Your Honor.
THE COURT: Okay. The court finds that the defendant does understand his constitutional rights. I gather, Mr. Lin, you're willing to give up your constitutional rights in order to plead.
THE DEFENDANT: Yes, Your Honor.
THE COURT: Is the defendant — what counts of the indictment is the defendant pleading to?
MR. KINNICUTT: Your Honor, he's pleading to Count 2, which is conspiracy to harbor aliens, and that's the sole count that he's pleading to.
THE COURT: All right. Now, has anyone forced you or threatened you in any way to enter into this plea agreement?
THE DEFENDANT: No, Your Honor.
THE COURT: Okay. I'm going to ask the United States to summarize the plea agreement. When the United States is finished, I'm going to ask you whether that's the agreement as you understand it.
THE DEFENDANT: Okay.
MR. KINNICUTT: Your Honor, in exchange for the defendant's plea of guilty to Count 2 of the indictment, at the time of sentencing and after sentencing, the government will move to dismiss the remaining counts of the indictment.
The government will also recommend the lowest end of the guideline range, which we believe in this case comes out to six months. Furthermore, we're going to recommend a fine at the lowest end of the range, whatever guideline that is. I don't know what it is. And furthermore, we're going to ask the court to adjust his offender score offense level by two, since he is accepting responsibility by pleading guilty in this case.
And lastly, Your Honor, the defendant is waiving his right to appeal or collaterally attack his conviction in this case.
And, I'm sorry, one last thing is that with reference to the indictment, there's Count 9, which is a notice requirement of forfeiture, and the defendant to that end is forfeiting all interest that he has in the houses, or the checking account, or the restaurant. Now, it is my understanding that he doesn't have any interest in it, that it belongs to his brother, but he's forfeiting that nonetheless in terms of any rights that he may later have to come in and say, "Hey, that was my money."
MR. WESTBERRY: And that is our understanding.
THE COURT: Is that the plea agreement as you understand it?
THE DEFENDANT: I understand, Your Honor.
THE COURT: All right. Now, would the United States please summarize the evidence that support the charges in Count 2.
MR. KINNICUTT: I will, Your Honor. Your Honor, between May of 2003 and May 10th of 2006, the defendant and his brother, Chai Lin, conspired to harbor or house about 18 aliens, individuals who had illegally entered the United States, wherein the defendant, Tian Lin, knew that they were here illegally.
Now, the purpose for the harboring was to keep them in two separate residences in Radcliff, Kentucky. And they would be transported to the Golden China Buffet Restaurant that is owned by his brother, Chai Lin.
And to that end, Tian Lin at times drove the individuals from the residence to the hotel. There was never any facts of abuse — the aliens were free to leave any time they wanted to — but rather it's a matter of them being housed for the purposes of working at the restaurant.
And to that end, Tian Lin conspired with his brother to house the aliens in the residence of 713 Wilma Court and 597 Lincoln Trail in Radcliff, Kentucky. Three of those — two of those aliens were of Hispanic descent, Francisco Torres-Hernandez, Jose Luis Meraz-Ramirez, and the third was Ai Mei Chen, who was a National Republic — I mean a National of China. And that would be the evidence that we would proffer to the court, Your Honor.
THE COURT: Do you agree with the government's evidence and the summary of the facts?
THE DEFENDANT: I agree.
THE COURT: So all of the things the government has just said are true?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. The court finds there is a factual basis for the charges against the defendant and now with respect to the United States of America v. Jian Tian Lin, Mr. Lin, how do you plead as to Count 2 of the indictment?
THE DEFENDANT: I plead guilty.
THE COURT: Okay. The court will let the guilty plea be entered and accepted as to Count 2 —
Is this a superseding indictment?
MR. KINNICUTT: No, Your Honor.
THE COURT: — Count 2 of the indictment. Mr. Lin, do you agree to the — is it a forfeiture in Count 9?
MR. KINNICUTT: It is a forfeiture, Your Honor.
THE COURT: Do you agree to the forfeiture contained in Count 9 of the indictment?
THE DEFENDANT: I agree.
THE COURT: Okay. The defendant has agreed to the forfeiture contained in Count 9 of the indictment.
Now, how long has the defendant been in custody?
MR. KINNICUTT: Your Honor, I believe he's been in custody approximately seven months. The guideline range that we have calculated — we placed that inside the plea agreement — works out to six to 12 months.
The reason why it works out six to 12 months in terms of our calculations is because the defendant is in a different posture than his brother, meaning that his involvement with this conspiracy was not for private gain or commercial advantage, but rather, he's helping his brother. And his brother was the one who was actually running the restaurant operation. And to that effect, that's why his guideline range would be reflected at approximately between six to 12 months incarceration.
I tell the court that, since he's already served his time and the government is recommending the low end of the range, that at this point in time I believe there's also a motion by the defense to have their client released on bond. We're not opposed to that based on the fact that he's not going to be getting the benefit of the time.
Now, that's — we're assuming a lot here, that the court would be inclined to recommend the bottom end of the range and we're not backing down from that, but I wanted to present that to the court.
How the defendant is going to deal with the administrative hold that he has with Immigration and Customs Enforcement is entirely up to him and separate from this court proceeding here, but I believe that they are working on that.
And so to that end, the government is not opposed to the defendant being released pending his sentence in this case.
THE COURT: Well, there are a number of different ways we could handle this. Of course, we could — if there was general agreement, we could sentence him now, which would involve potentially a sentence to time served, plus supervised release.
Again, I have no way of determining what the ramifications of that may or may not be or whether there would be reasons why you would want to argue for a different sentence if we did the sentencing in the normal course of events, or we could have had him — you could make a motion for his release pending sentence and we could do the sentencing later.
MR. WESTBERRY: I don't see any reason why we couldn't sentence today, Judge Heyburn.
Mr. Kinnicutt, I know we're waiving PSR.
MR. KINNICUTT: Right. My only hesitation in that, Your Honor, is because there's a co-defendant in this case and perhaps it might be prudent to have the probation office be able to generate a set of facts to present to the court.
We're not going to deviate — we're asking the court to sentence him at the bottom end, which in this case — because his credit for time served would be seven months incarceration. But in terms of gathering the facts to present to the court — because my understanding that his brother enters a plea as well, then those would be best, I think, to be put before the court.
I hesitate in that regard because it's a little complicated because it took, you know, about three years for the investigation of this case to come to fruition and perhaps it — I'm just thinking it might be best to wait. We're not trying get in the way of his being released at all. And I know that sounds like probably the most efficient use of time, but just because the nature of the case, Judge, we — if we could.
THE COURT: Well, I don't know that — if you're asking for the low end, you know, then by sentencing to time served, it doesn't really affect any other sentence because if there was — you're not asking for a higher sentence.
MR. KINNICUTT: Right.
THE COURT: And since the sentence would be for time served, I'm not really considering whether — if we were starting from scratch, whether he should have been sentenced to a lower sentence because it's not a practical reality.
So by sentencing him to time served, I don't think I'm — you know, we're simply dealing with this defendant based on the reality of what he's charged with, what he's pled with. And for a whole host of reasons, most of which have nothing to do with the actual charges here, he has, as I understand it, partially made his own decision to remain in the custody of this federal court as opposed to seeking release where the consequences at very best would have been of an uncertain nature. So we are where we are.
MR. WESTBERRY: Sure.
THE COURT: And it would seem to me that sometimes there is a relationship between the sentencing of one defendant and another. In this particular case, there wouldn't be because we're dealing with the reality of the fact that he's already served some time and the United States is not asking for additional time.
At this point, I can't conclude that there's any likelihood I would be sentencing above the United States' recommendation. If we were in a different circumstance, again, whether I would have sentenced below is sort of a moot point at this point. So we sentence and it has no consequence to the other cases. And to the extent we need — obviously, may need more of an investigation and facts surrounding the other cases, then we'll get it for those cases. Does that make sense to you?
MR. KINNICUTT: Your Honor, it makes a whole lot of sense. My only concern is I just wanted to make sure that in terms of the defendant, if now he's going to waive the — his right to have a presentence report generated — and that was not part of the plea — but we're not —
THE COURT: We'll certainly take — that would be a necessary consequence of going forward.
MR. WESTBERRY: We would waive the PSR —
THE COURT: Okay.
MR. WESTBERRY: — Judge Heyburn.
THE COURT: Because, again, there are a lot of potential consequences of anything we do of which I'm not completely aware and I assume that you are.
MR. WESTBERRY: We're going to start immediately contacting the immigration folks in Chicago. Agent Phillips has given us a name and number. The process, basically, is they might accept a cash bond. We're going to start that negotiation process as soon as we leave here today.
THE COURT: But in the interim, if we sentence today, sentence him to time served, then he'll be placed on supervised release, a period of supervised release, which would be — what — two years probably?
MR. KINNICUTT: Correct, Your Honor, no more than three.
THE COURT: So then you'll be dealing with other agencies in terms of any other problems that develop.
MR. WESTBERRY: That's correct. He'll be out of your court, Judge Heyburn, and on in the direction — it seems like the best way we can get this process moving.
DEPUTY CLERK: It has been signed.
THE COURT: The defendant has now waived his right to have a presentence report prepared.
Do you believe the defendant understands that he has such a right? That would delay his sentence probably three months.
MR. WESTBERRY: That is correct. I do believe he's aware, Your Honor.
THE COURT: Okay. The court believes that it has sufficient information upon which to sentence today in the absence of a presentence report, and I gather that neither the defense or the United States objects at this time to such a sentencing.
MR. KINNICUTT: That's correct, Your Honor, no objection.
THE COURT: The defendant has, of course, waived his right to appeal any issues arising from his plea. And that would extend to — he is also waiving his right to appeal any issues that come out of his sentencing. Is that understood?
MR. WESTBERRY: That is correct, Your Honor.
THE COURT: And I might say, the court is sufficiently aware of the circumstances to advise that the intention is to sentence to a period of time served, since that is less than the time period — which he has already served, for a whole lot of reasons.
MR. WESTBERRY: Yes, sir.
THE COURT: Okay. Does the counsel or the defendant have any questions as to the proceeding we're about to enter into?
MR. WESTBERRY: I do not, but let me ask him. Mr. Lin, do you have any questions for Judge Heyburn?
THE DEFENDANT: No, Your Honor.
THE COURT: All right. I gather then we can proceed at this point to the sentencing hearing. And I gather it is the recommendation of the United States, based on all the factors considered, that the — they believe that the guideline range, the advisory guideline range in this case is six to 12 months, and that their recommendation would be a sentence at the low end of that range.
MR. KINNICUTT: That's correct, Your Honor. And, Your Honor, if I could just — if the court would indulge me just to put on the record how we arrived at that guideline recommendation.
The offense level for this charge puts him at a level 12 and then because it was not done for a commercial advantage or private financial gain, there's a three-level adjustment for deduction from that, which takes it to nine. However, because there is — there was involved more than six aliens, between six and 23, that adds three additional levels. So it takes us back to 12.
From 12, the defendant entered his plea of guilty today. He accepted responsibility. Adjusting that by two levels, he has a total offense level 10. He is at a Criminal History Category I. He has no criminal history that I'm aware of. We've got his A file, alien file. I've talked to the agent on this case. He doesn't have any criminal history.
That would put him at a Criminal History Category I. Based on that, he's looking at six to 12 months incarceration. Because he's already served seven, we're recommending six. We're asking the court to impose the bottom end of the range of this case, which we believe would be a fair sentence. And the — just the last thing I want to share with the court regarding the allocution is that the posture of the defendant was not the individual who was making money off this endeavor.
THE COURT: Right, I understand.
MR. KINNICUTT: And so in terms of — the reason I say that is comparing him to his brother or perhaps other defendants in the future, he's going to be separate in that regard and that's why his sentence will be calculated at six to 12, as opposed to being higher. So we are still recommending the bottom end of the range in terms of his involvement with this enterprise.
THE COURT: Would the defendant or his counsel wish to address the court?
MR. WESTBERRY: I don't have anything else, Your Honor. Thank you.
Mr. Lin, do you have anything?
THE DEFENDANT: No, Your Honor.
THE COURT: I think the court believes it can now state the sentence it intends to impose and that is having considered the advisory guideline range and the factors in 18 USC — I got it. Thank you — Section 3553(a) and the recommendation of the United States, the court finds that the defendant is sentenced to the custody of Bureau of Prisons for time served as to Count 2 of the indictment.
In addition, at the conclusion of that — the time served, defendant shall be placed on supervised release for a term of two years and abide by the conditions of supervised release as set forth in the record, otherwise explained by the United States Probation Office.
Once again, the court believes that the time already served is well within the range of the sentence that the court would have imposed specifically had the defendant not already served approximately seven-and-a-half months in custody. So that is one of the primary reasons why the court believes that there's absolutely no doubt that the sentence is consistent with all the ends of justice at this point, meets all of the objectives of 3553(a).
There will be no fine imposed in this case, no other penalties of any kind. Any objections to the sentence as stated?
DEPUTY CLERK: Special assessment.
MR. WESTBERRY: We will take care of that.
THE COURT: The special assessment of $100 as to single the count of indictment.
MR. WESTBERRY: Sure.
MR. KINNICUTT: I forgot, Your Honor — I'm sorry — the supervised release. We would ask two years of supervised release. In the event he's deported — we don't know if that's going to happen or not — that that would become inactive supervised release.
THE COURT: Yeah, that would — I think that would happen as a matter of law so I don't need to take care of that.
MR. WESTBERRY: Would you initially find for the record, Judge Heyburn, that Mr. Lin is released from all the terms and conditions of the bond that was set by this court and any other issues surrounding —
THE COURT: Also find — I think that happens. The current sentencing order supersedes any bond. So he is released from the terms of that bond. Anything else?
MR. WESTBERRY: No, Your Honor.
THE COURT: I'll impose the sentence as stated. And you have waived your right to appeal —
MR. WESTBERRY: Yes, sir.
THE COURT: — and any issues related to it?
MR. WESTBERRY: Yes, sir.
THE COURT: Okay. Thank you for your help. I appreciate it.
MR. WESTBERRY: Thank you.
DEPUTY CLERK: Your Honor, the remaining counts.
THE COURT: Is the United States moving to dismiss the remaining counts?
MR. KINNICUTT: Your Honor, as to this defendant only we're moving to dismiss the remaining counts of the indictment.
THE COURT: I'll sustain the motion.
MR. WESTBERRY: Thank you. THE COURT: Thank you.
(Proceedings concluded at 12:09 p.m.)
Comes the United States of America, by counsel, Daniel P. Kinnicutt, Assistant United States Attorney for the Western District of Kentucky, and requests the Court for an extension of time up to and including October 12, 2012 to respond to defendant's motion to vacate final judgment (DN 69) and the Court's order (DN 71). The undersigned request this extension due to the fact that he has been and is still in trial regarding United States v. Michael Chin, et al.
Upon motion of the United States for an extension of time to file 2012 to respond to defendant's motion to vacate final judgment (DN 69) and the Court's order (DN 71), and the Court being otherwise sufficiently advised,
Comes the United States of America, by counsel, and responds to Defendant Jian Tian Lin's Motion to Vacate Final Judgment [DN 69-2]. This Court should deny Lin's Motion to Vacate Final Judgment because there is no authority cited in the Defendant's brief that would permit the court to enter such ruling.
1.
On December 18, 2006, the Defendant entered a plea to one count of harboring aliens, in violation of Title 8 U.S.C. Sections 1324(a)(1)(A)(v)(I) & 1324(a)(1)(B)(I). This was pursuant to a written plea agreement with the government. On this same date, the Defendant was sentenced to credit for time served, which amounted to about 7 months. A term of supervised release was also imposed by the court. On November 13, 2008, the Defendant's term of supervised release was terminated by the court.
On July 3, 2012, over five and a half years after being sentenced, the Defendant filed his Motion to Vacate Final Judgment based upon the ruling in
2.
On October 30, 2012, the Supreme Court will hear oral argument for the case of
The Court should deny Jian Tian Lin's Motion to Vacate Final Judgment since the Defendant cites no authority which would permit the court to enter such ruling at this time.
This matter having come before the court on the defendant's Motion to Vacate Final Judgment [DN 69-2], the United States having objected thereto, and the Court being sufficiently advised,
Comes the Defendant, Jian Tian Lin, and respectfully requests this Court to enter an Order granting him an extension of time in which to file his Reply to the Government's Response to the Motion to Vacate the Final Judgment herein. As grounds therefore, undersigned counsel states as follows:
1. Counsel has not had an opportunity to prepare the Defendant's Reply memorandum, which is due on Monday, October 29, 2012.
2. Undersigned counsel is leaving the country early in the morning on Saturday, October 27th, and will not return until Saturday, November 3rd.
3. The Government was allowed almost 3 months to file a response to the Motion to Vacate, which was filed on July 3rd, thus making the original Response date July 20, 2012. The Government's Response was actually filed on October 12, 2012.
4. This case presents an important issue concerning the application of the holding of the U.S. Supreme Court in Padilla v. Kentucky to the Defendant herein, who was not advised by his counsel or the Court that removal (deportation) was a mandatory consequence of his offense of conviction. Furthermore, Defendant is making a claim of actual innocence of his offense of conviction. Defendant is presently facing removal proceedings that would effectively and permanently separate him from his wife, a legal resident, and his children, who are U.S. citizens. Defendant submits that this Court should be fully apprised of both the facts and the law regarding his motion, due to the severity of the collateral consequences of his plea, which were unknown to him at the time of his plea and sentencing.
WHEREFORE, Defendant respectfully requests an extension of time to and including November 23, 2012 in which to file his response.
Upon motion of the Defendant, by counsel, and the Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED THAT the Defendant may file a Reply to the Government's Response to the Defendant's Motion to Vacate the Judgment herein on or before November 23, 2012.
Comes the Defendant, Jian Tian Lin, and in support of his Motion to Vacate the Final Judgment herein, submits the following Reply Memorandum:
The response filed by the United States nowhere addresses the fact that Movant was never advised about the immigration consequences of a guilty plea, in violation of the holding of the U.S. Supreme Court in Padilla vs. Kentucky 559 U.S. ___, 176 L.Ed.2d 284, 130 S.Ct. 1473 (2010). Rather than address the merits of Movant's claim of constitutional error, the Government simply states that there is "no authority" cited that would permit this Court to vacate the conviction, and then suggests that Movant would only have a claim if the U.S. Supreme Court decides in Chaidez v. United States that Padilla is retroactive. Movant will address these contentions serially.
The Government is correct that Defendant did not file his motion to vacate his conviction until 2 years after the ruling in Padilla. However, it is not "unclear" why this occurred. As noted in both his supporting Memorandum and in his Affidavit, Movant filed his motion to vacate only recently because he was denied asylum status, due to his conviction under 8 USC §1324(a)(1)(A)(v)(I) and §1324 (a)(1)(B)(i), for allegedly harboring aliens. [Affidavit of Jian Tian Lin, ¶4]. The United States Immigration and Customs Enforcement (I.C.E.) determined that, pursuant to Section 101(a)(43) of the Immigration and Nationality Act, because his conviction for harboring constitutes an "aggravated felony," he is not eligible for asylum status. [Affidavit of Jian Tian Lin, ¶4]. This is the first time that Movant learned he was convicted of an offense that would subject him to automatic removal. Furthermore, Movant was never advised that harboring aliens was an aggravated felony under the immigration laws, or that he would be subject to automatic removal. [Affidavit of Jian Tian Lin, ¶6]. At the time of his plea, Movant was only told that if he pleaded guilty, he would be released immediately. [Id]. Defendant did not know to inquire about the consequences of his guilty plea. [Id].
The United States correctly points out that the movant, Jian Tian Lin, did not cite any particular authority for his "motion to vacate final judgment. However, there is authority for this Court to correct this injustice. Because Movant's sentence has expired, a motion to vacate a final judgment, at least pursuant to 18 U.S.C 2241 or 28 U.S.C 2255 would be inappropriate. However, pursuant to the All Writs Act, 28 U.S.C 1651, this Court may issue all writs necessary or appropriate in aid of its jurisdiction. Rule 60 of the Federal Rules of Civil Procedure has abolished the writ of coram nobis in civil cases, but the writ is still available in criminal proceedings. Porcelli vs. United States, 404 F.3d 157 (CA 2, 2005). The writ is available in this case because Movant is currently under a substantial legal disability since mandatory removal has already been initiated by I.C.E. Coram nobis may be utilized where necessary in order to achieve justice. Johnson vs. United States, 344 F.2d 401 (CA 5, 1965). Although coram nobis is an extraordinary remedy, it has traditionally been used to attack federal convictions where a petitioner is no longer in custody, but facing the type of continuing consequences Movant now faces. See, e.g., United States vs. Rhines, 640 F.3d 69 (CA 3, 2011).
The fact that Movant is facing imminent and mandatory removal should be sufficient cause for this Court to consider the "continuing consequences" of Movant's erroneous conviction. Even in the context of habeas corpus, where a person must be "in custody" for purposes of the habeas petition, deportation is a serious enough collateral consequence to consider an alien petitioner to be in "custody". Mustata vs. United States Department of Justice, 179 F.3d 1017 (CA 6, 1999).
Because Movant has demonstrated that his conviction was obtained unconstitutionally in violation of his rights to effective assistance of counsel and due process of law, and given that removal proceedings have been initiated and he is thus under sufficient legal disability, justice should compel the issuance of the writ to correct this constitutional error. United States vs. Nazon, 936 F 563 (ND Ind. 1996); Johnson vs. United States, supra.
The Government suggests that this Court should deny the Motion to vacate, but also admits that Movant "may have a basis to attack his guilty plea and subsequent sentence" if the Supreme Court rules that Padilla is retroactive. However, if this Court awaits a ruling in Chaidez, then Movant will undoubtedly have been deported, and will have no remedy from China. Instead, this Court should find that Padilla is retroactive, and vacate Movant's conviction.
Padilla did not announce a "new rule" such that its holding would not be retroactive. The framework for evaluating claims of ineffective assistance of counsel was announced in 1984, in Strickland v. Washington, 466 U.S. 668 (1984). Padilla followed this established framework, specifically finding that "professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea." Padilla, 130 S.Ct. at 1485. The Supreme Court in Padilla relied on Strickland in finding that the failure to do so constituted ineffective assistance of counsel. Under the analysis established by the Supreme Court in Teague v. Lane, 489 U.S. 288 (1989), Padilla obviously did not announce a "new rule," and thus, its holding will be applied retroactively.
For the foregoing reasons, Movant respectfully requests this Court to issue a writ of coram nobis, and vacate the judgment of conviction previously entered herein.
