Velazquez v. United States of America

Filing 20

ORDER That the the Movant, Matias Velazquez, shall have twenty (20) days from the date of entry of this order in which to file and serve a memorandum of law addressing the impact of Chaidez v. U.S., ___ U.S. ___, 133 S.Ct. 1103 (Feb. 20, 2013), if a ny, upon the pending R & R and the United States' objections thereto: FURTHER ORDERED a Response, shall be filed and served in accordance with LRCiv 7.2 FURTHER ORDERED a Reply, if any, shall be filed and served in accordance with LRCiv 7.2(d). Signed by Senior Judge Robert C Broomfield on 4/10/13. (cc: All Cnsl) (MAP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Matias Velazquez,

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Movant,

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vs.
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United States of America,
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Respondent.
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No. CV-11-820-PHX-RCB(LOA)
CR-97-361-PHX-RCB
O R D E R

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Currently pending before the court is the Report and

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Recommendation of the United States Magistrate Judge Lawrence

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O. Anderson (“R & R”) (Doc. 18), “find[ing] that Movant

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[Matias Velazquez] is entitled to error coram nobis

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relief[,]” R & R (Doc. 18) at 18:8-9, to which timely

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objections have been filed by the Respondent, the United

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States of America (Doc. 19).

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Background
I.

Factual
On August 15, 1997, the movant pled guilty in this

federal district court to a one count information charging

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him with conspiracy to defraud the United States in violation

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of 18 U.S.C. § 286.

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thereto.

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reflect[ed] that only $95,121 of the total loss of $285,180

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c[ould] be attributed to” the movant.

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at 11, ¶ 2.

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downward departure, this court sentenced the movant to four

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years of probation.

Resp. (Doc. 10), exhs. 11 and 16

At sentencing, the court found that the “evidence

Id., exh. 13 thereto

Therefore, on June 14, 1999, after granting a

Id., exh. 17 at 27:18-19.

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The movant is a citizen of Mexico who has been a

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permanent resident of the United States since November 21,

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1989.

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January 17, 1996, the movant completed a Form N-400,

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Application for Naturalization, with the assistance of a non-

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attorney representative from Chicanos Por La Causa.

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movant formally withdrew that Application, however, on April

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17, 2002, after determining that his federal guilty plea

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rendered him “ineligible” to apply for naturalization.

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exh. 19 thereto.

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Id., exh. 18 thereto.

Prior to his guilty plea, on

The

Id.

Id.,

On July 26, 2007, well after he had served his four year

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sentence of probation, the movant completed a second

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naturalization application, with the assistance from American

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Beginnings, a Yuma, Arizona organization.

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thereto. In his September 10, 2008, interview with respect to

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that application, the movant disclosed his felony conviction.

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Id., exh. 21 thereto.

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“aggravated felony,” the movant was found to be removable

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from the United States.

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Id., exh. 20

Determining that conviction to be an

Id. at 57-58.

Thereafter, on November 8, 2010, the Department of
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Homeland Security issued a Notice of Appearance charging the

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movant with removability based upon his 1999 conviction.

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Id., exh. 22 thereto.

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the plea agreement the movant “stipulated that the total loss

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to the government attributable to [him] was $95,121.00[,]”

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his conviction was an aggregated felony under section

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101(a)(43(M) of the Immigration and Nationality Act.

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60 and 62.

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Id. at 62.

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II.

That Notice explained that because in

Id. at

Hence, the movant was deportable on that basis.

Legal

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On March 31, 2010, in Padilla v. Kentucky, 559 U.S. 356,

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130 S.Ct. 1473 (2010), the Supreme Court held “that the Sixth

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Amendment requires an attorney for a criminal defendant to

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provide advice about the risk of deportation arising from a

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guilty plea.”

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S.Ct. 1103, 1105 (Feb. 20, 2013).

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March 31, 2011, the movant, heavily relying upon Padilla,

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filed a “Motion to Vacate Plea of Guilty & Set Aside

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Judgement/Motion for Expungement” (Doc. 1).

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argued, inter alia, that he was entitled to such relief

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because his defense counsel did not properly advise him that

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“his deportation was presumptively or ‘virtually’ mandatory.”

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Mot. (Doc. 1) at 5:15 (citing 8 U.S.C. § 1227(a)(2)(B)(i)).

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Relatedly, the movant further argued that his defense

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counsel’s “failure to properly advise [him] of the

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immigration consequences” of his guilty plea “constitutes

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ineffective assistance of counsel under” Strickland v.

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Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), Padilla, and

Chaidez v. United States, ___ U.S. ___, 133

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Exactly one year later, on

The movant

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United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005).

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8:18-20.

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Id. at

In recommending that the movant be granted relief based

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upon the writ of error coram nobis, the Magistrate Judge,

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like the movant, heavily relied upon Padilla, and he also

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relied upon Kwan.

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of movant’s counsel was “deficient[,]” the Magistrate Judge

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reasoned that “[u]nder Padilla and Kwan, Movant should have

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been advised of the mandatory immigration consequences of his

In fact, in finding that the “performance”

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guilty plea.”

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specifically, the Magistrate Judge found that “[d]efense

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counsel’s performance was deficient for failing to research

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the relevant immigration law and failing to provide Movant

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accurate advice regarding the immigration consequences of his

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guilty plea

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Relying upon United States v. Orocio, 645 F.3d 630 (3rd Cir.

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2011), as well as lower courts within this Circuit, and

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because the parties did not dispute the retroactivity of

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Padilla, the Magistrate Judge applied Padilla retroactively.

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See id. at 12:21-28, n.3.

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R & R (Doc. 18) at 16:28-17:1.

– mandatory deportation.”

More

Id. at 17:5-7.

On February 20, 2013, however, the Supreme Court

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abrogated

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a ‘new rule,’” and thus under the Court’s retroactivity

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analysis, a person whose conviction was final before the 2010

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Padilla decision cannot benefit from that new rule.

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Chaidez, 133 S.Ct. at 1111.

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movant’s conviction herein was final before the Supreme

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Court’s decision in Padilla, and because Padilla is the

Orocio, and expressly held that Padilla “announced

See

Because it appears that the

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primary basis for the movant’s request for relief in this

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action, the court hereby ORDERS that:

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(1) the movant, Matias Velazquez, shall have twenty

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(20) days from the date of entry of this order in which to

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file and serve a memorandum of law addressing the impact of

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Chaidez v. U.S., ___ U.S. ___, 133 S.Ct. 1103 (Feb. 20,

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2013), if any, upon the pending R & R and the United States’

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objections thereto:

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(2) a response, shall be filed and served in
accordance with LRCiv 7.2 (c); and
(3) a reply, if any, shall be filed and served in
accordance with LRCiv 7.2(d).
DATED this 10th day of April, 2013.

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Copies to counsel of record

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