Rianto v. United States of America

Filing 21

ORDER Denying Respondent's 19 Motion to Dismiss signed by District Judge Dale A. Drozd on 08/04/2017. Status Conference set for 10/3/2017 at 09:30 AM in Courtroom 5 (DAD) before District Judge Dale A. Drozd.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS LEVI RIANTO, 12 Petitioner, 13 14 v. No. 1:12-cv-00516-DAD-SKO ORDER DENYING RESPONDENT’S MOTION TO DISMISS UNITED STATES OF AMERICA, (Doc. Nos. 1, 19) 15 Respondent 16 17 This matter is before the court on respondent’s motions to dismiss petitioner Nicholas 18 Rianto’s petition for a writ of coram nobis, and for reconsideration of this court’s October 12, 19 2012 order. (Doc. No. 19.) JURISDICTION 20 The court has jurisdiction pursuant to 28 U.S.C. § 1331 and the All Writs Act, 28 U.S.C. 21 22 § 1651. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 23 24 Nichols Levi Rianto (“petitioner”) is a native and citizen of Indonesia who was a 25 permanent alien resident of the United States.1 On June 4, 2001, pursuant to a plea agreement, 26 27 28 1 In its pending motions, respondent attaches the executed warrant of removal for petitioner, taken from his alien immigration file (“A-file”), which indicates that petitioner entered the United States on July 1, 1999. (Doc. No. 19-1 at 72.) 1 1 petitioner entered pleas of guilty to two counts of unauthorized use of the identification of another 2 in violation of 18 U.S.C. § 1028(a)(7) and two counts of mail fraud in violation of 18 U.S.C 3 § 1341. (See United States v. Nichols Rianto, Case No. 1:01-cr-05063-AWI, Doc. Nos. 11, 12.) 4 On September 9, 2002, pursuant to his pleas of guilty, petitioner was finally sentenced to a 5 concurrent term of imprisonment of twelve months and one day, a three year concurrent term of 6 supervised release to follow, a $400 mandatory penalty assessment and ordered to pay restitution 7 in the amount of $10,555.37. (See Doc. No. 3 at 2; see also United States v. Rianto, No. 1:01-cr- 8 05063-AWI, Doc. Nos. 31, 32.) After his initial release from confinement, petitioner was 9 subsequently remanded into to custody for an additional eight months on February 22, 2005 and 10 for an additional five months on September 6, 2005, both times for having violated the terms and 11 conditions of his supervised release, with petitioner eventually being released from federal 12 custody for the final time before the end of May 2006. (See Doc. No. 3 at 2; see also United 13 States v. Rianto, No. 1:01-cr-05063-AWI, Doc. Nos. 50, 60.). 14 Petitioner alleges that he applied for and was granted renewal of his Lawful Permanent 15 Resident Card in 2009. (Doc. No. 1 at 4–5.) However, on October 14, 2010, he was detained for 16 deportation.2 (Id. at 5.) 17 Following his 2010 detention, petitioner has attempted to collaterally attack the sentence 18 imposed in the underlying federal criminal action, thereby seeking to remove himself from the 19 category of persons subject to mandatory deportation. In this regard, on February 7, 2011, 20 petitioner filed a motion under 28 U.S.C. § 2255 to correct, vacate or set aside his sentence. (Id.) 21 The court denied that motion as untimely, but granted petitioner leave to file a petition for a writ 22 of coram nobis. (Id.) 23 On April 4, 2012, petitioner filed the instant writ of coram nobis motion, alleging that he 24 had received ineffective assistance of counsel in the underlying federal criminal prosecution 25 because: (i) his defense attorney erroneously advised him that a sentence of less than one year of 26 actual time served would not have any negative consequences on his alien residence status, and 27 28 2 Petitioner’s warrant of removal indicates that he was removed from the United States on July 31, 2012, via a flight from Los Angeles. (Doc. No. 19-1 at 72–73.) 2 1 (ii) his defense attorney failed to advise him that the imposition of a restitution order in excess of 2 $10,000 would result in a classification of his conviction as an aggravated felony, thereby 3 resulting in immigration officials finding him to be removable from the United States. (Doc. No. 4 1.) 5 On October 12, 2012, the court issued an order in this action finding that petitioner had 6 adequately stated a claim for relief, ordering the United States to file a response to the petition, 7 and directing attorney Jack Revvill, petitioner’s defense counsel in the underlying federal 8 criminal proceedings, to submit information pertaining to the representations made to petitioner 9 concerning the immigration consequences of his entry of plea pursuant to the plea agreement with 10 the government in June of 2001. (Doc. No. 3.) 11 In response, attorney Revvill filed a declaration with the court under seal on April 7, 2014. 12 (Doc. No. 6.) On May 25, 2016, respondent United States responded by filing a motion to 13 dismiss petitioner’s writ of coram nobis and a motion for reconsideration of the court’s October 14 12, 2012 order. (Doc. No. 19.) Petitioner has not replied to any of these filings. Below, the court 15 will first address the applicable legal standards and then turn to the government’s motions. 16 17 18 LEGAL STANDARDS A. Writ of Coram Nobis A writ of coram nobis is a remedy by which the court can correct errors in criminal 19 convictions where other remedies are not available. While Federal Civil Procedure Rule 60(b) 20 abolishes various common law writs, including the writ of coram nobis in civil cases, the writ is 21 still available in criminal proceedings where other relief is wanting. See United States v. Morgan, 22 346 U.S. 502 (1954); United States v. Chan, 792 F.3d 1151, 1153 (9th Cir. 2015); Korematsu v. 23 United States, 584 F. Supp. 1406, 1413 (N.D. Cal. 1984) (“[E]xtraordinary instances require 24 extraordinary relief, and the court is not without power to redress its own errors”); see generally 25 United States v. Ayala, 894 F.2d 425, 428 (D.C. Cir. 1990) (“[F]ederal courts may properly fill in 26 the interstices of the federal post-conviction remedial framework through remedies available at 27 common law”). The source of the court’s power to grant coram nobis relief lies in the All Writs 28 Act, 28 U.S.C. § 1651(a); see also United States v. Monreal, 301 F.3d 1127, 1132 (9th Cir. 2002). 3 1 To qualify for error coram nobis relief, four requirements must be satisfied: (i) a more 2 usual remedy is not available; (ii) valid reasons exist for not attacking the conviction earlier; 3 (iii) adverse consequences exist from the conviction to satisfy the case or controversy requirement 4 of Article III, and (iv) the error is of the most fundamental character. See Chan, 792 F.3d at 5 1153; Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987); see also Matus-Leva v. 6 United States, 287 F.3d 758, 760 (9th Cir. 2002). Under Ninth Circuit precedent, “petitions for a writ of coram nobis should be treated in a 7 8 manner similar to [28 U.S.C.] § 2255 habeas corpus petitions.”3 Korematsu, 584 F. Supp. at 9 1412 (citing United States v. Taylor, 648 F.2d 565, 573 (9th Cir. 1981)). In particular, whether an 10 evidentiary hearing is required in resolving a claim presented by way of coram nobis petition is a 11 determination that should be made in the same manner as in the context of a motion made under 12 § 2255. See Taylor, 648 F.2d at 573, n. 25 (“Whether a hearing is required on a coram nobis 13 motion should be resolved in the same manner as habeas corpus petitions.”); Korematsu, 584 F. 14 Supp. at 1412 (“This Circuit has resolved that petitions for a writ of coram nobis should be 15 treated in a manner similar to § 2255 habeas corpus petitions. . . . For example, § 2255 16 considerations apply in determining whether an evidentiary hearing is required.”). 17 3 18 19 20 21 22 23 24 25 26 27 28 There is limited guidance as to the procedural rules applicable to petitions for writs of coram nobis. See Application of Civil or Criminal Procedural Rules in Federal Court Proceeding on Motion in Nature of Writ of Error Coram Nobis, 53 A.L.R. Fed. 762 (1981); see also United States v. Balistrieri, 606 F.2d 216, 219–220 (7th Cir. 1979). The Supreme Court has stated that a coram nobis petition is “a step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil Proceeding.” Morgan, 346 U.S. at 505. Circuit courts have reached different conclusions about whether civil or criminal procedural rules apply to coram nobis proceedings. See Balistrieri, 606 F.2d at 219–222 (canvasing decisions dealing with coram nobis petitions; noting the similarity between petitions for coram nobis relief and petitions under 28 U.S.C. § 2255; and concluding that it is “within the district court’s discretion to apply the appropriate rules on the basis of the facts of each case.”); see also United States v. Mandanici, 205 F.3d 519, 527 (2d. Cir. 2000) (“[T]he § 2255 procedure is often applied by analogy in coram nobis cases”) (citation omitted); United States v. Johnson, 237 F.3d 751, 754–55 (6th Cir. 2001) (applying civil procedures); United States v. Mills, 430 F.2d 526, 528 (8th Cir. 1970) (applying Federal Rule of Appellate Procedure 4(b) to a coram nobis petition because “coram nobis is deemed a step in a criminal case”). Although, as noted above, the Ninth Circuit has stated that “petitions for a writ of coram nobis should be treated in a manner similar to § 2255 habeas corpus petitions,” the court has not directly addressed the extent to which coram nobis proceedings are governed by civil rules, forms, and pleadings. See United States v. Taylor, 648 F.2d 565, 573 (9th Cir. 1981); see also Korematsu, 584 F. Supp. at 1412. 4 1 In reviewing a motion brought pursuant to § 2255, a federal court shall hold an 2 evidentiary hearing “unless the motion and the files and records of the case conclusively show 3 that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also United States v. Zuno– 4 Arce, 339 F.3d 886, 889 (9th Cir. 2003); United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 5 1994) (citing 28 U.S.C. § 2255(b)). Evidentiary hearings are particularly appropriate when 6 “claims raise facts which occurred out of the courtroom and off the record.” United States v. 7 Burrows, 872 F.2d 915, 917 (9th Cir. 1989); accord Frazer v. United States, 18 F.3d 778, 781 8 (9th Cir. 1994). When a § 2255 movant raises a claim of ineffective assistance of counsel, the 9 court should hold an evidentiary hearing unless “something in the record conclusively shows that 10 [movant’s] trial attorney was not ineffective.” Burrows, 872 F.2d at 917. In deciding whether a § 11 2255 movant is entitled to an evidentiary hearing, the district court should determine whether, 12 accepting the truth of movant’s factual allegations, he could prevail on his claim. Blaylock, 20 13 F.3d at 1465. However, to be entitled to an evidentiary hearing the movant must provide specific 14 factual allegations which, if true, state a claim on which relief under § 2255 could be granted. 15 United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003); United States v. Schaflander, 743 16 F.2d 714, 717 (9th Cir. 1984). The court may deny an evidentiary hearing on a § 2255 motion “if 17 the petitioner’s allegations, viewed against the record, fail to state a claim or are ‘so palpably 18 incredible or patently frivolous as to warrant summary dismissal.’” United States v. McMullen, 19 98 F.3d 1155, 1159 (9th Cir. 1996) (citations omitted). These same principles then, guide the 20 determination of whether an evidentiary hearing is necessitated in ruling upon a petition for a writ 21 of coram nobis. See Taylor, 648 F.2d at 573; see also United States v. Andrade-Larrios, 39 F.3d 22 986, 991 (9th Cir. 1994); Shah v. United States, 878 F.2d 1156, 1158–1159 (9th Cir. 1989). 23 24 B. Motion for Reconsideration District courts “possess[] the inherent procedural power to reconsider, rescind, or modify 25 an interlocutory order for cause seen by it to be sufficient.” City of Los Angeles. v. Santa Monica 26 Baykeeper, 254 F. 3d 882, 885 (9th Cir. 2001) (citations and internal quotation marks omitted). A 27 motion for reconsideration, however, “should not be granted . . . unless the district court is 28 presented with newly discovered evidence, committed clear error, or if there is an intervening 5 1 change in the controlling law.” 389 Orange St. Partners v. Arnold, 179 F. 3d 656, 665 (9th Cir. 2 1999) (citing Sch. Dist. No. 1J v. ACandS, Inc., 5 F. 3d 1255, 1263 (9th Cir. 1993)). 3 Reconsideration of a prior order is an extraordinary remedy “to be used sparingly in the interests 4 of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F. 5 3d 877, 890 (9th Cir. 2000) (citation omitted); Pyramid Lake Paiute Tribe of Indians v. Hodel, 6 882 F. 2d 364 n.5 (9th Cir. 1989) (“[T]he orderly administration of lengthy and complex litigation 7 such as this requires the finality of orders be reasonably certain.”). 8 ANALYSIS 9 Respondent both moves for reconsideration of the October 12, 2012 order, in which the 10 court found that petitioner had adequately stated a claim for coram nobis relief, and seeks 11 dismissal of the pending petition for a writ of coram nobis. (Doc. No. 19.) Respondent advances 12 the following arguments: (i) that petitioner cannot allege fundamental error sufficient to support 13 his coram nobis petition; (ii) that petitioner waived his rights to collaterally attack his criminal 14 conviction in his 2001 plea agreement; and (iii) that the equitable doctrine of latches bars 15 plaintiff’s petition for writ of coram nobis. (Id.) 16 17 18 A. Fundamental Error Respondent first argues that petitioner cannot demonstrate his entitlement to coram nobis relief because he cannot make the requisite showing of fundamental error. 19 A coram nobis petitioner may show fundamental error by demonstrating that he received 20 ineffective assistance of counsel (“IAC”). See United States v. Kwan, 407 F.3d 1005, 1014 (9th 21 Cir. 2005); United States v. Abramian, No. CR 02–00945 MMM, 2014 WL 4702584, at *2 (C.D. 22 Cal. Sept. 22, 2014); see generally United States v. Mett, 65 F.3d 1531, 1534 (9th Cir. 1995) 23 (explaining that the Sixth Amendment right to counsel is a fundamental right under the court’s 24 decision in Hirabayashi). To demonstrate IAC, a petitioner must show that (i) counsel’s 25 performance “fell below an objective standard of reasonableness,” and (ii) the allegedly deficient 26 performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); see 27 also Kwan, 407 F.3d at 1014; Hamilton v. Ayers, 583 F.3d 1100, 1129-30 (9th Cir. 2009) 28 (explaining that counsel’s performance must be evaluated based on the standards existing at the 6 1 time of performance); Rocha v. United States, Nos. CR 02–582 CBM, CV 12–3797 CBM, 2015 2 WL 92945, at *3 (C.D. Cal. Jan. 7, 2015) (same). 3 Here, respondent argues that petitioner cannot allege fundamental error because he cannot 4 adequately plead IAC. (Doc. No. 19 at 4–8.) Respondent contends that defense counsel’s 5 performance did not fall below an objectively reasonable standard, and that petitioner’s defense 6 was not prejudiced by any allegedly deficient performance on the part of his counsel. (Id.) 7 1. The court will first consider whether, if petitioner’s allegations were proven to be true, his 8 9 Reasonableness of Attorney’s Performance defense counsel’s performance fell below an objectively reasonable standard. 10 Attorneys representing non-citizens in criminal proceedings are required to uphold a 11 number of duties to satisfy professional standards under Strickland. In 2010, the Supreme Court 12 held that defense attorneys have a duty to correctly advise their clients of the risks of deportation 13 associated with criminal convictions. See Padilla v. Kentucky, 559 U.S. 356, 367-69 (2010). 14 Thereafter, the Supreme Court held that the duty of defense counsel recognized in Padilla does 15 not apply retroactively to attorney conduct that occurred before 2010. See Chaidez v. United 16 States, 568 U.S. 342, 347, 357 (2013); see generally Teague v. Lane, 489 U.S. 288 (1989) 17 (discussing retroactivity of criminal procedure decisions).4 Several years prior to the Supreme Court’s decision in Padilla, however, the Ninth Circuit 18 19 had held that an attorney’s affirmative misrepresentation of the immigration consequences of 20 their plea did constitute deficient performance under Strickland. United States v. Kwan, 407 F.3d 21 1005, 1015–17 (9th Cir. 2005).5 Moreover, the Ninth Circuit determined that the rule established 22 4 23 24 25 26 27 28 The retroactivity of a rule described in a legal decision turns on the issue of novelty. Chaidez, 568 U.S. at 347 (“Teague makes the retroactivity of our criminal procedure decisions turn on whether they are novel”). If a decision announces a new rule, that rule does not have retroactive effect. Id. However, if the court applies a settled rule—that is, if it merely applies an existing principle to a different set of facts—then that rule applies retroactively, and a person may avail themselves of the decision on collateral review. Id. 5 “Padilla was simultaneously broader and narrower than our decision in Kwan: broader in that Padilla reached affirmative misrepresentations and failure to advise, but narrower in that Padilla concerned only deportation whereas Kwan considered all immigration consequences.” United States v. Chan, 792 F.3d 1151, 1154 (9th Cir. 2015). 7 1 in Kwan both survives Padilla and applies retroactively to conduct that occurred prior to 2005. 2 See Chan, 792 F.3d at 1152; see also United States v. Abramian, No. CR 02-00945 MMM, 2014 3 WL 2586666, at *5 (C.D. Cal. June 10, 2014) (reviewing federal and state court decisions prior to 4 2002 concluding that counsel’s affirmative misrepresentation of the immigration consequences of 5 a criminal conviction could constitute ineffective assistance of counsel). 6 In his petition for coram nobis relief before this court, petitioner alleges that his counsel’s 7 performance was deficient on two grounds: (i) under Padilla, because his counsel failed to advise 8 him of the immigration consequences of his 2002 conviction; and (ii) under Kwan, because his 9 counsel affirmatively misinformed him that his guilty pleas would have no immigration 10 consequences. (Doc. No. 1 at 2, ¶ 4.) In this court’s October 2012 order, the previously assigned district judge concluded that 11 12 petitioner’s allegations were sufficient to state a cognizable IAC claim for purposes of his coram 13 nobis petition. (Doc. No. 3 at 4–7.) The court determined that the allegations stated a Padilla 14 claim, after concluding that the professional obligations described in Padilla applied retroactively 15 to counsel’s conduct in 2001. (See id. at 5.) 16 In its pending motions, respondent contends that the court erred in finding that petitioner 17 had alleged objectively unreasonable performance on the part of his defense counsel. Respondent 18 argues that the alleged failure of counsel to advise of the deportation consequences of a guilty 19 plea and criminal conviction was not grounds for an IAC claim in 2001, because the decision in 20 Padilla does not apply retroactively. (Id. at 4.) Respondent also argues that petitioner’s defense 21 counsel did not misrepresent to petitioner the immigration consequences of the 2001 plea 22 agreement or hold himself out as an expert on immigration issues. (Id.) In support of its 23 arguments for dismissal of the pending petition, respondent cites the declaration of petitioner’s 24 defense counsel. (Id.) 25 Because petitioner entered into the plea agreement at issue in 2001, the court must assess 26 counsel’s performance in light of professional standards existing at that time. See Hamilton, 583 27 F.3d at 1129–30. 28 ///// 8 1 At the time of its October 2012 order concluding that petitioner had adequately alleged 2 that his attorney’s performance was deficient under Padilla, the court did not have the benefit of 3 the Supreme Court’s 2013 decision in Chaidez holding that Padilla does not apply retroactively. 4 See Chaidez, 568 U.S. at 347. In light of the decision in Chaidez, the undersigned now concludes 5 that, in representing petitioner in 2001, counsel did not have the duty to advise petitioner of the 6 immigration consequences of his plea, since that duty was not recognized until 2010 in Padilla. 7 See Chaidez, 568 U.S. at 347; see also United States v. Flores, No. 89 CR 0056 L, 2013 WL 8 5670924, at *2 (S.D. Cal. Oct. 15, 2013) (“Defendant cannot avail himself of the writ of coram 9 nobis to attack his prior conviction because . . . the relief he seeks is unavailable in light of the 10 non-retroactivity of Padilla.”). Petitioner therefore cannot allege a cognizable IAC claim 11 premised on the holding in Padilla. See id. To the extent that the court’s October 2012 order 12 concluded otherwise, respondent’s motion for reconsideration is granted and that aspect of the 13 prior order is withdrawn. 14 However, petitioner also asserts that his counsel’s performance was deficient under Kwan, 15 alleging that his attorney erroneously advised him that his entry of plea and conviction could not 16 impact his immigration status. (Doc. No. 1 at 2.) (“Petitioner attorney informed petitioner that 17 serving an actual imprisonment less tha[n] twelve months . . . from sentence of twelve months 18 and one day will not affect immigration and will help with immigration.”). As noted above, the 19 duties of and performance standards for counsel recognized in Kwan have retroactive application. 20 See Chan, 792 F.3d at 1152. Here, at the time petitioner entered his guilty pleas, affirmatively 21 misleading a client regarding the consequences of a plea and conviction provided the grounds for 22 a cognizable IAC claim. See Kwan, 407 F.3d at 1017. Accordingly, petitioner’s allegations that 23 his counsel affirmatively provided him with misinformation regarding the immigration 24 consequences of his plea pursuant to the plea agreement are sufficient under Kwan to state a 25 cognizable IAC claim under the prevailing professional standards of practice in 2001. See Kwan, 26 407 F.3d at 1015–16 (finding IAC because petitioner’s attorney held himself out as an expert 27 regarding the immigration consequences of criminal convictions, and affirmatively misinformed 28 petitioner about whether his guilty plea would render him deportable); see also Abramian, 2014 9 1 WL 2586666, at *5; cf. Abramian, 2014 WL 4702584, at *3 (finding that petitioner did not 2 adequately plead fundamental error based on IAC, because “she neither alleges nor adduces 3 evidence that her attorney affirmatively misadvised her concerning the immigration consequences 4 of the conviction”). 5 Respondent’s arguments that petitioner cannot demonstrate affirmative misadvise on the 6 part of his counsel are unpersuasive. In moving to dismiss the pending petition, the government 7 has the burden of establishing that there is no genuine issue of material fact, and it is the 8 “petitioner [who] is entitled to the benefit of favorable inferences.” Korematsu, 584 F. Supp. at 9 1413; see also United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1989) (reversing the 10 denial of a § 2255 motion and remanding for expansion of the record and determination of the 11 necessity of an evidentiary hearing). Here, respondent has offered some evidence, in the form of 12 defense counsel’s declaration, that petitioner was alerted to the immigration consequences of his 13 guilty plea by his attorney. However, petitioner has alleged contrary facts in his petition. The 14 court therefore concludes that based upon the record as it now exists there is a conflict as to 15 whether petitioner’s counsel affirmatively misadvised him of the immigration consequences of 16 his guilty plea. In light of that conflict, the court cannot conclude that there is a “conclusive 17 record” demonstrating that petitioner’s counsel provided constitutionally adequate assistance 18 under Strickland. See Espinoza, 866 F.2d at 1069; cf. Velazquez v. United States, No. CV–11– 19 00820–PHX–RCB, 2014 WL 2738524, at *11 (D. Ariz. June 17, 2014) (concluding that 20 “petitioner’s unsubstantiated assertion that he ‘was actually provided with incorrect information’ . 21 . . is not sufficient to bring his [IAC] claim within the ambit of Kwan”). 22 23 24 25 2. Prejudice The court next considers respondent’s arguments considering prejudice, the second prong of the IAC inquiry under Strickland. To establish prejudice for purposes of an IAC claim, plaintiff must demonstrate that “there 26 is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 27 proceeding would have been different. A reasonable probability is a probability sufficient to 28 undermine confidence in the outcome.” Hedlund v. Ryan, 854 F.3d 557, 582 (9th Cir. 2017) 10 1 (quoting Strickland, 466 U.S. at 694); see also United States v. Chan, No. CR 93-00583-RGK, 2 2015 WL 11438556, at *2 (C.D. Cal. Nov. 23, 2015) (in the coram nobis context). Where IAC 3 leads a petitioner to accept a plea bargain, a different result means that “but for counsel’s errors, 4 [petitioner] would either have gone to trial or received a better plea bargain.” United States v. 5 Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir. 2015). 6 In his coram nobis petition, petitioner alleges that he was prejudiced by his attorney’s 7 conduct because the result of his criminal proceedings would have been different absent his 8 counsel’s deficient performance. (Doc. No. 1 at 7–8.) Petitioner has alleged that he would have 9 sought different terms in his plea agreement with respect to the period of confinement and the 10 restitution amount, thereby avoiding immigration consequences, or elected to go to trial if he had 11 not received misinformation from his counsel. (Id. at 7-8.) In its October 2012 order, the court 12 concluded that these allegations were sufficient to state a claim with respect to the prejudice 13 prong under Strickland. (Doc. No. 3 at 3.) 14 Respondent argues that the court erred in its prior finding that petitioner adequately 15 alleged prejudice. (Doc. No. 19 at 4–6.) Respondent contends that there was no link between 16 alleged misadvice given by defense counsel and petitioner’s deportation, because his deportation 17 was on grounds independent from those related to the alleged misinformation provided by his 18 counsel,6 and because petitioner’s subsequent convictions in 2007 (California) and 2009 (Nevada) 19 would have also rendered him deportable in any event. (Id. at 6.) In support of these arguments 20 for dismissal, respondent cites the following: (i) a declaration of Jackie Lovato, a Deportation 21 Officer with the U.S. Immigration and Customs Enforcement (“ICE”) and the custodian of 22 petitioner’s alien immigration file (“A-file”), (Doc. No. 19-1 at 1–3); (ii) a transcript of the oral 23 decision and corresponding order from the immigration judge who found petitioner removable, 24 (Id. at 5–16); (iii) copies of written opinions relating to petitioner from the Board of Immigration 25 6 26 27 28 Respondent argues that petitioner’s deportation was based on the following grounds: (i) commission of a crime involving moral turpitude within five years of admission, under 8 U.S.C. §1227(a)(2)(A)(i); and (ii) commission of two crimes involving moral turpitude not arising out of a single scheme, under 8 U.S.C. § 1227(a)(2)(A)(iii). (Id.) Respondent also contends that petitioner’s 2002 mail fraud conviction only partially affected his ability to cancel his removal. (Id.) 11 1 appeals, dated June 2011 and July 2011 (Id. at 18–31); (iv) a copy of the executed warrant of 2 removal for petitioner, (Id. at 72–73); and (v) court documents from the Merced County Superior 3 Court related to petitioner’s 2006 burglary conviction, (Id. at 33–50); from the Fresno County 4 Superior Court related to his 2007 conviction for non-sufficient fund check, (Id. at 51–57); and 5 from the Clark County Nevada State District Court related to his 2009 conviction for felony theft, 6 (Id. at 59–70). 7 Respondent’s arguments for reconsideration in this regard are unpersuasive. Respondent 8 does not directly contest the court’s prior conclusions concerning the outcome of petitioner’s 9 criminal proceedings, and instead addresses the outcome of petitioner’s immigration proceedings. 10 Respondent conflates two separate inquiries: the Strickland prejudice inquiry applicable to IAC 11 claims, which focuses on whether an attorney’s deficient performance would have impacted the 12 results of a client’s criminal proceedings; and the Hirabayashi adverse consequences inquiry 13 applicable to coram nobis petitions, which focuses on whether conviction involving fundamental 14 error led to adverse consequences for petitioner. See generally Strickland, 466 U.S. at 687–88; 15 Hirabayashi, 828 F.2d at 604. In doing so, respondent fails to present grounds for reconsidering 16 the conclusions reached in the court’s October 2012 order as to either issue. 17 As stated above, a petitioner seeking to demonstrate prejudice under Strickland must show 18 that his attorney’s deficient performance impacted the results of the criminal proceedings—in the 19 context of plea agreements, that the petitioner would have “gone to trial or received a better plea 20 bargain” absent counsel’s errors. Rodriguez-Vega, 797 F.3d at 788 (quoting United States v. 21 Howard, 381 F.3d 873, 882 (9th Cir. 2004)); see also Strickland, 466 U.S. at 694; United Sates v. 22 Leonti, 326 F.3d 1111, 1122 (9th Cir. 2003). Prejudice under Strickland does not depend on the 23 extent to which those criminal proceedings involved collateral immigration consequences. Id.; 24 But see Rocha, 2015 WL 92945, at *4 (finding petitioner failed to demonstrate prejudice because, 25 “[h]ad Petitioner refused to accept the plea agreement, there is no evidence that Petitioner would 26 have been successful at trial or otherwise avoided the immigration consequences he now faces”). 27 Here, petitioner has alleged that absent his counsel providing him with misinformation 28 concerning the immigration consequences of his 2001 guilty plea, he would have negotiated a 12 1 different plea agreement to avoid those consequences or would have elected to instead go to trial. 2 “That an alien charged with a crime . . . would factor the immigration consequences of conviction 3 into deciding whether to plea or proceed to trial is well-documented.” Magana-Pizano v. INS, 4 200 F.3d 603, 612 (9th Cir. 1999); see also United States v. Hubenig, No. 6:03-mj-040, 2010 WL 5 2650625, at *9 (E.D. Cal. July 1, 2010) (“A reasonable person could certainly conclude that the 6 risk of . . . punishment—even considering the very unlikely event that the statutory maximum 7 penalty might be imposed—was worth the possibility of avoiding deportation, a punishment that 8 the Supreme Court has characterized as “the equivalent of banishment or exile.”) (citing 9 Delgadillo v. Carmichael, 332 U.S. 388, 390–91 (1947)). The pro se allegations of the petition 10 before this court are thus a sufficient basis upon which to claim prejudice under Strickland. See 11 Kwan, 407 F.3d at 1018. 12 In contrast, to establish adverse consequences to satisfy the case or controversy 13 requirement of Article III as required to obtain coram nobis relief, a petitioner must demonstrate 14 that a conviction involving fundamental error led to adverse consequences. See Hirabayashi, 828 15 F.2d at 604. The petitioner need not show that the fundamental error itself generated adverse 16 consequences. See, e.g., Kwan, 407 F.3d at 1014 (separately analyzing the question of whether 17 the petitioner faced the possibility of deportation as a result of his conviction and whether he 18 received IAC); United States v. Koertel, No. 2:13-cr-00346-KJM, 2016 WL 4524860, at *3 (E.D. 19 Cal. Aug. 29, 2016) (same). The possibility of deportation is an adverse consequence of a 20 criminal conviction sufficient to satisfy Article III’s case or controversy requirement. See Kwan, 21 407 F.3d at 1014; see also Park v. California, 202 F.3d 1146, 1148 (9th Cir. 2000); United States 22 v. Krboyan, Nos. CV–F–10–2016 OWW, CR–F–02–5438 OWW, 2010 WL 5477692, at *11 23 (E.D. Cal. Dec. 30, 2010). Here, it is uncontested that the petitioner faced the possibility of 24 deportation, and was in fact actually deported, as a result of his 2002 convictions. (Doc. No. 19 at 25 5.) No more is required to show adverse consequences sufficient to satisfy Article III’s case or 26 controversy requirement. See Kwan, 407 F.3d at 1014; see also Park, 202 F.3d at 1148; Krboyan, 27 2010 WL 5477692, at *11. 28 ///// 13 1 Accordingly, the court concludes that the pro se petitioner has adequately alleged 2 fundamental error and adverse consequences sufficient to state a cognizable claim for coram 3 nobis relief. In moving for reconsideration, respondent has not met its burden of showing that 4 relief from the court’s prior order is warranted based on any deficiencies with the allegations of 5 the petition. See, e.g., Cross v. Benedetti, No. 3:08–CV–00403, 2012 WL 3252863, at *1 (D. 6 Nev. Aug. 7, 2012) (denying reconsideration where the court “would have reached the same 7 conclusion on the record presented in this case” even absent an intervening change in the law); 8 Norwood v. Vance, No. CIV S–03–2554 GEB GGH P, 2011 WL 6293189, at *3 (E.D. Cal. 9 Dec.15, 2011) (same), report and recommendation adopted, 2012 WL 394227 (E.D. Cal. Feb.6, 10 2012), aff’d, 517 F. App’x 557 (9th Cir. 2013). Respondent’s motions for reconsideration and 11 dismissal on this basis will therefore be denied. 12 B. 13 Respondent also moves to dismiss the pending petition based on the waiver of appellate 14 Plea Agreement Waiver of Collateral Attack Rights rights provision of petitioner’s 2001 plea agreement. 15 The right to appeal or to seek collateral relief from a conviction may be waived in a plea 16 agreement. See United States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016); United States v. Portillo– 17 Cano, 192 F.3d 1246, 1249 (9th Cir.1999); United States v. Vences, 169 F.3d 611, 613 (9th Cir. 18 1999) (explaining that a valid waiver deprives the court of jurisdiction to entertain a petition for 19 post-conviction review). Such a waiver is only enforceable if: (i) the waiver’s language 20 encompasses the grounds raised on review, and (ii) the waiver was knowing and voluntary. See 21 Lo, 839 F.3d at 783; United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005), overruled 22 on other grounds by United States v. Jacobo Castillo, 496 F.3d 947 (9th Cir. 2007 (en banc); see 23 also United States v. Bibler, 495 F.3d 621, 623–24 (9th Cir. 2007). Consequently, a plea 24 agreement that waives appellate rights “is unenforceable with respect to an IAC claim that 25 challenges the voluntariness of the waiver” itself. Washington v. Lampert, 422 F.3d 864, 871 (9th 26 Cir. 2005); Davies v. Benov, 856 F.3d 1243, 1246 n.2 (9th Cir. 2017) (“Claims that the plea or 27 waiver itself was involuntary or that ineffective assistance of counsel rendered the plea or waiver 28 ///// 14 1 involuntary, however, may not be waived.”); see also United States v. Chavez, No. CR S–09– 2 0540 GEB DAD, 2013 WL 4780510, at *2 (E.D. Cal. Sept. 5, 2013). 3 The government argues dismissal is warranted because petitioner Rianto waived the right 4 to appeal or collaterally attack his plea, conviction and sentence in his 2001 plea agreement. 5 (Doc. No. 19 at 3.) Respondent cites the following language of the agreement 6 Defendant knowingly and voluntarily waives his Constitutional and statutory rights to appeal his plea, conviction and sentence. This waiver of appeal includes, but is not limited to, an express waiver of defendant’s right to appeal his plea, conviction and sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742, and defendant further agrees not to contest his plea, conviction and sentence in any post-conviction proceeding, including but not limited to a proceeding under 28 U.S.C. § 2255. 7 8 9 10 11 (Id.) 12 Petitioner’s plea agreement included a specific waiver of rights to pursue a post- 13 conviction collateral attack on his conviction and sentence. His petition for a writ of coram nobis 14 is a collateral attack on a judgment of conviction falling within the scope of this waiver. See 15 Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (recognizing that a coram nobis 16 petition is a “collateral attack on a criminal conviction”); see also Ballard v. United States, No. 17 CIV S-07-2527 LKK DAD P, 2010 WL 715683, at *6 (E.D. Cal. Feb. 26, 2010). However, the 18 court has found that petitioner has adequately alleged IAC related to his 2001 plea agreement and 19 2002 judgment of conviction. Petitioner’s allegations thus support a finding that the plea and 20 waiver were involuntary due to the IAC, and that the waiver of the right to appeal or collaterally 21 attack the conviction is unenforceable. See Lampert, 422 F.3d at 870–71; United States v. Torres, 22 828 F.3d 1113, 1125 (9th Cir. 2016) (“an appeal waiver does not deprive a defendant of a 23 constitutional ineffective assistance of counsel claim.”); see also Porter v. Munoz, No. 14-cv- 24 05034-TEH, 2017 WL 3021022, at *5 (N.D. Cal. July 17, 2017) (“It is undisputed that even after 25 entering into an agreement that waives the right to pursue habeas corpus relief, a prisoner may 26 assert an ineffective assistance of counsel claim regarding the advice he received regarding the 27 agreement, as well as a claim challenging the voluntariness of the agreement itself.”). 28 ///// 15 1 Accordingly, the court concludes that the waiver of appellate or collateral review included 2 in petitioner’s 2001 plea agreement does not divest this court of jurisdiction over his petition 3 alleging IAC in connection with his entry of plea pursuant to that agreement. Cf. United States v. 4 Taylor, 648 F.2d 565, 573 (9th Cir. 1981) (finding that summary adjudication was appropriate in 5 coram nobis context where the record conclusively demonstrated that petitioner was not entitled 6 to relief as to his IAC claim). 7 C. 8 Respondent next contends that the petition for a writ of coram nobis should be dismissed 9 Laches because the equitable doctrine of laches bars the petition. (Doc. No. 19 at 7–8.) 10 The timeliness requirement for a writ of error coram nobis places a burden on the 11 petitioner to affirmatively demonstrate valid reasons why the challenge was not brought sooner. 12 See Hirabayashi, 828 F.2d at 604 (requiring that “valid reasons exist for not attacking the 13 conviction earlier.”). In considering the timeliness of the seeking of relief, the court should not 14 consider prejudice to the government related to any delay in bringing the challenge. See United 15 States v. Riedl, 496 F.3d 1003, 1007–1008 (9th Cir. 2007). However, if the petitioner alleges 16 facts demonstrating valid reasons for the petition not having been brought sooner, then the 17 government may seek to bar the petition on the ground of laches.7 See Riedl, 496 F.3d at 1007– 18 08; see also Rodriguez-Lugo v. United States, 458 Fed. Appx. 688, 689 (9th Cir. 2011).8 19 20 21 22 23 24 25 26 27 28 7 Federal courts have reached inconsistent conclusions about whether the doctrine of laches serves as a defense to coram nobis petitions, as well as to the showing a respondent must make to demonstrate the applicability of laches. See Annotation, Delay as affecting right to coram nobis attacking criminal conviction, 62 A.L.R.2d 432, (1958) (surveying decisions that reach conflicting conclusions on these issues); compare Haywood v. United States, 127 F. Supp. 485, 488 (S.D.N.Y. 1954) ([I]f laches were to constitute an estoppel or defense it would in effect make dead letter of the ancient writ.”), and United States v. Liska, 409 F. Supp. 1405, 1407 (E.D. Wis. 1976) (“It should be beyond cavil, however, that laches is not available to the United States as a defense to a petition for the writ of error coram nobis”); with United States v. Dyer, 136 F.3d 417, 427–428 (5th Cir. 1989) (describing the doctrine of laches as a defense to a coram nobis petition). In any event, the Ninth Circuit has held that the doctrine of laches is a defense to a coram nobis petition, and has distinguished the laches doctrine from the second coram nobis requirement of timeliness as described above. See Riedl, 496 F.3d at 1007–08. 8 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36-3(b). 16 1 To assert laches, however, the respondent “first must make a prima facie showing of 2 prejudice.” Telink, Inc., 24 F.3d at 47; see also Riedl, 496 F.3d at 1008. “If the government 3 meets that burden, the burden of production of evidence then shifts to the petitioner to show either 4 that the government actually was not prejudiced or that the petitioner exercised reasonable 5 diligence in filing the claim.” Telink, Inc., 24 F.3d at 47; see also Riedl, 496 F.3d at 1008; Kwan, 6 407 F.3d at 1013. 7 Here, petitioner filed his motion for a writ of coram nobis in April 2012, over ten years 8 after the entry of his guilty plea in June of 2001. (Doc. No. 1.) Therein, petitioner asserted that 9 he did not petition for a writ of coram nobis earlier because he was not aware of the immigration 10 consequences associated with his 2001 plea agreement and entry of plea until his detention in 11 2010. (Id. at 4.) Indeed, petitioner alleges that he was actually granted renewal of his alien 12 resident card by U.S. immigration officials in 2009. (Id. at 5.) In support of these contentions, 13 petitioner submitted the following evidence: (i) a copy of his 2009 application to replace his alien 14 registration card (Id. at 21); and (ii) a copy of the renewed permanent resident card he received in 15 2009, (Id. at 22). 16 In its October 2012 order, this court concluded that there was “nothing to indicate that 17 Petitioner lacks valid reasons for not having brought the challenge to his conviction earlier,” but 18 that it “lack[ed] information necessary at this time to determine whether laches would apply to 19 preclude Petitioner’s claim.” (Doc. No. 3 at 10.) 20 Respondent now argues that the pending petition is barred by the doctrine of laches, and 21 that petitioner did not have valid reasons for delay in the filing his coram nobis petition. (Doc. 22 No. 19 at 7–8.) Respondent asserts that it would be significantly prejudiced in mounting a retrial 23 of the underlying criminal case because over sixteen years have passed since petitioner’s crimes 24 were committed, the evidence in support of the charges may no longer exist, and the prosecutors 25 on the original case have both been since elevated to the bench. (Id. at 7–8.) Respondent also 26 argues that petitioner was advised of the potential immigration consequences associated with his 27 2006 and 2007 state court convictions, and thus should have also been aware of potential 28 immigration issues associated with his 2002 federal convictions at least as early as 2006. (Id. at 17 1 7.) In support of this argument, respondent provides documents signed by petitioner 2 acknowledging his understanding of potential immigration consequences connected with his 2006 3 and 2007 convictions in state court. (Doc. No. 19-1 at 33–50, 51–57). 4 In asserting the defense of laches, respondent bears the burden of establishing that it 5 would be prejudiced by petitioner’s delay in seeking coram nobis relief. Riedl, 496 F.3d at 1008. 6 Here, the government has invoked evidentiary prejudice as a basis for applicability of the laches 7 doctrine.9 “In making a determination of prejudice, the effect of the delay on . . . the 8 government’s ability to mount a retrial are relevant.” Tel. Corp., 518 F.2d at 926. Because 9 petitioner’s entry of plea and conviction occurred over ten years prior to the filing of this petition, 10 it is reasonable to assume that the government would face difficulty locating witnesses and 11 evidence and in re-litigating its case. See United States v. Madrigal-Maya, No. 92–MJ–8003– 12 (PCL)–3, 2013 WL 1289265, at *3 (S.D. Cal. Mar. 25, 2013) (finding that the government was 13 “undoubtedly prejudiced” by a twenty-year delay between the filing of petitioner’s coram nobis 14 petition and the original criminal conviction); see also United States v. Indelicato, No. CR-85- 15 0078-EMC, 2015 WL 5138565, at *5 (N.D. Cal. Sept. 1, 2015); Martinez v. United States, 90 F. 16 Supp. 2d 1072, 1076 (D. Haw. 2000). Accordingly, the court concludes that respondent has met 17 its burden of showing it would be prejudiced by petitioner’s delay in seeking relief in this case. 18 However, as noted by the court in its October 2012 order, petitioner has offered evidence 19 with his petition indicating that he exercised reasonable diligence in seeking relief. (Doc. Nos. 1 20 at 4–5; 3 at 10.) Courts in this circuit have identified reasonable diligence as having been 21 exercised when a petitioner pursues coram nobis relief reasonably soon after learning of a 22 fundamental error in his criminal proceedings. See Kwan, 407 F.3d at 1013 (finding that 23 petitioner demonstrated reasonable diligence in pursuing coram nobis relief when he filed his 24 petition after learning of deportation proceedings); Telink, Inc., 24 F.3d at 47 (stating that a 25 9 26 27 28 “Courts have recognized two chief forms of prejudice in the laches context—evidentiary and expectations based.” Danjaq LLC v. Sony Corp., 263 F.3d 942, 955 (9th Cir. 2001). Evidentiary prejudice relates to the dissipation or degradation of evidence over time, whereas expectations prejudice occurs when respondents take actions or suffer consequences that they would not have absent delay. See Danjaq LLC, 263 F.3d at 955; Jackson v. Axton, 25 F.3d 884, 886 (9th Cir. 1994). 18 1 petitioner exercised reasonable diligence if he filed a petition within one year of learning of an 2 error). Here, petitioner alleges that he was not aware of any immigration consequences 3 associated with his entry of plea in 2001 and entry of judgment in 2002 until he was detained for 4 deportation in October 2010. (Doc. No. 1 at 4.) Petitioner also offers evidence in support of this 5 contention—his 2009 application for a renewed alien resident card, and the subsequent approval 6 of his application by U.S. immigration officials. (Id.) Finally, petitioner has presented evidence 7 that he pursued relief shortly after being detained for deportation by filing a motion under 28 8 U.S.C. § 2255 in February of 2011. (Id. at 1; 10–15.) In light of this evidence, the court 9 concludes that petitioner has met his burden of showing that he “exercised reasonable diligence in 10 filing the claim.” Telink, Inc., 24 F.3d at 47; see also Kwan, 407 F.3d at 1013; Krboyan, 2010 11 WL 5477692, at *5–6; cf. Indelicato, 2015 WL 5138565, at *5 (finding that laches barred a 12 petition for coram nobis when petitioner “admit[ted] that between 1987 and 2012 he undertook no 13 steps whatsoever to challenge his conviction in any forum”); United States v. Risquez, No. 84- 14 CR-0254-JM, 2012 WL 3069323, at *5 (S.D. Cal. July 27, 2012) (finding that laches barred the 15 coram nobis petition because the defendant “has had knowledge of the consequences of his 16 conviction for many years”); Martinez, 90 F. Supp. 2d at 1075–76 (finding that laches precluded 17 the coram nobis petition because “Petitioner failed to appeal the District Court’s decision on his 18 Speedy Trial rights, neglected to file a § 2255 petition, did not attack his 1986 conviction when 19 later sentenced for a subsequent conviction, and has waited over six years to file the instant 20 motion.”). 21 Respondent’s arguments concerning petitioner’s 2006 and 2007 state court convictions do 22 not present grounds for reconsidering the court’s October 2012 order on the issue of laches. 23 When determining whether a petitioner exercised reasonable diligence in pursuing coram nobis 24 relief, courts consider the time that the petitioner learned of the error related to the specific 25 criminal conviction being challenged. See Telink, Inc., 24 F.3d at 47 (stating that petitioners 26 should have commenced post-conviction relief proceedings in 1988 because they “learned in 27 1987, when McNally was decided, that the indictment under which they were convicted was 28 tainted with McNally problems); see also Martinez, 90 F. Supp. 2d at 1075–76 (citing numerous 19 1 cases in which courts have found valid reasons for delay in pursuing coram nobis relief). 2 Specifically, in cases where petitioners have asserted IAC based on Kwan violations, courts have 3 examined the time the petitioner learned of the misinformation associated with that particular 4 conviction. See Kwan, 407 F.3d at 1013–1014; Krboyan, 2010 WL 5477692, at *6–7. 5 Respondent has not provided, and the court has not identified, any decision holding that once a 6 criminal defendant learns of adverse immigration consequences associated with one conviction, 7 that defendant is on notice of the potential adverse immigration consequences associated with 8 another, independent criminal conviction for purposes of pursuing coram nobis relief. 9 Here, petitioner has presented evidence that his attorney affirmatively misadvised him as 10 to the immigration consequences of his entry of plea in 2001 and 2002 judgment of conviction, 11 and that he only learned of these consequences in 2010. This is sufficient to show reasonable 12 diligence in pursuing coram nobis relief, thereby precluding dismissal of the petition based on the 13 doctrine of laches. See Telink, Inc., 24 F.3d at 47; Kwan, 407 F.3d at 1013; Krboyan, 2010 WL 14 5477692, at *5–6. 15 CONCLUSION 16 Accordingly, for all the reasons stated above: 17 1. Respondent’s motion for reconsideration (Doc. No. 19) is granted in part and denied as 18 indicated above; 19 2. Respondent’s motion to dismiss (Doc. No. 19) is denied; and 20 3. The matter is set for Status Conference on October 3, 2017, at 9:30 a.m. in Courtroom 21 No. 5. Both petitioner and respondent are directed to file status reports in writing with the 22 court no later than September 19, 2017, proposing a schedule for the filing of a motion for 23 evidentiary hearing or expansion of the record and merits briefing in this action, as well as 24 any other matters deemed relevant to the expeditious resolution of the pending petition for 25 writ of coram nobis. Petitioner is cautioned that any failure on his part to file a status 26 report no later than September 19, 2017, as required by this order, will result in a 27 ///// 28 ///// 20 1 dismissal of this action due to his failure to prosecute this action10 and failure to abide by 2 the court’s order. 3 IT IS SO ORDERED. 4 Dated: August 4, 2017 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 As noted above, petitioner did not oppose or in any other way respond to respondent’s motions for reconsideration and dismissal. Moreover, petitioner’s only filing in connection with this action has been the pro se petition he filed on April 4, 2012. 21

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