Lin v. USA

Filing 1

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 12/20/2012 as to Jian Tian Lin ; 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; Clerk s hall enter the following documents, currently 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 Ti me 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 (D N 80). Petitioners writ of error coram nobis is SUSTAINED and that on or before January 11, 2013, Petitioner shall file a proposed final judgment in docket number 3:12-CV-813-H; On or before January 11, 2013, either party may request a hearing to determine appropriate proceedings and/or relief consistent with this order. (Attachments: # 1 DN69, # 2 DN70, # 3 DN71, # 4 DN72, # 5 DN74, # 6 DN75, # 7 DN76, # 8 DN77, # 9 DN79, # 10 DN80)cc:counsel (TLB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:12-CV-813-H & CRIMINAL: 3:06CR-90-H
JIAN TIAN LIN,

PLAINTIFF

v.
UNITED STATES OF AMERICA,

DEFENDANT

MEMORANDUM OPINION AND ORDER
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.
I.
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.1 Though Petitioner agrees that this is a procedurally
improper motion in this circumstance,2 he may be entitled to relief under the All Writs Act, 28
U.S.C. § 1651, which authorizes the writ of error coram nobis. The Sixth Circuit determined that
“a writ of error coram nobis may sometimes be used to vacate a federal conviction after the
petitioner has already served his sentence[,] and relief under 28 U.S.C. § 2255 is unavailable.”
United States v. Johnson, 237 F.3d 751, 753 (6th Cir. 2001). The writ should only be granted under
sufficiently compelling circumstances. Flippins v. United States, 747 F.2d 1089, 1091 (6th Cir.
1984).
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

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Consequently, this Court has opened a civil action for this motion corresponding with the criminal case
assigned to docket number 3:12-CV-813-H.
2

This is because a § 2255 motion is not available to a petitioner who has served his sentence, paid all fines
and forfeitures, and is no longer in custody. See 28 U.S.C. § 2255. The Court took this procedural step in order to
open a civil case for this matter and provide some authority for the motion.

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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:
The foregoing summary of steps discloses respondent’s uncertainty in respect to
choice of remedy. The papers are labeled as though they sought a common law writ
of error coram nobis but the notice of the motion indicates that an order voiding the
judgment is sought. In behalf of the unfortunates, federal courts should act in doing
justice if the record makes plain a right to relief. We think a belated effort to set
aside the conviction and sentence in the federal criminal case is shown. We therefore
treat the record as adequately presenting a motion in the nature of a writ of error
coram nobis enabling the trial court to properly exercise its jurisdiction.
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.
II.
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.
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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.
A.
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.
B.

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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

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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.
III.
Finally, the Court must examine whether counsel rendered Petitioner was ineffective under

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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

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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 January 11, 2013, Petitioner shall file a proposed final judgment in docket number
3:12-CV-813-H.
IT IS FURTHER ORDERED that on or before January 11, 2013, either party may request
a hearing to determine appropriate proceedings and/or relief consistent with this order.

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December 20, 2012

cc:

Counsel of Record

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