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
LOUISVILLE DIVISION
INDICTMENT NO. 3:06CR-90-H
UNITED STATES OF AMERICA

PLAINTIFF

DEFENDANT’S REPLY MEMORANDUM IN SUPPORT OF
MOTION TO VACATE FINAL JUDGMENT

vs.

JIAN TIAN LIN

DEFENDANT
*** *** ***

Comes the Defendant, Jian Tian Lin, and in support of his Motion to Vacate the Final
Judgment herein, submits the following Reply Memorandum:
INTRODUCTION
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.
(A) THERE IS AUTHORITY TO VACATE MOVANT'S CONVICTION
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
conviction.

the "continuing consequences" of Movant's

erroneous

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.
(B) THIS COURT SHOUD DETERMINE THAT PADILLA IS RETROACTIVE
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.
CONCLUSION
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.
Respectfully submitted,
/s/ C. Thomas Hectus
C. Thomas Hectus
HECTUS•WALSH•BUCHENBERGER PLLC
2010 Edgeland Ave.
Louisville, Kentucky 40204
Telephone: [phone]
Facsimile: [phone]
e-mail: [e-mail]
Counsel for Movant, Jian Tian Lin

CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing was electronically filed, on this the 26th
day of November, 2012, with the Clerk, United States District Court, Western District of
Kentucky, Louisville Division, who will electronically provide notice to the following:
Daniel Kinnicutt, Esq.
Assistant United States Attorney
10th Floor
510 West Broadway
Louisville, Kentucky 40202
/s/ C. Thomas Hectus__________________
C. THOMAS HECTUS