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

UNITED STATES OF AMERICA

vs.

PLAINTIFF

CRIMINAL NO. 3:06CR-90-H
Electronically Filed

JIAN TIAN LIN

DEFENDANT

RESPONSE TO MOTION TO VACATE FINAL JUDGMENT
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.
PROCEDURAL BACKGROUND
1.

History of Jian Tian Lin’s Sentencing and Subsequent Motion to Vacate

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 Padilla v. Kentucky, 130 S.Ct. 1473
(2010). The decision in Padilla v. Kentucky was entered by the Supreme Court on March 31,

2010, more than two years before the Defendant filed his Motion to Vacate Final Judgment. It is
unclear why the Defendant waited more than two years after the ruling in Padilla v. Kentucky, to
file his Motion to Vacate Final Judgment.
2.

Pending Supreme Court Case

On October 30, 2012, the Supreme Court will hear oral argument for the case of
Chaidez v. United States, 11-820, which will determine whether or not the holding in
Padilla v. Kentucky is retroactive. If the Supreme Court rules that Padilla is retroactive, then
Defendant Lin may have a basis to attack his guilty plea and subsequent sentence. However, at
this point, Defendant Lin has cited no authority in which to attack his guilty plea and subsequent
sentence. As a result, the court should deny his motion to vacate final judgment.
CONCLUSION
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.

Respectfully submitted,
DAVID J. HALE
United States Attorney
s/Daniel P. Kinnicutt
Daniel P. Kinnicutt
Assistant U.S. Attorney
717 West Broadway
Louisville, Kentucky 40202
[phone]
Fax: [phone]
[e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on October 12, 2012, I electronically filed the foregoing response
with the clerk of the court by using the CM/ECF system, which will send a notice of electronic
filing to the defendant’s attorney in this case.

s/Daniel P. Kinnicutt
Daniel P. Kinnicutt
Assistant U.S. Attorney

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

UNITED STATES OF AMERICA

PLAINTIFF

vs.

CRIMINAL NO. 3:06CR-90-H
Electronically Filed

JIAN TIAN LIN

DEFENDANT

ORDER
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,
IT IS HEREBY ORDERED that the defendant’s Motion is DENIED.