Hrcka v. USA

Filing 25

ORDER: the Government shall submit further briefing to this Court in accordance with this Order. Supplemental Brief due 8/15/2013. Signed by District Judge Robert J. Conrad, Jr on 7/26/2013. (Pro se litigant served by US Mail.)(tmg)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-cv-435-RJC
(3:08-cr-225-RJC-DCK-1)
IVAN HRCKA,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent. )
____________________________________)

ORDER

THIS MATTER is before the Court on Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255, (Doc. No. 1), and on the Government’s Motion
for Summary Judgment, (Doc. No. 9).
I.

BACKGROUND

In 2008, the Grand Jury for the Western District of North Carolina returned a three-count
Superseding Bill of Indictment against Petitioner Ivan Hrcka. See (Case No. 3:08CR435, Doc.
No. 6: Superseding Indictment). The Grand Jury charged that Petitioner knowingly possessed a
forged, counterfeited, altered, or falsely made document–prescribed by statute or regulation for
entry into the United States–in violation of 18 U.S.C. § 1546(a) (Count One); that on or about
October 7, 2008, Petitioner presented a document, required or prescribed by the immigration
laws, containing a material false statement, in violation of 18 U.S.C. § 1546(a) (Count Two);
and that Petitioner made a false statement in a matter within the jurisdiction of Homeland
Security, an agency of the United States, in violation of 18 U.S.C. § 1001 (Count Three).
Petitioner’s case was tried before a jury on December 16-17, 2008. See (Id., Doc. Nos. 39;
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40: Trial Tr., Vols. I and II). At the close of the Government’s evidence, the Court partially
granted Petitioner’s Rule 29 motion, dismissing Count Three of the superseding indictment. (Id.,
Doc. No. 39 at 191-93: Trial Tr., Vol. I). The Court denied Petitioner’s Rule 29 motion as to
Counts One and Two, both at the close of the Government’s evidence and again at the close of
all evidence. (Id., Doc. No. 39 at 192: Vol. I; Doc. No. 40 at 85-86: Vol. II). The jury found
Petitioner guilty of Counts One and Two. (Id., Doc. No. 40 at 129-30). On September 29, 2009,
the Court sentenced Petitioner to concurrent sentences of “time served” for Counts One and
Two, plus a two-year term of supervised release. See (Id., Doc. No. 41 at 13-14: Sent. Tr.). The
Court issued its written judgment on October 15, 2009. (Id., Doc. 34: Judgment).
Petitioner filed a timely appeal challenging the sufficiency of the evidence for conviction,
and on June 22, 2010, the Fourth Circuit Court of Appeals affirmed Petitioner’s conviction. See
United States v. Hrcka, 384 F. Appx. 232, 233 (4th Cir. 2010). Petitioner filed a petition for a
writ of certiorari to the Supreme Court, which was denied on February 28, 2011. See Hrcka v.
United States, 131 S. Ct. 1569 (2011).
On September 6, 2011, Petitioner filed his § 2255 motion, alleging ineffective assistance of
counsel, trial court error, and false testimony by a witness. Specifically, Petitioner alleges that
he wanted to bargain for a lesser charge but counsel forced him to proceed to trial; trial counsel
failed to advise him of the deportation consequences of conviction; the trial court failed to advise
Petitioner of the immigration consequences of conviction; and Petitioner’s trial witness was
forced to change her story. (Doc. No. 1 at 4; 5; 7; 8).
On February 28, 2012, Respondent filed the pending motion for summary judgment, and a
corresponding Response in opposition to the petition. (Doc. Nos. 8; 9). On July 5, 2012, after
receiving several extensions of time, Petitioner filed a Reply. (Doc. No. 20). Sometime after
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Petitioner filed his Reply brief, and before September 10, 2012, Petitioner was deported to his
native country of the Slovak Republic, where he had been a fugitive of justice based on criminal
charges filed against him on April 9, 2001, in that country for fraud, abridgment of taxation, tax
shortening, and swindling. See (Doc. No. 22: Letter from Ivan Hrcka).
II. STANDARD OF REVIEW
A. Section 2255
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts
are directed to promptly examine motions to vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine whether a petitioner is entitled to any relief. If
a petitioner’s motion survives initial review and once the Government files a Response, the
Court must then review the materials submitted by the parties to determine whether an
evidentiary hearing is warranted under Rule 8(a) of the Rules Governing Section 2255
Proceedings. After having considered the record in this matter, including the parties’ summary
judgment materials, the Court finds that this matter can be resolved without an evidentiary
hearing. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
B. Summary Judgment
Summary judgment is appropriate in those cases where there is no genuine dispute as to any
material fact, and it appears that the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(c)(2); United States v. Lee, 943 F.2d 366, 368 (4th Cir. 1991). Any
permissible inferences to be drawn from the underlying facts must be viewed in the light most
favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986). Where, however, the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, disposition by summary judgment is
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appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
III.

DISCUSSION

Like the federal habeas statute, 28 U.S.C. § 2255 requires a movant to be “in custody.” A
prisoner meets the custody requirements of habeas corpus, or of a § 2255 petition, if he is
incarcerated when he files the petition, even if he is released from prison during the pendency of
the petition. Carafas v. LaVallee, 391 U.S. 234, 238 (1968); United States v. Bryson, 981 F.2d
720, 726 (4th Cir. 1992). Nonetheless, a petitioner must also show that, in spite of subsequent
release, he can still meet “the case or controversy requirement of Article III, § 2, of the
Constitution.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (petitioner failed to show injury-in-fact
in challenge to a parole revocation, where petitioner had been released from prison after filing
habeas corpus petition). “Once the convict’s sentence has expired, . . . some concrete and
continuing injury other than the now-ended incarceration or parole – some ‘collateral
consequence’ of the conviction – must exist if the suit is to be maintained.” Id. at 7 (citations
omitted).
Here, Petitioner stated in his petition that he was seeking to have his conviction and sentence
for violations of 18 U.S.C. § 1546(a) vacated in order to avoid the consequences of
deportation—that is, to assert his “rights to remain in the United States” and “preserv[e] the
possibility of discretionary releif [sic] from deportation.” (Id. at 7). In support of its summary
judgment motion, filed before Petitioner was deported, Respondent contended that Petitioner did
not present a live case or controversy in his petition because he was subject to deportation based
on his status as a an illegal alien aside from his conviction for passport fraud. Of course,
granting the petition can no longer save Petitioner from deportation because he has already been

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deported.1 Deportation alone, however, does not render moot a § 2255 petition. See Sibron v.
New York, 392 U.S. 40 (1968). If granting the petition, and thus vacating his passport fraud
conviction, would lift a statutory bar against petitioner’s legal re-entry into the United States then
there is a “collateral consequence” of his conviction, establishing a live case or controversy. See
Swaby v. Ashcroft, 357 F.3d 156, 160 (2d Cir. 2004).
Petitioner contends in his Reply to the Government’s Response that there is, in fact, a
“collateral consequence” of his conviction for passport fraud. He states that, if it were not for his
passport fraud conviction, he would be eligible to apply for re-entry because he is married to a
U.S. citizen and has an approved I-130 petition, which is a petition for a lawful permanent U.S.
resident to establish the relationship to certain alien relatives who want to immigrate to the
United States. (Doc. No. 22). Given the change in circumstances since the filing of the
Government’s summary judgment motion, and in light of Petitioner’s contentions, the Court will
require further briefing from the Government as to the mootness issue. If the Government
concedes that Petitioner’s deportation did not render the petition moot, the Government shall
submit arguments on the merits of Petitioner’s claims.
IV.

CONCLUSION

In accordance with this Order, the Government shall submit further briefing to this Court.
IT IS, THEREFORE, ORDERED that:
1.

Within twenty (20) days of entry of this Order, the Government shall submit
further briefing to this Court in accordance with this Order.

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Respondent further notes in his summary judgment motion that when he filed his petition
Petitioner was an Interpol fugitive subject to extradition from the United States based on the
criminal charges pending against him in Slovac Republic. (Id., Doc. No. 8 at 3-4). Indeed, on or
about June 26, 2008, a Senior ICE Representative of the ICE Attache Office/Vienna had
requested the assistance of the Charlotte ICE office in apprehending Petitioner.
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Signed: July 26, 2013

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