Hurbenca v. United States of America

Filing 20

ORDER granting 18 Motion to Dismiss 1 Motion to Vacate Sentence and Expunge Record. Signed by U.S. District Judge Lawrence L. Piersol on 7/26/2019. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

VASILE HURBENCA,

CrV 17-4147
CR 96-40009

Movant,
ORDER

vs.

UNITED STATES OF AMERICA,

Respondent.

On October 17, 2017, Movant, Vasile Hurbenca ("Hurbenca"), filed a pro se Motion to

Vacate Sentence and Expunge Record, Civ. Doc. I and Crim. Doc. 82, which the Court construed
as a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §" 2255. Civ. Docs. 2, 11.

In support of his motion, Hurhenca argued, among other things, that "court-appointed counsel
failed to advise [him] of the possible immigration consequences of. . . [his] guilty plea" and that

pursuant to Padilla v. Kentucky, 559 U.S. 356, 374 (2010), such failure constituted ineffective
assistance ofcounsel under the Sixth,Amendment,thus entitling him to post-conviction relief. Civ.

Doc. 1. Hurbenca also alleged that he had been "repeatedly advised that he would not be subject

to deportation" and that the "Pre-Sentencing Investigation report on file with the Court clearlystates "Citizenship: Non-deportahle resident alien." Civ. Doc. I.
The Court ordered the Government to file an answer or other responsive pleading and on

July 25, 2018, the Government filed a motion to dismiss Hurbenca's § 2255 motion and a
supporting memorandum. Civ. Doc. 8.

After reviewing Hurbenca's motion and liberally construing the claims asserted in the
motion and after reviewing the Government's motion to dismiss and supporting memorandum,the
Court concluded that Hurbenca's ineffective assistance of counsel claim was based not only on his

counsel's alleged failure to advise him ofthe immigration consequences ofhis guilty plea, but also
upon affirmative misrepresentations allegedly made by his counsel that he was not subject to
deportation.

On May 9, 2019, the Court ordered additional briefing by the parties regarding whether or
not it was a settled rule of law at the time Hurbenca's conviction became final, that affirmative

misrepresentations regarding the deportation consequences of a guilty plea fell within the ambit of
a criminal defendant's Sixth Amendment right to effective assistance of counsel. Civ. Doc. 11.

Given the complexity of the legal issue ordered to be briefed, the Court determined that "the
interests of justice so require" that counsel be appointed to represented Hurbenca in this matter
and accordingly issued an order for appointment of counsel. Civ. Doc. 10.

On July 10, 2019, the Government filed its response to the Court's order for additional
briefmg. Civ. Doc. 17.

On July 22,2019, Hurbenca filed a motion to dismiss his § 2255 motion, Civ. Doc. 18,and
a consent to dismissal ofthe motion which was executed by Hurbenca on July 22,2019, Civ. Doc.

19. The motion states that counsel has fully reviewed Hurbenca's motion, the claims presented

therein, and the Court's Order Requesting Additional Briefing with Hurbenca and that in
consultation with counsel, Hurbenca as decided to request dismissal of his motion, including his

request that the Court vacate his sentence and expunge his record in order to stop the deportation
process.

Accordingly, it is hereby ORDERED that Hurbenca's Motion to Vacate, Set Aside or
Correct Sentence pursuant to 28 U.S.C. § 2255, Civ. Doc. 1 and Crim. Doc. 82, is DISMISSED
without prejudice.

Dated this (y day of July, 2019.
BY THE COURT:

irence L. Piersol

United States District Judge
ATTEST;

MATTHEW W.THELEN,CLERK