United States District Court, W.D. Washington, Seattle
ORDER DENYING DEFENDANT'S MOTION FOR WRIT OF
ERROR CORUM NOBIS
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on remand from the Ninth
Circuit to reconsider the motion by Defendant Khang Thien
Tran petitioning the Court to issue a Writ of Corum Nobis.
Dkt. #465. The Court originally denied this Motion on October
24, 2014, based on its interpretation of Padilla v.
Kentucky, 130 S.Ct. 1473 (2010). Dkt. #471. Defendant
appealed to the Ninth Circuit. Dkt. #472. The Ninth Circuit
ruled that Defendant's Motion presented two arguments for
relief, only one of which was properly precluded by
Padilla. Defendant's other claim, relying on
United States v. Kwan, 407 F.3d 1005 (9th Cir.
2005), argued that his conviction should be vacated based on
the claim that his lawyer provided him with inaccurate legal
advice regarding the immigration consequences of his plea. In
United States v. Chan, 792 F.3d 1151(9th Cir. 2015),
a case decided after this Court's order denying
Defendant's petition, the Ninth Circuit held that its
decision in Kwan survived Padilla.
Id. at 1154. As a result, the Ninth Circuit has
remanded Defendant's case to this Court for a
determination of that issue. The parties agreed to a briefing
schedule with a new response brief from the Government and a
reply brief from Defendant. Dkt. #481. For the reasons stated
below, the Court DENIES Defendant's Motion.
Tran was born in Vietnam in 1974. Dkt. #465-1 at 1. Mr. Tran
later immigrated to the United States, becoming a lawful
permanent resident on January 18, 1990, at the age of 15.
Id. at 2.
Defendant's criminal case, Mr. Tran and thirteen
codefendants were charged with conspiracy to distribute 100
kilograms or more of marijuana in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 846, an offense
carrying a mandatory minimum five-year prison term. Dkt. #22.
See 21 U.S.C. § 841(b)(1)(B). The Superseding
Indictment added two additional charges against Mr. Tran for
the distribution of an unspecified amount of marijuana, in
violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(D)
(Counts 7 and 9). Dkt. #196.
of a written plea agreement, Mr. Tran was permitted to plead
guilty to the lesser-included offense of conspiracy to
distribute at least 50 kilograms but less than 100 kilograms
of marijuana, in violation of 21 U.S.C. §§ 841(a)
and 841(b)(1)(C), an agreement that permitted Tran to avoid a
mandatory minimum five-year prison term. See Dkt.
change-of-plea hearing Mr. Tran had the benefit of an
interpreter, Dkt. #483-1 at 2, even though he had not sought
the assistance of an interpreter at other hearings.
See Dkt. 109-144. At the start of the change-of-plea
hearing, his counsel specifically informed the court that,
although Mr. Tran spoke English “quite well, ” an
interpreter was present because Tran wanted to make sure he
understood everything that occurred during the change-of-plea
proceedings. Dkt. #483-1 at 3. The record establishes that
Mr. Tran responded in English to the magistrate judge's
questions. See Id. at 2-18.
in the hearing, the magistrate judge specifically informed
Mr. Tran that, if he was not a United States citizen, his
guilty plea could result in his deportation. Id. at
8. When asked if he understood that fact, Tran answered
“yes” in English. Id. He did not request
either a further explanation from the court or time to
consult with his counsel about this point. Tran also did not
seek to withdraw his plea during the more than two weeks that
passed before the Court entered the order accepting his
guilty plea. See Dkt. 264, 271. Before this
petition, Tran had never sought to withdraw his guilty plea.
Tran was sentenced to 18 months of imprisonment on September
11, 2007. Dkt. #344. After release from prison, Mr. Tran was
taken into custody by the Department of Homeland Security and
brought before an immigration judge. Dkt. #465-1 at 5. Mr.
Tran says he signed papers that permanently relinquished his
lawful permanent resident status, although he did not
understand that at the time. Id.
September 12, 2014, Mr. Tran filed the instant Motion
petitioning for a writ of error coram nobis. Dkt. #465. This
motion argues that Mr. Tran's erroneous guilty plea
“made him removable from the United States as a matter
of law, ” and that “his conviction bars him from
applying for the primary forms of relief from deportation in
removal proceedings.” Id. at 9-10.
defendant who has fully served his sentence may still
challenge his conviction through a petition for a writ of
error coram nobis. Hirabayashi v. United States, 828
F.2d 591, 604 (9th Cir. 1987). This writ is a “highly
unusual remedy, available only to correct grave injustices in
a narrow range of cases where no more conventional remedy is
applicable.” United States v. Riedl, 496 F.3d
1003, 1005 (9th Cir. 2007). The Ninth Circuit has held that
to be eligible for coram nobis relief, a petitioner must
demonstrate that: “(1) a more usual remedy is not
available; (2) valid reasons exist for not attacking the
conviction earlier; (3) adverse consequences exist from the
conviction sufficient to satisfy the case or controversy
requirement of Article III; and ...