The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
Before the Court is a Petition (Dkt. 1) to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, by Defendant/Petitioner Abel Hernandez-Olivas. The government opposes and requests dismissal of Hernandez-Olivas's Petition (Dkt. 12). Petitioner filed a Reply (Dkt. 14). Being familiar with the record and having considered the briefing, the Court will deny Hernandez-Olivas's Petition, as discussed below.
On October 29, 2008, Petitioner Abel Hernandez-Olivas was indicted on counts 1 and 24 in criminal case no. 02-cr-00079, involving 20 co-defendants. Those counts charged: (1) conspiracy to possess and distribute a controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A); and (2) possession with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2. Superseding Indictment, Dkt. 101 in 08-cr-00240.*fn1 Attorney Randall S. Barnum was appointed to represent Petitioner.
Mr. Barnum informed Petitioner that he was unfamiliar with immigration law, but believed Petitioner would not be deported as a result of his plea. On July 29, 2009, Petitioner pleaded guilty to count 24 -- possession with intent to distribute a controlled substance. Rule 11 Plea Agreement, Dkt. 275. In exchange, the government dismissed the Superseding Indictment's count 1 against Petitioner. Id. On November 19, 2009, Petitioner was sentenced to five years of probation. Judgment, Dkt. 439.
Petitioner was detained by the Department of Homeland Security in January 2010, and charged with being removable due to his drug distribution conviction. Pet. Mem., Dkt. 6 at 2. Petitioner applied for asylum. But on May 19, 2010, his application was denied, and he was ordered deported and his Lawful Permanent Resident status revoked. Id. Petitioner never pursued a direct appeal, but now moves for relief under 28 U.S.C. § 2255.
A prisoner wishing to collaterally attack his sentence "may move the court which imposed the sentence to vacate, set aside or correct the sentence" under 28 U.S.C. § 2255(a). However, relief under § 2255 is only available to persons in government custody. U.S. v. Kwan, 407 F.3d 1005, 1009 (9th Cir. 2005) (abrogated on other grounds in Padilla v. Kentucky, 130 S.Ct. 1473 (2010)). For those out of custody, relief is available under the writ of coram nobis. Id. at 1009-11; 28 U.S.C. § 1651(a).
A writ of coram nobis "provides a remedy for those suffering from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact and egregious legal errors." Id. at 1009-10 (citing McKinney v. U.S., 71 F.3d 779, 781 (9th Cir. 1995)). For coram nobis relief, a Petitioner must establish four elements:
(1) that a more usual remedy is unavailable; (2) a valid basis for failing to challenge the conviction earlier; (3) adverse consequences arising from the conviction; and (4) that the error is "of the most fundamental character." Id. at 1011 (citing McKinney, 71 F.3d at 781-82).
Because Petitioner here lacks standing to pursue relief under § 2255, the first element for coram nobis relief is met -- the usual remedy is unavailable. Petitioner sought relief 11 months after judgment, and just 5 months after he was ordered deported based on his conviction. Therefore, the second element, requiring a valid basis for the timing of his petition, is also satisfied. As to the third element, the Ninth Circuit recognizes deportation as an adverse consequence. Kwan, 407 F.3d at 1014 (citations omitted). Regarding the final element, the fundamental error requirement is satisfied where a petitioner received ineffective assistance of counsel. Id.
The parties here have both proceeded under § 2255 rather than the writ of coram nobis. However, under either doctrine, the Court's analysis rests upon Petitioner's ineffective assistance of counsel claim.
1. Ineffective Assistance ...