The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING PETITIONER'S MOTION FOR STAY OF REMOVAL
Petitioner Dimitri Valeryevich Tatarinov, represented by counsel, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. Petitioner is in custody of the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") Detention and Removal Center in this District pending his removal to Russia. Petitioner filed a Motion for Stay of Removal During Pendency of Application for Writ of Habeas Corpus. For the reasons which follow, Petitioner's motion for stay is GRANTED.
The underlying facts, contained primarily in Petitioner's motion to stay, Consolidated Petition, Excerpt of Record ("ER") and Declaration of Samuel W. Bettwy filed in opposition to the Consolidated Petition ("Bettwy Decl."), are not disputed. Petitioner, a native of Russia and citizen of the former Soviet Union, came to the United States from the former Soviet Union as a non-immigrant student in May 1992. The same year, he applied for asylum based on his fear of return due to the problems and threats he received in the former Soviet Union. He married a United States citizen in 1994. In 1995, he was granted Conditional Permanent Resident Status based on marriage. In 1996, he filed a petition to remove this status; however, the petition was not adjudicated until June 9, 2000. (Bettwy Decl. Ex. at 54.)
In August 1995, Petitioner was convicted of misdemeanor petty theft and was sentenced to one year probation. In August 1996, Petitioner was caught taking a jacket from a department store. Because of allegations of use of force against a store security guard, Petitioner was charged with robbery. At trial, Petitioner was represented by Vladimir Verhovskoy. Petitioner and his subsequent counsel, Jerome Wallingford, believe Petitioner had a valid defense to the charge of robbery; however, due to Mr. Verhovskoy's negligence, the jury was not instructed on the defense. (Mtn. to Stay Ex. C.) In Mr. Wallingford's opinion, the case was a shoplifting incident and should have been resolved as a misdemeanor. However, Petitioner was found guilty of robbery ("1996 Conviction"). (Id.) He was sentenced to 270 days in custody. The custodial sentence was suspended and Petitioner was granted three years of probation.
Petitioner, represented by Mr. Verhovskoy, timely appealed his 1996 Conviction on November 14, 1996. However, Mr. Verhovskoy failed to file an appellate brief and the appeal was dismissed on April 28, 1997. When Petitioner inquired about the status of the appeal, Mr. Verhovskoy did not tell him that the appeal was dismissed, but gave vague and misleading explanations why a decision had not yet been issued. (ER at 130.)
On April 13, 1998, Petitioner was apprehended by the Immigration and Naturalization Service ("INS") and placed in removal proceedings based on his 1995 and 1996 criminal convictions. Pending processing of Petitioner's request for a hearing to determine whether he could remain in the United States, Petitioner was released from INS custody on bond.
On October 19, 1998, on Mr. Verhovskoy's advice, Petitioner pled guilty to another shoplifting charge. Based the prior robbery conviction, he was convicted of a felony ("1998 Conviction"). He was sentenced to 364 days in custody, but the sentence was suspended and Petitioner was placed on probation. This conviction was added to the charges and factual allegations in Petitioner's removal proceedings. (Bettwy Decl. Ex. at 3-6, 10.)
Starting in 1998, Petitioner began therapy with a psychiatrist to address the shoplifting incidents, which were allegedly not caused by financial need but by psychological problems. (ER at 122; Mtn to Stay Ex. D.) He successfully completed probation and has no further criminal record.
Due to counsel's failure to inform Petitioner that the appeal of the 1996 Conviction was dismissed, Petitioner did not learn of this fact until the summer of 1998, when Petitioner's wife inquired directly with the court. (ER at 130.) After being confronted in September 1999, Mr. Verhovskoy filed a motion to set aside the dismissal and reopen the appeal. (ER at 11, 14-22.) It included only a vague explanation for failure to file the brief ("financial and medical catastrophes") and did not explain the two-year delay between the dismissal and motion to reopen. (ER at 14-22.) The motion was denied. (ER at 24.)
On September 9, 1999, Petitioner, represented by Mr. Verhovskoy, filed a habeas corpus petition in this District (case no. 99cv1911-IEG(LSP)) pursuant to 28 U.S.C. § 2241, challenging the constitutionality of the INS's use of the underlying convictions as the basis for removal. The petition was dismissed without prejudice as premature. (See order filed Jan. 19, 2000 in case no. 99cv1911.) The court held it was premature to consider Petitioner's constitutional challenge before the INS had a chance to finally rule on whether he was removable based on his prior convictions.
When the motion to reopen the appeal of the 1996 Conviction was denied on September 24, 1999 (ER at 24), Mr. Verhovskoy advised Petitioner that nothing could be done to revive the appeal and advised filing a motion in the Superior Court to expunge the conviction. On April 13, 2000, Petitioner's motion to the San Diego Superior Court pursuant to California Penal Code Section 1203.4 to set aside the 1996 Conviction was denied. (ER at 26.) On November 3, 2000, the court denied Petitioner's motion to terminate probation associated with the 1996 Conviction.
On December 22, 2000, during the pendency of immigration proceedings, Mr. Verhovskoy informed Petitioner he was withdrawing from representation. (ER at 30.) On January 19, 2001, Petitioner received a copy of the State Bar of California's Stipulation Form -Actual Suspension, indicating Mr. Verhovskoy had been suspended by the State Bar of California in September 2000. (ER at 130.) On January 28, 2001,*fn1 Petitioner filed a complaint against Mr. Verhovskoy with the State Bar of California. (ER at 128-30.) Petitioner had been represented by Mr. Verhovskoy since 1996, and had paid him over $20,000 in fees for representation in immigration matters, criminal defense and related appeal. Based on Petitioner's complaint and State Bar investigation, Mr. Verhovskoy admitted to some violations. On February 5, 2003 he was again suspended from the practice of law. (ER at 131-34.)
In the summer of 2001, Petitioner retained new counsel, Mr. Wallingford. On August 30, 2001, Mr. Wallingford filed a motion to reinstate the appeal of Petitioner's 1996 Conviction with the California Court of Appeal. The motion was denied (ER at 34) and the California Supreme Court denied review (ER at 36).
On February 15, 2002, Petitioner filed a habeas corpus petition with the California Court of Appeal, which was denied. (ER at 38.) The California ...