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Song v. United States

June 3, 2010

ANDY SONG, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: David O. Carter United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION TO DISMISS

Before the Court is Respondent United States of America's Motion to Dismiss. The Court finds this matter appropriate for decision without oral argument. FED. R. CIV. P. 78; Local R. 7-15. After considering the moving, opposing, and reply papers thereon, and for the reasons set forth below, the Court hereby GRANTS IN PART AND DENIES IN PART the Motion to Dismiss.

I. BACKGROUND

Andy Song ("Petitioner") was born in South Korea and entered the U.S. on a C-1/D transit visa in 1987 at the age of 28. He is married to a U.S. citizen, and their two children are U.S. citizens.

On September 20, 1995, Petitioner was charged in the U.S. District Court for the Western District of Washington for violations of 18 U.S.C. §§ 371 (conspiracy to commit offense or to defraud the United States), 542 (entry of goods falsely classified), 545 (smuggling goods into the United States), and 2320 (trafficking in counterfeit goods or services). Petitioner was alleged to have received shipments from Korea, sent by Juan Chang, labeled as ladies fashion belts and other generic descriptions but containing merchandise manufactured in Korea resembling brand name items. Petitioner's case was transferred to the U.S. District Court in Los Angeles, and on August 24, 1998, Petitioner entered a guilty plea to 18 U.S.C. § 371 for conspiring to violate 18 U.S.C. §545 and 19 U.S.C. §1526 (importing merchandise bearing an American trademark)). The plea agreement indicated a loss of $116,946.64 to the United States. On April 12, 1999, the court sentenced Petitioner to five years probation with six months home detention and restitution of $116,946.64.

On November 22, 2002, the Immigration & Naturalization Services ("INS") initiated removal proceedings against Petitioner on the basis that his April 12, 1999 conviction was for an offense involving fraud or deceit in which the loss to the victim or victims exceeds $10,000, as defined in under 8 U.S.C. §1101(a)(43)(M)(i), or an offense involving moral turpitude. Petitioner now faces mandatory deportation. At a hearing on April 29, 2003 before the Immigration Court, Petitioner admitted to the conviction, that the loss to the victim exceeded $10,000, and that he had been convicted of a crime involving moral turpitude. Resp. Opp. at Exh. D. At another hearing on November 22, 2005, Petitioner argued that he was not convicted of an aggravated felony, that the statute he was convicted under was not fraud against the United States, and that the amount of loss was less than $10,000. Id. On February 14, 2006, the Immigration Judge found that Petitioner's conviction was for an offense involving fraud or deceit for which the loss to the victim exceeded $10,000 and that Petitioner should be removed to Korea. Id. The Board of Immigration Appeals affirmed this holding without opinion on October 11, 2007. Id. Petitioner then filed a further appeal with the Ninth Circuit, which is still pending. Song, et al. v. Holder, Case No. 07-74265.

Petitioner filed a writ of error coram nobis with this Court on July 16, 2009. Petitioner alleges that he was actually innocent of the charge of fraudulent importation. Petitioner alleges that he conspired to infringe upon trademarks that were not licensed for use by him, but did not conspire to defraud the United States by avoiding the payment of duty on expensive brand-name goods. Petitioner also alleges that he did not intend any loss to the United States.

Petitioner alternatively alleges a claim for ineffective assistance by his trial counsel. He alleges that his counsel did not advise him of the immigration ramifications of his plea and failed to . Additionally, Petitioner's counsel failed to fully examine and ensure the accuracy of the plea, which Petitioner incorrectly portrayed Petitioner's actions, and failed to inform Petitioner that he was actually innocent of the charges to which he was pleading guilty.

Respondent, the United States, now moves to dismiss the writ on the basis that it does not satisfy the requirements for coram nobis relief because Petitioner failed to attack the conviction earlier, the petition is barred by laches, and the petition is procedurally barred for failure to bring the claims on direct appeal.*fn1

II. DISCUSSION

The writ of error coram nobis "affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody," 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." Estate of McKinney v. U.S., 71 F.3d 779, 781 (9th Cir.1995) (quotation marks and citation omitted). It "is a highly unusual remedy, available only to correct grave injustices in a narrow range of cases where no more conventional remedy is applicable." U.S. v. Riedl, 496 F.3d 1003, 1005 (9th Cir. 2007).

"To qualify for coram nobis relief, a petitioner must show 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 (4) the error is of the must fundamental character." U.S. v. Njai, 312 Fed. Appx. 953, 953-54 (9th Cir. 2009) (as set forth in Hirabayashi v. U.S., 828 F.2d 591, 604 (9th Cir.1987)).

A. Valid Reasons for Not Attacking the Conviction Earlier

Respondent argues that Petitioner fails to meet the third requirement for coram nobis relief: that he had "valid reasons for not attacking the conviction earlier." Njai, 312 Fed. Appx. at 953. Petitioner argues in his opposition that the government must first demonstrate that it has been prejudiced by the delay before a court may find there were not valid reasons for the delay. Pet.'s Opp. at 8. The Ninth Circuit has explicitly rejected this argument. Riedl, 496 F.3d at 1007-08 (requiring government to first establish ...


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