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Andy Song v. United States of America

June 27, 2011

ANDY SONG, PLAINTIFF(S),
v.
UNITED STATES OF AMERICA, DEFENDANT(S).



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

ORDER GRANTING MOTION TO VACATE JUDGMENT (CORAM NOBIS)

Before the Court is Petitioner Andy Song's Petition to Vacate Judgment Coram Nobis ("Petition") (Docket 1). After considering the moving, opposing and replying papers, and for the reasons explained below, the Court GRANTS the Petition.

I. BACKGROUND

Petitioner Andy Song ("Mr. Song" or "Petitioner") was born in South Korea and legally entered the U.S. on a C-1/D transit visa in 1987 at the age of 28. On March 22, 1995, Petitioner gained lawful permanent resident status in the country. Exh. G to Gov.'s Opp. at 1. On September 20, 1995, Mr. Song 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 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). Transcript of Proceedings, Change of Plea at 4, U.S. v. Andy Song, No. CR 98-806 CM, attached as Exh. H to Gov.'s Opp.. The plea agreement used the word "fraudulently" and indicated a loss of $116,946.64 to the United States. Plea Agreement at 2, 16, U.S. v. Andy Song, No. CR 98-806 CM, attached as Exh. B to Gov.'s Opp.. On April 12, 1999, the court sentenced Petitioner to five years probation with six months home detention and restitution of $116,946.64. Transcript of Proceedings, Sentencing at 9, U.S. v. Andy Song, No. CR 98-806 CM, attached as Exh. I to Gov.'s Opp. ("Sentencing Transcript"). Mr. Song declares that, prior to advising him to enter into this plea, his criminal counsel ("Counsel") did not inform him of the immigration ramifications of doing so. In his deposition, Counsel admitted to failing to discuss the immigration consequences of a conviction for this type of crime with Mr. Song. See infra Part III.

Mr. Song is married to a U.S. citizen. He has two children with his wife, both of whom are U.S. citizens. At the time of Mr. Song's 1998 conviction, Mr. Song provided the principal means of financial support to his family. Sentencing Transcript at 7 (government attorney explaining that, even during his time under house arrest, Mr. Song served as "the principal means of sustaining [his] business and the family.")

On November 22, 2002, the Immigration & Naturalization Services ("INS") initiated removal proceedings against Mr. Song. 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. Order of Immigration Judge, In the Matter of Song, Ki-Sok, A72-905-099, attached as Exh. G to Gov.'s Opp. ("IJ Order"). Therefore, the Immigration Judge concluded that Mr. Song had been convicted of an aggravated felony as described in 8 U.S.C. § 1101(a)(43)(M)(1). Id. Under 8 U.S.C. § 1227 (a)(2)(A)(iii), any person convicted of an aggravated felony is deemed deportable. The Immigration Judge thus ordered Mr. Song removed to Korea. Id. The Board of Immigration Appeals affirmed this holding without opinion on October 11, 2007. Order of Board of Immigration Appeals, In the Matter of Song, Ki-Sok, A72-905-099, attached as Exh. G to Gov.'s Opp. Petitioner then filed a further appeal with the Ninth Circuit, which is still pending. Song, et al. v. Holder, Case No. 07-74265. Mr. Song faces mandatory deportation.

With the instant Petition, Mr. Song moves the Court to vacate his guilty plea coram nobis on the grounds that his Counsel provided ineffective assistance by failing to inform him of the immigration consequences of the plea deal that he signed.

II. LEGAL STANDARD

The writ of coram nobis is an extraordinary remedy that allows a petitioner to attack an unconstitutional or unlawful conviction after the petitioner has served his sentence and is no longer in custody. United States v. Morgan, 346 502, 511 (1954); Estate of McKinney v. United States, 71 F.3d 779, 781 (9th Cir. 1995). "The writ provides a remedy for those suffering from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of facts and egregious legal errors." United States v. Walgren, 885 F.2d 1417, 1420 (9th Cir. 1989) (internal citations and quotations omitted). To qualify for coram nobis relief, a petitioner must establish 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 to satisfy the case and controversy requirement of Article III; and (4) the error suffered is of the most fundamental character. United States v. Kwan, 407 F.3d 1005, 1011 (9th Cir. 2005) (abrogated on other grounds by Padilla, 130 S.Ct. 1473 (2010)).

III. DISCUSSION

The government does not contest that Mr. Song has satisfied the first three elements of the test for coram nobis relief. The dispute between the parties centers on the fourth prong of the analysis: whether the error Mr. Song suffered is of the most fundamental character. Kwan, 407 F.3d at 1011. Ineffective assistance of counsel has been recognized as the type of fundamental error sufficient to justify coram nobis relief. See Kwan, 407 F.3d at 1014. Accordingly, if Mr. Song can establish that his counsel's performance was constitutionally deficient, his Petition must be granted.

Mr. Song has succeeded in making this showing. Strickland v. Washington, 466 U.S. 668 (1984) governs claims for ineffective assistance of counsel. In Strickland, the Supreme Court articulated a two-part test to gauge whether an attorney's efforts fell below the minimum level of adequacy guaranteed by the Sixth Amendment. Specifically, the petitioner must show (1) that his counsel's actions were "objectively unreasonable" and (2)that the petitioner suffered prejudice as a result. Id.The Court considers each factor in turn.

a. Adequacy of Representation

In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the United States Supreme Court held that failure to inform a client of the immigration consequences of his or her plea deal constitutes ineffective assistance of counsel in violation of the Sixth Amendment. Id. at 1486 ("It is our responsibility under the Constitution to ensure that no criminal defendant -- whether a citizen or not -- is left to the mercies of incompetent counsel. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.").*fn1 The Ninth Circuit has further clarified that a defendant who, like Mr. Song, "faces almost certain deportation" as a result of a conviction ...


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