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Robles-Adame v. United States

United States District Court, S.D. California

June 7, 2017

HERSON OSVALDO ROBLES-ADAME, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING PETITIONER'S 28 U.S.C. § 2255 MOTION TO VACATE CONVICTION [ECF NO. 1]

          Hon. Gonzalo P. Curiel United States District Judge.

         I. INTRODUCTION

         Herson Robles-Adame (“Petitioner”) filed a Motion to Vacate Conviction (“Motion”) under 28 U.S.C. § 2255. (Dkt. No. 31.) The United States (“Respondent”) filed a response, agreeing that based on the law and facts of Petitioner's Motion, Petitioner's conviction should be vacated. (Dkt. No. 35 at 1.) For the reasons set forth below, the Court GRANTS Petitioner's Motion to Vacate Conviction under 28 U.S.C. § 2255.

         II. BACKGROUND

         On December 14, 1994, Petitioner was born in Tijuana, Mexico. (Dkt. No. 31 at 17.) When he was twelve years old, he came to the United States. (Id.) About one year after his arrival, he became a lawful permanent resident. (Id.) Petitioner claims that his “life is in the United States, not Mexico.” (Id. at 19.) He attended middle school and high school in San Diego County. (Id. at 17.) Most of his family, including his girlfriend and young child, continue to reside in the United States. (Id. at 17-18.)

         On July 9, 2015, Petitioner waived indictment and was charged by a criminal information with bringing in aliens without presentation and aiding and abetting in violation of 8 U.S.C. § 1324(a)(2)(B)(iii) and 18 U.S.C. § 2. (Dkt. No. 14.)[1] The Honorable Nita L. Stormes appointed attorney Gary Edwards (“Edwards”) as counsel for Petitioner. (Dkt. No. 3.) Each of the four or five times Petitioner met with Edwards, Petitioner asked how a conviction for alien smuggling would affect his immigration status. (Dkt. No. 31 at 18.) In response, Edwards only told Petitioner that removal was a possible consequence, even though the relevant immigration statute states otherwise. (Id.) Section 237 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(E), states that “[any] alien who . . . knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of the law is deportable.” On July 21, 2015, Petitioner pled guilty to the information before Judge Stormes. (Dkt. No. 18.) The plea agreement states, “Defendant further understands that the conviction in this case may subject defendant to various collateral consequences, including but not limited to deportation, removal or other adverse immigration consequences[.]” (Id. at 6). The agreement also contains an immigration consequences section, which explains, “pleading guilty may have consequences with respect to his/her immigration status if he/she is not a citizen of the United States.” (Id. at 10.) On August 6, 2015, the Court issued an order accepting Petitioner's guilty plea. (Dkt. No. 21.)

         On November 6, 2015, Petitioner was sentenced by the Court to twelve months and a day in custody and two years of supervised release. (Dkt. No. 28.) During the sentencing hearing, Edwards indicated that Petitioner would be removable following conviction. (Dkt. No. 29 at 4.)

         On November 18, 2016, Petitioner filed a Motion to Vacate Conviction. (Dkt. No. 31.) Petitioner claims that had he been properly advised, he would not have pled guilty to a removable offense. (Id. at 18.) Alternatively, Petitioner claims that with adequate counsel, he would have gone to trial and risked a longer prison term. (Id. at 19.)

         On February 3, 2017, Respondent filed a Response to Petitioner's motion indicating its non-opposition to Petitioner's motion. (Dkt. No. 35.)

         III. LEGAL STANDARD

         Section 2255 authorizes the Court to “vacate, set aside, or correct the sentence” of a federal prisoner on “the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a). To warrant relief under § 2255, a prisoner must allege a constitutional or jurisdictional error, or a “fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

         IV. DISCUSSION

         Petitioner challenges his conviction under 28 U.S.C. § 2255 on grounds that his counsel provided ineffective assistance by failing to adequately advise him regarding the immigration consequences of his plea. (Dkt. No. 31 at 3.)

         A. ...


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