United States District Court, S.D. California
ORDER GRANTING PETITIONER'S 28 U.S.C. § 2255
MOTION TO VACATE CONVICTION [ECF NO.
Gonzalo P. Curiel United States District Judge.
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.
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.)
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.
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.)
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.)
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.
February 3, 2017, Respondent filed a Response to
Petitioner's motion indicating its non-opposition to
Petitioner's motion. (Dkt. No. 35.)
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)).
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.)