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United States v. Dat

United States District Court, D. Nebraska

August 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DILANG DAT, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge.

         This matter is before the Court on the Defendant's Motion to Alter or Amend Order, ECF No. 347, in which the Defendant asks the Court to reconsider its Order, ECF No. 343, denying, without prejudice, his pro se Motion to Vacate under 28 U.S.C. §2255, ECF No. 342 (the “§2255 Motion”). In the Court's Order, it was noted that Defendant Dilang Dat (“Dat”) was represented by retained counsel who was actively engaged in the proceedings. Dat's retained counsel has since filed a motion to withdraw, and that motion has been granted. Accordingly, the Court will grant Dat's Motion to Alter or Amend, and will deem Dat's pro se §2255 Motion resubmitted and timely filed.

         FACTUAL AND PROCEDURAL BACKGROUND

         Dat pled guilty to Count XIII of the Superseding Indictment, charging him with a violation of 18 U.S.C. § 1951. The Court accepted Dat's guilty plea and the plea agreement, in which the parties stipulated to a sentence of 78 months incarceration, and a term of supervised release to be determined by the Court, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). In the plea agreement, the parties also stipulated that Dat participated in the robbery of a KFC that was the subject of Count XIV of the Superseding Indictment and that his conduct in connection with Count XIV would be considered for purposes of determining the applicable guideline range and restitution as if he had entered a plea of guilty to Count XIV, although both Count XIV and County XVIII of the Superseding Indictment would be dismissed as to Dat at the time of the sentencing. In the plea agreement, Dat waived his right of appeal and collateral attack, except with respect to claims of ineffective assistance of counsel, or circumstances in which the Supreme Court or the United States Court of Appeals were to determine that the charge to which Dat pled guilty did not constitute a crime.

         On June 20, 2016, Dat was sentenced to a term of 78 months incarceration and three years of supervised release. He was also ordered to pay restitution in the amount of $1, 821.25, and a special assessment of $100.00. Judgment was entered on June 20, 2016.

         DISCUSSION

         Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a § 2255 motion, and describes the initial review process:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         In his § 2255 Motion, Dat raises three grounds for relief. First, he contends that his retained counsel was ineffective for failing to inform him that he could suffer deportation consequences as a result of his guilty plea. Second, he contends that his retained counsel was ineffective for failing to move to suppress evidence in connection with a search leading to his arrest and prosecution. Third, he contends that his retained counsel was ineffective for failing to object to the imposition of restitution related to the KFC robbery.

         In order to establish ineffective assistance of counsel, Dat must satisfy both prongs of the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The performance prong requires a showing that counsel performed outside the wide range of reasonable professional assistance and made errors so serious that counsel failed to function as the kind of counsel guaranteed by the Sixth Amendment. Id. at 687-89. The prejudice prong requires a movant to demonstrate that seriously deficient performance of counsel prejudiced the defense. Id. at 687.

         Ground One: Counsels' Alleged Failure to Advise of Immigration Consequences

         Dat's Plea Agreement, ECF No. 214, which he signed and dated on March 9, 2016, contains the following statement: “Defendant acknowledges that there are or may be collateral consequences to any conviction to include but not limited to immigration . . . .“ Id. at Page ID 679. Dat was asked the following question in his Petition to Enter a Plea of Guilty, ECF No. 213, Page ID 667: “Do you understand that . . . in most federal felony cases, if you are not a U.S. citizen your guilty plea will result in your permanent removal from the United States?” Dat marked the response, “Yes.” He signed and dated the Petition on March 11, 2016. At the time of his plea, on March 14, 2016, he confirmed under penalty of perjury that all the answers in his Petition were truthful. He also stated, under oath, that he was aware of the fact that his conviction in this case could affect his immigration status. Accordingly, the Court finds Dat's first ground for relief to be without merit.

         Ground Two: Counsel's Failure to File a Motion to Suppress

         Dat does not fault his retained counsel for the failure to file a motion to suppress. He notes that she was on the case for a short time before Dat decided to enter his guilty plea, and he did not ask her to file any motion to suppress. Instead, Dat faults his ...


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