United States District Court, D. Nebraska
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 ...