United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on remand from the U.S. Court of
Appeals for the Eighth Circuit for an evidentiary hearing on
Defendant Dilang Dat's claim of ineffective assistance of
counsel under 28 U.S.C. § 2255. See Dat v. United
States, 920 F.3d 1192 (8th Cir. 2019). An evidentiary
hearing was held on September 12 and 13, 2019, and this Court
makes the following findings and conclusions.
AND PROCEDURAL BACKGROUND
December 9, 2014, Dat and three co-defendants were charged in
a 17-count Indictment. The charges against Dat were Count
XIII and Count XIV, both Hobbs Act Robberies in violation of
18 U.S.C. § 1951. He faced potential terms of
incarceration of up to 20 years on each count.
received court-appointed counsel on December 19, 2014. He was
dissatisfied with his representation and sought appointment
of new counsel. His request was granted on March 13, 2015,
and a second attorney was appointed on March 16, 2015. Dat
was dissatisfied with his second court-appointed counsel and
was denied a third court-appointed counsel on April 8, 2015.
Superseding Indictment was filed on December 8, 2015, adding
Count XVIII as to Dat and certain co-defendants, for
brandishing a firearm in furtherance of a crime of violence,
in violation of 18 U.S.C. § 924(c). Dat faced a
potential term of not less than seven years and up to life
imprisonment on Count XVIII, consecutive to any terms imposed
on Counts XIII and XIV.
continued to be dissatisfied with the performance of his
second court-appointed counsel, and his request for a third
court-appointed counsel was again denied on December 15,
2015. On December 18, 2015, the case was set for trial
commencing March 14, 2016.
March 4, 2016, attorney Kyle Allen entered her appearance as
Dat's retained counsel, and his court-appointed counsel
moved to withdraw. At a hearing before Magistrate Judge F.A.
Gossett, III on March 9, 2016, Allen acknowledged that she
was aware of the trial date and would be prepared to proceed.
Accordingly, Judge Gossett granted court-appointed
counsel's motion to withdraw.
March 10, 2016, Dat gave notice of his request for a Rule 11
hearing. On March 14, 2016, he entered his plea of guilty to
Count XIII of the Superseding Indictment and his Petition to
Enter a Plea of Guilty and his Plea Agreement were filed. The
Plea Agreement provided for a stipulated sentence of 78
months incarceration, pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C), and a term of supervised release to be
determined by the Court. In the Plea Agreement, the parties
also stipulated that Dat participated in the robbery that was
the subject of Count XIV and that his conduct in connection
with that count would be considered for purposes of
determining the applicable guideline range and restitution as
if he had entered a plea of guilty to that count, although
both Count XIV and Count XVIII would be dismissed at the time
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.
21, 2017, Dat filed a pro se Motion under 28 U.S.C.
§ 2255, raising three claims for relief, including a
claim that his retained counsel was ineffective for failing
to notify him that he would suffer deportation consequences
as a result of his conviction: “Counsel was ineffective
for failing to properly inform Mr. Dat that his guilty plea
would result in deportation. Mr. Dat was under the mistaken
impression that because he was in the United States legally
as he was a lawful permanent resident, his immigration status
would be secure.” ECF No. 342 at Page ID #2300.
pro se Motion was denied without prejudice, because
he was represented by attorney Allen who was actively
involved in the proceedings. ECF No. 343. Allen then moved to
withdraw; her motion was granted; and the Court deemed
Dat's § 2255 Motion timely filed.
Court's Memorandum and Order considering the merits of
Dat's § 2255 Motion, the Court summarily denied
relief on all three claims. With respect to Dat's claim
that his counsel was ineffective for failing to advise him of
the immigration consequences of his plea, the Court stated:
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.
Memorandum and Order, ECF No. 354 at Page ID #2350.
Court issued a Memorandum and Order denying Dat's §
2255 Motion, and a Judgment, on August 21, 2017. On September
15, 2017, Dat moved the Court to set aside its Judgment
pursuant to Fed.R.Civ.P. 60(b)(6) and submitted an affidavit
in which he stated that his retained counsel affirmatively
told him he would not be deported as a result of his
guilty plea. In his affidavit he also asserted that he was
actually innocent of the charge to which he pled guilty. The
Court denied Dat's motion to set aside the Judgment under
Rule 60(b)(6), and Dat appealed. The Court of Appeals,
relying on the assertions in Dat's post-Judgment
affidavit, remanded the matter for an evidentiary hearing.
to the remand, this Court held an evidentiary hearing on
September 12 and 13, 2019. Dat was present and represented by
new court-appointed counsel at the hearing.
Allen practiced criminal law in the state of Nebraska
beginning in 2011, primarily in state court. She was
associated with attorney Steve Lefler, who for forty years
had specialized in criminal defense, including federal
last day of February or the first day of March 2016, Allen
agreed to represent Dat for a retainer fee of $7, 500, and an
additional fee of $2, 500 if the matter went to trial. Allen
arranged for Lefler to co-chair the trial. Dat told Allen he
was concerned about deportation, because of violence in his
native country and because he had come to the United States
at the age of two years. She told him the charges he faced
were all “deportable offenses” and if he were
convicted or entered a guilty plea he would face deportation
proceedings. Allen told Dat she did not practice immigration
law and she gave him the name of an immigration lawyer.
the pretrial proceedings, Dat received, or believed he
received, one or more oral or written offers of plea
agreements, with language providing for stipulated removal,
i.e., stipulated deportation. He rejected those
offers or perceived offers.
Dat retained Allen, he told her he did not want her to file
any motion to continue the trial, which was scheduled for
March 14, 2016. On March 8, 2019, the Government offered a
plea agreement that did not provide for stipulated removal,
although it stated: “Defendant acknowledges that there
are or may be collateral consequences to any conviction to
include but not limited to immigration[.]”. Ex. 102,
Plea Agreement, ECF No. 214 at Page ID #679. Dat told Allen
he wanted to accept that offer and he would deal with the
consequences regarding his immigration status. Allen
suggested that Dat retain an immigration lawyer with the $2,
500 he saved by not going to trial. At no time did Allen tell
Dat he would not be deported. Allen did tell Dat that
although deportation proceedings would occur, and she did not
know when they would start, he should not be deported until
after he served his sentence.
reviewed the Plea Petition with Dat, including language
stating that non-U.S. citizens would be permanently removed
from the country if found guilty of most federal felony
offenses. She explained to him that his case involved one of
the felony offenses that would subject him to deportation.
time between March 9 and 14, 2016, Allen met with Dat's
mother, Thokat Kouth, for the purpose of informing her of the
terms of the Plea Agreement and to receive the fee. Dat's
mother spoke a Sudanese dialect and conversed with Allen
through an interpreter. Dat's mother gave Allen $2, 500
more than what was owed. Allen counted the cash and returned
$2, 500 to Dat's mother and told her to use that ...