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United States v. Dat

United States District Court, D. Nebraska

October 24, 2019

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

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP, SENIOR UNITED STATES DISTRICT JUDGE

         This 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         On 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.

         Dat 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.

         A 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.

         Dat 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.

         On 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.

         On 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 of sentencing.

         On June 20, 2016, Dat was sentenced to a term of 78 months incarceration and three years of supervised release.[1] 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.

         On June 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.

         Dat's 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.

         In the 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.

         The 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.

         Pursuant 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.

         FINDINGS OF FACT

         Kyle 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 criminal practice.

         On the 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.

         During 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.[2] He rejected those offers or perceived offers.[3]

         When 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.

         Allen 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.

         At some 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 ...


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