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United States v. Khan

United States District Court, W.D. Louisiana, Shreveport Division

March 14, 2019

UNITED STATES OF AMERICA
v.
BABAR KHAN

          HORNSBY MAGISTRATE JUDGE

          MEMORANDUM RULING

          ELIZABEITI ERNY FOOTE UNITED STATES DISTRICT JUDGE

         Defendant Babar Khan ("Khan") petitions for a writ of coram nobis. [Record Document 74]. In Khan's case, the writ may issue only if the holding of Padil/a v. Kentucky, 559 U.S. 356 (2010), applies retroactively to cases on collateral review. Because the Supreme Court has held that Padilla's holding does not, Chaidez v. United States, 568 U.S. 342 (2013), Khan's petition is DENIED.

         In 2004, Khan, a Pakistani national living in the United States, pleaded guilty to one count of Trafficking in Counterfeit Goods in violation of 18 U.S.C. § 2320. [Record Documents 1 and 57]. He was sentenced to three years of supervised probation and a $1, 000 fine. [Record Document 63]. Khan neither appealed nor pursued collateral review. [Record Document 74 at 2]. In 2013, the Department of Homeland Security initiated removal proceedings. [Record Document 69]. Because Khan's conviction provides grounds for his removal, he seeks to vacate his guilty plea via a writ of coram nobis. [Record Document 74 at 3- 4]. Khan argues that his attorney's failure to warn him that a guilty plea might result in deportation deprived him of effective assistance of counsel. [Id. at 6-8].

         A writ of coram nobis is an "extraordinary- remedy/' United States v. Esogbue, 357 F.3d 532, 534 (5th Or. 2004) (citing United States v. Morgan, 346 U.S. 502, 512 (1954)), that may issue "only when no other remedy is available and when 'sound reasons existf] for failure to seek appropriate earlier relief," United States v. Dyer, 136 F.3d 417, 422 (5th Cir. 1998) (quoting Morgan, 346 U.S. at 512). Although "traditionally available only to bring before the court factual errors 'material to the validity and regularity of the legal proceeding itself, "' Carlisle v. United States, 517 U.S. 416, 429 (1996) (quoting United States v. Mayer, 235 U.S. 55, 68 (1914)), the writ may also be sought by a petitioner who is not in custody but who faces collateral consequences of a criminal conviction, Escogbue, 357 F.3d at 534 (quoting Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996)). Here, Khan faces removal, a significant collateral consequence. See Chaidez 568 U.S. at 352 (citing Padilla, 559 U.S. at 365-66). Because he is not in custody, both parties agree that a writ of coram nobis is the proper procedural vehicle. [Record Documents 74 at 3 and 83 at 3].

         In Padilla, the Supreme Court held that the Sixth Amendment right to counsel includes the right of non-citizens to be advised of the possible immigration consequences of a guilty plea. 559 U.S. at 366. Khan maintains that his attorney did not advise him that by pleading guilty he risked deportation and argues that Padilla requires vacating his plea. [Record Document 74 at 4-6]. However, Khan pleaded guilty in 2004; Padilla was decided in 2010. Hence, as both parties agree, the writ can issue only it Padilla applies retroactively to Khan's case. [Record Documents 74 at 5-6 and 83 at 4].

         Although Khan creatively argues for Padilla's retroactive application, [Record Document 74 at 8-18], the Supreme Court has reached the opposite conclusion. In Chaidez v. United States the Court affirmed the denial of a petition for a writ of coram nobis seeking to vacate a guilty plea that now exposed the petitioner to deportation. 568 U.S. at 345. To reach its decision, the Court applied the principle of Teague v. Lane: when the Supreme Court "announce[s] a 'new rule/ a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding." Id. at 347 (citing Teague v. Tane, 489 U.S. 288 (1989)). The Court concluded that Padilla had announced a new rule of criminal procedure and, as a result, did not apply to cases that were final before Padilla was handed down. Id. at 344.

         Khan claims that the Chaidez Court "reserved the question-and directed lower courts to consider-whether Padilla applies retroactively in a particular subset of cases: those in which a defendant challenges a federal conviction in a properly filed first post-conviction motion." [Record Document 74 at 5]. This is a misreading of Chaidez. Chaidez did not concern whether the constitutional challenge was raised in a first or a second petition for post-conviction relief. Rather, the case concerned timing, i.e., whether a Padilla challenge could be raised on collateral review against a conviction that became final before Padilla was handed down. Chaidez 568 U.S. at 344.

         Khan's situation neatly mirrors Chaidez's. Like Chaidez, id. at 345, Khan was a non-citizen convicted of a non-violent federal offense, [Record Document 74 at 2]. Like Chaidez, Chaidez 568 U.S. at 345, he pleaded guilty and was sentenced to probation, [Record Document 74 at 2]. Like Chaidez, see United States v. Chaidez No. 03 CR 636-6, 2010 WL 2740282, at *1 (N.D. 111. July 8, 2010), he never challenged his sentence on either direct or collateral review, [Record Document 74 at 2]. Like Chaidez, Chaidez 568 U.S. at 345, he was placed in removal proceedings at some point after he had completed his term of probation, [Record Document 74 at 1]. Like Chaidez, Chaidez 568 U.S. at 345, he petitioned for a writ of coram nobis on grounds that his attorney did not alert him to the immigration consequences of his guilty plea, [Record Document 74 at 3-4]. Because the Supreme Court determined that Chaidez could not use a writ of coram nobis to avail herself of the holding of Padilla, Chaidez 568 U.S. at 344, 358, this Court feels constrained to reach the same conclusion in Khan's factually identical case. The petition for a writ of coram nobis [Record Document 74] is DENIED.

         THUS ...


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