United States v. Khang Tran

Ninth Circuit

United States v. Khang Tran

623 F. App'x 350

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 23, 2015

Docket14-30238

StatusUnpublished

This text of 623 F. App'x 350 (United States v. Khang Tran) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Khang Tran, 623 F. App'x 350 (9th Cir. 2015).

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Opinion

MEMORANDUM **

Khang Kien Tran appeals from the district court’s order denying his petition for a writ of error coram nobis. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s denial of a petition for a writ of error coram nobis, see United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir.2007), and we vacate and remand.

Tran argues that he received ineffective assistance of counsel in connection with' his guilty plea, citing both Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), and United States v. Kivan, 407 F.3d 1005 (9th C3r.2005). The district court correctly concluded that Tran is not entitled to relief under Padilla, as that decision does not apply retroactively. See Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 1113,185 L.Ed.2d 149 (2013); see also United States v. Sanchez-Cervantes, 282 F.3d 664, 667 (9th Cir.2002) (retroactivity framework of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), applies to collateral attacks on federal convictions).

The district court did not separately address Tran’s reliance on Kwan. Insofar as the district court rejected that argument, it did not have the benefit of our decision in United States v. Chan, 792 F.3d 1151, 1154 (9th Cir.2015), which concluded that Padilla did not fully abrogate Kwan. Further, because Tran’s conviction became final after Kwan, retroactivity concerns do not bar Tran from asserting that counsel’s affirmative misrepresentations regarding the immigration consequences of his guilty plea constituted ineffective assistance. We accordingly vacate the district court’s order denying Tran’s petition. We remand the case to the district court to address this claim and reconsider whether Tran qualifies for coram nobis relief. In so doing, we express no opinion as to the merits of Tran’s claim.

The government’s motion to supplement the record is denied as unnecessary.

VACATED and REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provid *352 ed by 9 th Cir. R. 36-3.

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MEMORANDUM **

Khang Kien Tran appeals from the district court’s order denying his petition for a writ of error coram nobis. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s denial of a petition for a writ of error coram nobis, see United States v. Riedl, 496 F.3d 1003, 1005 (9th Cir.2007), and we vacate and remand.

Tran argues that he received ineffective assistance of counsel in connection with' his guilty plea, citing both Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), and United States v. Kivan, 407 F.3d 1005 (9th C3r.2005). The district court correctly concluded that Tran is not entitled to relief under Padilla, as that decision does not apply retroactively. See Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 1113,185 L.Ed.2d 149 (2013); see also United States v. Sanchez-Cervantes, 282 F.3d 664, 667 (9th Cir.2002) (retroactivity framework of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), applies to collateral attacks on federal convictions).

The district court did not separately address Tran’s reliance on Kwan. Insofar as the district court rejected that argument, it did not have the benefit of our decision in United States v. Chan, 792 F.3d 1151, 1154 (9th Cir.2015), which concluded that Padilla did not fully abrogate Kwan. Further, because Tran’s conviction became final after Kwan, retroactivity concerns do not bar Tran from asserting that counsel’s affirmative misrepresentations regarding the immigration consequences of his guilty plea constituted ineffective assistance. We accordingly vacate the district court’s order denying Tran’s petition. We remand the case to the district court to address this claim and reconsider whether Tran qualifies for coram nobis relief. In so doing, we express no opinion as to the merits of Tran’s claim.

The government’s motion to supplement the record is denied as unnecessary.

VACATED and REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provid *352 ed by 9 th Cir. R. 36-3.

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