Khatkarh v. Becerra

442 F.Supp.3d 1277

Narinder Singh KHATKARH, Petitioner,

v.Xavier BECERRA, Attorney General of California,¹ Respondent.

No. 2:14-cv-0079 KJM KJN P

United States District Court, E.D. California.

Signed March 5, 2020

John R. Duree, Jr., Erin J. Radekin, Attorney at Law, Sacramento, CA, for Petitioner.

ORDER

Kimberly J. Mueller, CHIEF UNITED STATES DISTRICT JUDGE

Petitioner is a former state prisoner, proceeding through counsel. In a habeas petition, petitioner challenges the legality of his 2009 conviction for assault with a firearm, claiming that, because he suffered ineffective assistance of counsel, he unwittingly entered a no contest plea to an offense constituting an aggravated felony without understanding the consequences. The aggravated felony ultimately rendered him deportable, and he is currently subject to a final order of deportation with the high likelihood he will be deported upon his next required check-in with immigration authorities this week, unless this court grants his petition. After a status conference with counsel earlier this week to address petitioner's urgent request for the court to resolve the petition now, the court has prioritized this matter in order to determine if it can decide the petition on the record as submitted, fulfilling its duty to consider the merits of the petition and respondent's opposition to granting the requested relief. Upon its review of the record and the parties' briefing, the court has been able to carefully consider the matter. The court has found it has jurisdiction to decide the petition and earlier today in an order entered on the court's docket GRANTED the petition, VACATING petitioner's conviction. This order explains the court decision, as promised.

I. BACKGROUND

A. Plea Hearing

On March 20, 2009, while represented by counsel, petitioner pled no contest to assault with a firearm in Sutter County Superior Court. As explained in more detail below, petitioner's counsel had him sign a plea form before the hearing; the preprinted form included the following statement: "I understand that if I am not a citizen of the United States, I will be deported from the country, denied citizenship, and denied re-entry into the United States." Felony Plea Form, ECF No. 1-2, at 43 (document in file of case number CRF-09-0405). Petitioner's initials appear on a line next to this statement on the form. Id. Petitioner also signed the Plea Form, on the same date as the plea hearing. Id. at 46. The Plea Form shows a handwritten "X" just before petitioner's signature on a designated signature line. Id. During the plea proceeding on March 20, 2009, neither the court nor the parties specifically addressed the subject of immigration consequences. Plea Hr'g Tr., ECF No. 1-3, at 2-9. The court did call out one item from the form, noting petitioner "initialed the entry about this being a strike offense." Id. at 6.

Because petitioner resides in the United States as a legal permanent resident and is not a citizen of this country, his conviction subjects him to deportation. Pet., ECF No. 14. Petitioner contends he is entitled to habeas relief here on the ground he was deprived of his constitutional right to effective assistance of counsel. Id. at 25. Specifically, petitioner alleges his attorney in the criminal case, Mandeep Singh Sindhu, failed to determine petitioner's immigration status, failed to investigate the immigration consequences of a no contest plea, and failed to advise petitioner that his conviction offense would constitute an aggravated felony, making him deportable, if petitioner was sentenced to 365 days or more, counting the initial sentence and in the aggregate time served upon any violation of probation or parole. Id . at 17.

B. Sentencing

At petitioner's April 24, 2009 sentencing hearing in state court, the prosecution argued for a sentence of one year in custody. Sent'g Tr., ECF No. 1-3, at 17. Neither the court nor the parties mentioned immigration consequences at the sentencing hearing. Id. at 10–22. During the hearing, in comments suggesting an assumption petitioner was a citizen, defense counsel stated that petitioner

understands if he violates probation in any way, shape, or form he's looking at potentially four years in state prison at 85 percent, and because...the circumstances of the crime are so serious, it's very likely that he might get the upper term if he was convicted – if he violated probation.

So I'm asking your Honor to give [petitioner] a chance to prove that he can get through probation and be a law-abiding citizen.

Id. at 15. The court sentenced petitioner to one year in jail, and three years' probation. Plea Hr'g Tr., at 18.

In August 2009, petitioner, through Mr. Sidhu, filed a motion to modify the terms of his probation from 365 days in county jail to 364 days. Mot. for Modification of Probation Terms, ECF No. 1-3, at 45-46. The motion was prompted by the fact that petitioner's immigration status had become evident in light of an immigration hold placed during his jail term. Petitioner's declaration in support of the motion explains in pertinent part:

Since pronouncement of judgment, INS has placed a hold on me due to my immigration status. I am a green card holder making me a legal resident. I have spoken to an immigration attorney who informed me that if my sentence were modified to 364 days, I would have a good chance of not getting deported.

Khatkarh Decl., ECF No. 1-3, at 46.

On August 21, 2009, the Sutter County Superior Court granted petitioner's motion to modify his sentence, reducing the jail term to 364 days. Modification of Probation Hr'g,² ECF No. 1-3 at 25.

C. Probation Violation and Removal Proceedings

On April 2, 2010, petitioner's probation was revoked and he was sentenced to three years in state prison, based on his admission that he violated a term of the probation imposed at the time of sentencing by his driving with a blood alcohol content of 0.08 percent or greater, in violation of California Vehicle Code section 23152(b). Probation Violation Sent'g Tr., ECF No. 1-3, at 29–36. At the revocation hearing, petitioner again was represented by Mr. Sidhu and the record discloses no discussion of immigration issues. Id. Petitioner did not appeal the sentence on revocation.

On January 24, 2011, petitioner was served notice of removal proceedings stemming from the consequences of his sentence, which included the exposure to a term of probation. See Coles-Davila Decl., ECF No. 18-1, at 1. Even though petitioner previously had been the subject of an immigration hold, these were the first formal removal proceedings to commence against petitioner as a result of his conviction, prompted by his having suffered the additional consequence of probation revocation. Id. Shortly thereafter, petitioner consulted with Teresa Coles-Davila, an immigration attorney based in San Antonio, Texas. Id. Ms. Coles-Davila describes the following conversation with petitioner:

I met with [petitioner] and advised him that his conviction of section 245(a)(2)³ constituted an aggravated felony as a result of his state prison sentence of three years, which made him deportable and ineligible for nearly every form of discretionary relief that would apply to his circumstances. In addition, I explained, even if he was technically eligible for some forms of discretionary relief after conviction of an aggravated felony, such conviction made such relief practically impossible to obtain. He informed me that he believed he was no longer deportable after his sentence was modified to 364 days. I explained to him that his sentence for his violation of probation counted for purposes of determining whether his section 245(a)(2) conviction constituted an aggravated felony. It was clear to me from my conversation with [petitioner] that he was not aware, prior to our conversation, that his admission to a violation of probation and sentence on such violation had these devastating consequences.

Id. Ms. Coles-Davila avers that she subsequently represented petitioner in removal proceedings, which culminated in a July 19, 2011 decision by an Immigration Judge denying petitioner's application to prevent his deportation. Board of Immigration Appeals (BIA) Decision, ECF No. 1-4 at 70. On November 30, 2011, the federal Board of Immigration Appeals issued an opinion affirming this decision. Id. at 70-72.

More recently, as it became clear petitioner's options for remaining in this country were diminishing, petitioner returned to state court seeking further relief. On June 21, 2019, Sutter County Superior Court granted Mr. Khatkarh's 1473.7⁴ motion in part, ordering withdrawal of the 2010 admission of the violation of probation and the three-year state prison sentence on the ground Mr. Khatkarh had been unable to meaningfully defend against the immigration consequences of the admission. Sutter Cty. Super. Ct. Mot. Hr'g, ECF No. 57–1 at 64.

On June 24, 2019, Mr. Khatkarh's current immigration attorney, Christopher Todd, filed a motion to reopen in the BIA, seeking to set aside the 2011 removal order on the ground that petitioner's conviction no longer constituted an aggravated felony because the total sentence was 364 days in light of the state trial court's granting Mr. Khatkarh's 1473.7 motion. See Request for Emergency Decision, ECF No. 57 at 6.

On February 13, 2020, the BIA denied the motion to reopen. Christopher Todd Decl. ECF No. 57 at 2–3. While the BIA found the state court's 2019 order vacating the original prison sentence was effective for immigration purposes, it found Mr. Khatkarh's resulting sentence was 365 days, the original sentence imposed in the case on April 24, 2009, and not 364 days, which was the sentence as adjusted by the modification on June 21, 2009. BIA Decision, ECF No. 57–1 at 71. The BIA also concluded the state court's granting of petitioner's 2009 motion and "resulting sentence modification, were [sic] not based on a procedural or substantive defect in the underlying...