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

FILED
NOT FOR PUBLICATION NOV 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30238
Plaintiff - Appellee, D.C. No. 2:06-cr-00307-RSM
v.
MEMORANDUM*
KHANG KIEN TRAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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 (2010), and
United States v. Kwan, 407 F.3d 1005 (9th Cir. 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, 133 S. Ct. 1103, 1113 (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 (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, 1554 (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.
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The government’s motion to supplement the record is denied as unnecessary.
VACATED and REMANDED.
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