Opinion
No. 2:06-cr-0236 GEB KJN P
07-05-2012
UNITED STATES OF AMERICA, Respondent, v. FRANCISCO VEGA, Movant.
ORDER
Movant is a federal prisoner, proceeding without counsel, with a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Movant challenges his 2010 conviction for possession with the intent to distribute at least 50 grams of methamphetamine (actual) in violation of Title 21 U.S.C. § 841(a)(1), on the grounds that his guilty plea was unintelligent based on alleged ineffective assistance of counsel. Padilla v. Kentucky, 130 S. Ct. 1473 (2010). In order to address the pending motion, the court orders the following further briefing:
1. Presentence Report ("PSR"). Movant claims that the PSR "mentioned the possibility of deportation proceedings" on page 18 of the PSR. Neither party lodged a copy of the PSR. Counsel for respondent is directed to file a copy of the PSR within twenty-one days.
2. Movant declares under penalty of perjury that his attorney instructed him "that deportation was not a collateral consequence" of his guilty plea. (Dkt. No. 91 at 25.) However, movant did not provide a declaration by his former defense attorney Russell Miller. Attorney Miller and movant signed the plea agreement on November 20, 2009. (Dkt. No. 64.) Therefore, the court directs movant's former defense attorney, Russell Miller, to file a declaration concerning his knowledge of movant's citizenship status, and addressing what advice, if any, attorney Miller provided movant Francisco Vega concerning the collateral consequences of movant's guilty plea, including, but not limited to, immigration consequences, or potential deportation consequences. Attorney Russell Miller shall file the declaration within thirty days from the date of this order. See Torres v. United States, 2011 WL 5025148, *4 (W.D. Wash. Oct. 21, 2011) ("In an abundance of caution, . . . the Court requested a declaration from Unger, Torres's former counsel, regarding their discussions of the immigration consequences of his conviction.")
Accordingly, IT IS HEREBY ORDERED that:
1. Counsel for respondent is directed to file a copy of the PSR within fourteen days from the date of this order;
2. The Clerk of the Court is directed to serve a copy of this order on Russell W. Miller, Jr., Miller Law Group, 901 H Street, Suite 620, Sacramento, CA 95814; and
3. Within thirty days from the date of this order, attorney Russell Miller shall file the declaration described above.
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KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE