Petition for Writ of Certiorari — Mady Chan, aka Maddy, aka Mandy, aka Manny, Petitioner v. United States

No. __________

IN THE

SUPREME COURT OF THE UNITED STATES

________________

MADY CHAN, PETITIONER

vs.

UNITED STATES OF AMERICA, RESPONDENT

________________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES SUPREME COURT FOR THE NINTH CIRCUIT

________________

PETITION FOR WRIT OF CERTIORARI

________________

VICKI MAROLT BUCHANAN

Vicki Marolt Buchanan, P.C.

19201 Sonoma Highway, #243

Sonoma, CA 95476

(707) 343-1907

Counsel for Petitioner

MADY CHAN

QUESTIONS PRESENTED

Should the holding in Padilla v. Kentucky, 559 U.S. 356 (2010)

that an attorney’s failure to advise a criminal client of succinct, clear,

and explicit law constitutes ineffective assistance of counsel extend to

the attorney’s failure to advise a client that under succinct, clear, and

explicit law a Speedy Trial Act violation cannot be waived?

i

PARTIES TO THE PROCEEDING

Petitioner, Mady Chan, is an individual. The Respondent is the

United States of America.

ii

TABLE OF CONTENTS

QUESTION PRESENTED……………………………………………i

PARTIES TO THE PROCEEDING……………………………….… ii

TABLE OF CONTENTS…………………………………………… iii

INDEX TO APPENDICES ................................................................. iv

TABLE OF AUTHORITIES ................................................................ v

OPINION BELOW .............................................................................. 1

JURISDICTION ................................................................................... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................................................................. 2

STATEMENT OF THE CASE ............................................................ 3

Jurisdiction of Court Below ....................................................... 3

Facts Material to Consideration of Question Presented ............. 3

REASONS FOR GRANTING REVIEW ............................................. 5

I.

Under the holding of Padilla v. Kentucky, 559 U.S. 356 (2010,

counsel provided ineffective assistance of counsel when he failed

to advise Petitioner that, under succinct, clear, and explicit

Speedy Trial Act holdings, the court would grant a motion to

dismiss, but instead, counsel advised Petitioner to enter a guilty

plea ............................................................................................. 5

CONCLUSION .................................................................................... 8

iii

INDEX TO APPENDICES

APPENDIX A:

Memorandum Opinion of the Ninth Circuit Court

of Appeals United States of America v. Mady

Chan, Case No. 16-15503

May 3, 2018

APPENDIX B:

District Court Memorandum and Order Denying

Habeas Corpus

February 11, 2016

APPENDIX C:

District Court Judgment

February 16, 2016

APPENDIX D:

Original District Court Judgment

July 25, 2014

APPENDIX E:

Order Denying Petition for Rehearing

July 17, 2018

iv

TABLE OF AUTHORITIES

Cases:

Padilla v. Kentucky,

559 U.S. 356, 369 (2010) ................................................................. 5, 7

Strickland v. Washington,

466 U.S. 668 (1984) ..................................................................... 5, 7, 8

United States v. Berberian,

851 F.2d 236 (9th Cir. 1988) ................................................................. 6

United States v. Kwan,

407 F.3d 1005 (9th Cir. 2003) ............................................................... 7

United States v. Lloyd,

125 F.3d 1263 (9th Cir. 1997) ............................................................... 6

United States v. Ramirez-Cortez,

213 F. 3d 1149 (9th Cir. 2000) .............................................................. 6

United States v. Rodriguez-Vega,

707 F.3d 781 (9th Cir. 2015) ................................................................. 6

Zedner v. United States,

547 U.S. 489 (2006) ............................................................................. 6

Constitutions:

U.S. CONST. amend. VI ........................................................................ 2

Statutes:

18 U.S.C. § 3161 .............................................................................. 2, 4

18 U.S.C. § 3162 .................................................................................. 4

v

Table of Authorities – Continued

28 U.S.C. § 1254(1) .............................................................................. 2

28 U.S.C. § 1291 .................................................................................. 3

28 U.S.C. § 2255 .................................................................................. 3

vi

No. __________

IN THE

SUPREME COURT OF THE UNITED STATES

________________

MADY CHAN, PETITIONER

vs.

UNITED STATES OF AMERICA, RESPONDENT

________________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES SUPREME COURT FOR THE NINTH CIRCUIT

________________

PETITON FOR WRIT OF CERTIORARI

________________

Mady Chan petitions for a writ of certiorari to review the

judgment and opinion of the United States Court of Appeals for the

Ninth Circuit in this case.

OPINION BELOW

The unpublished opinion of the Ninth Circuit Court of Appeals

affirming the district court’s denial of Petitioner’s petition for writ of

habeas corpus was entered on May 3, 2018. (Appendix A) The district

court’s judgment and order denying the petition for writ of habeas

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corpus are attached as Appendices B and C. The original judgment of

conviction is attached as Appendix D.

JURISDICTION

The Ninth Circuit Court of Appeals entered judgment in this

case on May 3, 2018. (Appendix A.) Petitioner’s timely filed petition

for rehearing was denied on July 17, 2018. (Appendix E.) This Court

has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant portions of the statutory and constitutional

provisions involved in this case are as follows:

***

U.S. CONST. amend. VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

18 U.S.C. § 3162

(a)(2) If a defendant is not brought to trial within the

time limit required by section 3161(c) as extended by

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section 3161(h), the information or indictment shall be

dismissed on motion of the defendant. The defendant

shall have the burden of proof of supporting such motion

but the Government shall have the burden of going

forward with the evidence in connection with any

exclusion of time under subparagraph 3161(h)(3). In

determining whether to dismiss the case with or without

prejudice, the court shall consider, among others, each

of the following factors: the seriousness of the offense;

the facts and circumstances of the case which led to the

dismissal; and the impact of a reprosecution on the

administration of this chapter and on the administration

of justice. Failure of the defendant to move for dismissal

prior to trial or entry of a plea of guilty or nolo

contendere shall constitute a waiver of the right to

dismissal under this section.

STATEMENT OF THE CASE

Jurisdiction in the Courts Below

The district court had jurisdiction pursuant to 18 U.S.C. § 2255.

The Court of Appeals had jurisdiction pursuant to 28 U.S.C. §§ 1291,

2253.

Facts Material to Consideration of the Question Presented

On June 22, 2000, Petitioner was convicted in the Northern

District of California for his participation in a computer chip robbery.

(ER 2:91.) For that conviction, he was sentenced to 904 months in

prison. (ER 2:94.) On appeal, his conviction was affirmed, but the

case was remanded for resentencing. (ER 2:129.) On June 12, 2009,

3

Petitioner was resentenced to 640 months. (ER 2:108.) That sentence

was affirmed on December 29, 2010. (ER 2:135.)

In 1996, while the Northern District case was proceeding,

Petitioner and other defendants were indicted in this case in the

Eastern District of California for money laundering related to the

same computer chip robberies involved in the Northern District Case.

(ER 4:351-423.) Once Petitioner was convicted in the Northern

District, he was transferred to the county jail in Sacramento pending

resolution of the money laundering case.

Seventeen years after the government charged Petitioner and

others in this case, the court issued an order to show cause why the

case should not be dismissed as a violation of the Speedy Trial Act

(“STA”) 18 U.S.C. §§ 3161-3162. In the seven years following the

last status conference and speedy trial finding, the government did

nothing to move this case forward. Under the law, the resulting STA

violation was clear and dismissal of the case was mandatory.

When the court ordered the government to show cause why the

case should not be dismissed, instead of filing a motion to dismiss,

Petitioner’s lawyer negotiated a plea agreement. During plea

4

negotiations, the government informed Petitioner, because he and his

attorneys had asked for extensions and he had not filed a dismissal

motion, he waived his STA rights. The government’s assertions were

contrary to clearly established law. Under the law, STA rights cannot

be waived. Defense counsel failed to advise Petitioner the government

was wrong. Based on this erroneous advice, Petitioner entered into a

plea.

REASONS FOR GRANTING THE WRIT

I.

UNDER THE HOLDING OF PADILLA V.

KENTUCKY, 559 U.S. 356 (2010), COUNSEL

PROVIDED INEFFECTIVE ASSISTANCE OF

COUNSEL WHEN HE FAILED TO ADVISE

PETITIONER THAT, UNDER SUCCINCT,

CLEAR, AND EXPLICIT SPEEDY TRIAL ACT

HOLDINGS, THE COURT WOULD GRANT A

MOTION

TO

DISMISS,

BUT

INSTEAD,

COUNSEL ADVISED PETITIONER TO ENTER A

GUILTY PLEA.

In his habeas corpus petition filed under 28 U.S.C. § 2255,

Petitioner claimed ineffective assistance of counsel under Strickland

v. Washington, 466 U.S. 668 (1984). Counsel was ineffective because

instead of filing a speedy trial dismissal motion requested by the

district court, counsel convinced Petitioner to plead guilty. In advising

5

Petitioner, defense counsel failed to correct an erroneous statement of

the law presented by the government to Petitioner in order to convince

him to forgo his speedy trial rights.

The government advised Petitioner that 1) his STA motion

would fail because he had asked for trial extensions over the

government’s objection, or 2) in assessing whether to grant a speedy

trial motion the court would consider the fact that he failed to file such

a motion earlier. This was a gross misrepresentation of the law.

The holding that a STA violation cannot be waived is as clear a

legal precedent as any in the law. See, Zedner v. United States, 547

U.S. 489, 503-506 (2006), United States v. Ramirez-Cortez, 213 F. 3d

1149, 1156 (9th Cir. 2000); United States v. Lloyd, 125 F.3d 1263,

1268 (9th Cir. 1997); and United States v. Berberian, 851 F.2d 236,

239 (9th Cir. 1988). As stated in United States v. Rodriguez-Vega, 707

F.3d 781, 786 (9th Cir. 2015), the STA law is “succinct, clear, and

explicit.”

In this case, although defense counsel did not directly give this

bad advice to Petitioner, he did nothing to correct the government’s

erroneous analysis. An attorney who renders affirmative advice, has a

6

duty to correct that advice when there are changes to the law. See,

United States v. Kwan, 407 F.3d 1005, 1016 (9th Cir. 2003), abrogated

on other grounds in Padilla v. Kentucky, 559 U.S. 356, 369 (2010). By

analogy, an attorney has a duty to correct an incorrect analysis

asserted by opposing counsel.

Padilla expanded Kwan and is instructive. Kwan affirmed

previous holdings that it was not ineffective assistance of counsel for

an attorney to refrain from giving advice on immigration

consequences of the plea. Kwan, 407 F.3d at 1015. It was, however,

ineffective assistance of counsel for an attorney to voluntarily choose

to give advice and, in so doing, misrepresent the law. Ibid. Kwan was

abrogated because in Padilla the Supreme Court held that failing to

render legal advice on legal issues that are “succinct, clear, and

explicit” satisfied the first prong of Strickland. Padilla, 559 U.S. at

368-369.

In this case, defense counsel failed to advise Petitioner under

“succinct, clear, and explicit” law, the government’s analysis was

wrong.

Under the reasoning in Padilla, Petitioner satisfied the

first prong of Strickland, that counsel’s representation fell “below an

7

objective standard of reasonableness.” Strickland, 466 U.S. at 688. As

to the second Strickland prong, if petitioner was correctly advised the

court would dismiss his case as a speedy trial act violation, he would

not have pleaded guilty and “the result of the proceeding would have

been different.” Id.

CONCLUSION

This petition for a writ of certiorari should be granted.

Dated: October 2, 2018 Respectfully submitted,

s/ Vicki Marolt Buchanan

Vicki Marolt Buchanan

19201 Sonoma Highway, No. 243

Sonoma, CA 95476

(707) 343-1907

vickimaroltbuchananpc@ gmail.com

Counsel of Record for Petitioner

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