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Kim Diep v. State

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 53
Docket:	Cum-99-465
on Briefs:	February 25, 2000
Decided:	March 29,  2000 	




	[¶1]  Kim Diep appeals from the summary dismissal by the Superior
Court (Cumberland County, Studstrup, J.) of his petition for post-conviction
review.  On appeal, Diep argues that the court erroneously interpreted a
statute of limitations section of the post-conviction review statute as a
limitation on the subject matter jurisdiction of the court.  The State agrees
that the Superior Court erred.  We vacate the judgment.
	[¶2]  The relevant facts may be summarized as follows: In September
of 1996, Diep was indicted on charges of burglary, aggravated assault, and
violating a protection from abuse order.  Prior to trial, Diep's attorney
negotiated a plea bargain.  The aggravated assault charge was amended to
allege conduct that was reckless, rather than intentional or knowing, and
the other two charges were dropped in exchange for Diep's guilty plea. 
Diep alleges that his attorney believed that a conviction based on reckless
conduct would not be a crime of moral turpitude as defined by federal
immigration law and therefore Diep, a resident alien, would not be subject
to deportation.  The Superior Court (Cumberland County, Cole, J.) accepted
the plea and entered judgment in August of 1997, sentencing Diep to a five
year term of imprisonment, all but a year and three months suspended, in
addition to a four year term of probation.   
	[¶3]  Diep now contends that his attorney was misinformed about
federal immigration law.  According to Diep, a conviction for an aggravated
felony renders aliens deportable under the Immigration and Nationality Act
regardless of the culpable mental state involved.  In March of 1999, the
Immigration and Naturalization Service (INS) detained Diep and
commenced deportation proceedings against him based solely upon the
Maine conviction for aggravated assault.  Three months later, Diep filed the
present petition for post-conviction review, in which he contends that he
received ineffective assistance of counsel: If his attorney had correctly
advised him about the risk of deportation following the entry of his guilty
plea, Diep would not have accepted the bargain but would have insisted upon
a trial.  The Superior Court, on its own motion, summarily dismissed the
petition on the ground that it failed to demonstrate that the court had
subject matter jurisdiction.  Diep appeals from this judgment.
	[¶4]  Maine Rule of Criminal Procedure 70(b) allows a court to
summarily dismiss a petition for post-conviction review for two faults, either
of which must "plainly appear[] from the face of the petition . . . ."  M. R.
Crim. P. 70(b).  Dismissal is warranted if the petition fails "to state a ground
upon which post-conviction relief can be granted" or if it fails to
demonstrate that the court has subject matter jurisdiction.  Id.  The
Superior Court in this case reasoned that Diep had failed to show
compliance with either 15 M.R.S.A. § 2128(5) & (6) and that, in the absence
of such compliance, the court did not have subject matter jurisdiction.  This
was error. 
	[¶5]  The subject matter jurisdiction of courts hearing petitions for
post-conviction review is governed by section 2124, not section 2128. 
According to section 2124, the court would have jurisdiction if Diep
demonstrated that he was under a present restraint as a result of the
conviction for aggravated assault.  See 15 M.R.S.A. § 2124(1) (Supp. 1999). 
A present restraint includes "[o]there restraint[s] [aside from incarceration],
including probation . . . imposed as a result of the sentence for the criminal
judgment which is challenged."  Id. § 2124(1)(B).  The petition indicates
that Diep was still serving the four year term of probation imposed following
his guilty plea.  Thus, the court did have subject matter jurisdiction.
	[¶6]  The limitations periods also cannot be used to justify a
summary dismissal on the theory that Diep had failed "to state a ground
upon which post-conviction relief can be granted."  M. R. Crim. P. 70(b). 
Sections 2128(5) & (6) do provide for the waiver of valid claims.  See 15
M.R.S.A. § 2128 (Supp. 1999).  Thus, if Diep's petition were to affirmatively
disclose a failure to adhere to the limitations period, summary dismissal
might be appropriate.  Diep, however, argues that his claim falls under
subsection (5)(C), which provides a "one year period of limitation" that runs
from "[t]he date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence."  15 M.R.S.A. § 2128(5)(C) (Supp. 1999).  Diep claims that he did
not discover and could not have discovered through due diligence that his
attorney had given incorrect advice before March of 1999, when the INS
detained him and began deportation proceedings.  The petition does not
disclose on its face a failure to exercise due diligence.  Accordingly, the
resolution of this factual question may not form the basis of a summary
dismissal, but must instead be left to future proceedings before the Superior
	The entry is:
Judgment vacated.  Remanded to the
Superior Court for proceedings
consistent with the opinion herein.
Attorney for petitioner: Stuart Tisdale, Esq. Tisdale & Davis, P.A. P O Box 572 Portland, ME 04112 Attorneys for State: Stephanie Anderson, District Atty Julia A. Sheridan, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101