Appeal from the United States District Court for the Western District of Kentucky at Louisville. Nos. 3:09-cr-00005-1; 3:11-cv-439--Thomas B. Russell, District Judge.
Kent Wicker, DRESSMAN BENZINGER LA VELLE PSC, Louisville, Kentucky, for Appellant.
Candace G. Hill, UNITED STATES ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellee.
Before: COLE, Chief Judge; MOORE and CLAY, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge.
Petitioner-Appellant Aso Pola wishes to appeal his federal conviction and sentence. We have not been able to review the validity of his conviction or sentence, Pola argues,
because his attorney failed to file a notice of appeal as requested. See Roe v. Flores-Ortega, 528 U.S. 470, 480-82, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Pola has served the full term of imprisonment imposed as part of his sentence, and the Immigration and Customs Enforcement (" ICE" ) has removed him to Canada, where he now resides. Before Pola's removal and while still imprisoned, he filed a motion to vacate his sentence and requested an evidentiary hearing pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel, among other claims. After Pola and his plea counsel, C. Fred Partin, filed affidavits, the district court denied Pola's request for an evidentiary hearing--a decision Pola now appeals. The government asserts that we do not have jurisdiction to review Pola's appeal because he no longer suffers from an injury in fact that a favorable decision will redress. We hold not only that we have jurisdiction, but also that the district court should have granted Pola an evidentiary hearing to develop his ineffective-assistance claim to determine whether he should be able at last to appeal his conviction and sentence. Accordingly, we VACATE the district court's judgment and REMAND the case for an evidentiary hearing.
On January 6, 2009, a federal grand jury indicted Pola and charged him with knowingly and intentionally possessing with the intent to distribute oxycodone, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). R. 11 at 1 (Indictment) (Page ID #10). Pola was born in Iraq, but is a citizen of Canada. R. 136-1 at 7 (Tr. Plea Hr'g) (Page ID #697). At the time of the indictment, Pola was in the United States as a lawful permanent resident and living in Louisville, Kentucky, with his wife and two children, all of whom are U.S. citizens. Id. at 8 (Page ID #698).
On September 21, 2009, Pola entered an Alford plea, maintaining his innocence, but conceding that the government had sufficient evidence for a jury to find him guilty of the charged offense. R. 50 at 1 (Change of Plea) (Page ID #185). On February 16, 2010, the district court sentenced him to forty-six months' incarceration and three years' supervised release. R. 136-2 at 23-24 (Tr. Sentencing Hr'g) (Page ID #755-56). On April 19, 2010, slightly more than two months after the judgment was entered, Pola filed a notice of appeal pro se. R. 59 at 1 (Notice of Appeal) (Page ID #222). A panel of this court dismissed Pola's appeal for being untimely, noting that he could still " move to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, based upon his allegation that counsel provided ineffective assistance by failing to file a notice of appeal upon his explicit request." R. 73 at 2 (6th Cir. May 13, 2011) (Page ID #321).
Pola did just that. On August 5, 2011, Pola filed a § 2255 motion, alleging that his counsel was ineffective for failing to file a notice of appeal, among other claims. R. 77 at 1, 8 (§ 2255 Mot.) (Page ID #333, 340). The district court referred the case to a magistrate judge. R. 83 at 1 (D. Ct. Order) (Page ID #476). On September 12, 2012, the magistrate judge ordered an evidentiary hearing, appointed counsel, and ordered the U.S. Marshals to transport Pola from the correctional facility in Youngstown, Ohio, to Louisville, Kentucky, for the evidentiary hearing to be held on October 17, 2012. R. 98 at 2 (D. Ct. Order) (Page ID #585). Unbeknownst to the district court, the Bureau of Prisons had released Pola on September 4, 2012, and had transferred him to ICE custody.
On July 27, 2012, ICE served Pola with a notice to appear for ...