               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0142n.06

                                          No. 13-5878
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                         Feb 18, 2014
                              FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


JIAN TIAN LIN,                                     )
                                                   )
       Petitioner-Appellant,                       )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE WESTERN DISTRICT OF
UNITED STATES OF AMERICA,                          )      KENTUCKY
                                                   )
       Respondent-Appellee.                        )
                                                   )
                                                   )


       BEFORE: GILMAN, COOK, and McKEAGUE, Circuit Judges.


       PER CURIAM. Jian Lin, a Chinese citizen, appeals through counsel a district court order

granting the government’s motion for relief from judgment pursuant to Federal Rule of Civil

Procedure 60(b) in his proceeding seeking a writ of error coram nobis.

       In 2006, Lin entered a guilty plea to a charge of harboring aliens and was sentenced to

time served. Lin admitted that he assisted his brother in housing eighteen illegal aliens in two

residences, and transporting them from the residences to his brother’s restaurant where they

worked. In 2012, he petitioned for a writ of coram nobis, arguing that he had recently learned

that his conviction would result in his removal from the country. He claimed that his attorney

never informed him of the immigration consequences of his plea, which constituted deficient

performance under the Supreme Court’s holding in Padilla v. Kentucky, 559 U.S. 356, 374

(2010). He also now claimed, contrary to his representations at the time of his plea, that he was

actually innocent of harboring aliens, and that his brother had harbored him. The government
No. 13-5878
Lin v. United States

argued that the district court should hold the case in abeyance because the Supreme Court was

considering the question of whether the holding in Padilla applied retroactively to cases on

collateral review. The district court declined to hold the case in abeyance, finding that Padilla

did not announce a new rule of law and therefore did apply retroactively. However, it noted that

if the Supreme Court reached the opposite conclusion, the government could move for

reconsideration. Accordingly, it granted Lin’s petition for a writ of error coram nobis on

December 21, 2012.

       On February 20, 2013, the Supreme Court decided in Chaidez v. United States, 133 S. Ct.

1103, 1107-08 (2013), that Padilla did announce a new rule of law and thus did not apply

retroactively to cases on collateral review. On March 11, 2013, the government moved for relief

from the district court’s order granting coram nobis relief.      The district court granted the

government’s motion and reinstated Lin’s conviction. Lin now argues that the government’s

motion for relief from judgment was untimely and without merit.

       We review a decision on a motion for relief from judgment under Rule 60(b) for an abuse

of discretion. Thompson v. Bell, 580 F.3d 423, 442 (6th Cir. 2009). A motion seeking relief

based on legal error is properly brought under Rule 60(b)(1). Okoro v. Hemingway, 481 F.3d

873, 874 (6th Cir. 2007). Motions under Rule 60(b)(1) should be filed within the normal time

for taking an appeal. Cincinnati Ins. Co. v. Byers, 151 F.3d 574, 578 (6th Cir. 1998). A sixty-

day appeal period applies in cases seeking a writ of error coram nobis. United States v. Johnson,

237 F.3d 751, 754 (6th Cir. 2001). In this case, the government’s motion was filed more than

sixty days after the district court’s original order, but within sixty days of the Supreme Court’s

decision in Chaidez, on which the motion was based. Moreover, the district court had invited the




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No. 13-5878
Lin v. United States

motion in the event the Supreme Court ruled contrary to its decision. Under these circumstances,

we conclude that the motion was filed within a reasonable time as set forth in Rule 60(c).

       Alternatively, Lin argues that the analysis set forth in Teague v. Lane, 489 U.S. 288

(1989), as to whether law applies retroactively, does not apply in collateral attacks on federal

convictions. However, we have previously applied this analysis to collateral attacks on federal

convictions. See Valentine v. United States, 488 F.3d 325, 328 (6th Cir. 2007). Lin also argues

that such analysis should not apply to collateral attacks raising a claim of ineffective assistance

of counsel, but he cites no authority for that proposition.

       Accordingly, we find that the district court did not abuse its discretion in granting the

government’s motion for relief from judgment based on legal error. The district court’s order is

therefore affirmed.




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