Nick Berard
Timofeev is eager to move on with his life, which includes marrying his fiancée, Elizabeth Vale-Schesch.
For the first time in 16 months, Alexander Timofeev did not go to bed worrying that he would soon be deported to Russia.
Early Monday evening, Timofeev learned that the Dane County District Attorney's Office had agreed to vacate his three convictions for marijuana possession from the 1990s. As Isthmus first reported in July, these convictions formed the basis for the federal government's efforts to deport him.
Dane County Judge Ellen Berz officially ruled to vacate Timofeev's convictions at a hearing Monday afternoon. Assistant District Attorney Matthew Moeser also agreed to dismiss the charges altogether.
"I have better things to do than pursue things from 16 years ago," Moeser told Berz.
Timofeev was relieved and happy on Tuesday.
"I'm officially a free man," he says. Though not a drinker, he says he celebrated the news over a glass of vodka with a friend Monday night.
Berz was expected to rule on Timofeev's request for "post-conviction relief" by Jan. 15. As late as last week, Moeser told Isthmus he could not support the argument that Timofeev's convictions from 1997 and 1998 should be tossed out because he had received "ineffective counsel" at the time. Doing so, said Moeser, would allow defendants years after sentencing to come back and challenge convictions.
"It would create chaos and a complete lack of finality in a lot of the cases we've handled," he said.
But Timofeev's attorney, Davorin Odrcic, says transcripts from cases in the 1990s surfaced, suggesting that the judges who heard Timofeev's no contest pleas likely did not warn him of the deportation consequences.
"Evidence came to light that the two prior judges had not provided mandatory immigration warning in all felony cases with the exception of one," says Odrcic, who practices out of Milwaukee. Based on that, he adds, it was agreed there were legal grounds for vacating Timofeev's pleas.
Moeser, however, says the transcripts weren't "a significant issue for us." What was important, he says, was that Timofeev agreed to drop his claims of ineffective counsel and Berz agreed to vacate her December 2012 decision that had originally dismissed Timofeev's convictions.
Letting Berz's original order stand, says Moeser, would have had "huge ramifications beyond Timofeev's case."
Timofeev moved legally with his family to Madison from the former Soviet Union in 1992, when he was 14. His immediate family members are now United States citizens, but Timofeev says his application for permanent residency hit bureaucratic snags.
He was arrested in September 2012 by U.S. Immigration & Customs Enforcement, more than a decade after he completed his sentences, and detained for four months at the Dodge County Detention Center.
Under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, immigrants convicted of most felonies are deportable and "permanently inadmissible" to the United States. There is no statute of limitations for deportable offenses, and immigration judges have no discretion in these cases. Timofeev's only recourse was to try to get his no contest pleas withdrawn and convictions vacated.
Timofeev's attorney took his case to court, arguing that, based on the 2010 U.S. Supreme Court ruling in Padilla v. Kentucky, his client should be allowed to withdraw his no contest pleas from the 1990s because he was not warned at the time they could result in his deportation. Moeser, however, objected.
Berz agreed in January 2012 to vacate the pleas, which resulted in Timofeev's release from detention, but the District Attorney's Office asked the state Department of Justice to appeal her decision. District Attorney Ismael Ozanne told Isthmus his office appealed the ruling because the Supreme Court later decided that Padilla could not be applied retroactively.
The appeals court then returned the case to circuit court to be argued on different grounds.
Timofeev is engaged to an American citizen and has two daughters, who are also U.S. citizens. He says he can now get on with his life, which includes marrying his fiancée and becoming a permanent resident and citizen. This time, he'll have help from his lawyer with the latter task.
"Thankfully," Timofeev says, "he will carry it through to the end."
