Kim v. USA, No. 1:2008cv00018 - Document 4 (D. Guam 2010)
Court Description: Opinion and Order denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Furthermore, the court does not find that the Petitioner "has made a substantial showing of the denial of a constitutional right". Therefore, the court will NOT issue a certificate of appealability. Signed by Chief Judge Frances M. Tydingco-Gatewood on 9/14/2010. (fad)
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Kim v. USA Doc. 4 1 2 3 4 5 DISTRICT COURT OF GUAM 6 7 8 SANG HO KIM, 9 Petitioner, 10 11 Civil Case No. 08-00018 Criminal Case No. 06-00071 vs. UNITED STATES OF AMERICA, 12 OPINION AND ORDER RE: MOTION PURSUANT TO 28 U.S.C. § 2255 Respondent. 13 14 This matter comes before the court on a Motion Under 28 U.S.C. § 2255 to Vacate, Set 15 Aside, or Correct Sentence by a Person in Federal Custody, filed by Petitioner Sang Ho Kim 16 (“Petitioner”) on October 24, 2008. Pursuant to Local Civil Rule 7.1(e)(3), this matter is appropriate 17 for decision without the need for oral argument.1 After reviewing the parties’ submissions, as well 18 as relevant authority, the court hereby DENIES the motion and issues the following decision. 19 I. FACTUAL AND PROCEDURAL BACKGROUND 20 The Petitioner was indicted on November 15, 2006, on charges of Fraud in Connection with 21 Identification Documents in violation of 18 U.S.C. §§ 2 and 1028(a)(6). See Docket No. 1. On 22 January 23, 2008, a Superseding Indictment charged him with Criminal Conspiracy in violation of 23 18 U.S.C. §§ 2 and 371, and Fraud in Connection with Identification Documents in violation of 18 24 U.S.C. §§ 2 and 1028(a)(1); 1028(b)(1)(A)(ii) and 1028(c)(3)(A). See Docket No. 4. Attorney 25 26 27 1 Local Civ.R. 7.1(e)(3) states “[i]n cases where the parties have requested oral argument, such oral argument may be taken off calendar by Order of the Court, in the discretion of the Court, and a decision rendered on the basis of the written materials on file.” Dockets.Justia.com 1 Joseph Razzano was appointed to represent him. See Docket No. 14. On April 9, 2008, the 2 Petitioner entered a guilty plea to the first count of the Superseding Indictment, Criminal Conspiracy 3 in violation of 18 U.S.C. §§ 2 and 371. See Docket Nos. 19 and 22. The Magistrate Judge issued 4 a Report and Recommendations that the Petitioner’s guilty plea be accepted. See Docket No. 21. 5 The guilty plea was accepted and sentencing was held on August 8, 2008. See Docket Nos. 23 and 6 35. The Petitioner was sentenced to time served (of approximately 84 days) and two years of 7 supervised release. He was also ordered to pay a $1,000 fine. The court granted the Government’s 8 oral motion to dismiss the second count of the Superseding Indictment. 9 On October 17, 2008, the Petitioner’s request for substitution of new counsel was granted. 10 On October 24, he filed the instant motion and a supporting memorandum. See Docket Nos. 46 and 11 47. The Government filed its response. See Docket No. 49. During the pendency of the instant 12 case, the case of United States v. Haeng Hwa Lee, Criminal Case No. 06-00080, was also pending 13 before this court and was later appealed to the Ninth Circuit.2 Recognizing that the Ninth Circuit’s 14 decision in Haeng Hwa Lee would be guiding authority, this court stayed the instant case until the 15 Ninth Circuit ruled on the appeal in Haeng Hwa Lee. See Docket No. 52. The Ninth Circuit held 16 oral argument in Haeng Hwa Lee on February 11, 2010, and filed its Memorandum on February 22, 17 2010, holding that the appellant was precluded from challenging the legality of the requirement that 18 she present an ITIN to obtain a Guam driver’s license. On May 27, 2010, the Ninth Circuit issued 19 its mandate in the Haeng Hwa Lee case. 20 II. DISCUSSION 21 The Petitioner’s Motion does not specifically cite the specific grounds under § 2255 that 22 serve as the basis for his Motion. He essentially argues that the Superseding Indictment does not 23 allege any unlawful conduct. See Docket No. 47. Thus, he contends that: 1) that there was no 24 25 2 26 27 An issue on appeal in the Haeng Hwa Lee case is the identical issue raised by Petitioner here, that the indictment does not state an offense. Specifically, both the appellant in Haeng Hwa Lee and the Petitioner argue that there was no lawful authority, no statute or regulation, requiring a Taxpayer Identification Number (TIN). Page 2 of 7 1 federal offense committed; 2) his conviction is invalid because it was obtained by the guilty plea 2 entered into without understanding the charge; 3) his conviction was obtained by the guilty plea that 3 he entered into without understanding the charge because the Petitioner did not understand the 4 meaning of “collateral attack”; and 4) he was denied effective assistance of counsel. See Criminal 5 Case No. 06-00071, Docket 46. 6 The Government requests the court dismiss the Motion, arguing that the Petitioner 7 procedurally defaulted these claims by failing to appeal from the conviction or sentence. 8 Furthermore, the Government contends that the Petitioner waived his right to collaterally attack his 9 conviction, and has not demonstrated ineffective assistance of counsel. 10 A. No federal offense 11 The Petitioner asserts that there is no statute or regulation that requires the use of a Taxpayer 12 Identification Number (“TIN”) in obtaining a Guam driver’s license; therefore, his “alleged use of 13 a false use of a TIN could not have caused the Guam Department of Revenue and Taxation (“DRT”) 14 to produce a driver’s license without lawful authority.” Docket No. 47. As noted above, the court 15 stayed this case pending the Ninth Circuit’s disposition of the Haeng Hwa Lee case. The defendant 16 in Haeng Hwa Lee, like the defendant here, argued that the DRT lacked the lawful authority to 17 require to require a TIN and thus, DRT could not have produced a driver’s license without lawful 18 authority. After hearing oral argument on February 11, 2010, the Ninth Circuit rejected this 19 argument in an unpublished memorandum opinion. Citing Dennis v. United States, 384 U.S. 855, 20 866 (1966),3 the Ninth Circuit held that defendant Lee was precluded from challenging the legality 21 of the underlying requirement of presenting a TIN in order to receive a driver’s license. 22 23 24 25 26 27 3 The appellants in Dennis were convicted of conspiracy to fraudulently obtain the services of the National Labor Relations Board by filing false affidavits to satisfy § 9(h) of the National Labor Relations Act. 384 U.S. at 857. They argued that their convictions should be set aside because § 9(h) was unconstitutional. The United States Supreme Court refused to address their argument, stating that the appellants, who were convicted of conspiring to circumvent the statute, were “in no position to attack the constitutionality” of this statute. Id. at 865. The Court held it was no defense to a charge based on fraud “that the statutory scheme sought to be evaded is somehow defective.” Id. at 866. Page 3 of 7 1 The court is guided by the holdings of the United States Supreme Court in Dennis and the 2 Ninth Circuit’s reliance on Dennis in Haeng Hwa Lee. The court rejects the Petitioner’s claim that 3 no federal offense was committed, and finds that the Petitioner here is precluded from challenging 4 the legality of the requirement of presenting a valid TIN in order to receive a Guam driver’s license. 5 The court further rejects the Petitioner’s claim that he entered a guilty plea without understanding 6 the charge. As concluded, there was indeed a federal offense. 7 B. Waiver 8 The Petitioner’s plea agreement filed on April 3, 2008, contains an express waiver, stating: 9 “In exchange for the Government’s concessions in this plea agreement, the defendant waives any 10 right to appeal or to collaterally attack his conviction but reserves the right to appeal the sentence 11 imposed in this case.” Docket No. 18. 12 He contends that he entered a guilty plea without understand the meaning of “collateral 13 attack,” and therefore, the conviction is invalid. See Docket No. 46. The Government asserts that 14 the Petitioner, in his plea agreement, waived his right to collaterally attack his conviction. See 15 Docket No. 18. 16 The Ninth Circuit has held that “[a] plea agreement does not waive the right to bring a § 17 2255 motion unless it does so expressly.” United States v. Transfiguracion, 442 F.3d 1222, 1231 18 (9th Cir. 2006) (quoting United States v. Pruitt, 32 F.3d 421, 433 (9th Cir. 1994). Despite the 19 Petitioner’s express waiver, he seemingly argues that he received ineffective assistance of counsel, 20 because he was not advised of the meaning of “collateral attack.” Docket No. 46. About half of the 21 federal circuits have held that a petitioner may challenge the validity of this waiver on ineffective 22 assistance of counsel grounds.4 Establishing ineffective assistance counsel requires a petitioner to 23 24 25 26 27 4 See United States v. White, 307 F.3d 336, 341 (5th Cir. 2002) ( stating that “a waiver of appeal may not be enforced against a section 2255 petitioner who claims that ineffective assistance of counsel rendered that waiver unknowing or involuntary.”); United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) (“[W]e hold that a plea agreement waiver of postconviction rights does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or the waiver.”); DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000) (“A defendant's plea agreement waiver of the right to seek section 2255 post-conviction Page 4 of 7 1 demonstrate deficient performance by counsel, and that such deficient performance prejudiced his 2 defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). A court evaluating this claim “need 3 not determine whether counsel’s performance was deficient before examining the prejudice suffered 4 by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an 5 ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be 6 so, that course should be followed.” Id. at 697. 7 This course is followed here. The Petitioner has not shown prejudice, because he has not 8 demonstrated that the outcome of the proceeding would have been different. The Petitioner’s 9 conviction was the result of a guilty plea. The Petitioner has not shown that he would have 10 withdrawn his plea, and more importantly, that the court would have accepted withdrawal of his 11 guilty plea. Because he has not shown prejudice, the court finds there was no ineffective assistance 12 of counsel, and furthermore, that the Petitioner has waived his right to collaterally attack his 13 conviction. 14 C. Ineffective assistance of counsel 15 Finally, the Petitioner argues that he received ineffective assistance of counsel because his 16 attorney “led him to believe” that DRT’s Motor Vehicles Division regulations “prohibited an alien 17 from receiving a three-year Guam drivers license unless he had proof he was entitled to be in the 18 United States” by showing a original Social Security card, notarized letter from Social Security, or 19 an original letter from the Internal Revenue Service as authenticating a TIN. Docket No. 46. Again, this argument stems from his assertion that there were no regulations and thus no 20 21 federal offense charged. This argument was rejected above. 22 /// 23 24 25 26 27 relief does not waive defendant's right to argue, pursuant to that section, that the decision to enter into the plea was not knowing and voluntary because it was the result of ineffective assistance of counsel.”); Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) (finding that a defendant could file a § 2255 petition despite cooperation agreement containing § 2255 waiver because “[j]ustice dictates that a claim of ineffective assistance of counsel in connection with the negotiation of a cooperation agreement cannot be barred by the agreement itself-the very product of the alleged ineffectiveness”). Page 5 of 7 1 D. 2 The Government asserts that the Petitioner has procedurally defaulted these claims by failing 3 to argue them on appeal. “Where a defendant has procedurally defaulted a claim by failing to raise 4 it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate 5 ‘cause’ and ‘actual prejudice,’ or that he is ‘‘actually innocent.’” Bousley v. United States, 523 6 U.S.614, 622 (1998) (citations omitted). See also United States v. Skurdal, 341 F.3d 921, 925 (9th 7 Cir. 2003) (“If a criminal defendant could have raised a claim of error on direct appeal but 8 nonetheless failed to do so, he must demonstrate both cause excusing his procedural default, and 9 actual prejudice resulting from the claim of error.”) (quoting United States v. Johnson, 988 F.2d 941, 10 945 (9th Cir. 1993)). Therefore, the court examines whether the Petitioner has demonstrated cause 11 and actual prejudice, or whether he is actually innocent. 12 Procedural default 1. Cause and actual prejudice 13 A petitioner bears the burden of showing cause and actual prejudice. See Woolery v. Arave, 14 8 F.3d 1325, 1331 (9th Cir. 1993). “Generally, to demonstrate ‘cause’ for procedural default, an 15 appellant must show that ‘some objective factor external to the defense’ impeded his adherence to 16 the procedural rule.” Skurdal, 341 F.2d at 925. “Attorney ignorance or inadvertence is not ‘cause’” 17 that would excuse procedural default. Coleman v. Thompson, 501 U.S. 722, 753 (1991); see also 18 Murray v. Carrier, 477 U.S. 478, 486 (1986) (“[T]he mere fact that counsel failed to recognize the 19 factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not 20 constitute cause for a procedural default.”). 21 Here, the Petitioner has not shown any cause to excuse the procedural default. This 22 argument was simply not raised. Therefore, this court need not examine whether there was actual 23 prejudice. See Cavanaugh v. Kincheloe, 877 F.2d 1443, 1448 (recognizing that if a petitioner fails 24 to demonstrate cause then a reviewing court need not determine whether he has carried his burden 25 of showing actual prejudice). 26 27 2. Actual innocence The Petitioner bears the burden of proving that he was “actually innocent” of the offense. Page 6 of 7 1 See Bousley, 523 U.S. at 622. “[A]ctual innocence means factual innocence, not mere legal 2 insufficiency.” Id. at 623. In short, actual innocence requires that “the trier of the facts would have 3 entertained a reasonable doubt of his guilt.” Kuhlmann v. Wilson, 477 U.S. 436, 454 n.17 (1986) 4 (quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 5 U.Chi.L.Rev. 142, 160 (1970)). 6 Here, the Petitioner’s argument is based on legal insufficiency. He asserts that there is no 7 statute or regulation that requires the use of a Taxpayer Identification Number (“TIN”); therefore, 8 his “alleged use of a false use of a TIN could not have caused the Guam Department of Revenue and 9 Taxation (“DRT”) to produce a driver’s license without lawful authority.” Docket No. 47. This 10 argument was rejected by the Ninth Circuit, and is rejected herein. 11 III. CONCLUSION 12 Accordingly, the Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or 13 Correct Sentence is HEREBY DENIED. Furthermore, the court does not find that the Petitioner “has 14 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 15 Therefore, the court will NOT issue a certificate of appealability. See Rule 11 of the Rules 16 Governing Section 2255 Proceedings for the United States District Courts. 17 SO ORDERED. 18 /s/ Frances M. Tydingco-Gatewood Chief Judge Dated: Sep 14, 2010 19 20 21 22 23 24 25 26 27 Page 7 of 7
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