SUSAN D. WIGENTON, District Judge.
Presently before the Court is the motion of John Y. Lee ("Petitioner") to vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C. § 2255. (ECF No. 1). Following this Court's Order to Answer (ECF No. 2), the Government filed a response to the motion (ECF No. 10), to which Petitioner has replied. (ECF No. 11). For the reasons set forth in this Opinion, this Court will deny Petitioner's motion and deny him a certificate of appealability.
On June 23, 2008, Petitioner, John Y. Lee pled guilty to charges of wire fraud and filing false tax returns based on his having defrauded his employer, Samsung, out of a considerable amount of money through the use of a fictitious company. (See Docket No. 08-443 at ECF Nos. 15-19). Following his guilty plea but prior to sentencing, however, Petitioner unlawfully fled the United States for South Korea, where he remained until he returned to the United States in 2016, at which point he was apprehended at the airport and returned for sentencing. (See, e.g., Document 1 attached to ECF No. 10 at 3). On June 29, 2016, Petitioner appeared before this Court for sentencing. (See Document 2 attached to ECF No. 10).
At sentencing, Petitioner argued through counsel that, although the presentence report had recommended an enhancement of his sentence based on his having obstructed justice by fleeing the country, he should also be granted either a reduction of his guidelines level under U.S. Sentencing Guidelines § 3E1.1 for the acceptance of responsibility demonstrated by his guilty plea and voluntary return to the United States or a downward variance on that same basis. (Id. at 6-7). In support of that request, counsel for Petitioner argued that Petitioner's plea and willing return evinced his acceptance of responsibility for his fraud, and that his flight only occurred because of an extraordinary circumstance — the fact that Petitioner's girlfriend had been pregnant with his son at the time and Petitioner felt that his son needed his father. (Id.). Counsel further argued that Petitioner accepted responsibility by returning to the United States to turn himself in even though he was under no immediate threat of arrest had he remained with his son in South Korea. (Id. at 7).
This Court rejected that argument for the following reasons:
(Id. at 12-13). This Court thereafter sentenced Petitioner to seventy-five months imprisonment for the fraud count of his plea, and a concurrent term of thirty-six months imprisonment on the tax count of the Information to which he had pled guilty. (Docket No. 08-443 at ECF No. 28). Petitioner was also ordered to serve a three year term of supervised release upon the completion of his custodial sentence. (Id.). Following the issuance of Petitioner's sentence, this Court directly informed Petitioner that he had "14 days from . . . to [file] an appeal of his sentence" and that, if he could not afford the filing fee, he could "request that the Clerk of the Court file [a] notice of appeal on [his] behalf." (See Document 2 attached to ECF No. 10 at 18). Petitioner did not appeal his sentence, nor did he submit anything to the Court indicating that he wished to appeal or wished for the Clerk to file a notice of appeal on his behalf. (Docket No. 08-443 ECF Docket Sheet).
On or about February 23, 2017, however, Petitioner filed his current motion to vacate sentence. (ECF No. 1). In his motion, Petitioner contends that, after sentencing, he wished to appeal his sentence, but was not visited by counsel post-sentencing, and that counsel was therefore constitutionally ineffective because he had not conferred with him about a potential appeal. (Id.). Both Petitioner's plea counsel, Paul B. Brickfield, and Petitioner have submitted certifications addressing the factual basis for Petitioner's claim, in large part agreeing as to the course of events which occurred before, during, and after sentencing. The following facts are drawn from those certifications.
Both Petitioner and counsel agree that Mr. Brickfield (hereafter "counsel") began representing Petitioner in 2007, and that counsel represented Petitioner both during plea negotiations and during Petitioner's sentencing hearing after his return from South Korea. (Document 1 attached to ECF No. 10 at 3; ECF No. 11 at 16). Following Petitioner's capture in Los Angeles, counsel met with Petitioner three times at Essex County Jail. (Document 1 attached to ECF No. 10 at 3; ECF No. 11 at 16). Although counsel states that he discussed with Petitioner his right to appeal at that time, Petitioner "cannot recall any advi[ce] on his appeal" but does recall discussing the presentence report and sentencing issues. (Document 1 attached to ECF No. 10 at 3; ECF No. 11 at 16). Counsel further states that they met again on the day of the sentencing, and that, at that time, he advised Petitioner that an appeal was unlikely to succeed if the Court rejected his acceptance of responsibility argument. (Document 1 attached to ECF No. 10 at 4; ECF No. 11 at 16). Petitioner recalls discussing the sentencing issues, but states that he does not recall any discussion of appellate matters. (Document 1 attached to ECF No. 10 at 4; ECF No. 11 at 16).
Following Petitioner's sentencing, Petitioner "asked [counsel] if anything could be done and [counsel] told him that in [his view] the District Court had not done or said anything that would [support] a viable appeal. [Petitioner] thanked [counsel] and said goodbye [and counsel] did not meet with Petitioner in the holding facility after the sentencing." (Document 1 attached to ECF No. 10 at 4; ECF No. 11 at 16-17). Petitioner does not directly dispute this statement by counsel, but states that he only said goodbye "as [he] was in shock after receiving [his] sentence" and he was taken back to the holding area "thinking [his] lawyer [would] be by shortly to talk." (ECF No. 11 at 16-17). Although Petitioner stated in his initial petition that he had attempted to contact counsel to request that an appeal be filed but was unable to reach him (See Document No. 1 attached to ECF No. 1 at 4), Petitioner in his reply certification agreed with counsel's certification that "[Petitioner] never called or wrote [counsel] after [sentencing] asking about an appeal or telling [counsel] to file an appeal," despite the following events
A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional violation, to be entitled to relief the moving party must show that an error of law or fact constitutes "a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure." United States v. Horsley, 599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert. denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F.Supp.2d 454, 458-59 (D.N.J. 2003).
28 U.S.C. § 2255(b) requires an evidentiary hearing for all motions brought pursuant to the statute "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). "Where the record, supplemented by the trial judge's personal knowledge, conclusively negates the factual predicates asserted by the petitioner or indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required." Judge v. United States, 119 F.Supp.3d 270, 280 (D.N.J. 2015); see also Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham, 587 F. App'x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. For the reasons set forth below, Petitioner's claims are without merit. Based on the record before this Court, and in light of the concessions made in Petitioner's reply certification (ECF No. 11 at 16-17), no hearing is required in this matter.
In his motion to vacate sentence, Petitioner presents a single claim — that he wished to file an appeal to challenge his sentence on the grounds that the Court had erred in denying him a reduction of his guidelines level for acceptance of responsibility and that his counsel proved constitutionally ineffective in failing to visit him after his sentence to discuss and ultimately file that appeal. As the Third Circuit has explained, such claims are governed by the Supreme Court's ruling in Roe v. Flores-Ortega, 528 U.S. 470 (2000):
United States v. Sherdrick, 493 U.S. 292, 300-01 (3d Cir. 2007).
Although Petitioner asserts that counsel was constitutionally deficient in failing to consult with him regarding an appeal, because Petitioner and counsel agree that Petitioner "never requested that [counsel] appeal his sentence" (See Document 1 attached to ECF No. 10 at 6 ¶ 24; cf. ECF No. 11 at 17 ¶ 24), Petitioner could only show that counsel had a duty to consult with him regarding an appeal if he could demonstrate that "there [was] reason to think . . . that a rational defendant would want to appeal" under the circumstances of Petitioner's case.
In this matter, Petitioner pled guilty and received all of the benefits that were offered to him in his plea agreement at sentencing.
Although the circumstances surrounding Petitioner's plea weigh against the likelihood of a rational defendant wishing to appeal, there is one factor which weighs in favor of the likelihood that a rational defendant would want to appeal — that Petitioner received a harsher sentence than he would have received had he not fled in 2008. That factor, however, is undercut by two other issues present in this case — the fact that the increase is entirely due to Petitioner's own flight — which any rational defendant would understand would negatively impact his sentence, and the fact that Petitioner had no nonfrivolous issues to raise on appeal. Indeed, counsel himself certifies that he knew at the time of sentencing that an appeal of this Court's finding that Petitioner was not entitled to a reduction based on acceptance of responsibility had "little chance of success as a practical matter" as Petitioner's sentence was left to this Court's discretion and Petitioner's flight presented a significant hurdle to any reduction. (See Document 1 attached to ECF No. 10 at 3-4). Although Petitioner asserts that he does not recall counsel explaining his chances on appeal, Petitioner does admit in his certification that counsel explained to him the high likelihood of a much longer sentence based on his flight to South Korea prior to sentencing, so a rational defendant in Petitioner's position clearly would have understood that he was unlikely to receive the requested sentencing reduction for acceptance of responsibility. (See ECF No. 11 at 16; cf. Document 1 attached to ECF No. 10 at 3-4).
As to whether Petitioner had any nonfrivolous claims to present on appeal, Petitioner asserts that the only potential issue he had was his claim that he should have been accorded a sentencing reduction for acceptance of responsibility and that the Court's rejection of that request equated to double punishment for his flight. That claim, however, is patently without merit. As the comments to the Sentencing Guidelines explain, "[c]onduct resulting in an enhancement [of sentence] under [the obstruction of justice guideline, such as for flight prior to sentencing,] ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct," and it is only in "extraordinary cases" that both guidelines could be applied to the same defendant. See U.S.S.G. § 3E1.1. cmt. n. 4; § 3C1.1 cmt. n. 4(E); see also United States v. Chambers, 646 F. App'x 213, 216 n. 4 (3d Cir. 2016). As this Court explained at sentencing, there was nothing extraordinary about Petitioner's case — he fled the country to prevent his then unborn child from growing up without a father, and there is nothing extraordinary about a prison sentence separating a parent from their child — and thus there was no legitimate basis for finding that Petitioner's case warranted an acceptance of responsibility reduction in light of his flight from the consequences of his actions for the better part of a decade. See e.g. United States v. Honken, 184 F.3d 961, 970 (8th Cir. 1999) (when the commission refers to an `extraordinary case,' it means a situation that is extremely rare and highly exceptional"); United States v. Brown, 80 F. App'x 794, 795 (3d Cir. 2003) (citing Honken, 184 F.3d at 970). Given the lack of extraordinary circumstances in Petitioner's case, and the fact that a claim such as Petitioner's proposed acceptance of responsibility claim would be reviewed only for clear error, it is clear that the claim Petitioner contends he would have pursued on appeal would have been meritless.
Taking into account all of the information that counsel knew or should have known in this matter, including the extreme unlikelihood of success on Petitioner's acceptance of responsibility downward departure requests and Petitioner's agreement with counsel that he did not indicate to counsel that he was interested in taking an appeal in his underlying criminal matter, this Court concludes that Petitioner has failed to show either that he actually requested an appeal or that counsel had reason to know that a rational defendant in Petitioner's position would have wanted to appeal. Petitioner has failed to provide any evidence that he indicated to the Court or counsel that he wished to take an appeal, and in fact has admitted that he never requested such an appeal from counsel despite communicating with him several times after his sentencing, Petitioner had no nonfrivolous grounds for appeal, and Petitioner received all of the benefits bargained for in his plea agreement. Given these facts, counsel had no reason to believe that a rational defendant in Petitioner's position would have wanted to appeal, and as such he had no duty to consult with Petitioner after sentencing to see if Petitioner wished to appeal. See Flores-Ortega, 528 at 479-82. Thus, even if this Court assumes, arguendo, that Petitioner is correct in asserting that counsel never actually consulted with him to explain the advantages and disadvantages of an appeal, Petitioner has failed to show that his counsel's performance was deficient under the Strickland standard. Id. Petitioner is thus not entitled to relief on the sole claim presented in his § 2255 motion, and that motion is denied.
Pursuant to 28 U.S.C. § 2253(c) the petitioner in a § 2255 proceeding may not appeal from the final order in that proceeding unless he makes "a substantial showing of the denial of a constitutional right." "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude that the issues presented here are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). For the reasons expressed above, the sole claim raised in Petitioner's § 2255 motion is without merit, and Petitioner has thus failed to make a substantial showing of the denial of a constitutional right. A certificate of appealability is therefore denied.
For the reasons set forth above, Petitioner's motion to vacate his sentence (ECF No. 1) is DENIED, and Petitioner is DENIED a certificate of appealability. An appropriate order follows.
