ROBERT E. BLACKBURN, District Judge.
The matter is before me on the
Under 28 U.S.C. § 2255(a), a federal prisoner claiming the right to be released on the ground that his federal sentence "was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack," may move to have his or her sentence vacated, set aside, or corrected. The defendant-movant has the burden to establish his or her claim by a preponderance of the evidence.
The defendant-movant, Jung Yoon Choi (Ms. Choi), asserts in her motion that her counsel was ineffective in the course of proceedings which led to her entry of a guilty plea in this case. To prevail on any discreet claim of ineffective assistance of counsel, Ms. Choi must show as to that specific claim "that counsel's performance was deficient," i.e., "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment."
Addressing the first element, my inquiry must be whether, considering all the circumstances as of the time of the conduct, "counsel's representation fell below an objective standard of reasonableness."
Even if Ms. Choi is able to show that the performance of her counsel was constitutionally deficient, she is not entitled to relief under § 2255 unless she can affirmatively prove the deficiencies created prejudice.
Given the circumstances of this case and to ensure that Ms. Choi had a full opportunity to circumstantiate her claims, I conducted a hearing on her motion. Seven witnesses testified at the hearing. In assessing the credibility of the witnesses who testified at the hearing, I have considered all facts and circumstances shown by the evidence that affected the credibility of the witnesses, including the following factors: each witness's means of knowledge, his or her ability to observe, and his or her strength of memory; the manner in which he or she might be affected by the outcome of the hearing; the relationship each witness has to either side in the case; and the extent to which, if at all, he or she was either supported or contradicted by other evidence presented during the hearing or elsewhere in the record.
Ms. Choi claims her guilty plea in this case was involuntary because her counsel did not inform her adequately of the potential immigration consequences of her plea. In addition, Ms. Choi claims that, just before her change of plea hearing, one of her lawyers threatened her with dire consequences if she did not enter a guilty plea. To understand the context of the guilty plea of Ms. Choi and the information known to Ms. Choi in the context of her guilty plea, a timeline of events is helpful.
Ms. Choi was charged by
Plea Agreement [#18], pp. 4-5.
A first change of plea hearing was attempted on December 17, 2015, with a Korean interpreter present.
After preparation of a presentence report, a first sentencing hearing was convened on September 13, 2016. Before the hearing, the government filed a sentencing statement [#29]. There, the government contended Ms. Choi had committed new criminal offenses while she was on bond in this case. As a result, the government did not recommend a probationary sentence, but instead, recommended a custodial sentence of 19 months. Sentencing statement [#29], p. 13.
At the first sentencing hearing, both the position taken by the government on sentencing and some information in the presentence report raised concerns in the minds of Ms. Choi and her counsel. Counsel for Ms. Choi indicated that Ms. Choi may seek to file objections to the presentence report and may consider filing a motion to withdraw the guilty plea of Ms. Choi. As a result, the oral motion of Ms. Choi to continue the sentencing hearing was granted.
Immediately after the first sentencing hearing, Ms. Choi and her counsel met together in an attorney conference room just outside of the courtroom. There, they continued to discuss the guilty plea of Ms. Choi and the possibility of filing a motion to withdraw her guilty plea. At the conclusion of this meeting, Ms. Choi elected not to file a motion to withdraw her guilty plea.
A second sentencing hearing was convened on November 16, 2016. In the two months since the first sentencing hearing, Ms. Choi did not file a motion to withdraw her guilty plea. The government presented testimony to establish its contention that Ms. Choi had committed new criminal offenses while she was on bond in this case. The government continued to recommended a sentence of 19 months of imprisonment. I entered a judgment [#36] of conviction, sentenced Ms. Choi to 19 months in prison, and ordered her to pay restitution in the stipulated amount of 67,560.00 dollars.
Ms. Choi is a citizen of Korea. She was granted permanent resident status on June 15, 1989. Reply [#85], Exhibit A (Notice to Appear), CM/ECF p. 9. Ms. Choi now is subject to removal proceedings initiated by the U.S. Department of Homeland Security. Id., CM/ECF pp. 8-10. Her conviction in this case is the asserted basis for removal cited in the removal proceedings. Id.
Ms. Choi pled guilty to "obstructing and impeding the administration of the internal revenue laws," in violation of 26 U.S.C. § 7212(a). In her
At her second change of plea hearing on January 14, 2016, Ms. Choi was assisted by a Korean interpreter, Cheol B. Lee. Transcript [#65], p. 3. Before commencing its Rule 11 plea colloquy, the court administered to Ms. Choi the solemn oath to tell the truth, subject to the pain and penalty of perjury. Id., p. 4. Immediately subsequent to the administration of the solemn oath to tell the truth, the court advised Ms. Choi of the criminal consequences she might suffer for making a false statement to the court during the change of plea hearing.
Asked if she understood and spoke some English, Ms. Choi indicated "not really." Id., p. 5. She said she was able to communicate in Korean with the interpreter without difficulty. Id. Under oath, Ms. Choi acknowledged, inter alia, that she
Id., pp. 7-8, 12-16.
The court asked "(h)as anyone forced you to participate in this plea agreement and (h)as anyone forced you to enter a plea of guilty to this crime?" To each question, Ms. Choi answered "No, Your Honor." Id., p. 13. The court asked has "anyone made promises to you of which [the court is] unaware." Id. Ms. Choi answered "No, Your Honor." Id.
At the change of plea hearing, the court gave the following advisement and asked the following question focusing on immigration consequences:
Id. at p. 13. Ms. Choi answered "yes." Id. The court asked: "Have you discussed these consequences with your attorney?" Id. Again, Ms. Choi answered "yes." Id. At the conclusion of the plea colloquy, the court again focused on questions or concerns of Ms. Choi: "Do you now have any questions or concerns?" id. at p. 15, to which Ms. Choi responded under oath, "No, Your Honor." Id.
In her present motion [#78], Ms. Choi contends her counsel was ineffective because her counsel gave her incorrect and incomplete advice concerning her Plea Agreement and her guilty plea. Motion [#78], p. 11. Ms. Choi contends her attorneys never reviewed the
The second change of plea hearing was held on January 14, 2016. Minutes [#17]. According to Ms. Choi, just before this hearing, one of her lawyers, J.Y. Kang, told her to answer "yes" to all of the questions posed by the judge. Id., p. 4. She says Mr. Kang told her that if she failed to do so, she would not receive probation, she would go to prison for three years, her family members would be prosecuted, and she would be deported. Id. She says Mr. Kang then rushed her into signing her
Notably, the transcript of the change of plea hearing [#65] shows that Ms. Choi answered "no," "not really," or something similar, to several questions posed by the court at the change of plea hearing. For example, asked if she had any questions or concerns about anything in the Plea Agreement, Ms. Choi responded "No, Your Honor." Id. p. 8. Asked if she wanted the court to repeat a previous advisement about her waiver of appeal in the Plea Agreement, Ms. Choi responded "No, Your Honor. I understood that." Id., p. 9. Asked if anyone had forced her to participate in the Plea Agreement, Ms. Choi answered: "No, Your Honor. It's my own decision." Id., p. 13. The transcript reflects at least 11 such negative answers from Ms. Choi in response to a variety of questions from the court. Each of these answers was appropriate, considering the circumstances. Reading the whole transcript of the change of plea hearing, it is clear Ms. Choi did not feel compelled to answer — and, in fact, did not answer — all questions from the court with a "yes" or its functional equivalent.
When her Plea Agreement was negotiated with the government, Ms. Choi was represented by two attorneys, J.Y. Kang and Harvey Steinberg. Mr. Kang and Mr. Steinberg continued to represent Ms. Choi until judgment was entered and a sentence was imposed. Both Mr. Kang and Mr. Steinberg testified at the hearing on the § 2255 motion of Ms. Choi. In his testimony, Mr. Kang described in detail a conference held on July 27, 2015. Mr. Kang was in his office with an experienced Korean interpreter, Cheol Lee. Ms. Choi participated in this conference by telephone and could hear Mr. Kang and Mr. Lee. During this meeting, which lasted about two hours, Mr. Kang read the information, the Plea Agreement, and the Statement In Advance aloud in English. He read these documents sentence by sentence as Mr. Lee provided Korean interpretation for Ms. Choi. Frequently, Ms. Choi would stop the reading to ask questions about particular terms in these two documents. Mr. Kang testified that Ms. Choi was engaged in the conversation during this meeting, and she gave every indication that she understood the terms of the Plea Agreement and the Statement In Advance.
Mr. Lee also testified at the § 2255 hearing. He confirmed that the July 27, 2015, telephonic conference took place, that he and Mr. Kang were in the office of Mr. Kang, and that Ms. Choi participated by telephone. He also confirmed that Mr. Kang read the Plea Agreement and the Statement In Advance aloud, in English, and Mr. Lee provided interpretation in Korean for the benefit of Ms. Choi. Mr. Lee testified that Ms. Choi asked many questions about the documents during this meeting. Consistent with the testimony of Mr. Kang and Mr. Lee, Mr. Steinberg testified that Mr. Kang told him that an interpreter had translated the Plea Agreement for Ms. Choi.
Mr. Kang testified that he told Ms. Choi there was a risk she would be removed from the U.S. based on her guilty plea. In addition, he says he told her on several occasions that she needed to seek the advice of an immigration lawyer concerning the risks of removal associated with her contemplated guilty plea. Mr. Lee testified that during the July 27, 2015, meeting, Mr. Kang told Ms. Choi that her guilty plea could have consequences for her immigration status and told her she should speak to an immigration lawyer. Similarly, Mr. Steinberg testified credibly that he told Ms. Choi that he had tried to put her in the best position possible, but that notwithstanding she may be deported after sentencing, and there was nothing Mr. Steinberg could do to prevent that. Further, he told Ms. Choi to seek the advice of an immigration attorney.
The testimony of Mr. Kang and Mr. Lee concerning the July 27, 2015, meeting with Ms. Choi is very credible. Mr. Kang and Mr. Lee observed the relevant events first hand, their memories of these events generally are strong, and their testimony about this meeting is largely consistent. Their testimony demonstrates that the Plea Agreement and Statement In Advance both were interpreted to Ms. Choi in Korean, Ms. Choi had the opportunity to ask — and did ask — questions about the terms of these documents, she availed herself of that opportunity repeatedly, and she exhibited a detailed understanding of these documents. In addition, the testimony of Mr. Kang and Mr. Lee demonstrates that Ms. Choi was warned, on July 27, 2015, that her guilty plea could have significant, adverse immigration consequences for her. On that day and at other times, she was advised to seek advice from an immigration lawyer to get an expert and detailed assessment of this risk.
Mr. Steinberg testified at the § 2255 hearing that he also advised Ms. Choi that the risk of removal was ever present and that he researched the relevant immigration statutes to gain information about the risk of removal faced by Ms. Choi. He also testified that he sought, successfully, to keep the words fraud and deceit out of the plea agreement because he thought the absence of those words would put Ms. Choi in a better status with immigration authorities. This testimony also is credible, in part because Mr. Steinberg testified accurately about some of the applicable statutes. As discussed in section IV. B., of this order, this approach by Mr. Steinberg potentially provided the best possible insulation from removal to Ms. Choi.
As noted above, the first sentencing hearing commenced September 13, 2016. At that time, Ms. Choi knew the government would not recommend a probationary sentence. Rather, the government recommended a custodial sentence to imprisonment of 19 months. Sentencing statement [#29], p. 13. That recommendation plus some questions about the presentence report caused Ms. Choi to move for a continuance of the sentencing hearing. That motion to continue was granted, and the September 13, 2016, sentencing hearing was not completed. Immediately after court was in recess, Ms. Choi met with her counsel in an attorney conference room just outside of the courtroom. Mr. Kang, Ms. Choi, and interpreter Jason Park were present. In his testimony, Mr. Kang described this meeting as lasting around two hours. Mr. Kang testified that he, Ms. Choi, and the interpreter, Mr. Park, were present for the entire meeting. He said Mr. Steinberg also was present, but he may have left before the meeting ended.
According to Mr. Kang, he and Mr. Steinberg were concerned that a real risk of removal would arise if the court imposed a custodial sentence of one year or more. Mr. Steinberg testified that, at the September 13, 2016, meeting, he told Ms. Choi she could file a motion to withdraw her plea. Those present spent considerable time discussing this option and the option of going to trial. Mr. Steinberg said he told Ms. Choi that if she proceeded to trial, and was convicted, she was likely to receive a prison sentence longer that the sentence proposed by the government at the sentencing hearing that day. In addition, Mr. Steinberg told Ms. Choi that removal was more likely if she received a longer prison sentence. Mr. Kang testified that, during the meeting, Mr. Steinberg asked Ms. Choi directly if she wished to file a motion to withdraw her plea and, instead, proceed to trial. Mr. Steinberg testified that, near the conclusion of the meeting and after much discussion, he asked Ms. Choi if she wished to move to withdraw her plea. In response, Ms. Choi stated she wanted to go forward with the Plea Agreement.
Mr. Park, the interpreter, also testified about the September 13, 2016, meeting. He said Mr. Steinberg was there at the beginning of the meeting but he left before Mr. Kang. After Mr. Steinberg left, Mr. Park testified, Ms. Choi and Mr. Kang continued their discussion. Mr. Park recalls that the meeting lasted over an hour, but he did not testify to the precise amount of time taken in the meeting. Mr. Park provided Korean interpretative services during this meeting. Mr. Park believes the Plea Agreement was the subject of most of the discussion at the meeting, but he did not recall specifically particular topics discussed at the meeting.
The testimony of Mr. Kang and Mr. Steinberg concerning the September 13, 2016, meeting with Ms. Choi is very credible. Mr. Kang and Mr. Steinberg observed the events first hand, their memories of these events generally are strong, and their testimony about this meeting is largely consistent. Their testimony demonstrates that the Plea Agreement, and the alternative of withdrawing the extant plea of guilty and going to trial were discussed at length with Ms. Choi at this meeting. In addition, their testimony shows that the risk of removal again was discussed with Ms. Choi during this meeting. After an extended discussion of her options — trial or the Plea Agreement — Ms. Choi chose to proceed under the Plea Agreement.
In stark contrast to her statements under oath at the January 14, 2016, change of plea hearing, Ms. Choi testified at the hearing on her § 2255 motion that she was never aware of a risk that she would be removed or deported based on her guilty plea and felony conviction in this case. In her testimony at the § 2255 hearing, she agreed that the July 27, 2015, telephone conference with Mr. Kang and Mr. Lee took place and that she participated by telephone. However, she claimed she understood very little about what was discussed in this meeting. She testified also that the September 13, 2016, courthouse meeting with Mr. Kang and Mr. Steinberg, with Mr. Park acting as an interpreter, took place. However, she says nothing about any discussion at this meeting of the risk that she would be deported.
In her motion and in her testimony at the § 2255 hearing, Ms. Choi claims also that, just prior to the second change of plea hearing on January 14, 2016, Mr. Kang threatened Ms. Choi. Ms. Choi claims Mr. Kang instructed her to answer "yes" to all of the questions posed to her by the judge during the hearing. She claims Mr. Kang told her that, if she did not answer all of the judge's questions "yes," then she would not receive probation, she would go to prison for three years, her family members would be prosecuted, and she would be deported. Given these threats, she claims, she signed the Statement In Advance. She claims she felt she had no choice but to plead guilty, she did not understand the terms of the Plea Agreement, including the risk of deportation, and the threats of Mr. Kang essentially forced her to sign the Plea Agreement and enter her guilty plea. She says she pled guilty while in fear of the threats of Mr. Kang and despite the fact that she did not understand the terms of the Plea Agreement, including the risk she would be deported.
This testimony by Ms. Choi is inherently incredible. Starkly, this testimony contradicts the statements made by Ms. Choi, under oath, at the January 14, 2016, change of plea hearing. As detailed above, during the change of plea hearing, Ms. Choi stated under oath that she understood her Plea Agreement and the Statement In Advance. She also stated under oath that she understood that her guilty plea may have severe immigration consequences, including deportation or removal. The credibility of Ms. Choi is severely undermined by the fact that her sworn written statement [#78-1] in support of her § 2255 motion and her testimony at the § 2255 hearing starkly contradict her earlier statements under oath at the January 14, 2016, hearing.
The credibility of Ms. Choi on these points is further undermined by the credible testimony of Mr. Kang, Mr. Steinberg, and Mr. Lee concerning the information provided to Ms. Choi and her understanding of that information. Their testimony indicates that detailed explanations of the Plea Agreement and Statement In Advance were given to Ms. Choi long before the January 14, 2016, change of plea hearing. The testimony of Mr. Kang, Mr. Steinberg, and Mr. Lee shows also that Ms. Choi had a detailed understanding of her Plea Agreement, including the risk of removal, well before the January 14, 2016, change of plea hearing. These facts are further confirmed by testimony about the September 13, 2016, meeting of Ms. Choi with her counsel. This meeting took place immediately after the first sentencing hearing was continued. At that time, Ms. Choi and her counsel were aware that the government would not recommend a probationary sentence. At this meeting, Ms. Choi had the opportunity to re-consider the guilty plea she had entered previously and to move to withdraw her plea. After a long discussion with counsel, which discussion included the risks of trial and the risk of deportation, Ms. Choi elected not to move to withdraw her plea and to go forward with the Plea Agreement. The testimony of Mr. Steinberg and Mr. Kang concerning this meeting demonstrates that the understanding of Ms. Choi was further confirmed, and probably enhanced, at this meeting.
The testimony of Ms. Choi concerning the purported threats issued by Mr. Kang prior to the January 14, 2016, change of plea hearing also is not credible. First, the stark contradictions in the various versions of events described by Ms. Choi undermine her credibility generally. Second, under oath at her change of plea hearing, Ms. Choi stated she had not been forced to enter into the Plea Agreement or to enter her guilty plea. Transcript [#65], p. 13. Third, there is no evidence to corroborate the claim of Ms. Choi that Mr. Kang made these threats. No other percipient witness testified that Mr. Kang expressed these threats to Ms. Choi prior to the January 14, 2016, hearing.
Michael Choi, son of Ms. Choi, and Jeffrey Mann also testified at the § 2255 hearing. Mr. Mann is an attorney who entered his appearance on behalf of Ms. Choi on October 21, 2016, a short time before sentencing. Both of these witnesses testified about various times when they perceived Ms. Choi to express a lack of understanding of her plea agreement. Neither of these witnesses was present at the discussions between Ms. Choi and her counsel or at the January 14, 2016, change of plea hearing. Those discussions and that hearing are the most important events which provide a factual basis on which the understanding, vel non, of Ms. Choi, and the advice given to Ms. Choi can be determined. Neither Michael Choi nor Jeffrey Mann were percipient witnesses who observed any of these events. Thus, I find that their testimony at the § 2255 hearing is, at best, only obliquely relevant to the issues relevant to the § 2255 motion of Ms. Choi.
Having reviewed the record, I find and conclude that the motion and the files and records of the case, including the evidence presented at the § 2255 hearing, conclusively show that Ms. Choi is entitled to no relief. This is true because the record does not support her claim that her counsel was ineffective and her plea was involuntary.
The sworn statements of Ms. Choi at her change of plea hearing demonstrate that she had discussed her Plea Agreement with her counsel with the assistance of a Korean interpreter; understood everything in her written Plea Agreement; had no questions or concerns about anything in the Plea Agreement; was fully satisfied with her counsel, Mr. Steinberg and Mr. Kang; had no questions or concerns about anything in the Plea Agreement; signed the Plea Agreement knowingly and voluntarily, with the benefit of the advice and assistance of her counsel; understood her conviction may have severe immigration consequences, including deportation or removal; had not been forced to participate in the Plea Agreement; had not been forced to plead guilty; and had not been made promises that were not described on the record at the hearing. The sworn, uncoerced statements of Ms. Choi at her change of plea hearing demonstrate clearly that her guilty plea was voluntary, knowing, intelligent, and intentional.
Sworn declarations in a change of plea hearing are critically important. If the oath given to Ms. Choi at the outset of her change of plea hearing is to mean anything, her sworn declarations at the hearing must be given a strong presumption of truth and accuracy.
In
Addressing the stark contradiction between Hedman's statements at his change of plea hearing and his statements in support of his § 2255 motion, the Tenth Circuit held:
In the
Not only does Ms. Choi conclusively refute herself, the testimony presented at the § 2255 hearing, particularly the testimony of Mr. Kang, Mr. Steinberg, and Mr. Lee, also refutes the claims of Ms. Choi. The credible testimony of Mr. Kang, Mr. Steinberg, and Mr. Lee demonstrates clearly that the Plea Agreement and the Statement In Advance both were explained in detail to Ms. Choi and that a qualified Korean interpreter assisted in this process.
When removal is a certain or automatic consequence of a guilty plea, a defense attorney has "the duty to give correct advice" about that clear immigration consequence.
In
The case of Ms. Choi, and the duty of her attorneys, differ significantly from the duty of counsel for Mr. Padilla. I find and conclude that, based on her conviction in this case, Ms. Choi is not clearly subject to automatic removal, as was Mr. Padilla. Rather, it is readily debatable whether her conviction subjects her to automatic deportation. Ms. Choi pled guilty to violating 26 U.S.C. § 7212(a). That statute is titled "Attempts to interfere with administration of internal revenue laws." In the Plea Agreement, the parties agreed that the elements of this offense are
Plea Agreement [#18], p. 5. The parties agreed that to act "corruptly" means to act with the intent to secure an unlawful benefit either for oneself or for another. Id.
Counsel for Ms. Choi has argued she is subject to automatic deportation under 8 U.S.C. § 1227(a)(2)(A)(i). Ms. Choi complains Mr. Kang and Mr. Steinberg failed to advise her of this fact. That statute provides that any alien who
8 U.S.C. § 1227(a)(2)(A)(i). Ms. Choi was granted permanent resident status on June 15, 1989. Reply [#85], Exhibit A (Notice to Appear), CM/ECF p. 9. The crime that is the subject of the Plea Agreement was committed in 2009 and 2010, approximately 20 years after Ms. Choi was granted permanent resident status. Thus, on its face, § 1227(a)(2)(A)(i) is not applicable to the crime of conviction in this case. Further, in the removal proceedings pending against Ms. Choi, the U.S. Department of Homeland Security (DHS) does not assert § 1227(a)(2)(A)(i) as a basis for her removal. If there is some valid argument for application of this statute to Ms. Choi, that argument is not at all obvious, clear, or certain.
In the
8 U.S.C. § 1101(a)(43)(M).
Ms. Choi did not plead guilty to a crime described in 26 U.S.C. § 7201. Thus, on its face § 1101(a)(43)(M)(ii) is not applicable to her. Ms. Choi claims, however, that she pled guilty to a crime involving fraud or deceit in which the loss to the victim exceeded ten thousand dollars. Thus, she claims she is subject to removal for committing an aggravated felony, as defined in § 1101(a)(43)(M)(i). She claims Mr. Kang and Mr. Steinberg were constitutionally ineffective because they never advised her of this fact. I conclude that the application § 1101(a)(43)(M)(i) to Ms. Choi is not so pellucid.
Notably, § 7212(a), the statute under which Ms. Choi was convicted, does not contain — in any form — the words fraud or deceit. Similarly, the Information [#1] charging Ms. Choi does not contain — in any form — the words fraud or deceit. Finally, the Plea Agreement [#18] does not contain — in any form — the words fraud or deceit. Harvey Steinberg, counsel for Ms. Choi, testified that he worked to ensure that the words fraud and deceit were not in the Plea Agreement because he thought the absence of those words would put Ms. Choi in a better status with immigration authorities.
Based upon the specific language of § 1101(a)(43)(M)(i), § 7212(a), and the Plea Agreement, it is far from clear that the definition of "aggravated felony" as defined § 1101(a)(43)(M)(i) is applicable to the conviction of Ms. Choi. There is a good argument that her conviction, the nature and substance of which is described in the Information and the Plea Agreement, does not involve fraud or deceit and, therefore, does not fall within § 1101(a)(43)(M)(i). If there is some valid argument for application of § 1101(a)(43)(M)(i) to the conviction of Ms. Choi, that argument is not obvious, clear, or certain.
As the Plea Agreement was negotiated, when the Plea Agreement and related documents were explained to Ms. Choi, when Ms. Choi entered her guilty plea, and when Ms. Choi considered the possibility of moving to withdraw her plea, the risk of removal was unclear and uncertain. The same is true now. Thus, the duty of Mr. Kang and Mr. Steinberg was to advise Ms. Choi — as they did — that her guilty plea "may carry a risk of adverse immigration consequences."
At the § 2255 hearing, counsel for Ms. Choi relied on
The issue of prejudice is of no moment in the present case. That is true because Ms. Choi has not shown that her counsel was constitutionally ineffective while negotiating the Plea Agreement, when explaining the Plea Agreement and its immigration consequences to her, or when advising her that her Plea Agreement and concomitant conviction may have severe immigration consequences. Thus, in the present case,
Concerning the relevant issues where the testimony is in dispute, I find the testimony of Mr. Steinberg, Mr. Kang, and Mr. Lee to be more credible than the testimony of Ms. Choi, Mr. Choi, and Mr. Mann. Based on the evidence in the record, including the testimony presented at the § 2255 hearing, I find that when Ms. Choi entered her guilty plea, she understood the terms of her Plea Agreement and her Statement In Advance. I find that prior to the entry of her guilty plea, counsel for Ms. Choi repeatedly advised her that she faced a significant risk of removal based on her guilty plea and concomitant felony conviction. Ms. Choi understood that she faced this risk of removal when she entered her guilty plea. As a matter of law, I conclude that counsel for Ms. Choi was not constitutionally ineffective because they did not provide to Ms. Choi a more detailed assessment of her risk of deportation, including advice that Ms. Choi is subject to mandatory deportation. Given the law summarized in this order, the risk of removal to Ms. Choi was not certain or automatic, but instead, was unclear and uncertain. The advice repeatedly provided by counsel for Ms. Choi indicating that her plea may carry a risk of adverse immigration consequences, including removal, is constitutionally adequate. In summary, Ms. Choi has not shown by a preponderance of the evidence that she is entitled to relief under § 2255 based on her claim of ineffective assistance of counsel.
Under Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts, a "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Under 28 U.S.C. § 2253(c)(2), this court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." Such a showing is made only when "a prisoner demonstrates `that jurists of reason would find it debatable' that a constitutional violation occurred, and that the district court erred in its resolution."
Ms. Choi has not shown that the performance of her counsel was constitutionally deficient or that her guilty plea was involuntary. Therefore, Ms. Choi is not entitled to relief under § 2255. Accordingly, her motion is denied.
1. That the
2. That under 28 U.S.C. § 2253(c)(2), a certificate of appealability is denied; and
3. That the related Civil Action No. 17-cv-02722-REB is closed.
Typically, in a sentencing hearing I ask only one question directly of the defendant. I ask the defendant if he or she wishes to make a statement or to offer additional information in mitigation. In the sentencing hearing of Ms. Choi, that is the only question I asked directly of Ms. Choi. Transcript [#67], pp. 10-11.
According to Ms. Choi, just prior to the January 14, 2016, change of plea hearing, Mr. Kang told her to answer all questions from the judge "yes." In contrast to Mr. Mann, Ms. Choi does not claim Mr. Kang gave this advice prior to her sentencing hearing on November 16, 2016. Given these circumstances, I find that the testimony of Mr. Mann concerning the statements of Mr. Kang just prior to the November 16, 2016, sentencing hearing is not credible.
