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PARK v. U.S.

August 9, 2005.

YONG WONG PARK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE JED S. RAKOFF, U.S.D.J.:

This case presents the question of what duty criminal defense counsel owes to a non-citizen client. Yong Wong Park, a Korean national, petitions for a writ of error coram nobis to vacate his conviction for trafficking in counterfeit goods. Mr. Park alleges that his guilty plea was unconstitutional because it was the result of ineffective assistance of counsel. The petitioner claims he would not have pled guilty if he had known that it would result in his deportation. For the reasons that follow, I recommend that Mr. Park's petition be denied.

  Background

  In February 2000, Mr. Park pled guilty to trafficking in counterfeit goods. (Affidavit of Yong Wong Park, dated January 6, 2005 ("Pet. Aff."), ¶ 2). Based on all relevant sentencing factors, the petitioner's plea resulted in a sentencing range of 21 to 27 months. (Letter of Marcia S. Cohen dated April 27, 2005 ("Cohen Letter") at 3). The Honorable Jed Rakoff, U.S.D.J. accepted Mr. Park's plea and sentenced him to 21 months of imprisonment, followed by two years of supervised release. (Plea Allocution, dated February 18, 2000 at 14, attached as Exh. 1 to Cohen Letter; Sentencing Transcript dated July 5, 2000 ("Sent. Tr.") at 14-15, attached as Exh. 3 to Cohen Letter). Judge Rakoff also imposed as a special condition of supervised release that Mr. Park cooperate with the Immigration and Naturalization Service (the "INS") in any proceedings regarding his status in the United States. (Sent. Tr. at 16).

  In July 2001, Mr. Park filed a pro se writ pursuant to 28 U.S.C. § 2255, alleging that his sentence should be set aside due to improper venue, jurisdictional defects, and ineffective assistance of counsel because his attorney failed to raise these defenses. (Cohen Letter at 6). Judge Rakoff denied that application. Since that time, Mr. Park has completed serving his sentence. (Petitioner's Memorandum of Law ("Pet. Memo."), at 3).

  On March 27, 2002, the INS commenced deportation proceedings against Mr. Park in New Jersey, alleging that he had committed a crime involving moral turpitude. (Pet. Memo. at 4). An alien found to have committed such a crime is deportable, but may also receive discretionary relief from deportation. 8 U.S.C. §§ 1227(a)(2)(A)(i), 1229b. On July 15, 2004, however, the INS changed its asserted basis for Mr. Park's deportation by alleging that he had committed an aggravated felony. (Pet. Memo. at 4). Under current immigration law, aggravated felons cannot receive discretionary relief from deportation. 8 U.S.C. § 1229b(a)(3). Due to the nature of Mr. Park's crime and the length of his sentence, he was found to have committed an aggravated felony, and a final order of removal was entered.*fn1 (Pet. Memo. at 4).

  Mr. Park now seeks to overturn the conviction on which his deportation is based through an application for a writ of error coram nobis. Mr. Park's affidavit alleges that his attorneys, Daniel Becker and Joseph Ferriero, did not advise him that he could be subject to removal as a consequence of his conviction on a plea of guilty. (Pet. Aff., ¶ 2). Rather, they informed him that he would not be deported because he had paid his taxes for five years, had a "green card" (i.e., was a lawful permanent resident), and had family members who were United States citizens. (Pet. Aff., ¶ 2). The petitioner claims he would not have pled guilty if he had known it would result in his removal because he has lived in this country for over 20 years, his wife and children have no roots in Korea, and his family members would be unable to support themselves without his income. (Pet. Aff., ¶ 3). I held an evidentiary hearing on July 7, 2005 to evaluate of Mr. Park's factual allegations.

  At this hearing, Mr. Park testified that he first asked his criminal defense counsel, Mr. Becker, about the deportation consequences of his plea one week before it was entered. (Tr. at 97).*fn2 In contrast to the sworn statements in his affidavit, the petitioner now claims that Mr. Becker did not provide him with any advice on the topic and instead told him to speak with an immigration lawyer or with Mr. Ferriero, who was Mr. Park's counsel in a related civil matter and a member of the same law firm. (Tr. at 102-03). Mr. Park went on to testify that, shortly before his plea, he spoke with Mr. Ferriero, who assured him there would be no immigration consequences. (Tr. at 99-100).

  The respondent, on the other hand, produced evidence that Mr. Park raised no concerns about deportation until several months after he pled guilty. Neither Mr. Becker nor Mr. Ferriero have any recollection of Mr. Park inquiring about removal prior to his plea. (Tr. at 7, 41). When asked what their responses would have been had Mr. Park raised the question, both attorneys testified that they would not have provided him with an answer since they were not familiar with immigration law. (Tr. at 21, 54).

  Several memoranda exchanged between Mr. Park's lawyers in September 2000 — seven months after the plea — were also offered into evidence. In the first such communication, dated September 11, 2000, Mr. Ferriero alerted Mr. Becker's successor, Lori Grifa, that the petitioner was not a citizen of the United States. (Pet. Exh. A). Mr. Ferriero recognized that this could have deportation consequences. (Pet. Exh. A). Ms. Grifa responded to Mr. Ferriero's concerns on September 18, 2000. (Pet. Exh. B). She wrote that she did not think that Mr. Park fell within the criteria for deportation and, in the event that the INS did seek to deport him, he would be eligible to seek cancellation of removal. (Pet. Exh. B). Ms. Grifa further explained her research in an e-mail dated September 26, 2000. (Resp. Exh. 3). In her opinion, Mr. Park had not been convicted of an aggravated felony but could be found to have committed a crime involving moral turpitude. (Resp. Exh. 3). She wrote, however, that Mr. Park was unlikely to face removal because the crime was committed substantially after he had been admitted to the United States and because his family circumstances would qualify as extreme hardship, meriting discretionary relief. (Resp. Exh. 3). No evidence was presented to show what precipitated this exchange or when, if ever, Mr. Park was informed of his counsel's legal opinions. Mr. Park alleges that these intra-office communications were fabricated or post-dated to cover up his counsel's previous errors. (Tr. at 125).

  Discussion

  A. Coram Nobis

  Where extraordinary circumstances are present, a district court may issue a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See Nicks v. United States, 955 F.2d 161, 167 (2d Cir. 1992). However, the proceedings leading to the conviction are presumed to be correct, and the burden rests on the petitioner to show ...


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