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November 18, 2005.

SEAN D. ZHANG, Petitioner,

The opinion of the court was delivered by: ARTHUR SPATT, District Judge


The petitioner Sean D. Zhang ("Zhang" or the "Petitioner") moves the Court for an Order vacating or correcting his sentence pursuant to 28 U.S.C. § 2255. In support of his petition, Zhang argues that his guilty plea was not voluntarily or knowingly made because the court, the government, and his counsel misstated the consequences of his plea. I. BACKGROUND

  In April 2001, Zhang began selling the chemical 2,4 Dinitrophenol ("DNP") over the internet to bodybuilders who were interested in using it to lose body fat. DNP is a metabolic stimulant known as an "uncoupler" and a toxic dye used in biochemical studies of oxidative processes. Stedmans Medical Dictionary (27th ed. 2000). DNP is a chemical substance that is banned by the Food and Drug Administration.

  In 1985, Zhang emigrated from China at the age of seven. Zhang and his family received political asylum in 1989 to protect them from the persecution of the Chinese government. Zhang's father was a professor at the National University at Singapore and published numerous articles criticizing the Communist government and its use of Marxism Socialism. English is the only language Zhang speaks proficiently. He married a United States citizen and is a permanent resident, but he is not a citizen of the United States.

  In 2001 Zhang was a practicing chemist with a Bachelor of Science degree in "Food Science" from Cornell University. Using the screen name "DNP Guru" on a website known as "," Zhang advocated and sold the chemical DNP. Zhang mixed and prepared the DNP capsules himself, and sold them for human consumption. Eric Perrin died as a result of ingesting the DNP he purchased from Zhang. Another customer, James Shull, was hospitalized in a coma for more than ten days as a result of the DNP he purchased from Zhang. On September 21, 2001, Zhang was arrested in Bloomington, Indiana, and charged with two counts of introducing into interstate commerce a drug, DNP, that had been misbranded with the intent to defraud and mislead, in violation of 21 U.S.C. § 331(a). Following his arrest, Zhang was indicted on ten counts of introducing a misbranded drug and ten counts of mail fraud, in violation of 18 U.S.C. § 1341.

  Prior to the trial, Zhang entered into a plea agreement in which he would plead guilty to a single count of mail fraud. As a condition to accepting the plea agreement, Zhang waived his right to appeal if his sentence was 60 months or less. In addition, Zhang was informed that the government would be moving for an upward departure at sentencing based upon Perrin's death and Shull's injuries, and the plea agreement reflected these two factors. Further, the plea agreement stated that the count of mail fraud carries a maximum penalty of 60 months and "Other penalties: Removal."

  On June 25, 2002, Zhang entered his guilty plea before a magistrate judge. During the plea allocution, the government stated that Zhang "agrees he[is] subject to possible post sentence deportation." Tr. at 14. Following up, the magistrate judge stated: "it's not indicated as a consequence of your plea and the plea agreement but the government indicated that this felony conviction because of your immigration status could result in your deportation. Do you understand that?" Zhang replied, "Yes, I understand." Tr. at 15. The court concluded the proceedings by recommending that this Court accept the plea of guilty to count one of the superseding indictment. On June 27, 2003, following a Fatico hearing, Zhang was sentenced to 60 months, the maximum term of imprisonment, three years of supervised release, and $113,414.53 in restitution. Again, the government indicated to the Court that "there is another condition of supervised release. He may be deported. If he does, if you can put on the judgment he should not reenter without the permission of the Attorney General." Sentencing Tr. at 410. The Court agreed, and stated that "if the defendant is deported, he's not to reenter the United States illegally without the consent of the government." Sentencing Tr. at 410. Zhang did not directly appeal his conviction or sentence to the Second Circuit.

  On June 17, 2004, Zhang timely filed this motion to vacate his conviction pursuant to 28 U.S.C. § 2255, challenging the validity of his plea due to a Rule 11 violation, and ineffective assistance of counsel. Zhang argued that his plea of guilty was not entered voluntarily due to the representations by the court and his counsel that deportation was not a mandatory consequence of being convicted of the aggravated felony that he plead guilty to, namely mail fraud. Zhang contends that had he plead guilty to the misbranding a drug counts, as opposed to mail fraud, he would have been subject to the same or higher guidelines range, but would not be facing automatic deportation. Indeed, Zhang is willing to replead to the non aggravated felonies, which could aggregate to the same or higher sentence in order to avoid mandatory deportation. Alternatively, Zhang seeks to withdraw his plea and go to trial, which would likely result in the possibility of a greater sentence, but may also avert automatic deportation.

  On July 29, 2005, the Court commenced a Sparman hearing and ordered the government to brief the issue of: (1) whether the Petitioner will have an opportunity to challenge his deportation, notwithstanding the fact that he was convicted of an aggravated felony; and (2) whether the instruction provided by the magistrate judge was an affirmative misrepresentation of the law, pursuant to United States v. Couto, 311 F.3d 179 (2d Cir. 2002).



  Title 28 U.S.C. § 2255 provides a post conviction remedy for federal prisoners similar to the historic writ of habeas corpus available to state prisoners that is now codified in § 2254. Pursuant to § 2255, a federal prisoner in custody "may move the court which imposed the sentence to vacate, set aside or correct the sentence" on the basis that it "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. . . ." 28 U.S.C. § 2255.

  As stated by the Second Circuit, "because requests for habeas corpus relief are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack." Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995) (citing United States v. Frady, 456 U.S. 152, 165, 102 S. Ct. 1584, 1593, 71 L. Ed.2d 816 (1982)). As a result, prisoners seeking habeas corpus relief pursuant to § 2255 must show both a violation of their Constitutional rights and "substantial prejudice" or a "fundamental miscarriage of justice." Id. at 301.


  "A motion under § 2255 is not a substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998). In § 2255 proceedings, the Supreme Court has recognized the rule of procedural default or "exhaustion" of federal remedies. Reed v. Farley, 512 U.S. 339, 354, 114 S. Ct. 2291, 129 L. Ed. 2d 277 (1994). Generally, the rule bars the presentation of a claim through a writ of habeas corpus where the petitioner failed properly to raise the claim on direct review. Id. If the claim has not been presented on direct review, the procedural bar may be waived only if the petitioner establishes (1) "cause" for the waiver and shows "actual prejudice" from the alleged violations or (2) "actual innocence." Bousley v. United States, 523 U.S. 614, 622, 118 S. Ct. 1604, 1611 (1998); Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998); see also Smith v. Murray, 477 U.S. 527, 537, 106 S. Ct. 2661, 2667-68, 91 L. Ed.2d 434 ...

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