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Tam v. Dep't of Homeland Security

May 16, 2006


The opinion of the court was delivered by: William M. Skretny United States District Judge



Presently before this Court is pro se Petitioner Ho Kai Tam's Motion to Vacate, Set Aside or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255.*fn1 For the reasons discussed below, Petitioner's motion is denied.


Petitioner is a native and citizen of Hong Kong. On May 27, 2004, he appeared before this Court, executed a Waiver of Indictment, and pled guilty to a one-Count Information charging him with committing mail fraud in violation of 18 U.S.C. § 1341. That charge carried a possible maximum sentence of 20 years and a $250,000 fine. (Docket No. 20, ¶ 1.*fn2

Under the terms of the plea agreement, Petitioner and the Government agreed that the total offense level, including a reduction for Petitioner's acceptance of responsibility, was 8, and that Petitioner's criminal history category was I, which resulted in a Guidelines sentencing range of 0 to 6 months, a fine of $1,000 to $10,000, and a period of supervised release of 2 to 3 years. (Docket No. 20, ¶¶ 10, 12, 13.) The plea agreement also reflects Petitioner's understanding that this Court would order restitution in the amount of approximately $11,300. (Docket No. 20, ¶ 2.) Petitioner and the Government agreed, however, that Petitioner had already paid $6,000 toward restitution prior to entry of the plea, and that therefore the restitution order should reflect the balance of approximately $5,300. (Docket No. 20, ¶ 2.) Included in the plea agreement is Petitioner's acknowledgment that he "knowingly waives the right to appeal, or collaterally attack, or modify pursuant to Title 18, United States Code, Section 3582(c)(2), any sentence imposed by the Court that is equal to or less than any sentence that is within the range set forth in Section II of this plea agreement . . . ." (Docket No. 20, ¶ 21.)

Before accepting Petitioner's guilty plea, this Court conducted an extensive proceeding in compliance with Rule 11 of the Federal Rules of Criminal Procedure. This Court placed Petitioner under oath, posed a series of questions to determine his competency, and advised him of his various rights, including his trial right, relative to the charges against him. (Tr. at 3-9, 14.*fn3 ) During the course of the plea allocution, Petitioner confirmed that he had reviewed the plea agreement with his lawyer, that he understood his lawyer's advice, and that he was satisfied with his lawyer. (Tr. at 3, 7.) This Court also invited Petitioner to seek clarification of any information that he did not understand or that was new to him. (Tr. at 5.) Following the allocution, this Court concluded that Petitioner understood the nature of the charge against him, confirmed that Petitioner's plea was knowing and voluntary, and found that the facts supporting the plea were sufficient for a trier of fact to conclude guilt beyond a reasonable doubt. (Tr. at 21-22.)

On August 20, 2004, Petitioner, through his counsel, filed his Statement with Respect to Sentencing Factors, wherein he indicated that he adopted the findings set forth in the Probation Officer's PreSentence Investigation Report without objection.

On September 24, 2004, this Court sentenced Petitioner to a 3-month term of imprisonment, ordered him to pay $5,400 in restitution, and declined to impose a fine. The Clerk of the Court filed the sentencing judgment on September 29, 2004.

On March 24, 2005, Petitioner filed the instant timely Motion to Vacate, Set Aside or Correct his Sentence and Conviction pursuant to 28 U.S.C. § 2255. He subsequently filed a Motion for Leave to File a late Notice of Appeal, which this Court considered and denied on May 5, 2005. Petitioner thereafter filed a Motion for Reconsideration of this Court's denial of his Motion for Leave to File a late Notice of Appeal, a Motion to Obtain a Free Transcript, and a Motion to Amend the Sentencing Judgment. This Court denied these motions on July 11, 2005.


A. Standard of Review

Twenty-eight U.S.C. § 2255 allows federal prisoners to challenge the constitutionality of their sentences.That section provides, in pertinent part, that:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the 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 the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255.

The Second Circuit has held that a "collateral attack on a final judgment in a criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes 'a fundamental defect which inherently results in a complete miscarriage of justice.' " Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (per curiam) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).

B. Petitioner's Claims

In his motion, Petitioner raises two principal claims. First, he contends that he involuntarily entered his waiver of indictment and guilty plea. Second, he argues that he was denied effective assistance of counsel.

1. Voluntariness of Waiver of Indictment and Plea

Petitioner claims that his waiver of indictment and entry of a guilty plea were not knowing and voluntary because his lawyer failed to explain the plea process and failed to advise him of the possible immigration consequences of entering a guilty plea. This claim, however, is procedurally defaulted.

It is well-settled that federal prisoners may not use § 2255 as a substitute for a direct appeal. United States v. Munoz, 143 F.3d 632, 637 (2d Cir. 1998); see also Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) ("Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal."). This is particularly true in cases where, as here, the petitioner was convicted pursuant to a guilty plea. Rosario v. United States, 164 F.3d 729, 732 (2d Cir. 1998) (noting that "the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas") (quoting United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979)).

The Supreme Court has held that the "voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review." Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). In cases where a criminal defendant has procedurally forfeited a claim due to his or her failure to raise it on direct appeal, the claim may be raised in a § 2255 motion only if the defendant can demonstrate either: (a) cause for failing to raise the issue on appeal and prejudice resulting therefrom or (b) actual innocence. Rosario, 164 F.3d at 732.

In the instant case, Petitioner did not file an appeal of his conviction or sentence. As such, his claim that his plea was not knowing and voluntary is procedurally defaulted. Moreover, for the reasons set forth below, this Court finds that Petitioner has not established either cause sufficient to justify his failure to raise his claims on direct appeal or actual innocence.

First, this Court has twice already considered and denied Petitioner's claim that there is cause to permit him to file a late Notice of Appeal. Moreover, the Supreme Court has held that "a claim that 'is so novel that its legal basis is not reasonably available to counsel' may constitute cause for a procedural default." Bousley, 523 U.S. at 621 (quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984)). None of the claims Petitioner asserts herein are novel to such a degree that they could not have been raised on direct appeal. Moreover, comparing the nature of Petitioner's proffered appeal issues with the restriction place on his right to appeal in the plea agreement, this Court finds insufficient prejudice to set aside the procedural default.

Second, this Court finds that Petitioner has failed to establish his innocence. In order to establish actual innocence, Petitioner "must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Rosario, 164 F. 3d at 733 (quoting Bousley, 523 U.S. at 621). Based on the information contained in the plea agreement and Petitioner's admissions during the plea allocution, this Court finds that a reasonable juror could conclude beyond a reasonable doubt that Petitioner committed mail fraud in violation of 18 U.S.C. § 1341.*fn4

Finally, even if the procedural default were set aside and Petitioner's claim was reviewed on the merits, this Court is satisfied that the transcript of the plea allocution overwhelmingly demonstrates that Petitioner entered his guilty plea knowingly and voluntarily. As it does with each criminal defendant entering a guilty plea, this Court took great pangs to ...

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