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Woo v. United States

October 15, 2007

WING LEE WOO MOVANT,
v.
UNITED STATES OF AMERICA RESPONDENT.



The opinion of the court was delivered by: Trager, J.

MEMORANDUM AND ORDER

Pro se movant Wing Lee Woo ("Woo" or "movant") filed this habeas corpus motion pursuant to 28 U.S.C. § 2255, seeking to change, modify or vacate his sentence on the ground that he was denied his Sixth Amendment right to effective legal representation at his sentencing. For the reasons set forth below, the motion is denied.

Background

(1)

Movant was a member of a narcotics trafficking operation during the years of 1988 and 1989. Woo's section 2255 Motion ("Mot.") at 1. Between September 1st and September 7th of 1989, he and others conspired to import five kilograms of heroin from Hong Kong into the United States. Transcript of Pleading ("Tr. of Pleading") at 15. Movant's role in the conspiracy was to give the heroin to a courier named "Mario" in Hong Kong for transportation into the United States through John F. Kennedy Airport. Id. A warrant for movant's arrest was issued out of the Eastern District of New York on September 1, 1994, and he was arrested pursuant to that warrant in June of 1995 by the Hong Kong Royal Police as he was attempting to cross the border from Hong Kong into China. Mot. at 1; Defendant's Presentence Memorandum ("Present. Mem.") at 1; Arrest Warrant. Movant waived extradition and was brought into the United States on or about August 11, 1995, where he was indicted for knowingly and intentionally conspiring to import heroin in violation of 21 U.S.C. §§ 952(a) and 960(a)(1) and for distributing and possessing with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). Present. Mem. at 1; Mot. at 1-2; Indictment; Arrest Warrant.

According to movant, "[a]lmost immediately after his arrival in the United States, [he] was approached by agents of the FBI, seeking his cooperation and assistance, in exchange for promises of a lower sentence." Mot. at 2. After a number of meetings with agents of the Federal Bureau of Investigation ("FBI") and an Assistant United States Attorney, movant states that he agreed to be debriefed by the United States government regarding "Asia-based high-level international heroin traffickers." Mot. at 2; Present. Mem. at 2. Movant states he also provided intelligence to the Hong Kong government in order to assist with their investigations into criminal activity. Mot. at 2-10; Present. Mem. at 2.

Movant entered a plea of guilty on January 31, 1996, pursuant to his cooperation agreement with the government. Mot. at 4; Tr. of Pleading at 6, 9, 15. Magistrate Judge Azrack administered movant's allocution after finding that movant's plea was knowingly and voluntarily made, that he fully understood his rights and the consequences of pleading guilty. Tr. of Pleading at 16-17. Although Woo was initially scheduled to be sentenced on April 11, 1996, Tr. of Pleading at 17, his sentencing was postponed until April 22, 1999 because movant was, at that time, cooperating with the government and he hoped his cooperation would result in a § 5K1.1 letter, which would recommend that the sentencing court downwardly depart from the applicable sentencing range for his offense level. Mot. at 2, 4, 9, 11, 17.

It is undisputed that movant assisted the government by supplying information to the FBI between the years 1995 and 1997. Government's Response ("Response") at 1. However, the government claims that movant stopped short of providing substantial assistance for two reasons: (1) he refused to testify against two individuals on trial for narcotics charges; and (2) in late 1997, while he was incarcerated at the Metropolitan Detention Center in Brooklyn ("MDC") and before he was sentenced, movant was caught processing contraband for another inmate, Ray Saladino ("Saladino"), who was implicated in a different drug trafficking scheme.*fn1 Response at 1-2; Mot. at 11.

In early 1999, movant asked to be sentenced, explaining that he had concluded that the government's promises were not reliable and that he did not want to testify against certain individuals the government asked him to testify against. Mot. at 13, 18.

According to the government, it was explained to Woo a number of times, including during the sentencing, that there were various ways his case could proceed: (1) he could choose to be sentenced without the benefit of the § 5K1.1 letter; (2) he could postpone sentencing in order to await the government's decision regarding whether he would be needed as a witness against an individual they wanted to extradite; or (3) he could proceed with sentencing and then testify for the government if he was still needed, in return for a Rule 35 motion to reduce his sentence. Movant chose to be sentenced without a § 5K1.1 letter.

On April 22, 1999, Woo was sentenced to the minimum prison term of eighty-seven months incarceration under the guideline range, and also ordered five years of supervised release and a mandatory fifty dollar special assessment. Sent. Tr. at 14. Woo was also prohibited from possessing any firearms or destructive devices. Sent. Tr. at 14, Judgment at 3.

On April 16, 2000, movant filed a motion pursuant to 28 U.S.C. § 2255, seeking to change, modify or vacate his sentence on the ground that his Sixth Amendment right to effective legal representation at his sentencing was violated.

(2)

Woo predicates his section 2255 motion on the allegation that his counsel rendered ineffective assistance during the sentencing proceedings by failing to adequately apprise the sentencing court of the extent and nature of his cooperation with the government, which he contends he had given "in the ...


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