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Kang v. United States

November 19, 2009


The opinion of the court was delivered by: Glasser, United States District Judge


Petitioner Kyong Ja Kang, pro se, has moved to amend her petition pursuant to 28 U.S.C. § 2255 ("§ 2255"). In September 2008, the Court inadvertently dismissed her original petition after receiving the government's response without giving her the opportunity to reply. However, instead of submitting a reply, Petitioner moved to amend her motion by adding twelve additional claims of constitutional error relating to her conviction (pursuant to a guilty plea) and sentencing. For the reasons stated below, Ms. Kang's motion to amend the petition is granted and, as amended, the petition is dismissed.


On May 5, 2008, Petitioner, proceeding pro se, filed a motion pursuant to § 2255 seeking to withdraw her guilty plea on the basis of ineffective assistance of counsel. Petitioner asserted specifically that she had been induced to plead guilty by her attorney's misrepresentation that the government would file a motion pursuant to U.S.S.G. § 5K1.1, capping her sentence to imprisonment to five years.

On September 17, 2008, the Court dismissed her petition on the merits. See Kang v. United States, No. 08 Civ. 1952 (ILG), 2008 WL 4283342 (E.D.N.Y. Sept. 17, 2008), familiarity with which is assumed. The Court found that Petitioner's allegations were belied by her sworn testimony during her guilty plea and by the express terms of the plea agreement, which she signed and acknowledged that she reviewed with her attorneys and understood. Nevertheless, and despite her knowing and voluntary appeal waiver contained in the plea agreement, the Court considered the merits of Petitioner's ineffective assistance claim. Id.; see Yushuvayev v. United States, 532 F.Supp.2d 455 (E.D.N.Y.2008) (finding appeal waiver unenforceable as regards an ineffective assistance claim and considering that claim despite petitioner's waiver of his right to collaterally attack his conviction and sentence). The Court concluded that Petitioner could not demonstrate prejudice under a Strickland analysis because Petitioner nowhere alleged that she would have exercised her right to trial but for her attorney's alleged misrepresentation.

The day after the Court filed its Memorandum and Order dismissing the petition, the Pro Se Office of this Court received Petitioner's request for an extension for of time to submit a reply. papers. The Court granted her request with assurance that it would reconsider its prior dismissal if warranted by her reply. Dkt. No. 11 (Order dated Oct. 2, 2008).

Petitioner's Motions

In March 2009, Petitioner filed not a reply but a motion for leave to amend the § 2255 motion to include twelve additional due process and ineffective assistance of counsel claims. Petitioner also submitted motions for "Leave to Submit Affidavits And Related Documents," and for "Immediate Evidentiary Hearing, Discovery, Appointment Of Counsel And IFP Status."*fn1 In a memorandum of law in support of the proposed amended petition, Petitioner claims that she was deprived of due process in the following respects: (1) her sentence was based on inaccurate information for which there was no factual basis and led to several enhancements to her base offense level; (2) she did not receive an addendum to the presentence report prior to being sentenced; (3) she was prosecuted in "bad faith" because the government did not adequately investigate the credibility or accuracy of statements by the complaining witnesses; (4) her conviction is based on material perjured testimony; and (5) she is actually innocent of the crime to which she pleaded guilty. Pet. Memorandum of Law in Support of § 2255 Petition ("Pet. Memo.").

In addition, Petitioner asserts that she received ineffective assistance of counsel. In addition to the ineffectiveness claim set forth in her original § 2255 petition, Petitioner now claims that her defense attorneys rendered ineffective assistance when they: (1) did not adequately review with her the evidence against her, and allowed the defense of her co-defendant (and husband) Wun Hee Kang ("Mr. Kang") to "overshadow" her defense; (2) did not adequately investigate the government's allegations against her; (3) negotiated her plea agreement without first ensuring that there were factual and legal bases for the government's allegations; (4) failed to present certain arguments at her sentencing proceedings; (5) did not adequately review the presentence report with her, and failed to object when the government did not provide the final Addendum to that report prior to sentencing; and (6) failed to investigate her mental health and advocate for a lower sentence on that basis. Finally, she argues that she received ineffective assistance of appellate counsel.

Petitioner submits several documents in support of her proposed amended petition. (Petitioner's Motion To Submit Affidavits and Related Documents ("Pet. Docs.")). She includes a lengthy personal declaration, dated March 4, 2009, that sets forth in detail the circumstances of her early life in Korea and her emigration to the United States, the establishment of her businesses there and the circumstances related to the criminal charges against her, up to and including her guilty plea and sentencing. Pet. Docs. Ex. 1 ("Pet. Decl.") She also submits an affidavit of Geeho Chae ("Chae") dated January 13, 2009 and notarized in Korea. Mr. Chae's affidavit states that former New York City Police Department officer Dennis Kim ("Officer Kim"), who was later convicted of federal corruption charges, told Chae (one of Officer Kim's co-defendant's) that he had "encouraged the complainants to exaggerate the charges." Pet. Docs. Ex. 2 ("Chae Aff."). ¶ 6. She also submits a New York Post article, dated March 10, 2006, regarding the arrest of Officer Kim and another officer. Pet. Docs. Ex. 3. The article states that the officers were charged with "protecting a brothel" in Queens and that the brothel was owned by "Geeho Chae" and another owner. Id.

Petitioner has submitted letters from Jane Jimin Cho ("Cho"), Weol Bong Kim ("Kim") and Seung Hee Lee ("Lee"). Cho claims to be a medical doctor and the landlord of one of the nail salons she operated in Queens. Pet. Docs. Ex. 4. Cho states that she frequently observed her at work in the nail salon and that she never observed that she treated her employees poorly. Kim states that he is a Pastor at a church that Petitioner attended and that he also frequently observed her both at home and at work in the nail salons. Pet. Docs. Ex. 5. He states that "the employees were joyful and hard at work every time" he visited one of Her nail salons. Lee states that she lived with the two complainants in this case and that, during the criminal investigation, complainants told Lee to lie and to tell the police that she had been kept in confinement. Pet. Docs. Ex. 7.

Petitioner has also submitted a document purporting to be a "partial Korean Criminal History" of one of the complainants, Pet. Docs. Ex. 6, interview notes between investigators hired by her defense counsel and seven employees of the Renaissance club, Pet. Docs. Ex. 8, and a copy of the Judgment and conviction in this case, Pet. Docs. Ex. 9.

Government's Response

In its response, the government argues that Petitioner's claims which are unrelated to those of ineffective assistance of counsel are barred by her knowing and voluntary waiver of appeal contained in the plea agreement. Government's Response in Opposition to Petition to Vacate Conviction Pursuant to 28 U.S.C. § 2255 ("Gov't. Resp.") at 27. In addition, the government argues that all of the claims in Petitioner's proposed amended § 2255 motion lack merit. The government has attached to its response two Sentencing Memoranda submitted by defense counsel on behalf of the Petitioner. Gov't. Resp. Exhs. D, I. In addition, Petitioner's trial counsel, Anthony J. Iacullo, has submitted an affirmation responding to her claims of ineffective assistance. Id. Ex. H ("Iacullo Aff."). In it he states that he attended "numerous meetings" with Petitioner, Mr. Kang (her husband and co-defendant) and his attorney at which they discussed "all aspects of this case." Id. ¶ 2. Mr. Iacullo also affirms that he and counsel for Mr. Kang utilized private investigators who conducted an "extensive inquiry" in order to obtain information beneficial to the defense at trial. Id. ¶ 5. Mr. Iacullo, "conservatively estimate[s] that more than 25 meetings took place during the course of this criminal prosecution between [Iacullo,] Mrs. Kang and on most occasions her husband and his counsel." Id. Mr. Iacullo also states that he "cannot conceive of any additional efforts that could have been undertaken to more adequately advise Mrs. Kang of the case against her." Id. ¶ 6.

Petitioner's Reply

Petitioner has submitted a reply brief in which she largely reiterates her arguments in support of the amended § 2255 petition. She also raises specific counterarguments to the government's opposition. She claims, for example, that she was harmed by the government's failure to provide the addendum to the presentence report to her until the day of sentencing because this addendum "tentatively resolved the issue of what felony may have been committed during the offense conduct to support yet another enhancement." Reply at 3. With respect to the Chae affidavit, she asserts that the government had reason to know of Chae's allegations in 2005 -- even though the affidavit was not prepared until January 2009 -- since Officer Kim was suspected of corruption at the time. See Reply at 5. Petitioner reasserts that she never understood the nature of the charges against her due to her attorneys' failure to discuss those charges with her. See Reply at 9-10.


I.Motion to Amend

Federal Rule of Civil Procedure 15 governs motions to amend a habeas petition. See 28 U.S.C. § 2242 (stating that a petition for habeas corpus "may be amended or supplemented as provided in the rules of procedure applicable to civil actions"); see also Ching v. United States, 298 F.3d 174, 180 (2d Cir. 2002) ("A motion to amend a habeas petition is analyzed under the standards set forth in [Rule] 15(a)"); Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001) (same). Courts are instructed to "freely give leave [to amend] when justice so requires." Fed.R.Civ.P. 15(a). While the decision whether or not to grant leave to amend "is within the discretion of the District Court," leave should be freely granted "in the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962).

Petitioner explains her delay in raising the new claims in her proposed amended petition by stating that she filed the initial § 2255 motion "hastily," and that "she was not at all informed about the full scope of a habeas [sic]." Pet. Decl. at 19. She further notes that her motion to amend comes within the one-year deadline imposed on habeas petitions in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244(d). In addition, the government has not affirmatively ...

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