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Diunov v. United States

June 16, 2010


The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.


Petitioner Diana Diunov moves, pursuant to 28 U.S.C. § 2255, to vacate the judgment resulting from her guilty plea. Petitioner pled guilty to three counts of mail fraud, wire fraud, and conspiracy to commit these crimes, and was sentenced by this Court to 78 months incarceration.

Petitioner claims that she received ineffective assistance of counsel, because her lawyer, John J.E. Markham II ("Markham"), gave her inaccurate and/or misleading advice regarding the immigration consequences of her guilty plea. As an alien convicted of an aggravated felony, Petitioner faces presumptively mandatory deportation. Petitioner asserts that Markham's representations to her that she had a good chance of obtaining a hardship waiver - where no such option is, Petitioner argues, readily available to her - fell below prevailing professional standards of practice, and accordingly, rendered her guilty plea involuntary.

For the reasons set forth below, the Court DENIES the petition. The Court finds that Markham's performance was not constitutionally deficient. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Markham's advice to Petitioner broadly reflected the immigration consequences of her guilty plea - that she was subject to deportation based on her conviction, but that there was a possibility that she could obtain a hardship waiver and avoid deportation. Although Markham failed to explain and/or mistated certain of the factors that would be relevant to obtaining a hardship waiver, Markham's advice to Petitioner was not objectively unreasonable under the circumstances, and therefore, did not deprive Petitioner of effective assistance of counsel.

I. Background

A. Petitioner's Immigration Status

In January 2000, Petitioner, a citizen of Israel, was permitted to enter the United States for a liver transplant. Because of her medical condition, Petitioner was unable to travel back to Israel. On July 9, 2002, Petitioner was legally admitted to the United States on a temporary visa. Also in 2002, Petitioner's daughter, Edita, who was born in Israel, joined Petitioner in the United States.*fn1

On September 26, 2005 Petitioner married her current husband and co-defendant, Boris Shvartzman ("Shvartzman"), a naturalized United States citizen. The same year, Petitioner gave birth to her second child, Maryanne. Petitioner applied for permanent residence based upon her marriage to Shvartzman, but was advised by an immigration lawyer (one she hired to prepare the application) that she should cancel the scheduled interview in light of the pending criminal proceedings against her. Petitioner never obtained lawful permanent resident status.

B. The Plea

On January 5, 2005, Petitioner was indicted on five counts of mail and wire fraud in connection with Petitioner's involvement, with her husband Shvartzman, in a scheme to defraud 24 diamond supply companies (in a fraud totaling over 1.7 million dollars).*fn2

On March 16, 2006, Petitioner appeared before Magistrate Judge James C. Francis and pled guilty to three of the counts charged in the indictment.*fn3 At the plea allocution, Magistrate Judge Francis asked Petitioner: "Do you understand [that] if you are not a United States citizen, you will be subject to deportation on the basis of your conviction?" Petitioner responded: "I do." (March 15, 2006 Plea Tr.; Pet. Ex. C., at 6.) Magistrate Judge Francis stated that he was "satisfied that [Petitioner] understands the nature of the charges against her and the consequences of the plea of guilty." He also stated that he was "satisfied that the plea is knowing and voluntary and that there's a factual basis for it." (Tr. 19.)

Magistrate Judge Francis then asked if the parties wished to address the issue of bail. The Government requested that the Court place Petitioner on electronic monitoring because she was a flight risk. The Government stated that Petitioner "ha[d] pled guilty to what under the immigration law is an aggravated felony, which requires deportation." (Tr. 20.) The Government then stated that defense counsel would:

[T]ry to convince immigration authorities that she is suffering from a hardship and should remain in this country. Notwithstanding that attempt, the presumption here is certainly, having pled guilty to an aggravated felony, in fact, three aggravated felonies, she will presumptively be deported from this country and, therefore, represents a serious flight risk. (Tr. 20-21). In response, Petitioner's counsel, Mr. Markham, stated that:

I do not believe that it is a foregone conclusion that she will be deported. There is in the immigration law a hardship provision that allows people who have perpetrated nonviolent crimes - frauds are among them, and she has no hint of violence here, no prior record - to be allowed to stay here under a hardship exception. And she has that exception double or triple over.

Her medical needs are here . . . . She is an Orthodox Jew . . . . We think we have some compelling arguments as to why she should not go to jail, although she acknowledges the risk that she might . . . . [S]he wants to live with her in-laws and her husband here. There are many . . . reasons for her to stay [i.e. not to flee] . . . . (Tr. 23-25 (emphasis added).) Magistrate Judge Francis denied the Government's request for electronic monitoring; Petitioner's curfew and other conditions of release remained in effect. (Tr. 28.)

C. Petitioner's Sentencing

In Markham's sentencing submission to this Court, dated January 10, 2007, Markham argued that Petitioner should receive a non-custodial sentence. Markham cited, inter alia, Petitioner's medical problems, her small children, that she did not live a lavish lifestyle, and that she claims to have engaged in fraudulent activity because she wished to repay other dealers to whom she owed money. Markham also cited the likely immigration consequences of her guilty plea: "it is submitted that the best course here for this non-violent offender, who will likely be deported to Israel anyway, is to sentence her to probation, with a condition that she make restitution." (Gov't Ex. A, at 17 (emphasis added).) Markham, arguing that Petitioner would be adequately deterred, stated: "[s]he will almost undoubtedly be deported and excluded for ten years for the fraud conviction." (Id. at 18.) In its response to Markham's sentencing submission, the Government also noted the likelihood that Petitioner would be deported.*fn4 (Gov't Ex. C, at 11.)

On January 18, 2007, Petitioner appeared in this Court for sentencing. Markham argued that Petitioner should be treated leniently because of her medical condition and her children, and because she committed fraud with the intention of repaying her business associates. The Government opposed Markham's application for a non-custodial sentence, noting the seriousness of Petitioner's crimes. The Government pointed out that Petitioner: ha[d] [another] immigration problem . . . because she filed an amendment to her immigration papers while she was out on bail and told the immigration authorities that she had never been charged with a crime. . . .

The immigration authorities are aware now of the fact she has been found guilty of a crime. (Jan. 18, 2007 Sentencing Tr.; Gov't Ex. B, at 15-16.) Markham argued that "the Court should [not] take into account what is going to happen with immigration," except that:

If she does a custodial term . . . when she gets out, the first thing she is going to face is an immigration detainer. This is an excludable offense if ever there was one - no. Actually, there are some that are worse, but this counts, and she will in all likelihood have to go back to Israel unless she qualifies for an immigration hardship because of the need to stay here and keep her family together.

If it is not a hardship enough now for this court to take it into account, it won't be enough of a hardship for immigration because they're pretty tough on that these days. So it seems to me that what will happen is that she'll get out, she will have been untethered from her family for a while and the family will face the very unenviable choice, . . . there she is back in Israel with no family or she uproots them to go back to Israel, or somehow we find a kinder or gentler immigration than they have been recently . . . . (Tr. 18 (emphasis added).)

In calculating Petitioner's advisory guidelines range , the Court found that Petitioner obstructed justice by testifying falsely during her husband's trial.*fn5 The Court found that Petitioner's family circumstances were not "sufficiently extraordinary" to warrant a downward departure. The Court also found that Petitioner's physical condition, "[although] extraordinarily bad because of the suppression of Ms. Diunov's immune system, her apparent liver infections, anemia, hepatitis, hypertension, osteoporosis and colitis," did not warrant a downward departure, because the Bureau of Prisons could adequately care for her and the Court would "monitor this kind of case very closely." (Tr. 21-22.) The Court sentenced Petitioner to a within-guidelines sentence of 78 months imprisonment. The Court also sentenced Petitioner to three years supervised release; ordered $1.7 million in restitution; and required that Petitioner comply with the directives of the immigration authorities. (Tr. 23-24.)

D. Remanding Petitioner

In a letter dated February 9, 2007, the Government requested that Petitioner be remanded, because Petitioner had continued to engage in fraudulent activities while out on bail. The Court held a hearing on February 27, 2007 to determine whether to revoke Petitioner's bail. (Gov't Ex. E.) Petitioner did not appear at the hearing, and the Court concluded that detention was required. (Gov't Ex. E., at 17.)

At the hearing, Markham discussed Petitioner's intended grounds of appeal. Markham stated that Petitioner had had discussions with another attorney, and that this attorney told Petitioner that she had a basis for invalidating her guilty plea, because Markham (1) misadvised Petitioner regarding her sentencing in this Court, and (2) misadvised Petitioner regarding the immigration consequences of her guilty plea. Markham stated that he had advised Petitioner that (1) the Court "could depart downward from the guidelines, and that we had several good arguments" to support a downward departure, and (2) "I thought [Petitioner] had a good argument for being allowed to remain in the country under an INS hardship exception, even though her fraud conviction would normally exclude her for from the United States for ten years because she has a minor child here and a family here."*fn6 (Gov't Ex. E., at 11.) Markham stated that Petitioner "entered into a plea on those ...

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