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United States of America v. Hui Chen

May 4, 2012

UNITED STATES OF AMERICA
v.
HUI CHEN,
DEFENDANT.



The opinion of the court was delivered by: Chin, Circuit Judge

MEMORANDUM DECISION

On May 2, 2007, a jury convicted defendant Hui Chen of conspiracy, extortion, and obstruction of justice in violation of 18 U.S.C. §§ 1951-52, 1512(k), and 1512(b). On April 18, 2008, I sentenced Chen principally to eighty-six months' imprisonment. Chen now moves pro se pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence on the grounds that 1) there was insufficient evidence to convict her and 2) she was denied effective assistance of counsel at trial and sentencing. For the reasons set forth below, the motion is denied.

BACKGROUND

A. The Facts

Between 2004 and 2006, Chen and her co-conspirators implemented a scheme to extort funds from drivers of private vans who operated on a route between Chinatown in Manhattan and Eighth Avenue in Brooklyn. The drivers were forced to pay Chen and her co-conspirators fees of some $250 to $400 per month, through physical force and threats of physical force, for the ability to pick up passengers at certain locations on public streets in Manhattan. (Trial Tr. at 68, 78, 80-82, 176-81, 890). After authorities arrested Chen on the extortion charges, she sent threatening messages to one of the drivers she believed filed the primary complaint against her. (Id. at 85). Chen wanted this particular driver "to lift or take away the charges." (Id. at 578-79). Chen also attempted to entice another driver to falsely testify on her behalf. (Id. at 721).

B. Prior Proceedings

On March 12, 2007, Chen was indicted on six counts: one count of conspiracy to commit extortion, in violation of 18 U.S.C. § 1951; two counts of extortion, in violation of 18 U.S.C. §§ 1951-52; one count of conspiracy to obstruct justice, in violation of 18 U.S.C. § 1512(k); and two counts of obstruction of justice, in violation of 18 U.S.C. § 1512(b). Trial commenced on April 17, 2007, and the jury convicted Chen and her co-defendants on all counts on May 2, 2007. (Trial Tr. at 1299-1300). On April 18, 2008, I sentenced Chen to eighty-six months' imprisonment, followed by three years of supervised release. (4/18/08 Tr. at 23-24). I also imposed a $600 special assessment, restitution in the amount of $119,111, and forfeiture in the amount of $272,410. (Id. at 24).

Chen appealed her conviction and sentence on May 15, 2008. Chen made three arguments: 1) the evidence presented at trial was insufficient to support her conviction; 2) her sentence of eighty-six months' imprisonment was unreasonable; and 3) the forfeiture and restitution amounts were improperly calculated.

On October 27, 2009, the Second Circuit rejected Chen's arguments and affirmed. See United States v. Hui Chen, 350 Fed. App'x 520 (2d Cir. 2009). Chen did not file a petition for a writ of certiorari. She is currently serving her sentence.

DISCUSSION

I. Timeliness

Because Chen did not seek review of the Second Circuit's October 27, 2009 decision, her conviction became final for purposes of the Antiterrorism and Effective Death Penalty Act 90 days after the Second Circuit issued its opinion, i.e., January 25, 2010. Her deadline to file a timely habeas petition, therefore, was January 25, 2011. See 28 U.S.C. § 2244(d)(1)(A). Chen filed this motion pursuant to 28 U.S.C. § 2255 apparently on February 3, 2011.*fn1

Although the Government argued in its opposition papers that Chen's motion was untimely, Chen has made no effort to argue otherwise. Likewise, she has not argued that "extraordinary circumstances prevented [her] from filing [her] petition on time." Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (citation and internal quotation marks omitted). Hence, ...


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