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Paul Yau v. United States of America

January 26, 2012

PAUL YAU, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

On November 28, 2011, pro se Petitioner Paul Yau filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in which he brings an ineffective assistance of counsel claim and a claim that the Court's failure to advise him of potential immigration consequences prior to accepting his guilty plea violated Federal Rule of Criminal Procedure 11 and his due process rights. Yau also seeks an evidentiary hearing to develop the facts of his ineffective assistance of counsel claim. For the following reasons, the Court grants Yau's request for an evidentiary hearing regarding his ineffective assistance of counsel claim. See Koons v. United States, 639 F.3d 348, 354-55 (7th Cir. 2011) ("The court should grant an evidentiary hearing on a § 2255 motion when the petitioner alleges facts that, if proven, would entitle him to relief.") (citation omitted). The Court, however, denies Yau's claim that the Court violated Federal Rule of Criminal Procedure 11 and his due process rights as discussed below.

BACKGROUND

On January 31, 2006, a grand jury returned an indictment charging Yau with conspiring to violate the federal copyright laws in violation of 18 U.S.C. § 371 (Count One), and one count of copyright infringement in violation of 17 U.S.C.§ 506(a)(2) and 18 U.S.C. §§ 2319(c)(1), (2) (Count Four). On June 28, 2006, Yau pleaded guilty to the conspiracy count pursuant to a written plea agreement in which Yau agreed to cooperate with the government, and the government agreed to move: (1) for a departure pursuant to U.S.S.G. § 5K1.1 and to recommend a sentence of 45 months' imprisonment; and (2) to dismiss the remaining count of the indictment against Yau.*fn1

On September 29, 2010, the Probation Office issued its Presentence Investigation Report ("PSR") that identified Yau as a Permanent Resident Alien, who was born in Hong Kong, and who "may be amenable to removal proceedings for violation of the immigration act due to his felony conviction." (PSR, at 17-18.) During Yau's February 7, 2011 sentencing hearing, Yau's attorney, Raymond G. Wigell, informed the Court that he had received and reviewed the PSR with Yau. (Sent. Tr., at 2, 3.) In turn, Yau stated on the record that he had reviewed the PSR with his attorney. (Id.) The Court then granted the government's U.S.S.G. § 5K1.1 motion and sentenced Yau to one year and one day of imprisonment, three years of supervised release, and a $10,000 fine. The Court also granted the government's motion to dismiss the copyright infringement count as charged in Count Four.

On November 28, 2011, Yau timely filed the present Section 2255 motion. Construing Yau's pro se Section 2255 motion liberally, see Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011), he contends that: (1) trial counsel was ineffective when he failed to inform him that his guilty plea carried a risk of deportation; and (2) the Court's failure to advise him of the potential immigration consequences prior to accepting his guilty plea violated Federal Rule of Criminal Procedure 11 and his due process rights.

LEGAL STANDARD

"[R]elief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Under Section 2255, relief "is available only when the 'sentence was imposed in violation of the Constitution or laws of the United States,' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack." Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). A Section 2255 motion is not a substitute for a direct criminal appeal nor is it a means by which a defendant may appeal the same claims a second time. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007). As such, if a Section 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal. See Sandoval v. United States, 574 F.3d 847, 850-51 (7th Cir. 2009); Torzala, 545 F.3d at 522. Because claims of ineffective assistance of counsel usually involve evidence outside of the trial record, such claims may be brought for the first time in a Section 2255 motion. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

ANALYSIS

I. Ineffective Assistance of Counsel Claim

First, Yau asserts that his trial counsel failed to provide constitutionally effective assistance of counsel under the Sixth Amendment because counsel failed to advise him of the potential immigration consequences prior to his guilty plea. To establish constitutionally ineffective assistance of counsel, Yau must establish that (1) his attorney's performance "fell below an objective standard of reasonableness," and (2) "but for counsel's unprofessional errors the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court's "review of the attorney's performance is 'highly deferential' and reflects 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Koons, 639 F.3d at 351 (citation omitted). If Yau fails to make a proper showing under one of the Strickland prongs, the Court need not consider the other. See id. at 697 ("In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant").

In the context of a guilty plea, the Supreme Court has articulated that "a defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received was constitutionally ineffective." Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quotations omitted). "To establish prejudice in the plea context, the defendant must demonstrate through objective evidence that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Koons, 639 F.3d at 351 (quoting Lockhart, 474 U.S. at 59). "Objective evidence includes the nature of the misinformation provided by the attorney to the petitioner and the history of plea negotiations." Hutchings v. United States, 618 F.3d 693, 697 (7th Cir. 2010).

As the Supreme Court recently held, under the first Strickland prong, the "weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284 (2010).*fn2 Here, the government admits that there is a factual dispute whether Yau's counsel advised him that his conviction may result in deportation. Nevertheless, the government maintains that an evidentiary hearing is unnecessary to determine this factual dispute regarding the Strickland performance prong because Yau cannot demonstrate the Strickland prejudice prong, namely, that it would have been "rational under the circumstances" to reject the government's plea agreement and proceed to trial. See id. at 1485 ("a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances"). In other words, the government argues that despite Yau's personal, familial, and professional reasons to remain in the United States, he has failed to demonstrate that it would have been rational under the circumstances for him to reject the plea agreement and proceed to trial. See Lockhart, 474 U.S. at 56.

Specifically, the government argues that there was overwhelming evidence of Yau's guilt and that given the strength of the government's case and the substantial benefits Yau received from pleading guilty, Yau cannot demonstrate that it would have been rational to reject the plea agreement. The government explains that had Yau proceeded to trial on both Counts One and Four and lost, he would have faced a statutory maximum penalty and advisory guideline range of 96 months imprisonment, and thus by pleading guilty Yau immediately reduced his sentencing exposure from eight years to five years due to the dismissal of Count ...


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