The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
On June 1, 2005, a jury found petitioner Mi Suk Yi guilty of conspiracy, bank fraud, social security fraud, and concealment money laundering. The jury also found against petitioner on two criminal forfeiture counts. On July 25, 2006, petitioner was sentenced to 97 months in prison and ordered to pay restitution. Petitioner appealed her conviction, claiming that (1) the Court should have ordered a hearing as to her competency; (2) the indictment was fatally varied or constructively amended; and (3) there was insufficient evidence to convict her. The Ninth Circuit affirmed her conviction in an unpublished memorandum disposition filed on August 6, 2009.
On December 4, 2009, Petitioner filed the instant motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in federal custody. Petitioner seeks a new trial. On January 19, 2010, the government filed its opposition. A reply was filed on February 9, 2010. After carefully considering the arguments raised by the petitioner, the Court hereby finds and concludes as follows.
A motion pursuant to 28 U.S.C. § 2255 challenges a federal conviction and/or sentence to confinement where a prisoner claims "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Sanders v. United States, 373 U.S. 1, 2 (1963).
Section 2255 provides that the Court shall conduct a hearing on a motion filed thereunder "[u]nless the motion and files and records of the case conclusively show that the [petitioner] is entitled to no relief." Rule 8 of the Rules Governing § 2255 Proceedings provides that:
[i]f the motion has not been dismissed at a previous stage in the proceeding, the judge, after the answer is filed and any transcripts or records of prior court actions in the matter are in his possession, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates.
The decision whether to hold a hearing is "committed to the court's discretion," and § 2255 "requires only that the judge give the prisoner's claim careful consideration and plenary processing, including a full opportunity for presentation of the relevant facts." Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988) (citation and internal quotation marks omitted).
Petitioner states six grounds for her motion: (1) she received ineffective assistance of counsel at trial because her counsel failed to object to erroneous jury instructions; (2) her appellate counsel was ineffective for failing to argue on appeal that the jury instructions were erroneous; (3) she received ineffective assistance of counsel because her counsel failed to sever her trial from that of her co-defendant; (4) her appellate counsel was ineffective for failing to argue on appeal that her trial should have been severed from that of her co-defendant; (5) her trial counsel was ineffective for either failing to call a witness and/or because a check was improperly admitted into evidence; and (6) her trial counsel was ineffective for failing to request a new trial, and appellate counsel was ineffective for "failure of raising the plain error review." Each ground for relief is taken in turn.
Petitioner's First Ground For Relief
Petitioner argues that the jury instructions at her trial were erroneous as to the mens rea and, accordingly, that her trial counsel was constitutionally ineffective for failing to object. Mot. at Ground One. The Government responds that petitioner has procedurally defaulted on the claim and cannot raise it now on collateral attack except by establishing cause and prejudice, because petitioner did not raise this claim earlier despite having two opportunities to do so -- once at trial and once on direct appeal. Opp'n at 2. The government contends that the petitioner has shown neither cause nor prejudice, and thus that this claim should be rejected. Id.
Alternatively, the government argues that the jury instructions were entirely correct on the merits. Id. 2-3. The Court instructed the jury that it was required to find the following mens rea elements for the following crimes of conviction: (1) bank fraud: the intent to defraud; (2) social security fraud: the intent to deceive as to defendant's true identity; and (3) concealment money laundering: knowledge that (a) the property involved in the financial transaction represented the proceeds of some form of prior activity that constituted a felony under state or federal law; and (b) the transaction was ...