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 HIS SENTENCE PURSUANT TO 28 U.S.C. § 2255
Defendant-Petitioner Haejoong Lee ("Lee") is currently serving a 48-month term of imprisonment imposed by the Court based upon his guilty plea in United States v. Haejoong Lee, CR No. 8-980-CAS. On October 27, 2010, petitioner filed a motion for relief pursuant to 28 U.S.C. § 2255 and a motion requesting to file a supplemental memorandum of fact and law in support of the § 2255 motion. Opp. At 1, citing CR 44-45. On November 17, 2010, petitioner filed a supplemental memorandum of fact and law in support of his § 2255 motion. Id., citing CR 47. The government filed an opposition to petitioner's motion on April 14, 2011.
Petitioner alleges that his defense counsel provided ineffective assistance by failing to argue during plea negotiations and sentencing that there was an error in his criminal history determination and by failing to file a notice of appeal on this point. Opp. at 2, citing CR 44-47. Having carefully considered both parties' arguments, the Court finds as follows.
The dispute at issue in this motion concerns the relationship of two cases in which the petitioner was found guilty of fraud.
First, on July 25, 2008, in an action in state court, petitioner was convicted of bank and mail fraud, and received a seven month sentence. Opp. at 4, citing PSR ¶¶ 47-49. The state case involved a home equity line of credit ("HELOC") fraud scheme involving a different property in Los Angeles from one in the subsequent federal action. The property was held in the name of the petitioner's co-defendant in the state action, Sang Park.Id.
On April 30, 2009, petitioner pled guilty in this Court to bank and mail fraud. The charges centered around petitioner's August 2007 purchase of a property located in Los Angeles, California and five loans and HELOCs to be secured by second liens on the property that he improperly sought concurrently from financial institutions. Opp. at 2, citing CR 30. In his amended plea agreement, petitioner admitted to obtaining the proceeds from those loans and HELOCs, transferring them into a bank account, and withdrawing cash or purchasing cashier's checks in other people's name from the available HELOCs. Id. The activities for which Lee was convicted in the federal action took place before those considered in the state action. Id.
The Presentence Investigation Report for the federal case calculated a total offense level of 24 and a criminal history category of II. Opp. at 3, citing PSR ¶¶ 26- 42, 50. Petitioner was determined to be in criminal history category II based on his prior state conviction. The government requested that the petitioner receive a sentence of 57 months imprisonment and a three-year term of supervised release, and be ordered to pay $1,571,215.60 in restitution and a $200 special assessment. Opp. at 4. During the sentencing, defense counsel did not explicitly argue that petitioner's criminal history category was incorrect. Id. Defense counsel did note that the state case conviction was for a fraud committed after the one charged in the federal case, and thus, his client was not a recidivist as indicated in the sentencing recommendation letter. Id. at 5, citing 10/5/09 RT 6-8. The Court stated that it did take into consideration the fact that "the conduct giving rise to the federal charges preceded [sic] the conduct giving rise to the state charges and possibly they could have been treated at the same time." Id. at 6, citing 10/5/09 RT 21-22. In light of that finding, the court imposed a sentence of 48 months rather than the 57 months recommended by the government. Id. The court advised the petitioner that "to the extent you have any right to appeal, you must do so within 10 days," and petitioner acknowledged understanding his right to appeal. Id. at 7.
Petitioner now contends that his sentence in the underlying federal action must be vacated or corrected because he was deprived of his Sixth Amendment right to effective assistance of counsel during plea negotiations, sentencing, and on direct appeal. Mot. at 1-2. Petitioner specifically alleges that counsel did not argue that his prior conviction should be considered as part of the instant offense, and as such he should be placed in Criminal History Category I, instead of Category II, for sentencing purposes. Mot. at 2. He also claims that counsel failed to follow his request to file a notice to appeal the judgment. Id.
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, ...