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Title: Wilfredo Tiongco Ngo and Maria Teresa Lamayo Ngo v. United States of America

July 26, 2012

TITLE: WILFREDO TIONGCO NGO AND MARIA TERESA LAMAYO NGO
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES -- GENERAL

O JS-6

PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE Julie Barrera N/A Courtroom Clerk Court Reporter ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT: None Present None Present PROCEEDINGS: (IN CHAMBERS): ORDER DENYING PETITIONERS' MOTION TO VACATE

Before the Court is Petitioners Wilfredo Ngo and Maria Ngo's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (the "Motion") (Dkt. 1). The Court finds this matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local R. 7-15. After considering the moving, opposing, and replying papers, and for the reasons stated below, the Court hereby DENIES the Motion.

I. Background

On May 20, 2009, Petitioners Maria and Wilfredo Ngo ("Petitioners") pled guilty, pursuant to plea agreements, to knowingly encouraging or inducing an alien to come to, enter, or reside in the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) (the "Charge"). Plea Hr'gs, No. 08-216-DOC (Dkt. 61-62).

Prior to entering guilty pleas, Petitioners consulted their respective defense counsel, as well as separate immigration counsel, to determine the effect of a conviction on Petitioners' immigration status. Reply (Dkt. 8) at 2. Petitioners' immigration counsel sent a letter to at least one of Petitioners' counsel advising that conviction of the Charge would constitute an "aggravated felony resulting in [Petitioners'] lifetime ban from the United States under current immigration law." Id. at 3. Petitioners contend, however, that their defense counsel never conveyed this information to Petitioners, citing the lack of "that letter, or any research memoranda, cases or notes concerning immigration consequences at all" in the files of Petitioners' defense counsel. Id. Consequently, Petitioners allege they pled guilty without adequate knowledge of the potential effects such a plea would have on their immigration status. Id.

On March 30, 2011, Petitioners filed the instant motion pursuant to 28 U.S.C. § 2255. Mot. (Dkt. 1). Petitioners claim their plea should be vacated on the grounds that they received ineffective assistance of counsel in violation of their Sixth Amendment rights. Reply (Dkt. 8) at 1. Specifically, "[Petitioners's] claim for relief is predicated on the failure of the respective counsel to accurately advise them as to the immigration consequences of pleading guilty to [violating 8 U.S.C. § 1324(a)(1)(A)(iv)]." Id.

In an order issued August 11, 2011, the Court found that Petitioners' Motion was timely-filed and also found a limited waiver of attorney-client privilege. In the Government's second opposition, it argues that Petitioners' assertion that they were never adequately advised of the immigration consequences is false, and, even if it were true, that the Supreme Court's recent holding in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), does not apply to Petitioners' claims retroactively. See Opp'n (Dkt. 19).

II.Legal Standard

A motion to vacate, set aside, or correct sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief "[i]f the court finds that . . . there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255(b). If the motion combined with the files and records of the case conclusively show that the prisoner is not entitled to relief, no evidentiary hearing on the issues is warranted. See id.

The standard of review of § 2255 petitions is "stringent" and the court "presumes earlier proceedings were correct." United States v. Nelson, 177 F. Supp.2d 1181, 1187 (D. Kan. 2001) (citation omitted). In a successful § 2255 motion, the "defendant must show a defect in the proceedings which resulted in a 'complete miscarriage of justice.'" Id. (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). It is important to note that "relief is not available merely because of error that may have justified reversal on direct appeal." United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Addonizio, 442 U.S. 178, 184 (1979).

The standard for evaluating a Sixth Amendment ineffective assistance of counsel claim is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Counsel's performance is constitutionally deficient when it "so undermine[s] the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. A defendant claiming ineffective assistance of counsel bears the burden of demonstrating that, under all the circumstances of his case: (1) "his counsel's performance was so deficient that it fell below an objective standard of reasonableness," and (2) his counsel's deficient performance prejudiced him, meaning "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Hensley v. Crist, 67 F.3d 181, 184-85 (9th Cir. 1995) (citations omitted). An after-the-fact examination of ...


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