United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
is a federal prisoner proceeding with a motion to vacate, set
aside, or correct her sentence pursuant to 28 U.S.C. §
2255. Movant challenges her 2017 conviction for making false
declarations to a grand jury and the resulting 24-month
sentence. Movant raises two claims of ineffective assistance
of counsel. After reviewing the parties' briefs and the
exhibits provided, and for the reasons set forth below, this
court finds an evidentiary hearing is necessary to resolve
one of movant's claims.
a grand jury investigated a large-scale unemployment and
disability insurance fraud scheme orchestrated by two
brothers - Mohammad Riaz “Ray” Khan and Mohammad
Shabaz Khan. In May 2014, movant testified before the grand
jury that she had worked picking peaches for Ray Khan. In
June 2014, she was indicted for making a false statement to
the grand jury in violation of 18 U.S.C. § 1623. There
were several related cases in which a number of others were
charged with mail fraud and conspiracy to commit mail fraud.
Those individuals who were charged only with making a false
claim for unemployment insurance benefits largely plead
guilty and received non-custodial sentences.
a legal permanent resident of the United States since 1995,
was convicted by a jury in 2017 of the violation of 18 U.S.C.
§ 1623. In February 2019, movant was placed into
immigration removal proceedings and charged with having
committed an aggravated felony for which the term of
imprisonment was at least one year. See 8 U.S.C.
§ 1227 (a)(2)(A)(iii) (alien who has committed an
aggravated felony is deportable), § 1101(a)(43)(S)
(aggravated felony includes an offense relating to perjury
for which the term of imprisonment is at least one year).
After the Ninth Circuit rejected the appeal filed by movant
and her co-defendant, United States v. Kaur, 752
Fed.Appx. 409 (9th Cir. 2018), movant filed the present
motion to vacate her conviction and sentence pursuant to 28
U.S.C. § 2255 on April 8, 2019.
alleges her trial attorney was constitutionally ineffective
in two respects. First, she contends he failed to inform her
that she was only deportable if she received a sentence of
one year or more. Instead, counsel mis-informed her that she
was deportable for any felony conviction. Second, movant
contends her attorney failed to argue for a downward
sentencing departure based on her deportability if her
sentence was a year or more.
Standards for Motions Pursuant to 28 U.S.C. §
federal prisoner making a collateral attack against the
validity of their conviction or sentence must do so by way of
a motion to vacate, set aside or correct the sentence
pursuant to 28 U.S.C. § 2255, filed in the court which
imposed sentence. United States v. Monreal, 301 F.3d
1127, 1130 (9th Cir. 2002). Under § 2255, the sentencing
court may grant relief if it concludes that a prisoner in
custody was sentenced in violation of the Constitution or
laws of the United States. Davis v. United States,
417 U.S. 333, 344-45 (1974); United States v.
Barron, 172 F.3d 1153, 1157 (9th Cir. 1999). To warrant
relief, the prisoner must demonstrate the existence of an
error of constitutional magnitude which had a substantial and
injurious effect or influence on the guilty plea or the
jury's verdict. Brecht v. Abrahamson, 507 U.S.
619, 637 (1993); see also United States v.
Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (“We
hold now that Brecht's harmless error standard
applies to habeas cases under section 2255, just as it does
to those under section 2254.”). Relief is warranted
only where a petitioner has shown “a fundamental defect
which inherently results in a complete miscarriage of
justice.” Davis, 417 U.S. at 346; see also
United States v. Gianelli, 543 F.3d 1178, 1184 (9th Cir.
Legal Standards for Holding an Evidentiary Hearing
reviewing a motion brought pursuant to § 2255, a federal
court shall hold an evidentiary hearing “unless the
motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b); see also United States v.
Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003); United
States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994).
Evidentiary hearings are particularly appropriate when
“claims raise facts which occurred out of the courtroom
and off the record.” United States v. Burrows,
872 F.2d 915, 917 (9th Cir. 1989); accord Doganiere v.
United States, 914 F.2d 165, 168 (9th Cir. 1990). When a
§ 2255 movant raises a claim of ineffective assistance
of counsel, the court should hold an evidentiary hearing
unless “something in the record conclusively shows that
[movant's] trial attorney was not ineffective.”
Burrows, 872 F.2d at 917.
deciding whether a § 2255 movant is entitled to an
evidentiary hearing, the district court should determine
whether, accepting the truth of movant's factual
allegations, he could prevail on his claim.
Blaylock, 20 F.3d at 1465. However, to be entitled
to an evidentiary hearing the movant must provide specific
factual allegations which, if true, state a claim on which
relief under § 2255 could be granted. United States
v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003);
United States v. Schaflander, 743 F.2d 714, 717 (9th
Cir. 1984). The court may deny an evidentiary hearing on a
§ 2255 motion “if the petitioner's
allegations, viewed against the record, fail to state a claim
or are so palpably incredible or patently frivolous as to
warrant summary dismissal.” United States v.
McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (internal
Legal Standards for Ineffective Assistance of Counsel
succeed on a claim of ineffective assistance of counsel, a
petitioner must show that (1) his counsel's performance
was deficient and that (2) the “deficient performance
prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). Counsel is
constitutionally deficient if his or her representation
“fell below an objective standard of
reasonableness” such that it was outside “the
range of competence demanded of attorneys in criminal
cases.” Id. at 687-88 (internal quotation
marks omitted). Prejudice is found where “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at
694. A reasonable probability is “a probability
sufficient to undermine confidence in the outcome.”
Id. “The likelihood of a different result must
be substantial, not just conceivable.”
Richter, 562 U.S. at 112.
Strickland standards apply to claims of ineffective
assistance of counsel during the plea-bargaining process.
Missouri v. Frye, 566 U.S. 134, 140 (2012);
Lafler v. Cooper, 566 U.S. 156, 162-63 (2012). A
criminal defendant has a right to make a reasonably informed
decision whether to accept a plea offer or proceed to trial.
Turner v. Calderon, 281 F.3d 851, 880 (9th Cir.
2002). The attorney has the obligation to advise his client
of “the available options and possible
consequences” regarding pleading guilty.
Blaylock, 20 F.3d at 1465. An affirmative