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United States v. Johal

United States District Court, E.D. California

October 16, 2019

UNITED STATES, Plaintiff/Respondent,
v.
HARJIT KAUR JOHAL, Defendant/Movant.

          ORDER

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Movant 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.

         BACKGROUND

         In 2014 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.

         Movant, 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.

         DISCUSSION

         Movant 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.

         I. Standards for Motions Pursuant to 28 U.S.C. § 2255

         A 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. 2008).

         II. Legal Standards for Holding an Evidentiary Hearing

         In 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.

         In 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 citations omitted)

         III. Legal Standards for Ineffective Assistance of Counsel Claims

         To 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.

         The 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 ...


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