Howang v. United States, 17-CV-6254 (LTS) (BCM)

YONG SUK HOWANG, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

17-CV-6254 (LTS) (BCM)

11-CR-690 (LTS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

April 19, 2019

REPORT AND RECOMMENDATION TO THE HON. LAURA TAYLOR SWAIN

BARBARA MOSES, United States Magistrate Judge.

Petitioner Yong Suk Howang is a native and citizen of South Korea. On January 16, 2013, after a guilty plea, she was convicted in this Court of conspiracy to distribute crack cocaine and sentenced to five years in prison. On August 21, 2015, she was released from the custody of the Bureau of Prisons (BOP), whereupon she was detained by Immigration and Customs Enforcement (ICE) pending her removal from the United States. On August 17, 2017 - more than four years after her criminal conviction became final and almost two years after she was taken into ICE custody - Howang filed a pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (the Petition) (Dkt. No. 1), accompanied by a Memorandum of Law (Pet. Mem.) and Affidavit (Pet. Aff.) (both at Dkt. No. 4).

Howang challenges her 2013 conviction on the ground that her criminal defense attorney provided ineffective assistance by failing to advise her that the conviction would subject her to mandatory removal from the United States. On March 29, 2018, while the Petition was pending, Howang was deported to South Korea. (Dkt. No. 26-1.) For the reasons set forth below, I recommend that the Petition be denied because it was not filed within the period specified by 28 U.S.C. § 2255(f).

I. BACKGROUND

A. 2013 Conviction

In April 2011, petitioner was arrested and charged by complaint with a single count of conspiring to distribute 280 grams and more of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. (Dkt. No. 4 at ECF pp. 24-32; Dkt. No. 27 in United States v. Howang, et. al. No. 11-CR-690 (S.D.N.Y)). On August 11, 2011, petitioner was indicted on the same charge (Dkt. No. 27 in United States v. Howang) and on September 9, 2011, she appeared in front of the Hon. Robert P. Patterson, United States District Judge, for arraignment, pleading not guilty. On August 23, 2012, petitioner again appeared in front of Judge Patterson, with counsel, and pled guilty to the lesser included offense of conspiring to distribute 28 grams and more of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. Speaking through a Korean translator, petitioner admitted that she had been a "member of a conspiracy to possess with intent to distribute and to distribute crack during the period of October 2009 to April 2011." Plea Tr. (Dkt. No. 65 in United States v. Howang) at 7:8-13, 16:21-24. She testified that she had agreed with Christine Hong, one of her co-defendants, "to distribute 28 grams of cocaine and more." Id. at 17:4-6. Petitioner stated that she ran "drug errands" on behalf of Ms. Hong, and that she knew that it "was wrong." Id. at 21:6-22:11. She explained that she ran these errands to three "customers," and that while the amounts were generally "small," she was involved in the delivery of 28 grams of crack cocaine in March 2011. Id. at 22:12-24.

Judge Patterson twice asked petitioner whether she understood the immigration consequences of her guilty plea:

THE COURT: Do you understand that you will probably be deported if you are convicted of this crime?

THE DEFENDANT: Yes.

Plea Tr. at 6:17-19.

THE COURT: Do you also understand that you have agreed not to challenge your conviction or sentence on direct appeal or through litigation under Title 28, United States Code, section 2255 or section 2241 on the basis that you were unaware of the actual or perceived adverse immigration consequences, including deportation, which may result from your guilty plea and conviction here?

THE DEFENDANT: Yes.

Id. at 11:15-21.

On November 27, 2012, petitioner's attorney David K. Bertan submitted a sentencing memorandum to Judge Patterson, requesting the mandatory minimum sentence of 60 months in prison. Sent. Mem. (Dkt. No. 69 in United States v. Howang) at 5. Bertan argued that the minimum sentence would adequately promote respect for the law because petitioner would still "serve a substantial period of time in jail, followed by her deportation back to her native Korea, a country she has not seen in nearly 30 years." Id. at 6.

On January 16, 2013, petitioner was sentenced to 60 months of incarceration and four years of supervised release. See Sent. Tr. (Dkt. No. 76 in United States v. Howang) at 9:23-10:14. The United States requested that, as an "additional special condition" of petitioner's supervised release, she be required to "comply with the directives" of ICE. Id. at 12:1-5. Judge Patterson adopted that condition. Id. at 12:8-10. Judgment was entered the same day. (Dkt. No. 73 in United States v. Howang.)

Petitioner did not appeal.

B. Release from BOP Custody and Removal Proceedings

Petitioner was released from BOP custody on August 21, 2015. (Dkt. No. 10-1.) According to petitioner, after being released she was immediately "detained by [ICE] for an additional ninemonths." Pet. Mem. at 7. She explains that she was subject to "automatic deportation," but that her removal was delayed because the South Korean government could not locate her passport and therefore denied her entry. Id. She was "placed on supervised release" in May 2016 after being held by ICE for what she describes as "the maximum time permitted by law." Id.

In July 2017, the South Korean government located petitioner's passport and granted her permission to enter the country. Pet. Mem. at 7. This may have been what prompted her to file her Petition on August 17, 2017. That same day, petitioner filed an Emergency Request for a Temporary Restraining Order, stating that she would be "deported on August 22, 2017" and requesting an order staying her deportation until after the resolution of her Petition. (Dkt. No. 2.) The Hon. Valerie E. Caproni, United States District Judge, denied the request on August 18, 2017, without prejudice to her "renewing her request in her immigration proceedings." (Dkt. No. 6.)

On August 25, 2017, petitioner filed a Petition for Review/Emergency Stay of Deportation in the United States Court of Appeals for the Second Circuit, challenging the final Order of Removal in her immigration proceedings. See Petition, Howang v. Sessions, No. 17-2655 (2d Cir. Aug. 25, 2017), at 1-2.¹ She also sought a stay of her impending deportation until this action was resolved "on its merits." Id. at 2.

By letter dated September 13, 2017, a "good friend" of petitioner informed the Court that petitioner had been taken into ICE custody, and provided the Court with her address at an immigration detention facility in New Jersey. (Dkt. No. 7.)

On February 14, 2018, the Second Circuit dismissed Howang's Petition for Review, see Motion Order, Howang v. Sessions, No. 17-2655 (2d Cir. Feb. 14, 2018), and on March 13, 2018, it denied reconsideration of that decision. See Motion Order, Howang v. Sessions, No. 17-2655 (2d Cir. March 13, 2018).² On or about March 29, 2018, petitioner was removed from the United States. (Dkt. No. 26-1 at 2.)

C. Habeas Corpus Petition

In her Petition in this action, Howang asserts a single claim for ineffective assistance of trial counsel. Pet. at 4. She alleges that attorney Bertan "never advised [her] that a conviction for a narcotics-related offense would subject her to mandatory removal," Pet. Mem. at 3, and argues that she would not have pled guilty "but for her counsel's incompetent representation" that her immigration status "would remain an open question" and that she would "have an opportunity to present [her] case against being deported, once [she] completed the 5 year sentence." Id. at 10-11.³

Petitioner's affidavit submitted in connection with her Petition elaborates:

7. Mr. Bertan never mentioned any possibility to me of any disposition to my case other than pleading guilty. He never explained the option of going to trial, or that a not guilty verdict would prevent any negative immigration consequences relating to this case. We always spoke through a Korean interpreter, and Mr. Bertan was terse and impatient, emphasizing only the maximum possible negative consequences of my situation, and never bringing up the possibility of any favorable resolution.

8. Mr. Bertan also never mentioned that pleading guilty would result in my automatic deportation, despite the fact that I specifically asked about the immigration consequences of my plea, and made it clear to him that remaining in the United States was my foremost priority, since I have lived here for 37 years, I have never returned to South Korea since I arrived here, and I have no family or contacts of any sort in South Korea.

9. On the contrary, he (falsely) informed me that my immigration status would remain an open question until after I served the 5 year sentence, and that I would have an opportunity to present my case against being deported, once I completed the 5 year sentence.

10. Furthermore, despite these assurances, and despite my repeated insistence that I did not want to accept any plea that would result in deportation, Mr. Bertan made no effort whatsoever to protect my immigration status or secure a plea that would prevent my deportation.

Pet Aff. ¶¶ 7-10. Petitioner also alleges that she likely would not have been found guilty had her case gone to trial. Pet. Mem. at 15-18.

D. Supplemental Briefing

On November 15, 2017, in lieu of an answer, the United States filed a letter-brief asserting that the Court should deny the Petition "as a matter of law without reaching the underlying merits," because Howang filed it "well outside" of the one-year statute of limitations set forth in 28 U.S.C. § 2255(f). Gov. Ltr. dated Nov. 15, 2017 (Dkt. No. 9), at 1. The United States contends that plaintiff knew or should have known of the facts underlying her habeas claim - that her conviction would lead to her removal - at the time of her guilty plea,...