United States v. Johal

UNITED STATES OF AMERICA, Plaintiff, v. HARJIT JOHAL, Defendant.

No. 2:14-cr-169-GEB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

October 25, 2019

ORDER

Movant Harjit Johal filed an amended motion under 28 U.S.C. § 2255 on April 10, 2019, in which she seeks to vacate her conviction for making false declarations before a grand jury proscribed in 18 U.S.C. § 1623, and the 24-month sentence she received for that conviction. Mot. at 6:21-23, ECF, 299. On March 24, 2017, a jury found Johal guilty of making the following materially false declarations before a grand jury: that she did not buy pay stubs from Ray Kahn and she did pick peaches for Ray Khan. "The paystubs were purchased so the purchaser could make fraudulent unemployment claims." (Paragraph 8 of the Presentence Report ("PSR") filed under seal on May 26, 2017).

Johal contends her motion should be granted because her attorney Gilbert Roque gave her constitutionally ineffective assistance when he only "advised her that being convicted of a felony would result in her deportation regardless of the punishment imposed." Id. at 7:3-4. Johal argues this advice "was a misstatement of law," because a conviction is not a "deportable offense for Ms. Johal if the sentence imposed is less than one year." Id. at 7:4-7. Johal argues because of Roque's misstatement of law she went to trial, was convicted, and ultimately received a 24-month deportable sentence for a perjury felony conviction classified as an aggravated felony under 8 U.S.C. § 1101(a) (43); and that the conviction was so classified because the sentence imposed was not less than one year. Johal contends that had she known that she would not risk being deported if the sentence she received was less than a year she would not have "elected to take her case to trial . . . " Id. at 7:7. Johal argues that "had [she] been properly advised as to potential immigration consequences [of a sentence], she would have sought a plea deal for [a sentence] less than one year that allowed her to remain in the United States, or pled guilty without an agreement and put herself at the mercy of the Court." Id. at 8:18-20. This argument is supported by Johal's following averments in her declaration attached to her motion: "If I had known that a sentence of one year or more would result in deportation but less than one year would not, I would have done anything and everything in my power to secure a sentence of less than one year." Exh. 14 attached to Mot. at 2:25-28. Johal also contends that "[her] attorney was ineffective because he failed to notify the court during sentencing that a sentence of one year or more would result in his client's deportation." Id. at 8:21-22.

The United States opposes the motion arguing it "should be denied because Johal failed to meet the [Strickland v. Washington, 466 U.S. 668, 687 (1984),] standard necessary to show her defense counsel was ineffective." Opp. at 1:20-23, ECF 317. Specifically, the United States argues:

"[Johal's] claims fail on both Stricklandprongs because . . . Johal has not—and cannot-establish that her trial counsel's performance fell below an objective standard of reasonableness, nor that she was prejudiced by trial counsel's performance. Johal has failed to make such a showing because the government never offered a plea agreement—let alone one guaranteeing a sentence of less than one year—and there is no constitutional right to a plea agreement, nor was such a plea agreement readily available to Johal, nor has Johal demonstrated a reasonable probability that she would have accepted such a plea. Similarly, with respect to the sentencing hearing, trial counsel's performance with respect to sentencing was objectively reasonable in light of the law, and Johal was not prejudiced because there is no reasonable probability that the Court would have imposed a sentence of less than one year, given that a departure based on immigration status is impermissible and the Court was aware of Johal's proffered sentencing arguments and nevertheless imposed a sentence of twenty-four months imprisonment."

"Here, Johal cannot meet th[e] high burden [of] establish[ing] that she was prejudiced by counsel's performance: even if trial counsel's immigration advice was deficient, Johal could not have pleaded guilty pursuant to a plea agreement that would have resulted in a sentence of less than one yearbecause there was no plea offer extended or available. Further, Johal has not established that she would have . . . pleaded guilty, nor that there is a reasonable probability that she would have received a sentence of less than one year."

"Further, Johal cannot establish that her counsel was ineffective in failing to secure [a] plea agreement because she insisted that she was innocent throughout the proceedings. Roque's declaration [submitted by Johal in support of her 2255 Motion confirms that Ms. Johal insisted she was innocent]. Roque's declaration details the amount of time he spent with Johal in preparation for trial and notes that '[p]rior to trial, Harjit Johal assured [him] that her testimony before the Grand Jury had been truthful.'"

Id at 2:1-12, 16:11-17, 14:15-21.

Johal filed a Reply on October 9, 2019 in which she argues: "A competent attorney that was aware of Ms. Johal's immigration circumstances would have continued negotiation with the government seeking out the best plea deal to avoid deportation, and it is evident from the government's emails that such a deal was possible and available for Ms. Johal." Reply at 13:13-17 ECF No. 333.) The referenced emails do not support this argument.

Strickland states "[w]hen a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness" "under prevailingprofessional norms." Strickland, 466 U.S. at 687-88. Strickland explains: "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct [; and] must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance . . . At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Strickland also explains "any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution," and "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Strickland 466 U.S. at 692 and 697.

"Strickland prejudice focuses on the outcome of the proceeding rather than a defendant's priorities or desires. Because a defendant has no right to be offered a plea, the ultimate outcome of a plea negotiation depends on whether the government is willing to agree to the plea the defendant is willing to enter. To prevail on that ground, a petitioner must therefore demonstrate a reasonable probability that the prosecution would have accepted, and the court would haveapproved, a deal that had no adverse effect on the petitioner's immigration status." Kovacs v. United States, 744 F.3d 44, 52 (2d Cir. 2014).

Johal has not "show[n a] reasonable probability that the government would have in fact made [her the] plea offer [she desires]." Flood v. United States, 345 F.Supp.3d 599, 613 (D. Md. 2018) (internal citations and quotations omitted). Nor has Johal provided evidence that the plea offer she indicates Roque should have proposed to the Government "would have been accepted by the Government." Cervantes-Conde v. United States, 2017 WL 3037375, at *4 (D. Ariz. 2017).

Both the government's opposition and Johal's reply contain the same emails between Roque and a prosecutor involving the only plea bargain discussions. The emails evince that on January 25, 2017 Roque wrote Assistant United States Attorney Jared Dolan the following offer: "Hi Jared, I would like you to consider a Pretrial Diversion Program for my client." January 25, 2017 email chain between AUSA Jared Dolan and Gilbert Roque, attached as Exhibit G to the Reply. Dolan responded:

"perjury is not the kind of offense where the disposition you suggested is warranted. Further, given that another defendant who is similarly situated to [Johal] has already pleaded guilty in this case (Hamira Chechi) I cannot think of a reason why we would extend that offer to [Johal]. If [Johal] wants to plead guilty, I am happy to send an offer. But it does not sound like we are on the same page and I don't want to waste time making an offer that will never beaccepted."

Hamira Chechi was also charged with making false declarations before a grand jury in violation of 18 U.S.C. § 1623. Chechi signed a plea agreement in 2015 and plead guilty to the perjury charge on August 15, 2015 under that plea agreement. (Amended Minutes filed August 6, 2015). Chechi's and the government's plea agreement shows that the parties estimated Chechi would receive a three-level decrease in her offense level for acceptance of responsibility and that her advisory guideline range would be 15-21 months. Reply, Exhibit 19 at page 9. In addition, the government agreed "to recommend at the time of sentencing that [Chechi's] sentence of imprisonment be reduced by up to 50% of the applicable guideline sentence if she provides substantial assistance to the government, pursuant to U.S.S.G. § 5K1.1." Id. at 5. At Chechi's sentencing hearing in September 2017 the judge adopted the...