United States v. Shin

891 F.Supp.2d 849

UNITED STATES of America, Plaintiff,

v.CHAN HO SHIN, Defendant.

Case No. 3:09 CR 427.

United States District Court,

N.D. Ohio,

Western Division.

Sept. 20, 2012.

Thomas A. Karol, Office of the U.S. Attorney, Toledo, OH, for Plaintiff.

MEMORANDUM OPINION AND ORDER

JACK ZOUHARY, District Judge.

Introduction

Nearly four years ago, Defendant Chan Ho Shin pled guilty in this Court to four counts of filing false tax returns in violation of federal law (Doc. 5). He was sentenced to probation. At that time, Shin was aware his conviction could lead to deportation from the United States; however, he believed he stood a good chance of evading removal proceedings. As it turns out, immigration officials deemed Shin's crime to be an “aggravated felony,” a classification used to describe a category of offenses carrying particularly harsh consequences for non-citizens. He now faces deportation.

Shin, who can no longer file an appeal in this case or seek habeas corpus relief, petitions this Court for a writ of error coram nobis (Doc. 28). Shin attempts to elude his upcoming removal proceedings by arguing his conviction should be set aside because “his decision to plead guilty was the product of the ineffective assistance of counsel” (Doc. 28 at 9). The matter has been fully briefed (Docs. 28, 33 & 37).

Background

Shin, a resident alien from the Republic of Korea, operates retail stores throughout the Toledo, Ohio area. In early 2008, Shin learned he was the subject of a criminal investigation by the Internal Revenue Service (“IRS”) regarding unreported business income from 2002 through 2005. The Tax Division of the Department of Justice eventually authorized Shin's prosecution for filing false income tax returns in violation of 26 U.S.C. § 7206(1).

From the time he became aware of the potential for criminal charges, Shin was concerned about the effect a conviction would have on his immigration status (Doc. 28 at 2). Shin, who at that time was a lawful permanent resident, was primarily concerned that a conviction would result in his deportation from the United States. Shin's counsel expressed these concerns with IRS representatives and with the Assistant United States Attorney in pre-charging discussions. Shin's counsel also wrote a letter to the Assistant United States Attorney, exploring options that might permit Shin to stay in the country despite a conviction under Section 7206. In the letter, Shin's counsel explained that, while the majority of cases hold a Section 7206 violation with a $10,000 or more loss, constitutes an “aggravated felony” subject to deportation, immigration officials cannot deem the conviction an aggravated felony if the loss amount is excluded from the charging instrument, all subsequent pleadings, and the Presentence Report (Doc. 33–1 at 1).

Shin's counsel recommended Shin plead guilty to four counts of making false statements in his tax returns in violation of Section 7206(1), and admit to an understatement of income totaling $263,963 (Doc. 28 at 8). The four-count Information did not state the amount of tax loss resulting from his offenses. Counsel also advised Shin his conviction could lead to removal from the country (Doc. 28–2 at 2). Shin agreed to the plea regardless, and in January 2010, this Court sentenced him to five years' probation, including four special conditions: (1) five months of home confinement; (2) 175 hours of community service; (3) a $7,500 fine; and (4) restitution in the amount of $73,310 (Doc. 12).

After completing his period of home detention, and with permission from his probation officer, Shin traveled to the Republic of Korea. In mid-September 2010, on his return trip to the United States, Shin was stopped at Detroit Metro Airport by United States Customs and Border Protection Service agents. After acknowledging his conviction for filing false tax returns, Shin was served with a notice to appear at removal proceedings, which explained Shin was deportable because his conviction was for a crime of moral turpitude under 8 U.S.C. § 1182(a)(1)(A)(i)(I). Shin was released and paroled into the United States pending the resolution of his removal proceedings, currently scheduled for March 2013 (Doc. 28 at 4).

In 2011, Shin learned from the lawyer representing him in his immigration proceeding that the Supreme Court was to hear the case of Kawashima v. Holder, ––– U.S. ––––, 132 S.Ct. 1166, 182 L.Ed.2d 1 (2012). That case involved the question of whether violations of Section 7206(1) are “aggravated felonies” subject to deportation when the loss exceeds $10,000. According to Shin, his immigration attorney informed him that he would have “no chance of avoiding deportation” if the Court ruled against Kawashima (Doc. 28 at 4). This is so because a conviction for an “aggravated felony” is not subject to discretionary cancellation under 8 U.S.C. § 1229b. In other words, non-citizens who have been convicted of an “aggravated felony” cannot seek relief that would spare them from deportation. Because Shin's notice to appear did not allege his conviction under Section 7206(1) was for an “aggravated felony,” Shin did not know he was subject to automatic removal until his lawyer advised him of Kawashima's pendency. He now argues he would not have pled guilty had he known or been told the true consequences of his plea.

Facing inevitable deportation, Shin began seeking out legal advice and counsel regarding the possibility of withdrawing his guilty plea or otherwise setting aside his conviction. Under Federal Criminal Rule 11(e), a guilty “plea may be set aside only on direct appeal or collateral attack.” The time for a direct appeal has long passed, and Shin's March 2012 release from probation forecloses collateral attack by way of a 28 U.S.C. § 2255 motion. With no other avenue for relief, Shin petitions this Court for a writ of error coram nobis, arguing his conviction should be set aside because “his decision to plead guilty was the product of the ineffective assistance of counsel” (Doc. 28 at 9). Specifically, Shin contends (Doc. 28 at 5):

• Counsel gave inaccurate advice regarding the immigration consequences of the guilty plea he negotiated and recommended by inaccurately telling Shin his conviction could—not would—lead to his removal from the United States;

• Counsel inaccurately advised Shin that not stating the tax loss amount on the record of his plea and sentencing would lessen the chances of his removal; and

• Counsel failed to negotiate a plea under 31 U.S.C. § 5324, which would not have provided a basis for Shin's removal, a fact of which counsel was unaware, and did not research, even though the investigation focused on Shin's cash deposits and he believed there would have been a factual basis for such a plea.

Standard of Review

This Court's power to issue a writ of error coram nobis stems from the All Writs Act, 28 U.S.C. § 1651. Blanton v. United States, 94 F.3d 227, 231 (6th Cir.1996). Essentially, coram nobis is “a remedy of last resort for petitioners who are no longer in custody pursuant to a criminal conviction.” United States v. Mandanici, 205 F.3d 519, 524 (2d Cir.2000) (citing Fleming v. United States, 146 F.3d 88, 89–90 (2d Cir.1998) (per curiam)). Coram nobis, however, “is an extraordinary writ,” Pilla v. United States, 668 F.3d 368, 372 (6th Cir.2012), and relief “is strictly limited to those cases in which errors of the most fundamental character have rendered the proceeding itself irregular and invalid.” Mandanici, 205 F.3d at 524 (quoting Foont v. United States, 93 F.3d 76, 78 (2d Cir.1996)). In reviewing a petition for the writ, this Court presumes “the proceedings were correct, and the burden of showing otherwise rests on the petitioner.” Id. (citation omitted).

To obtain coram nobis relief, Shin must demonstrate: a factual error; unknown at the time of trial; of a fundamentally unjust character which probably would have altered the outcome of the challenged proceeding if it had been known. Pilla, 668 F.3d at 372 (citing United States v. Johnson, 237 F.3d 751, 755 (6th Cir.2001)); see also Blanton, 94 F.3d at 231. The Sixth Circuit has held a successful ineffective assistance claim satisfies the above factors and is thus within the scope of coram nobis. See, e.g., Pilla, 668 F.3d at 372–73;Blanton, 94 F.3d at 231;United States v. Boling, 869 F.2d 965, 972 (6th Cir.1989). Therefore, this Court will address Shin's ineffective assistance claim.

Discussion

Shin's claim is premised on his contention that his decision to plead guilty was the product of the ineffective assistance of counsel, which requires a showing that “counsel's conduct so undermined the proper functioning of the adversarial process ... that it cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Making this showing “is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 (2010). To succeed, Shin must prove two elements: (1) his counsel's performance was deficient; and (2) the deficient performance prejudiced his defense. Pilla, 668 F.3d at 372 (citing Strickland, 466 U.S. at 687–88, 694, 104 S.Ct. 2052). This Court's scrutiny of the reasonableness of counsel's performance is highly deferential. Indeed, counsel is strongly presumed to have rendered adequate assistance and to have made all decisions in the exercise of reasonable professional judgment and sound legal strategy. Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986); Strickland, 466 U.S. at 689–90, 104 S.Ct. 2052.

To show prejudice, Shin “must demonstrate a reasonable probability that, ‘but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial.’ ” Pilla, 668 F.3d at 372–73 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). Of course, Shin “cannot make that showing merely by telling...