Wilfredo Tiongco Ngo et al v. United States of America

Filing 21

MINUTE ORDER IN CHAMBERS by Judge David O. Carter: Denying Motion to Vacate/Set Aside/Correct Sentence (2255) 1 . (Made JS-6. Case Terminated.) (twdb)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

O

CIVIL MINUTES – GENERAL
Case No. SACV 11-0492 DOC
Criminal Case No. SACR 08-216 DOC

JS-6

Date: July 26, 2012

Title: WILFREDO TIONGCO NGO AND MARIA TERESA LAMAYO NGO v.
UNITED STATES OF AMERICA

PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera
Courtroom Clerk
ATTORNEYS PRESENT FOR PLAINTIFF:

None Present

N/A
Court Reporter
ATTORNEYS PRESENT FOR DEFENDANT:

None Present

PROCEEDINGS: (IN CHAMBERS): ORDER DENYING PETITIONERS’
MOTION TO VACATE
Before the Court is Petitioners Wilfredo Ngo and Maria Ngo’s Motion to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. §
2255 (the “Motion”) (Dkt. 1). The Court finds this matter appropriate for decision
without oral argument. Fed. R. Civ. P. 78; Local R. 7-15. After considering the moving,
opposing, and replying papers, and for the reasons stated below, the Court hereby
DENIES the Motion.
I.

Background

On May 20, 2009, Petitioners Maria and Wilfredo Ngo (“Petitioners”) pled guilty,
pursuant to plea agreements, to knowingly encouraging or inducing an alien to come to,
enter, or reside in the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) (the
“Charge”). Plea Hr’gs, No. 08-216-DOC (Dkt. 61-62).
Prior to entering guilty pleas, Petitioners consulted their respective defense
counsel, as well as separate immigration counsel, to determine the effect of a conviction
on Petitioners’ immigration status. Reply (Dkt. 8) at 2. Petitioners’ immigration counsel
sent a letter to at least one of Petitioners’ counsel advising that conviction of the Charge
would constitute an “aggravated felony resulting in [Petitioners’] lifetime ban from the

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-492 DOC
SACR 08-216 DOC

Date: July 26, 2012
Page 2

United States under current immigration law.” Id. at 3. Petitioners contend, however, that
their defense counsel never conveyed this information to Petitioners, citing the lack of
“that letter, or any research memoranda, cases or notes concerning immigration
consequences at all” in the files of Petitioners’ defense counsel. Id. Consequently,
Petitioners allege they pled guilty without adequate knowledge of the potential effects
such a plea would have on their immigration status. Id.
On March 30, 2011, Petitioners filed the instant motion pursuant to 28 U.S.C. §
2255. Mot. (Dkt. 1). Petitioners claim their plea should be vacated on the grounds that
they received ineffective assistance of counsel in violation of their Sixth Amendment
rights. Reply (Dkt. 8) at 1. Specifically, “[Petitioners’s] claim for relief is predicated on
the failure of the respective counsel to accurately advise them as to the immigration
consequences of pleading guilty to [violating 8 U.S.C. § 1324(a)(1)(A)(iv)].” Id.
In an order issued August 11, 2011, the Court found that Petitioners’ Motion was
timely-filed and also found a limited waiver of attorney-client privilege. In the
Government’s second opposition, it argues that Petitioners’ assertion that they were never
adequately advised of the immigration consequences is false, and, even if it were true,
that the Supreme Court’s recent holding in Padilla v. Kentucky, 130 S.Ct. 1473 (2010),
does not apply to Petitioners’ claims retroactively. See Opp’n (Dkt. 19).
II.

Legal Standard

A motion to vacate, set aside, or correct sentence of a person in federal custody
pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief “[i]f the court finds that . . .
there has been such a denial or infringement of the constitutional rights of the prisoner as
to render the judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b). If the
motion combined with the files and records of the case conclusively show that the
prisoner is not entitled to relief, no evidentiary hearing on the issues is warranted. See id.
The standard of review of § 2255 petitions is "stringent" and the court "presumes
earlier proceedings were correct." United States v. Nelson, 177 F. Supp.2d 1181, 1187
(D. Kan. 2001) (citation omitted). In a successful § 2255 motion, the "defendant must
show a defect in the proceedings which resulted in a ‘complete miscarriage of justice.'"
Id. (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). It is important to note that
"relief is not available merely because of error that may have justified reversal on direct

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-492 DOC
SACR 08-216 DOC

Date: July 26, 2012
Page 3

appeal." United States v. Frady, 456 U.S. 152, 165 (1982); United States v. Addonizio,
442 U.S. 178, 184 (1979).
The standard for evaluating a Sixth Amendment ineffective assistance of counsel
claim is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Counsel’s
performance is constitutionally deficient when it “so undermine[s] the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just
result.” Id. at 686. A defendant claiming ineffective assistance of counsel bears the
burden of demonstrating that, under all the circumstances of his case: (1) “his counsel’s
performance was so deficient that it fell below an objective standard of reasonableness,”
and (2) his counsel’s deficient performance prejudiced him, meaning “there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Hensley v. Crist, 67 F.3d 181, 184-85 (9th Cir.
1995) (citations omitted). An after-the-fact examination of counsel’s performance “is
highly deferential and there is a strong presumption that counsel’s conduct fell within the
wide range of reasonable representation.” United States v. Ferreira-Alameda, 815 F.3d
1251, 1253 (9th Cir. 1987).
III.

Discussion

Petitioners’ argument that they received ineffective assistance of counsel because
they were not warned of the immigration consequences of pleading guilty is unavailing.
Their claims are based on the single allegation that nothing concerning the potential
immigration consequences in Petitioners’ case was found in the files turned over to
Petitioners by their respective defense counsel. Reply (Dkt. 8) at 3. In light of the
evidence presented by the Government in their second opposition brief, the Court finds
that Petitioners’ evidence does not sufficiently establish a claim of ineffective assistance
of counsel and that consequently, Petitioners are not entitled to relief under 28 U.S.C. §
2255. Because the Court finds Petitioners were adequately advised of the immigration
consequences of entering guilty pleas, the Court need not reach the issue of whether the
Supreme Court’s recent decision in Padilla v. Kentucky, 130 S.Ct. 1473, applies
retroactively.1
1

In Padilla v. Kentucky, the Supreme Court ruled that failing to advise a defendant of the adverse immigration
consequences of entering a guilty plea constituted a violation of the Sixth Amendment’s guarantee of effectiveassistance-of-counsel. 130 S.Ct. 1473, 1478-1487. Circuit courts have split on whether the Supreme Court’s decision
applies retroactively. Compare United States v. Orocio, 645 F.3d 630 (3d Cir. 2011) (holding “that Padilla is
retroactively applicable on collateral review”) with Chaidez v. United States, 655 F.3d 684 (7th Cir. 2001) (holding

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-492 DOC
SACR 08-216 DOC

Date: July 26, 2012
Page 4

The Government has submitted declarations from each of Petitioners’ defense
counsel in which both attorneys clearly state that they had many conversations with both
Petitioners regarding the immigration consequences of a guilty plea in this case.
Petitioner Wilfredo Ngo was told by his defense counsel, Mr. Mark Frederick, that he
was charged with “aggravated felonies” and that if he pled guilty “he would be
deported.” Id. at ¶¶ 9, 11. Petitioner Wilfredo Ngo indicated that “although he did not
want to leave the United States, he thought pleading guilty was the best alternative.” Id.
at ¶ 16. Petitioner Maria Ngo was “informed several times” by her defense counsel, Mr.
Van Hoy, “that if she pled guilty she would be deported.” Opp’n Ex. 4, Robert Van
Hoy’s Resp. Interrog., (Dkt. 19) at ¶ 13. Furthermore, Petitioner Maria Ngo “stated that
she did not want to go back to the Philippines and she felt it was unfair to be forced to do
so by deportation in this case.” Id. at ¶¶ 4(B), 14.
This evidence overwhelmingly suggests that Petitioners were adequately warned
of the immigration consequences of a guilty plea and purposefully decided to enter guilty
pleas in spite of these known consequences. See United States v. Bowen, 441 Fed. Appx.
48, 49 (2d Cir. 2011) (affirming district court’s finding, based on trial counsel’s affidavit,
that defendant had been properly advised of the immigration consequences despite
defendant’s Padilla claim). Petitioners provide no legal arguments or facts to contest the
evidence presented by the Government. See Reply (Dkt. 20). Petitioners’ assertion that
defense counsel’s files did not include information pertaining to the immigration
consequences is not sufficient to establish that they were not properly advised of those
consequences.
Because Petitioners were adequately warned of the immigration consequences of
their guilty pleas, the Court finds that Petitioners did not receive ineffective assistance of
counsel and therefore DENIES the Motion to Vacate.
Petitioners have not asserted any plausible way they would be entitled to relief and
therefore the Court will not grant an evidentiary hearing. United States v. McMullen, 98
“that Padilla announced a new rule” inapplicable on collateral review under Teague v. Lane, 489 U.S. 288 (1989)).
The Supreme Court has granted certiori to clarify this precise issue. Chaidez v. U.S., 132 S.Ct. 2101 (2012).
Despite extensive briefing by both parties on this issue, the Court need not reach a decision on this issue. Because
the Court finds that Petitioners received adequate advice regarding the immigration consequences, Petitioners would
not state a claim for ineffective assistance of counsel regardless of whether Padilla applies retroactively.

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. SACV 11-492 DOC
SACR 08-216 DOC

Date: July 26, 2012
Page 5

F.3d 1155, 1158 (9th Cir. 1996) (“To earn the right to a hearing, [a defendant is] required
to allege specific facts, which, if true, would entitle him to relief.”). Furthermore, the
Court declines to issue a certificate of appealability because Petitioners have not “made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §§ 2253(c)(2)(c)(3).
IV.

Disposition

For the reasons listed above the Court DENIES Defendants’ Motion to Dismiss
WITH PREJUDICE. Additionally, the Court DENIES the request to issue a Certificate of
Appealability.

MINUTES FORM 11
CIVIL-GEN

Initials of Deputy Clerk: jcb