Wong v. USA

Filing 3

ORDER DENYING PETITION TO VACATE, SET ASIDE, OR CORRECT UNDER 28 U.S.C. § 2255 re 1 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 11/20/13. "Because Wong has failed to show prejudice flowing from his counsel's all eged ineffectiveness, the § 2255 Petition is denied." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). George Wong shall be served by first class mail at the address of record on November 20, 2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GEORGE WONG,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
_____________________________ )

Crim. No. 11-00968 SOM
Civ. No. 13-00261 SOM/BMK
ORDER DENYING PETITION TO
VACATE, SET ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. § 2255

ORDER DENYING PETITION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
Before the court is a petition by George Wong to
vacate, set aside or correct his sentence, on the grounds that he
was denied his Sixth Amendment right to effective assistance of
counsel during his sentencing.
I.

The court denies Wong’s petition.

BACKGROUND
On February 10, 2012, pursuant to a plea agreement,

Wong pled guilty to Count 2 of his indictment.

Count 2 charged

Wong with knowingly possessing with intent to distribute 50 grams
or more of methamphetamine, its salts, isomers, and salts of its
isomers.

See ECF No. 61-2.
At a Rule 11 hearing held that day before a Magistrate

Judge, Wong stated that he had received a copy of the indictment
and plea agreement, discussed the charges and the plea with his
attorney Richard Pafundi, was satisfied with his legal
representation, and was freely and voluntarily pleading guilty.
ECF No. 61-3 at 4-6.

The government noted at the hearing that it

would move to dismiss Count 1 of the indictment at sentencing,
and that it “anticipated filing a motion for downward departure
in exchange for [Wong’s] continued truthful cooperation.”
7.

Id. at

The plea agreement greatly limited Wong’s right to appeal or

to pursue a collateral challenge such as the present § 2255
motion.

Challenges could only be brought if Wong’s sentence

exceeded the guideline range or Wong was asserting ineffective
assistance of counsel.

The Magistrate Judge issued a Report and

Recommendation Concerning Plea of Guilty the same day.

See ECF

No. 30.

On February 28, 2012, this court accepted the plea of

guilty.

See ECF No. 31.
A Presentence Investigation Report (“PSR”) was prepared

on March 27, 2012.

ECF No. 39.

The PSR noted that Wong’s total

offense level was 31 and that he was in Criminal History Category
I under the advisory United States Sentencing Guidelines.

Id.

He qualified for the safety valve, and his advisory guideline
range was 108 to 135 months.

Id.

The probation office

recommended that Wong be sentenced to 96 months in prison.

See

ECF No. 40.
On June 21, 2012, Pafundi filed a statement of no
objection to the guideline calculation, and moved for a sentence
below the guideline range.

ECF No. 34.

In his motion and at the

subsequent sentencing hearing, Pafundi primarily relied on Wong’s

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willingness to cooperate with the government’s investigation and
Wong’s record of stable employment.
At Wong’s sentencing hearing, held on June 25, 2012,
Pafundi further requested that Wong be sentenced to home
confinement, rather than a prison term, or be sentenced to less
than two years in custody, the maximum that would allow him to be
housed at the Federal Detention Center on Oahu.
5.

See ECF No. 61-

Pafundi noted that “a drop from the proposed recommendation

of 96 months to a couple years or less is quite a ways down [but
a]s [Wong’s] counsel . . . I’m going with what he’s asking for,
and that is a miracle.”

Id. at 10.

The government did not file a motion for downward
departure.

The government noted that although Wong had been

cooperative, his help had not led to any arrests, and he had not
rendered the “substantial assistance” required to trigger such a
motion from the government.

The government recommended that Wong

be sentenced within the guideline range in light of the
seriousness of his offense.

Id. at 14-16.

The court noted that Wong had a history of domestic
violence, and had previously been charged with burglary in the
first degree and reckless driving.

The court expressed concern

that “in spite of . . . [Wong’s] earlier contact with the
criminal justice system, [he was] involved in a serious federal
felony.”

Id. at 19.

The court stated unequivocally that it was

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“not going to give [Wong] home confinement” because “this is a
very serious situation here . . . [that] warrant[s] a significant
prison term.”

Id. at 20.

The court further stated that

Pafundi’s suggested “two-year sentence” would be “about a quarter
of the time that the guidelines suggest” and that the court
“didn’t have enough in front of [it] to justify that.”

Id. at

21.
The court noted that because Wong qualified for the
safety valve, it was not required to sentence him to a statutory
mandatory minimum sentence of ten years.

Therefore, the court,

taking into account Wong’s stable employment history and attempts
to aid the government investigation, sentenced Wong to 66 months
in prison, a sentence it recognized was “a lot lower even than
the probation officer recommended.”

Id. at 21.

Wong’s sentence

was to be followed by supervised release of three years.

The

court imposed no fine, finding that Wong did not have the
financial ability to pay one.

Id.

Wong alleges that Pafundi missed or was late to several
court appointments and pretrial meetings with the government.

In

particular, Wong alleges that Pafundi was “over 15 minutes late”
for Wong’s “arraignment and plea hearing”; that he was late for,
and missed, meetings with the federal prosecutors; and that he
missed two meetings with probation.

Wong also alleges that

Pafundi “failed to meet [Wong] and discuss” presentencing options

4

and led him to believe that “home confinement” was a possible
sentence.
II.

ECF No. 63.
ANALYSIS.
A federal prisoner may move to vacate, set aside, or

correct his or her sentence if it “was imposed in violation of
the Constitution or laws of the United States, . . . the court
was without jurisdiction to impose such sentence, or . . . the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”

28 U.S.C. § 2255.

Wong attacks his sentence on the ground of ineffective
assistance of counsel.

In particular, Wong argues that Pafundi’s

“misrepresentation and lack of responsibility” in missing
appointments and incorrectly suggesting the possibility of home
imprisonment “may have caused [Wong to receive] a sentence
greater than necessary.”

ECF No. 63.

To establish ineffective assistance of counsel, Wong
must show (1) that Pafundi's representation fell below an
objective standard of reasonableness under prevailing
professional norms and (2) that there is a reasonable probability
that, but for Pafundi's allegedly unprofessional errors, the
result of the proceeding would have been different.

See

Strickland v. Washington, 466 U.S. 668, 687 (1984).

There is “a

strong presumption” that counsel’s conduct was reasonable and
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that counsel’s representation did not fall below an objective
standard of reasonableness.

Id. at 688.

Because “[i]t is all

too tempting for a defendant to second-guess counsel’s assistance
after conviction,” judicial scrutiny of counsel’s performance is
highly deferential.

Id. at 689.

Even though there is nothing in the record to suggest
that Pafundi’s performance fell below an objective standard of
reasonableness, this court need not address the first prong of
Strickland, because Wong was plainly not prejudiced.

See Fields

v. Brown, 503 F.3d 755, 776 (9th Cir. 2007) (noting that under
Strickland, “a court may determine prejudice without first
deciding deficiency”).

“Strickland places the burden of proving

prejudice on the defendant, not the government.”
Washington, 614 F.3d 987, 995 (9th Cir. 2010).

Cheney v.
Wong received a

sentence that was almost three years less than either the PSR or
the sentencing guidelines recommended, and he fails to articulate
any way in which different counsel could plausibly have achieved
a better result.

See, e.g., United States v. Beltran-Moreno, 556

F.3d 913, 918 (9th Cir. 2009) (noting the likely absence of
prejudice when a district court issues a sentence significantly
lower than the guideline range).

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Wong alleges that Pafundi missed several scheduled
meetings with Wong and the government, but does not provide any
details as to how these alleged absences affected his final
sentence.

Instead, Wong states in conclusory fashion that

Pafundi’s absences “crippled [Pafundi’s] argument . . . at the
sentencing hearing.”

However, a review of the record reveals no

such deficiency, and Wong does not explain how more presentencing
meetings would have favorably altered the sentencing result.
Wong argues that Pafundi misrepresented the likelihood
that Wong could obtain a sentence of home confinement.

Even if

this were so, Wong does not allege that he would not have pled
guilty but for Pafundi’s alleged representation.

See Hill v.

Lockhart, 474 U.S. 52, 60 (1985) (holding that petitioner was not
prejudiced, because he failed to demonstrate that “had counsel
correctly informed him . . . he would have pleaded not guilty and
insisted on going to trial”).

Indeed, it would be implausible

for Wong to suggest that his guilty plea was premised on the
possibility of home confinement, given the high minimum and
maximum sentences attached to his offense.
Wong suggests that Pafundi’s request for home
confinement led to a higher sentence than he otherwise would have
received.

But Wong points to nothing in the record suggesting

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that the court increased its intended sentence based on Pafundi’s
request.

While the request was unlikely to be granted, there is

no reason to believe it prejudiced Wong.
Finally, Wong’s suggestion that the government would
have filed a downward departure motion but for Pafundi’s alleged
deficiency is unsupported by the record.

Wong fails to connect

the absence of such a motion with any action or inaction by
Pafundi.

At the sentencing hearing, the government made clear

that it was not filing such a motion because Wong’s assistance
had failed to yield any arrests.

Wong does not explain how this

failure is Pafundi’s responsibility.

The record does not support

the inference that Pafundi prevented Wong from assisting the
government, or reveal any causal relationship between the quality
of Pafundi’s representation and the government’s decision not to
file a downward departure motion.
This court denies Wong’s petition without the need for
an evidentiary hearing.

“Decisions to hold hearings and conduct

discovery . . . are committed to the [district] court's
discretion.”
1988).

Watts v. United States, 841 F.2d 275, 277 (9th Cir.

A court need not conduct an evidentiary hearing when “the

motion and files and records of the case conclusively show that
the [petitioner] is entitled to no relief.”

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28 U.S.C.

§ 2255(b).

“[T]o earn the right to a hearing, therefore, [a

petitioner is] required to allege specific facts which, if true,
would entitle him to relief.”
1155, 1159 (9th Cir. 1996).

United States v. McMullen, 98 F.3d
Even if all of Wong’s allegations

against Pafundi are true, they would not demonstrate that Wong
was prejudiced.

Wong offers nothing suggesting that, but for his

allegedly unreasonable representation, he would have received a
sentence of less than 66 months.
IV.

CONCLUSION.
Because Wong has failed to show prejudice flowing from

his counsel’s alleged ineffectiveness, the § 2255 Petition is
denied.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 20, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Wong v. United States of America, Crim. No. 11-00968 SOM; Civ. No. 13-00261 SOM/BMK;
ORDER DENYING PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C.
§ 2255

9