Krivoulian v. USA

Filing 5

ORDER DENYING PETITIONER'S 28 U.S.C. § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE re 1 - Signed by CHIEF JUDGE DERRICK K. WATSON on 1/17/2023. For the reasons set forth herein, the Court DENIES the Section 2255 Motion, Dkt. No. 30. Further, because Krivoulian has not shown he was denied a constitutional right or that reasonable jurists could debate the instant Motion, the Court DENIES the issuance of a Certificate of Appealability. S ee 28 U.S.C. § 2253(c)(2) (stating a Certificate of Appealability should issue "if the applicant has made a substantial showing of the denial of a constitutional right"); Slack v. McDaniel, 529 U.S. 473, 48384 (2000) (s tating this standard is met if "reasonable jurists could debate whether... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further"). The Clerk is instructed to enter Judgment in favor of the government and then CLOSE Civil Case No. 22-cv-00433-DKW-RT. (CR 20-00029 DKW, CV 22-00433 DKW-RT) (eta)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

ALEXANDER KRIVOULIAN,
Petitioner,
vs.
UNITED STATES OF AMERICA,

Case No. 20-cr-00029-DKW
Case No. 22-cv-00433-DKW-RT
ORDER DENYING PETITIONER’S 28
U.S.C. § 2255 MOTION TO VACATE,
SET ASIDE, OR CORRECT
SENTENCE

Respondent.

Before the Court is Petitioner Alexander Krivoulian’s motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Dkt. No. 30
(“Motion”).1 Krivoulian is currently facing deportation after serving eight months
in prison for money laundering, pursuant to a plea agreement wherein Krivoulian
pled guilty to laundering between $15,000 and $40,000, in violation of 18 U.S.C.
§ 1956. In his Motion, Krivoulian claims that his trial counsel was constitutionally
ineffective under Strickland v. Washington, 466 U.S. 668 (1984), entitling him to
relief, because counsel failed to accurately inform him of the immigration
consequences of his plea. Because Krivoulian cannot show he was prejudiced by
any such deficient performance by his trial counsel, the Motion is DENIED.

1

All docket citations refer to the Criminal Case No. 20-00029-DKW.

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LEGAL STANDARDS
I.

28 U.S.C. § 2255
Section 2255 permits a sentencing court to vacate, set aside, or correct a

prisoner’s sentence if it concludes “that the sentence was imposed in violation of
the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack.”
II.

Ineffective Assistance of Counsel
Under Strickland, a petitioner must satisfy a two-part test to demonstrate that

his trial counsel was constitutionally ineffective.2 466 U.S. at 689. First, he must
show that his counsel’s performance was deficient, meaning it was not “within the
range of competence demanded of attorneys in criminal cases,” or that it “fell
below an objective standard of reasonableness.” Hill v. Lockhart, 474 U.S. 52, 56–
57 (1985); Delgado v. Lewis, 223 F.3d 976, 980 (9th Cir. 2000); see also
Strickland, 466 U.S. at 689 (explaining there is a “strong presumption” of
reasonably effective assistance).
Second, he must show that he was actually prejudiced by the deficient
performance, meaning that the deficiency “affected the outcome” of the case “to

2

The Sixth Amendment to the U.S. Constitution provides, “In all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” This right
has been construed as ensuring “reasonably effective assistance.” Strickland, 466 U.S. at 687.
2

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such an extent that the resulting proceedings were unreliable.” Hill, 474 U.S. at
58–59; Delgado, 223 F.3d at 980; see also Strickland, 466 U.S. at 694 (“The
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.”). Where, as here, a petitioner challenges the validity of a guilty plea,
Strickland’s second prong requires the petitioner to show “a reasonable probability
that, but for his counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Womack v. Del Papa, 497 F.3d 998, 1002 (9th Cir.
2007) (quoting Hill, 474 U.S. at 57–59); Lafler v. Cooper, 566 U.S. 156, 163
(2012) (“[A] defendant must show the outcome of the plea process would have
been different with competent advice.”).
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On February 25, 2020, a single-count Information charged Krivoulian with
money laundering in violation of 18 U.S.C. § 1956. Dkt. No. 1. On July 24, 2020,
Krivoulian entered a plea of guilty to the single-count Information, see Dkt. No.
10, pursuant to a Memorandum of Plea Agreement (“MOPA”), which provided, in
part, “The parties agree that, in total, the defendant laundered more than $15,000

3

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but less than $40,000.” Dkt. No. 12 at 6.3 The MOPA also included the following
provisions describing the immigration consequences of Krivoulian’s guilty plea:
Penalties: 7. The defendant understands that the penalties for the
offense to which he is pleading guilty include: . . .
c. Consequences of Conviction for Non-U.S. Citizens. The
defendant has been advised by counsel and understands that because
the defendant is not a citizen of the United States, the defendant’s
conviction in this case makes it practically inevitable and a virtual
certainty that the defendant will be removed or deported from the
United States. The defendant may also be denied United States
citizenship and admission to the United States in the future.
Id. at 3–4. Krivoulian and his counsel signed the last page of the MOPA.
During the July 24, 2020 plea hearing, Krivoulian appeared with his
attorney, Gary Singh. While under oath, Krivoulian informed the Court that no
one had threatened or forced him to plead guilty, and that no one had made him
any promises or assurances in order to entice him to plead guilty other than the
promises contained in the MOPA. Plea Hearing Transcript (“Plea Tr.”) at 3:10–12,
9:1–14, Dkt. No. 33-1. Krivoulian also stated under oath that he had read the
MOPA in full, had discussed it with Singh, and was confident that he understood
each of the terms it contained. Id. at 11:4–15. During the hearing, the Government
highlighted that, by pleading guilty, Krivoulian was agreeing that he had
“laundered more than $15,000 but less than $40,000.” Id. at 13:11–13.

3

This amount was specified, even though Count 1 of the Information only charged Krivoulian
with tendering a check in the amount of $1,850. See Dkt. No. 1.
4

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The Court also informed Krivoulian of the immigration consequences of his
guilty plea, and Krivoulian stated that he understood:
The Court: Mr. Nammar, what are the potential penalties that Mr.
Krivoulian faces for pleading guilty to Count 1?
Mr. Nammar: Yes, Your Honor. As set forth in paragraph 7 of the
plea agreement, they include a term of imprisonment of up to 20
years; a fine of $250,000, plus a term of supervised release of up to
three years; there is also a $100 mandatory special assessment. In
addition, there are certain immigration consequences associated with
his guilty plea because he is not a citizen of the United States.
The Court: Among the immigration consequences, Mr. Krivoulian, is
the following: You need to understand that by virtue of entering into
this plea of guilty, which would be considered a felony offense, it is a
virtual certainty that you will be removed or deported from the United
States; you will be denied admission to the United States in the future,
were you to seek such admission; and finally, were you to apply for
U.S. citizenship at some point in time, it is a virtual certainty that that
application would be denied. Do you understand all of that?
The Defendant: Yes, Your Honor.
Mr. Singh: Judge, just for the record, I did discuss with him all of the
immigration consequences.
The Court: Okay, I appreciate that. And understanding the
immigration consequences and the other sentencing penalties that Mr.
Krivoulian potentially faces, Mr. Singh, do you agree that we have
gone over and discussed all of the potential penalties that your client
faces for pleading guilty to this particular count?
Mr. Singh: Yes, Your Honor.
The Court: And, Mr. Krivoulian, do you, sir, understand, other than
the immigration consequences that you and I just went over, do you
understand all of the potential penalties that you face as Mr. Nammar
described just a few minutes ago?
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The Defendant: Yes, Your Honor.
Id. at 9:18–11:3 (emphasis added).
On January 7, 2021, this Court sentenced Krivoulian to eight months’
imprisonment, followed by three years of supervised release. Dkt. No. 21.
Krivoulian did not appeal his sentence.
On September 29, 2022, Krivoulian filed the instant Motion, claiming his
plea was unknowing and unintelligent because his counsel inaccurately told him
that his plea would not result in his deportation. Dkt. No. 30 at 4; see also Dkt.
No. 39 at 1 (“As I was preparing for the hearing where I pled guilty my lawyer
Gary Singh told me that I would not face any immigration consequences based on
the crime I was charged with.”). More specifically, he claims his attorney
essentially advised him to ignore whatever this Court told him regarding
immigration consequences during the plea hearing because the Court’s instructions
would not actually apply to him:
Mr. Singh told me that the judge would tell me that I would face
immigration issues like deportation but that the judge had to say that
to everyone. Basically Mr. Singh said to listen to the judge and his
warnings about immigration but the immigration consequences would
not apply to me. Mr. Singh reiterated that regardless of what the
judge said, I would face no immigration consequences based on the
crime I pled to pursuant to the plea agreement. . . . As the hearing was
happening, I was under the impression that the judge just had to say
those things to everyone even if it didn’t apply to them.

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Dkt. No. 39 at 1; see also Dkt. No. 30 at 4. Similarly, Krivoulian claims his
attorney told him to sign and agree to the MOPA even though it too stated that it
was “practically inevitable and a virtual certainty that [he] w[ould] be removed or
deported from the United States,” see Dkt. No. 12 at 3–4, again advising that this
provision did not actually apply to Krivoulian. Krivoulian further explains his
state of mind during the plea hearing:
During the hearing when Judge Watson was asking if I knew about
the consequences I said yes because my lawyer basically told me that
the judge had to tell everyone about these things and that he was just
explaining the worst-case scenario even though it would not be
applicable to me. I assumed that the immigration consequences
would not be applicable to me because Mr. Singh told me I would not
be facing deportation.
Mr. Singh and I went through the plea agreement, but I didn’t
understand every term of it, I had to rely on him to explain a lot of
things. After Mr. Singh explained those terms, I thought I understood
the agreement that I was signing. One of the things that he explained
was that by pleading guilty I didn’t have any risk of deportation
because this was not an aggravated felony. . . . Even though Judge
Watson said some things about it being a certainty I would be
deported, I thought they didn’t apply to me based on what my lawyer
told me well before the hearing and when he was explaining the plea
agreement to me.
Dkt. No. 39 at 2.
Krivoulian also claims Singh implied that he was pleading guilty to money
laundering in the amount of $1,850—not $15,000-$40,000 as the MOPA stated—
and thus that he would not be deported as a result of the conviction because he
“would be able to obtain relief from an immigration judge.” Dkt. No. 30 at 4 (“In
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the MOPA, the money laundering amount was listed as $15,000 to $40,000 when
the actual amount was $1,850. My attorney did not inform me that the amount of
[money] contained in the MOPA would make the money laundering count an
aggravated felony and I could not seek any relief from an immigration judge.”).
Krivoulian states that it was not until he received a Notice to Appear from
the Department of Homeland Security on December 16, 2021 that he “understood
that Gary’s assessment was incorrect that something in the plea agreement made
the crime deportable.” Dkt. Nos. 30 at 11; 39 at 1. At that point, Krivoulian
contacted Singh, who told him “he would contest the allegation [on Krivoulian’s
behalf] that [Krivoulian] was convicted of an aggravated felony because $1,850
was well below the limit to qualify as an aggravated felony.” Dkt. No. 30 at 11.
But on July 14, 2022, “the immigration judge cancelled the hearing and [Singh]’s
request was denied.” Id.
Krivoulian asserts that he would not have pled guilty or signed the MOPA if
he had known the plea agreement would result in deportation. See Dkt. No. 39 at 2
(“If I had been advised by my attorney that there was even a small possibility of
being deported as a result of pleading guilty to the crime under the plea agreement
I would not have done it.”); ibid. (“Had I known that there was a possibility I
would be deported, I would not have pled guilty under the plea agreement.); Dkt.

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No. 30 at 4 (“Had I been correctly advised of the immigration consequences of my
plea, I would not have entered a plea pursuant to the MOPA.”).
Finally, Krivoulian claims that statements made by this Court during his
January 2021 sentencing hearing convinced him that his attorney had been correct,
and he would not be facing deportation:
At my sentencing on January 7, 2021, Judge Watson said things about
me being in the U.S. and being unsure of whether deportation was
applicable. Judge Watson’s comments led me to believe that Mr.
Singh was 100% correct and I wouldn’t be facing deportation.
Specifically Judge Watson said that it was “unclear whether or not [I]
will be deported.” He also said that there are “some signs in here that
maybe deportation is not in your future.” These comments were
different than those Judge Watson made when I pled guilty where he
said it was a virtual certainty that I would be deported. Judge Watson
also commented that the sentencing guideline 5D1.1 talks about not
imposing a term of supervised release for someone who is likely
facing deportation, and then imposed a three-year supervised release
term. Based on all of this I believed Gary was correct and I would not
be facing deportation. I believed that deportation was not a certainty,
and that Mr. Singh was correct that the judge had just told me that
because he had to tell everyone when they pled guilty. I did my time
and stayed out of trouble and then on December 16, 2021, a notice to
appear was filed by the Department of Homeland Security saying that
I would be facing immigration issues. I’m not asking that the charges
be dismissed, or even for a trial, but I would like to withdraw my plea
and enter a new plea without a [MOPA]. I understand I would be
giving up the protections that came with the MOPA and could face
additional jail time, fines and supervised release.
Dkt. No. 39 at 2–3.
For relief, Krivoulian asks that he be allowed to “withdraw [his] plea and
enter a new plea without a MOPA” because “[t]he MOPA is what is enhancing the
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money laundering amount even though the amount was only $1,850.” Dkt. No. 30
at 12.
On October 31, 2022, the Government opposed Krivoulian’s Section 2255
Motion on three grounds. Dkt. No. 33. First, the Government claims Krivoulian’s
motion is untimely. Id. at 5–7. Second, the Government contends that Singh’s
performance was not deficient. Id. at 9–10. Third, the Government asserts that,
even if the motion is timely, and even if counsel’s performance was deficient,
Krivoulian cannot establish prejudice because both the MOPA and this Court
independently informed Krivoulian of the correct immigration consequences of his
guilty plea—that it was a “virtual certainty” that he would be deported—before he
pled guilty. Id. at 10.
Krivoulian replied on December 22, 2022. Dkt. No. 39. 4 The Court elected
to decide this matter without a hearing pursuant to Local Rule 7.1(c), see Dkt. No.
40, and this Order follows.
DISCUSSION
Assuming that Singh’s performance was deficient under Strickland’s first
prong, Krivoulian’s Motion is nevertheless DENIED because he cannot
demonstrate prejudice under Strickland’s second prong.

4

The arguments made in Krivoulian’s Reply Brief are not summarized here because they have
already been included in the summary of his Motion above.
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This Court independently, clearly, and unequivocally advised Krivoulian of
the actual immigration consequences of his guilty plea. Moreover, while under
oath, Krivoulian informed this Court that he understood those consequences,
including that it was a “virtual certainty” that he would be deported as a result of
the conviction. See Plea Tr. at 10:4–7; Dkt. No. 12 at 3–4, 6. Thus, Krivoulian
cannot show a “reasonable probability that, but for his counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial,” see Womack,
497 F.3d at 1002, or that “the outcome of the plea process would have been
different with competent advice.” See Lafler, 566 U.S. at 163. On the contrary, he
received that competent advice from this Court on July 24, 2020, and he proceeded
to plead guilty anyway. 5
Similarly, the MOPA states the immigration consequences of Krivoulian’s
guilty plea in black and white terms, and Krivoulian affixed his signature to that
document, attesting that he understood and agreed to the provisions therein. This
Court accepted Krivoulian’s verbal and written representations, giving him the
benefit of the plea agreement. Krivoulian may not claw back his own written

5

Krivoulian also stated under oath that he was admitting to laundering an amount between
$15,000 and $40,000, not $1,850. Plea Tr. at 10:4–7; Dkt. No. 12 at 3–4, 6. Even if $1,850 had
been the correct number, Krivoulian has done nothing to demonstrate that lesser amount would
result in a different immigration consequence.
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admissions in the MOPA by now saying he did not understand what he was
signing.
Even if, as Krivoulian claims, Singh advised Krivoulian that the Court did
not mean what it said, and that Krivoulian should effectively ignore the Court’s
guidance that his conviction would almost certainly result in his deportation, it was
up to Krivoulian to answer honestly and completely when this Court asked whether
Krivoulian understood and agreed to the terms of the Plea Agreement. Were it
otherwise, plea colloquies and MOPAs would be rendered meaningless whenever a
defendant later claimed his attorney failed to independently confirm the Court’s
guidance. Indeed, the purpose of the independent plea colloquy between the Court
and an individual defendant is to affirmatively ensure, on-the-record, that the
defendant understands his plea, separate and apart from his attorney’s advice.
Finally, Krivoulian’s representations about this Court’s statements during his
sentencing hearing are, in fact, misrepresentations. First and foremost, the
sentencing hearing took place in January 2021, several months after Krivoulian
had already pled guilty to his crime and acknowledged the immigration
consequences of doing so. Therefore, any confusion Krivoulian may have
experienced during sentencing is irrelevant to whether he understood his guilty
plea and its consequences during the July 2020 plea hearing. Second, though the

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Court did state during sentencing that deportation may be an open question,6 it did
so only because of Defendant’s lawful permanent resident (“LPR”) status and the
status of his spouse as a United States citizen, facts revealed to the Court for the
first time in the October 2020 presentence investigation report. The Court’s
comments were not made, as Krivoulian implies, because of uncertainty as to
whether Krivoulian pled guilty to a deportable offense.

6

The Court’s statements during the sentencing hearing included:
The defendant is married without children, he does have a spouse who is a
supportive spouse, a United States citizen spouse, and it is unclear, given that and
given the defendant’s LPR status, whether or not he will be deported; so the Court
notes that as well. . . .
There is also going to be three years of supervised release. There is some
reference in the guidelines—the sentencing guidelines, particularly in 5D1.1
which talks about not imposing a term of supervised release for someone who is
likely facing deportation. There’s some signs in here that maybe deportation is
not in your future. I express no view on that, that’s not my decision, but I see why
that might be the case, both because of your status, because of the supportive and
U.S. resident status, U.S. citizen status of your spouse, and it does also seem to
me that CIS had some opportunity to deport you previous to this and did not, for
what reason I don’t know. But there’s some things in the record, some items in
the record that suggests to me that maybe deportation is not what you’re facing.
And for that reason, for an added measure of deterrence and the ability of
probation—our probation office to supervise you, were you to avoid deportation,
again I express no view whatsoever on the advisability of that, I think that makes
sense for the Court to impose a three-year term, were you to remain in the United
States or come into the United States in the future for whatever reason.

Dkt. No. 39-1 at 12:1–5, 16:8–17:3 (emphasis added).
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CONCLUSION
For the reasons set forth herein, the Court DENIES the Section 2255
Motion, Dkt. No. 30. Further, because Krivoulian has not shown he was denied a
constitutional right or that reasonable jurists could debate the instant Motion, the
Court DENIES the issuance of a Certificate of Appealability. See 28 U.S.C.
§ 2253(c)(2) (stating a Certificate of Appealability should issue “if the applicant
has made a substantial showing of the denial of a constitutional right”); Slack v.
McDaniel, 529 U.S. 473, 483–84 (2000) (stating this standard is met if “reasonable
jurists could debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further”).
The Clerk is instructed to enter Judgment in favor of the government and
then CLOSE Civil Case No. 22-cv-00433-DKW-RT.
IT IS SO ORDERED.
Dated: January 17, 2023 at Honolulu, Hawai‘i.
___________________________
Derrick K. Watson
Chief United States District Judge

Alexander Krivoulian v. United States of America; CR 20-00029 DKW and CV 22-00433 DKWRT; ORDER DENYING PETITIONER’S 28 U.S.C. § 2255 MOTION TO

VACATE, SET ASIDE, OR CORRECT SENTENCE
14