Ha v. United States of America

Filing 7

MEMORANDUM OPINION AND ORDER denying in its entirety 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action CR07-4068-MWB-3) filed by Khoi Van Ha. This matter is dismissed in its entirety. No certificateof appealability will issue for any claim or contention in this case. Signed by Judge Mark W Bennett on 10/3/2011. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

KHOI VAN HA,
Petitioner,

No. C 11-4012-MWB
(No. CR 07-4068-MWB)

vs.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND
ORDER REGARDING
PETITIONER’S SECTION 2255
MOTION

____________________
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. The Criminal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. The § 2255 Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Standards For § 2255 Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Procedural Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.
Need for an evidentiary hearing . . . . . . . . . . . . . . . . . . . . . 7
2.
Procedural default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C. Ineffective Assistance Of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.
Applicable standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.
Failure to explain plea agreement . . . . . . . . . . . . . . . . . . 12
3.
Failure to argue sentence violated plea agreement . . . . . . . . 14
D. Certificate Of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

I. INTRODUCTION
This case is before me on petitioner Khoi Van Ha’s Pro Se Motion Under 28
U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal
Custody and Memorandum Brief (Civ. docket no. 1), filed on February 4, 2011; and on
Ha’s Supplement To Petitioner’s Brief (Civ. docket no. 5), filed by appointed counsel on
May 9, 2011. Ha claims that the attorney who represented him at the trial level provided
him with ineffective assistance of counsel in several ways. The respondent denies that Ha
is entitled to any relief on his claims.
A. The Criminal Proceedings
On September 27, 2007, Ha was charged, along with seven other alleged coconspirators, by a sealed two-count Indictment (Crim. docket no. 1). Ha was not charged
in Count 1 of the Indictment. See Crim. docket no. 1. Ha was charged in Count 2 of the
Indictment with conspiracy to manufacture, possess with intent to distribute and
distribution of one thousand plants or more of marijuana. See Crim. docket no. 1. On
October 10, 2007, Ha appeared in front of Chief United States Magistrate Judge Paul A.
Zoss to plead not guilty to Count 2 of the Indictment. See Crim. docket no. 49.
The prosecution filed a Superseding Indictment (Crim. docket no. 87), on
December 20, 2007. The Superseding Indictment added Counts 3 through 26 against one
of the co-conspirators. See, Crim. docket no. 87. 26. See Crim. docket no. 87. The
prosecution filed a Second Superseding Indictment (Crim. docket no. 128), on January 24,
2008. With regard to Ha, and as relevant to this opinion, the Second Superseding
Indictment added an allegation that the drug conspiracy activities occurred within 1,000
feet of a playground or school. See Crim. docket no. 128. Ha filed a Written Waiver Of

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Personal Appearance At Arraignment and plea of not guilty to the Second Superseding
Indictment (Crim. docket no.173), on February 11, 2008.
On August 18, 2008, Ha appeared before United States District Court Judge,
Donald E. O’Brien, to plead guilty to Count 2 of the Second Superseding Indictment. See
Crim. docket no. 335. Ha appeared before me, with counsel, on November 24, 2008, for
a sentencing hearing. See Crim. docket no. 460. I found that Ha had a total offense level
of 25 with a criminal history category of I. Sent. Trans. at 17. The advisory guidelines
range called for imprisonment of 57 to 71 months and there was an applicable statutory
mandatory minimum of 120 months. Sent. Trans. at 17. After granting the prosecution’s
motions for substantial assistance pursuant to both 5K1.1 and 18 U.S.C. § 3553(e), and
evaluating the 5K1.1 factors in Ha’s case, I granted a 10% reduction from the mandatory
minimum of 120 months. Sent. Trans. at 18-19.
Ha filed a Notice of Appeal (Crim. docket no. 472), to the United States Court of
Appeals for the Eighth Circuit on December 2, 2008. On appeal, Ha argued that he was
actually innocent of the drug quantity for which he had been convicted; that he had not
understood that he would be subject to a ten-year mandatory sentence; that he should have
received a 50% reduction to his sentence; that he should have received safety-valve
protection; that the appeal waiver should not be enforceable because his plea had not been
knowing and voluntary; that he had been sentenced under the incorrect statutory provision;
and that his sentence did not comply with statutory mandates. See Crim. docket no. 577.
On December 11, 2009, the United States Court of Appeals for the Eighth Circuit entered
an Opinion (Crim. docket no. 577).

The appellate court declined to address Ha’s

arguments on the merits and enforced the appeal waiver that Ha had knowingly and
voluntarily entered into as part of his plea agreement. See Crim. docket no. 577.

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B. The § 2255 Motion
On February 4, 2011, Ha filed this Pro Se Motion Under § 2255 To Vacate, Set
Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1)
(“Motion”). By Order (Civ. docket no. 2), an attorney was appointed to represent Ha with
regard to his Motion. On May 9, 2011, Ha’s counsel filed a Supplement To Petitioner’s
Brief (Civ. docket no. 5), stating that counsel had nothing to add to the arguments made
by the Petitioner. On May 20, 2011, the respondent filed a Response And Memorandum
In Support Of United States’ Response To Defendant’s Motion Under 28 U.S.C. § 2255.
(Civ. docket no. 6).
II. LEGAL ANALYSIS
A. Standards For § 2255 Relief
Section 2255 of Title 28 of the United States Code provides as follows:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground [1] that the sentence was imposed in
violation of the Constitution or laws of the United States, or
[2] that the court was without jurisdiction to impose such
sentence, or [3] that the sentence was in excess of the
maximum authorized by law, or [4] is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255; Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (“Under
28 U.S.C. § 2255 a defendant in federal custody may seek post conviction relief on the
ground that his sentence was imposed in the absence of jurisdiction or in violation of the
Constitution or laws of the United States, was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.”); Bear Stops v. United States, 339 F.3d

4

777, 781 (8th Cir. 2003) (“To prevail on a § 2255 motion, the petitioner must demonstrate
a violation of the Constitution or the laws of the United States.”). Thus, a motion pursuant
to § 2255 “is ‘intended to afford federal prisoners a remedy identical in scope to federal
habeas corpus.’” United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (quoting
Davis v. United States, 417 U.S. 333, 343 (1974)); accord Auman v. United States, 67
F.3d 157, 161 (8th Cir. 1995) (quoting Wilson).
One “well established principle” of § 2255 law is that “‘[i]ssues raised and decided
on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28
U.S.C. § 2255.’” Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting
United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)); Bear Stops, 339 F.3d at 780.
One exception to that principle arises when there is a “miscarriage of justice,” although
the Eighth Circuit Court of Appeals has “recognized such an exception only when
petitioners have produced convincing new evidence of actual innocence,” and the Supreme
Court has not extended the exception beyond situations involving actual innocence. Wiley,
245 F.3d at 752 (citing cases, and also noting that “the Court has emphasized the
narrowness of the exception and has expressed its desire that it remain ‘rare’ and available
only in the ‘extraordinary case.’” (citations omitted)). Just as § 2255 may not be used to
relitigate issues raised and decided on direct appeal, it also ordinarily “is not available to
correct errors which could have been raised at trial or on direct appeal.” Ramey v. United
States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam). “Where a defendant has
procedurally defaulted a claim by failing to raise it on direct review, the claim may be
raised in habeas only if the defendant can first demonstrate either cause and actual
prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 622
(1998) (internal quotations and citations omitted).

5

“Cause and prejudice” to resuscitate a procedurally defaulted claim may include
ineffective assistance of counsel, as defined by the Strickland test, discussed below.
Theus, 611 F.3d at 449. Indeed, Strickland claims are not procedurally defaulted when
brought for the first time pursuant to § 2255, because of the advantages of that form of
proceeding for hearing such claims. Massaro v. United States, 538 U.S. 500 (2003).
Otherwise, “[t]he Supreme Court recognized in Bousley that ‘a claim that “is so novel that
its legal basis is not reasonably available to counsel” may constitute cause for a procedural
default.’” United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (quoting Bousley,
523 U.S. at 622, with emphasis added, in turn quoting Reed v. Ross, 468 U.S. 1, 16
(1984)). The “actual innocence” that may overcome either procedural default or allow
relitigation of a claim that was raised and rejected on direct appeal is a demonstration
“‘that, in light of all the evidence, it is more likely than not that no reasonable juror would
have convicted [the petitioner].’” Johnson v. United States, 278 F.3d 839, 844 (8th Cir.
2002) (quoting Bousley, 523 U.S. at 623); see also House v. Bell, 547 U.S. 518, 536-37
(2006). “‘This is a strict standard; generally, a petitioner cannot show actual innocence
where the evidence is sufficient to support a [conviction on the charged offense].’” Id.
(quoting McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir. 2001)).
The Eighth Circuit Court of Appeals will review the district court’s decision on a
§ 2255 motion de novo, regardless of whether the district court’s decision grants or denies
the requested relief. Compare United States v. Hilliard, 392 F.3d 981, 986 (8th Cir.
2004) (“We review the district court’s decision to grant or deny relief on a petitioner’s
ineffective assistance of counsel claim de novo.”) (citing United States v. White, 341 F.3d
673, 677 (8th Cir. 2003)); with United States v. Hernandez, 436 F.3d 851, 854 (8th Cir.
2006) (“‘We review de novo the district court’s denial of a section 2255 motion.’”)
(quoting Never Misses A Shot v. United States, 413 F.3d 781, 783 (8th Cir. 2005)).
6

However, “[a]ny underlying fact-findings are reviewed for clear error.’” Hernandez, 436
F.3d at 855 (quoting United States v. Davis, 406 F.3d 505, 508 (8th Cir. 2005)).
With these standards in mind, I turn to analysis of Ha’s claims for § 2255 relief.
B. Procedural Matters
1.

Need for an evidentiary hearing

“A district court does not err in dismissing a movant’s section 2255 motion without
a hearing if (1) the movant’s ‘allegations, accepted as true, would not entitle’ the movant
to relief, or ‘(2) the allegations cannot be accepted as true because they are contradicted
by the record, inherently incredible, or conclusions rather than statements of fact.’”
Buster v. United States, 447 F.3d 1130, 1132 (8th Cir. 2006) (quoting Sanders v. United
States, 341 F.3d 720, 722 (8th Cir. 2003), with citation and quotation marks omitted); see
28 U.S.C. §2255. On the other hand, an evidentiary hearing is necessary where “‘the
court is presented with some reason to question the evidence’s credibility.’” Kingsberry
v. United States, 202 F.3d 1030, 1033 (8th Cir. 2000) (quoting 1 Liebman and Hertz,
Federal Habeas Corpus Practice and Procedure § 19.5, at 723 (3rd ed. 1998); id. at 1033
n.6 (also quoting 28 U.S.C. § 2254, Rule 7 advisory committee’s note (1994), made
applicable to § 2255 by reference, as stating, “When the issue is one of credibility,
resolution on the basis of affidavits can rarely be conclusive, but that is not to say they
may not be helpful.”); see also Koskela v. United States, 235 F.3d 1148, 1149 (8th Cir.
2001) (holding that the district court abused its discretion in not holding an evidentiary
hearing on a § 2255 claim of failure to call alibi witnesses, because the record before the
district court “contained sharply conflicting evidence”). Even though ineffective assistance
of counsel claims may be raised on a § 2255 motion, because of the advantages of that
form of proceeding for hearing such claims, see Massaro, 538 U.S. at 500, that does not
7

mean that an evidentiary hearing is required for every ineffective assistance claim
presented in a § 2255 motion. In this case, I conclude that no evidentiary hearing is
required on any issue, because the record conclusively shows that Ha’s allegations either
cannot be accepted as true, because they are contradicted by the record, or that, even if
his allegations were accepted as true, they would not entitle him to relief, Buster, 447 F.3d
at 1132, even if I were to conclude that counsel’s affidavit, standing alone, only raises
credibility questions. Kingsberry, 202 F.3d at 1033.
2.

Procedural default

Claims are procedurally defaulted if not raised at trial or on direct appeal. See
Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (“Section 2255 relief is not
available to correct errors which could have been raised at trial or on direct appeal, absent
a showing of cause and prejudice, or a showing that the alleged errors were fundamental
defects resulting in a complete miscarriage of justice.” (internal citations omitted)); accord
Johnson v. United States, 278 F.3d 839, 844 (8th Cir. 2002) (“In order to obtain collateral
review of a procedurally defaulted issue, [a § 2255 movant] must show ‘either cause and
actual prejudice, or that he is actually innocent.’” (quoting Bousley, 523 U.S. at 622, with
citations omitted)).

“[C]ause and prejudice” may include “ineffective assistance of

counsel.” See Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005). The Eighth
Circuit Court of Appeals has expressly recognized that a claim of ineffective assistance of
counsel should be raised in a § 2255 proceeding, rather than on direct appeal. See United
States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003) (“When claims of ineffective
assistance of trial counsel are asserted on direct appeal, we ordinarily defer them to 28
U.S.C. § 2255 proceedings.”). Where possible, I have construed the petitioner’s claims
as claims of ineffective assistance of counsel and, therefore, will consider them on the
merits.
8

C. Ineffective Assistance Of Counsel
1.

Applicable standards

The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence.” U.S. CONST. AMEND. VI. Thus, a criminal defendant is
constitutionally entitled to the effective assistance of counsel both at trial and on direct
appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985); Bear Stops v. United States, 339 F.3d
777, 780 (8th Cir. 2003); see also Steele v United States, 518 F.3d 986, 988 (8th Cir.
2008). The Eighth Circuit Court of Appeals has recognized that, if a defendant was denied
the effective assistance of counsel guaranteed by the Sixth Amendment, “then his sentence
was imposed ‘in violation of the Constitution,’ . . . and he is entitled to relief” pursuant
to § 2255(a). King v. United States, 595 F.3d 844, 852 (8th Cir. 2010). Both the
Supreme Court and the Eighth Circuit Court of Appeals have expressly recognized that a
claim of ineffective assistance of counsel should be raised in a § 2255 proceeding, rather
than on direct appeal, because such a claim often involves facts outside of the original
record. See Massaro, 538 U.S. at 504-05 (2003); United States v. Hughes, 330 F.3d
1068, 1069 (8th Cir. 2003) (“When claims of ineffective assistance of trial counsel are
asserted on direct appeal, we ordinarily defer them to 28 U.S.C. § 2255 proceedings.”).
The Supreme Court has reiterated that “‘the purpose of the effective assistance
guarantee of the Sixth Amendment is not to improve the quality of legal representation . . .
[but] simply to ensure that criminal defendants receive a fair trial.’” Cullen v. Pinholster,
___ U.S. ___, ___, 131 S. Ct. 1388, 1403 (2011) (quoting Strickland v. Washington, 466
U.S. 668, 689 (1984)). That being the case, “‘[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just
9

result.’” Id. (quoting Strickland, 466 U.S. at 686, with emphasis added). To assess
counsel’s performance against this benchmark, the Supreme Court developed in Strickland
a two-pronged test requiring the petitioner to show “both deficient performance by counsel
and prejudice.” See Strickland, 466 U.S. at 687-88, 697; see also Knowles v. Mirzayance,
___ U.S. ___, 129 S. Ct. 1411, 1419 (2009). “‘Unless a defendant makes both showings,
it cannot be said that the conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable.’” Gianakos v. United States, 560 F.3d 817, 821
(8th Cir. 2009) (quoting Strickland, 466 U.S. at 687).
As to the deficient performance prong, “The Court acknowledged [in Strickland]
that ‘[t]here are countless ways to provide effective assistance in any given case,’ and that
‘[e]ven the best criminal defense attorneys would not defend a particular client in the same
way.’” Pinholster, ___ U.S. at ___, 131 S. Ct. at 1403 (quoting Strickland, 466 U.S. at
689). Moreover,
Recognizing the “tempt[ation] for a defendant to
second-guess counsel’s assistance after conviction or adverse
sentence,” [Strickland, 466 U.S. at 689], the Court established
that counsel should be “strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment,” id., at 690, 104
S. Ct. 2052. To overcome that presumption, a defendant must
show that counsel failed to act “reasonabl[y] considering all
the circumstances.” Id., at 688, 104 S. Ct. 2052. The Court
cautioned that “[t]he availability of intrusive post-trial inquiry
into attorney performance or of detailed guidelines for its
evaluation would encourage the proliferation of ineffectiveness
challenges.” Id., at 690, 104 S. Ct. 2052.
Pinholster, ___ U.S. at ___, 131 S. Ct. at 1403. To put it another way,
To establish deficient performance, a person challenging
a conviction must show that “counsel’s representation fell
10

below an objective standard of reasonableness.” [Strickland,]
466 U.S. at 688, 104 S. Ct. 2052. . . . The challenger’s
burden is to show “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id., at 687, 104 S. Ct.
2052.
Harrington v. Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 787 (2011); Premo v. Moore,
___ U.S. ___, 131 S. Ct. 733, 739 (2011) (quoting Richter). There are two substantial
impediments to making the required showing. First, “‘[s]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.’” United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting
Strickland, 466 U.S. at 690). Second, “[t]here is a ‘strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.’” Id. (quoting
Strickland, 466 U.S. at 689); Davis v. Norris, 423 F.3d 868, 877 (8th Cir. 2005) (“To
satisfy this prong [the movant] must overcome the strong presumption that his counsel’s
conduct fell within the wide range of reasonable professional assistance.”). Also, the court
“‘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.”’” King, 595 F.3d at 852-53
(quoting Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir. 1996), in turn quoting Strickland,
466 U.S. at 690).
The second prong of the Strickland analysis requires the challenger to prove
prejudice. Pinholster, ___ U.S. at ___, 131 S. Ct. at 1403 (citing Strickland, 466 U.S.
at 691-92). “‘An error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.’” Gianakos, 560 F.3d at 821 (quoting Strickland, 466 U.S. at 691). As the
Supreme Court has explained,

11

“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.”
[Strickland, 466 U.S.] at 694, 104 S. Ct. 2052. “A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Ibid. That requires a “substantial,” not just
“conceivable,” likelihood of a different result. Richter, 562
U.S., at ––––, 131 S. Ct., at 791.
Pinholster, ___ U.S. at ___, 131 S. Ct. at 1403. Even where the petitioner “suffered
prejudice from his lawyer’s error,” he is not entitled to § 2255 relief unless the lawyer’s
error was also the result of conduct that was professionally unreasonable at the time.
King, 595 F.3d at 852-53.
The two prongs of the “ineffective assistance” analysis are usually described as
sequential. Thus, if the movant fails to show deficient performance by counsel, the court
need proceed no further in its analysis of an “ineffective assistance” claim. United States
v. Walker, 324 F.3d 1032, 1040 (8th Cir. 2003). On the other hand, courts “do not . . .
need to address the performance prong if petitioner does not affirmatively prove
prejudice.” Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir. 1999) (citing Pryor v.
Norris, 103 F.3d 710 (8th Cir. 1997)); accord Gianakos, 560 F.3d at 821 (“‘We need not
inquire into the effectiveness of counsel, however, if we determine that no prejudice
resulted from counsel’s alleged deficiencies.’ Hoon v. Iowa, 313 F.3d 1058, 1061 (8th
Cir. 2002) (citing Strickland, 466 U.S. at 697, 104 S. Ct. 2052).”).
2.

Failure to explain plea agreement

Ha claims, pro se, that his attorney and interpreter failed to adequately explain and
interpret the plea agreement to him and, therefore, his guilty plea pursuant to the plea
agreement was neither knowing nor voluntary. Motion at 2. Respondent argues that, in

12

this case, the conduct of Ha’s counsel did not fall outside the range of reasonable
professional assistance. Response at 7.
“A valid guilty plea is an admission of guilt that waives all non-jurisdictional defects
and defenses.” United States v. Frook, 616 F.3d 773, 774 (8th Cir. 2010). “The binding
nature of a plea of guilty thus depends on the fact that it is made ‘voluntarily after proper
advice’ and with an understanding of the consequences.” Id. (quoting Kercheval v. United
States, 274 U.S. 220, 223-24 (1927)). “Solemn declarations in open court carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). A defendant’s
later conclusory claim that he did not understand what was going on during a plea hearing,
rings hollow. See U.S. v. Bahena, 223 F.3d 797, 806-07 (8th Cir. 2000), cert. denied,
531 U.S. 1181 (2001). “The plea of guilty is a solemn act not to be disregarded because
of belated misgivings about [its] wisdom.” United States v. Alvarado, 615 F.3d 916 (8th
Cir. 2010) (quoting United States v. Woosley, 440 F.2d 1280, 1281 (8th Cir. 1971).
The record indicates that Ha’s plea was entered into both knowingly and voluntarily.
Ha’s counsel indicated during Ha’s plea hearing, that prior to the plea hearing, with the
assistance of an interpreter, he had gone over the original indictment and superseding
indictments with Ha, had explained the superseding indictments to him, including a
discussion of the differences between the original and superseding indictments and the
application of the mandatory minimum, and had explained that Ha would be ineligible for
safety-valve relief. (Plea Hrg. Trans. at 8). Ha acknowledged that his counsel had in fact
done so. (Plea Hrg. Trans. at 8). Additionally, the court confirmed that, prior to the plea
hearing, Ha and his attorney had gone through the plea agreement paragraph-by-paragraph
with an interpreter making sure that Ha did not initial any paragraph until it was clear that
he understood the meaning and consequences of the paragraph. (Plea Hrg. Trans. at 1213). This was confirmed, in court, by Ha. (Plea Hrg. Trans. 13-14). Finally, Ha
13

confirmed that he understood that if he pled guilty, he would be subject to a ten-year
mandatory minimum. (Plea Hrg. Trans. at 19).
Based on this record, Ha cannot overcome the “‘strong presumption that counsel’s
conduct [fell] within the wide range of reasonable professional assistance.’” See United
States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting Strickland, 466 U.S. at 689).
Further, the United States Court of Appeals for the Eighth Circuit, while not specifically
addressing the issue as one of ineffective assistance of counsel, found that Ha had entered
into the plea agreement knowingly and voluntarily after receiving the assistance of his trial
counsel.

See Crim. docket no. 577.

I see no reason here to disagree with that

determination. Ha’s claim of ineffective assistance of counsel, on the basis that his counsel
failed to adequately explain the plea agreement, is denied.
3.

Failure to argue sentence violated plea agreement

Ha argues, pro se, that his “sentence is not in accordance with the plea, because
the plea states Defendant was pleading guilty to count 2 alleging the conspiracy involved
the manufacture and distribution of 1000 or more kilos or marijuana plants, [b]ut
Defendant was not actually admitting that he was reasonably foreseeable [sic] or
responsible for 1000 or more kilos or marijuana plants during the conspiracy offense. . . .”
The respondent claims that the issue of the length of Ha’s sentence is not cognizable,
because it has already been decided on direct appeal. Response at 9.
I do not find that, on direct appeal, the Eighth Circuit Court of Appeals addressed
the issue of ineffective assistance of counsel for failing to assert that the sentence was not
in accordance with the plea agreement; rather, the appellate court merely determined that
Ha’s plea and plea waiver were entered into knowingly and voluntarily and that the
sentencing issues Ha was attempting to appeal were within the scope of the valid appeal
waiver. See Criminal docket no. 577. Although the ineffective assistance of counsel claim
14

presented here is different, I do not find support in the record for Ha’s position that his
sentence was not in accordance with the plea agreement. Ha asserts that Paragraph 14 of
the plea agreement specifically states that he was responsible for only 400 kilos of
marijuana, that his base offense level was 28, and that this base offense level established
a maximum quantity of 700 kilos. Motion at 3. Review of the record indicates that
Paragraph 14(A) of the plea agreement states that the prosecution is free to present
evidence and arguments to support the stipulation and, if warranted, a higher base offense
level and further states that Ha was involved in “at least” 400 kilograms of marijuana, not
“only” 400 kilograms of marijuana. Response, Ex. 1. There is simply no merit to the
argument that Ha’s sentence was not in accordance with his plea agreement. Counsel’s
failure to advance a meritless argument cannot constitute ineffective assistance. Rodriguez
v. United States, 17 F.3d 225, 226 (8th Cir. 1994). Ha’s claim that his trial counsel was
ineffective for not arguing that his sentence was not in accordance with is plea agreement
is denied.
D. Certificate Of Appealability
Denial of Ha’s § 2255 Motion raises the question of whether or not he should be
issued a certificate of appealability for his claims therein. The requirement of a certificate
of appealability is set out in 28 U.S.C. § 2253(c)(1), which provides, in pertinent part, as
follows:
(c)(1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the
court of appeals from—
***
(B) the final order in a proceeding under section 2255.

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28 U.S.C. § 2253(c)(1)(B); accord FED. R. APP. P. 22(b). To obtain a certificate of
appealability on claims for § 2255 relief, a defendant must make “a substantial showing
of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir.
2000); Mills v. Norris, 187 F.3d 881, 882 n.1 (8th Cir. 1999); Carter v. Hopkins, 151
F.3d 872, 873-74 (8th Cir. 1998); Ramsey v. Bowersox, 149 F.3d 749 (8th Cir. 1998);
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834 (1998). “A
substantial showing is a showing that issues are debatable among reasonable jurists, a court
could resolve the issues differently, or the issues deserve further proceedings.” Cox, 133
F.3d at 569. Moreover, the United States Supreme Court reiterated in Miller-El that
“‘[w]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.’” Miller-El, 537 U.S. Ct. at 338 (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
I find that Ha has not made a substantial showing of the denial of a constitutional
right on his § 2255 claims. See 28 U.S.C. § 2253(c)(2). Specifically, there is no showing
that reasonable jurists would find my assessment of Ha’s claims debatable or wrong,
Miller-El, 537 U.S. at 338; Cox, 133 F.3d at 569, or that any court would resolve those
issues differently. Cox, 133 F.3d at 569. Therefore, Ha does not make the requisite
showing to satisfy § 2253(c) on his claims for relief, and no certificate of appealability will
issue in this case. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b).

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III. CONCLUSION
Upon the foregoing, Ha’s Pro Se Motion Under 28 U.S.C. § 2255 (Civ. docket
no. 1), is denied in its entirety. This matter is dismissed in its entirety. No certificate
of appealability will issue for any claim or contention in this case.
IT IS SO ORDERED.
DATED this 3rd day of October, 2011.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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