LEE v. UNITED STATE OF AMERICA

Filing 23

OPINION. Signed by Judge Susan D. Wigenton on 7/17/2019. (JB, )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

IVAN LEE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 16-4709 (SDW)

OPINION

WIGENTON, District Judge:
Presently before the Court is the final claim of Petitioner Ivan Lee’s motion to vacate
sentence brought pursuant to 28 U.S.C. § 2255 challenging his criminal conviction and sentence.
(ECF No. 1). Following an order to answer, the Government filed a response to the motion (ECF
No. 12), to which Petitioner replied. (ECF No. 13). This Court then denied all of Petitioner’s
claims save for his claim that counsel provided ineffective assistance during plea negotiations.
(ECF Nos. 14-15). A hearing was held on this claim on May 6, 2019. (ECF No. 20). For the
reasons set forth below, this Court will deny Petitioner’s final remaining claim and will deny
Petitioner a certificate of appealability as to that claim.

I. BACKGROUND
In denying Petitioner’s other claims, this Court described the background of this matter as
follows:
Petitioner was charged with the carjacking of a vehicle and
brandishing a firearm in furtherance of a crime of violence in
violation of 18 U.S.C. § 924(c). See United States v. Lee, 634 F.

App’x 862, 863 (3d Cir. 2015). Although Petitioner pled guilty to
the carjacking, he denied that he had been the one to use a shotgun
during the carjacking, and proceeded to trial on the charge of
brandishing a weapon. Id. Essentially, Petitioner sought at trial to
claim that his co-defendant, Hanzah Darby, had brought and used a
shotgun during the carjacking without previously informing
Petitioner of the weapon. Following trial, however, the jury
rejected that defense and found Petitioner guilty of brandishing a
weapon in furtherance of a crime of violence. Id. This Court
thereafter sentenced Petitioner to a combined sentence of 168
months imprisonment, including a 100 month sentence on the §
924(c) charge. Id. Petitioner appealed, and the Third Circuit
affirmed by way of an opinion issued on December 8, 2015. Id.
Petitioner thereafter filed his current motion to vacate sentence.
(ECF No. 1).
(ECF No. 14 at 1-2).
Following this Court’s prior order and opinion (ECF Nos. 14-15), only a single claim
remains in this matter – Petitioner’s claim that counsel provided ineffective assistance in relation
to a plea agreement which led to Petitioner proceeding to trial when he would otherwise have pled
guilty. According to Petitioner in his initial brief in this matter “counsel told [Petitioner] that no
one could identify him and put a weapon in his hand” and that because “no witnesses [could]
identify[] him as being in possession of a firearm he could not be convicted of violating 18 U.S.C.
§ 924(c).” (Document 2 attached to ECF No. 1 at 24). Had he not been advised that “there was
no evidence or anyone identifying him, or placing a firearm in his hands,” Petitioner alleged, he
would have pled guilty to the § 924(c) charge. (Id. at 25). This proved false advice, Petitioner
argues, when “one of [the Government’s” witnesses – [his co-defendant] Darby[]” testified at trial
that Petitioner had brought and used the gun during the carjacking. (Id. at 24-25).
At the hearing on this final claim, both Petitioner and his trial counsel testified regarding
the advice Petitioner was given which resulted in Petitioner choosing to go to trial on the § 924(c)
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charge rather than plead guilty. (See ECF No. 20; see also Hearing Tr. at 3). During his
testimony, trial counsel stated that he had been an attorney since 1993 and has been practicing
criminal law, mostly in the federal system, since 1995. (Hearing Tr. at 8-9). Counsel confirmed
that he had been involved in close to one hundred federal criminal cases at both the trial and
appellate level, and that he was a member of this Court’s CJA panel. (Id. at 9-10). Counsel then
explained the background of his representation of Petitioner. (Id. at 11).
Petitioner’s trial counsel testified that he was not Petitioner’s original attorney, but instead
was appointed to Petitioner’s case in December 2013, when he replaced Petitioner’s assigned
federal public defender after he and Petitioner had reached an impasse. Specifically, Petitioner
wished to proceed to trial and the assistant federal public defender thought that option foolish.
(Id. at 11-14). Counsel thereafter represented Petitioner through plea negotiations, his guilty plea
to carjacking, and at Petitioner’s trial in July 2014. (Id.). During that time, counsel met with
Petitioner “quite a few” times during which he became prepared to try Petitioner’s case. (Id. at
13).

This included reviewing the discovery in its entirety with Petitioner.

(Id. at 13-14).

According to counsel, Petitioner “wasn’t comfortable just pleading guilty,” and the two therefore
had a conversation regarding Petitioner’s options, which, at the time, included a plea offer which
would require Petitioner to plead guilty to the entire indictment. (Id. at 15-16). Counsel stated
that he advised Petitioner that he could either go to trial on both charges, plead to both, or plead
guilty to carjacking and proceed to trial only on the § 924(c) charge and possibly still retain the
ability to receive acceptance of responsibility credit as to his carjacking sentence. (Id. at 16).
Counsel stated that going to trial on the § 924(c) charge would be based entirely on Petitioner’s
claim that he did not use the shotgun and was unaware at the time the carjacking occurred that his
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co-defendant had brought and would use the weapon during the carjacking. (Id. at 16-17).
Although counsel could not recall the exact contours of how many conversations they had
on the issue, counsel testified that he “certainly advised [Petitioner] that the likelihood was that he
was going to get convicted if he went to trial on one count or both counts,” and that he tells every
federal client that conviction rates in federal criminal proceedings are over ninety percent and
convictions following trial occur in over ninety percent of trials. (Id. at 17). Although counsel
could not specifically recall talking to Petitioner about accomplice liability and how he could be
held responsible for his co-defendant’s use of a shotgun during the carjacking, counsel was “fairly
certain” he discussed it with Petitioner because it was his general practice to discuss it with all
criminal clients involved in such cases. (Id. at 19). Counsel acknowledged that the concept of
accomplice liability “made it less likely that [Petitioner was] going to prevail at trial.” (Id.).
Counsel further testified that, prior to Petitioner’s guilty plea and trial, he became aware through
discovery that Petitioner’s co-defendant would testify against him at any trial and would testify
that it was Petitioner who used the shotgun during the carjacking, information he testified he
communicated to Petitioner before Petitioner chose to plead guilty. (Id. at 20-23). Although he
could not recall exactly when they discussed it, counsel confirmed that he discussed with Petitioner
the “very real possibility” that his co-defendant would testify that Petitioner had used the shotgun
prior to Petitioner deciding to go to trial. Counsel testified that he and Petitioner did not believe
that either victim would identify Petitioner because there was no discovery suggesting such an
identification could be made. (Id. at 25-26).
In his testimony, Petitioner confirmed that although the discovery suggested that the victim
could not identify him, counsel specifically told him that Darby would very likely testify at trial
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that Petitioner had brought and used the shotgun.

(Id. at 41, 47-49).

Petitioner asserted,

however, that this fact did not conflict with his claim that counsel told him no one could identify
him because he knew and told counsel that his co-defendant’s testimony “was a lie.” (Id. at 49).
Despite Petitioner’s claim that he was told no one could identify him, Petitioner thus specifically
confirmed that he “knew that [it was a possibility that] Hanzah Darby [would] testify and put [the]
gun in [Petitioner’s] hand” if Petitioner went to trial because counsel had told him as much before
he chose to proceed to trial. (Id. at 50).

II. DISCUSSION
A. Legal Standard
A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging
the validity of his or her sentence. Section 2255 provides, in relevant part, 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 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 a sentence, or that the sentence was in excess of the
maximum authorized by law, or 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. Unless the moving party claims a jurisdictional defect or a constitutional
violation, to be entitled to relief the moving party must show that an error of law or fact constitutes
“a fundamental defect which inherently results in a complete miscarriage of justice, [or] an
omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley,
599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.
denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454, 458-59 (D.N.J.
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2003).

B. Credibility Findings
Having held an evidentiary hearing in this matter and having had the opportunity to observe
the demeanor and testimony of the witnesses at that hearing, this Court makes the following
credibility determinations. This Court finds the testimony of Petitioner’s trial counsel, Mark
Berman, very credible. Although counsel could not recall all details of his representation of
Petitioner, which is not surprising giving the passage of some five years between Petitioner’s trial
and the hearing in this matter, counsel’s testimony was forthright and responsive on both direct
and cross examination and counsel readily admitted when he could not remember specific
information. Importantly, this Court credits counsel’s testimony that he discussed with Petitioner
the fact that Petitioner’s co-defendant was likely to testify against Petitioner, that Petitioner would
most likely be convicted if he went to trial, and the effect accomplice liability would have on
Petitioner’s case.
Although his testimony largely agreed with that of counsel, this Court finds Petitioner less
credible to the extent his testimony was contrary to that of counsel. Petitioner was obviously and
visibly nervous during his testimony, which increased significantly during cross examination.
Indeed, cross-examination testimony was briefly stopped because Petitioner began to sweat
profusely and needed time to re-collect himself before cross-examination could continue. (See
Hearing Tr. at 47). Given Petitioner’s obvious nervousness and his reaction to conversational and
non-combative cross-examination, this Court finds Petitioner less credible than trial counsel and
will discount his testimony to the extent it conflicts with that of counsel.
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C. Petitioner’s ineffective assistance of plea counsel claim
In his sole remaining claim, Petitioner contends that he received ineffective assistance of
counsel in relation to a plea and would not have proceeded to trial absent the allegedly deficient
advice of counsel. Criminal defendants have “a Sixth Amendment right to counsel, [which]
extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). Such an
individual can therefore seek relief from their convictions based on the ineffective assistance of
counsel. Id. This requires them to first show that counsel’s representation “fell below an
objective standard of reasonablenss.” Id. at 163. In addressing a guilty plea, counsel is required
to provide a defendant with sufficient information that he can “make a reasonably informed
decision whether to accept a plea offer,” which will generally require counsel to discuss with a
petitioner the facts of his case, his likelihood of conviction, and his comparative sentencing
exposure at trial and through a plea. United States v. Bui, 795 F.3d 363, 366-67 (3d Cir. 2015)
(quoting Shotts v. Wetzel, 724 F.3d 364, 376 (3d Cir. 2013); see also Lafler, 566 U.S. at 163; Hill
v. Lockart, 474 U.S. 52, 57-58 (1985).
Even where a petitioner can show that he received constitutionally defective advice from
counsel, he will not be entield to relief unless he can show that he was prejudiced by counsel’s
failings. This requires the petitioner to show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different . . . [which
i]n the context of pleas [requires] a [petitioner] show the outcome of the plea process would have
been different with competent advice.” Lafler v. Cooper, --- U.S. ---, ---, 132 S. Ct. 1376, 138485 (2012). A petitioner makes out such a claim where he shows that he would have accepted the
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proposed plea agreement absent counsel’s deficient advice, that the deal in question would not
have been withdrawn by the Government, and that the sentence received pursuant to the offered
plea would have been less severe than the result of his trial. Id. at 1385.
In this matter, Petitioner argued that his trial counsel proved ineffective in advising him to
proceed to trial rather than plead guilty because “no one” could testify at trial that Petitioner
possessed or used the shotgun in the carjacking he and his co-defendant committed.

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testimony at the hearing of this matter directly contradicts this claim. Both counsel and Petitioner
testified that counsel thoroughly reviewed the facts of this matter with Petitioner and directly
informed Petitioner that it was extremely likely at trial that Petitioner’s co-defendant would testify
that Petitioner both possessed and used the shotgun during the carjacking. Counsel and Petitioner
likewise agreed that counsel informed him that his likelihood of success at trial was low, and
counsel testified that Petitioner was informed that he could also be found guilty through an
accomplice liability theory even if it was Darby, and not Petitioner, who made use of the shotgun.
The credible testimony during the hearing thus clearly demonstrates that Petitioner was directly
informed that someone – specifically his co-defendant Darby – could place the shotgun in his
hands, and that his chances at trial would be slim. The hearing testimony, including Petitioner’s
own testimony, thus directly refutes the assertion in Petitioner’s motion that he was provided
deficient advice by counsel. As the hearing testimony clearly shows that Petitioner received more
than adequate assistance from counsel, Petitioner’s assertion to the contrary is without merit.
Petitioner’s final claim is therefore denied.

III. CERTIFICATE OF APPEALABILITY
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Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from
the final order in that proceeding unless he makes “a substantial showing of the denial of a
constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude that the issues presented here are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Because jurists of reason could not disagree with this Court’s conclusion that Petitioner’s plearelated claim is without merit, Petitioner has failed to make a substantial showing of the denial of
a constitutional right, and no certificate of appealability shall issue.

IV. CONCLUSION
For the reasons stated above, Petitioner’s plea-related ineffective assistance of counsel
claim is DENIED and Petitioner is DENIED a certificate of appealability. An appropriate order
follows.

Dated: July 17, 2019

s/ Susan D. Wigenton__
Hon. Susan D. Wigenton,
United States District Judge

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