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Lee v. United States

United States District Court, D. New Jersey

March 13, 2018

JOHN Y. LEE, Petitioner,


          SUSAN D. WIGENTON U.S.D.J.

         Presently before the Court is the motion of John Y. Lee (“Petitioner”) to vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C. § 2255. (ECF No. 1). Following this Court's Order to Answer (ECF No. 2), the Government filed a response to the motion (ECF No. 10), to which Petitioner has replied. (ECF No. 11). For the reasons set forth in this Opinion, this Court will deny Petitioner's motion and deny him a certificate of appealability.

         I. BACKGROUND

         On June 23, 2008, Petitioner, John Y. Lee pled guilty to charges of wire fraud and filing false tax returns based on his having defrauded his employer, Samsung, out of a considerable amount of money through the use of a fictitious company. (See Docket No. 08-443 at ECF Nos. 15-19). Following his guilty plea but prior to sentencing, however, Petitioner unlawfully fled the United States for South Korea, where he remained until he returned to the United States in 2016, at which point he was apprehended at the airport and returned for sentencing. (See, e.g., Document 1 attached to ECF No. 10 at 3). On June 29, 2016, Petitioner appeared before this Court for sentencing. (See Document 2 attached to ECF No. 10).

         At sentencing, Petitioner argued through counsel that, although the presentence report had recommended an enhancement of his sentence based on his having obstructed justice by fleeing the country, he should also be granted either a reduction of his guidelines level under U.S. Sentencing Guidelines § 3E1.1 for the acceptance of responsibility demonstrated by his guilty plea and voluntary return to the United States or a downward variance on that same basis. (Id. at 6-7). In support of that request, counsel for Petitioner argued that Petitioner's plea and willing return evinced his acceptance of responsibility for his fraud, and that his flight only occurred because of an extraordinary circumstance - the fact that Petitioner's girlfriend had been pregnant with his son at the time and Petitioner felt that his son needed his father. (Id.). Counsel further argued that Petitioner accepted responsibility by returning to the United States to turn himself in even though he was under no immediate threat of arrest had he remained with his son in South Korea. (Id. at 7).

         This Court rejected that argument for the following reasons:

At the outset, I would note that as calculated in the presentence report, I do believe the total offense level appropriately falls at a level 27. So I turn to the request from the defense for credit to be given to [Petitioner] for acceptance of responsibility. Obviously, given the fact that [Petitioner] absconded for eight years, that's a very high hurdle to . . . cover and cross. So the issue of what is extraordinary about what [Petitioner] has done, I just don't find that persuasive, quite frankly. This whole notion that he voluntarily returned knowing he would be picked up [is suspect]. Maybe he knew, maybe he didn't know. It's been a long time. I'm not sure he knew he would be immediately arrested.
And if he was so intent on actually coming back to face these charges, then why not contact his attorney? Why not fly into Newark? Why fly into Los Angeles? I mean, his family was here. I don't know that I give much credit to [Petitioner] for returning as counsel does because, as I said, sometimes people slip through the cracks and I'm not sure that he didn't think that he could slip through the cracks. Even if he thought that he was coming back for that purpose, I just don't find that to be extraordinary conduct warranting credit for acceptance of responsibility and so for that reason I deny that request.
There's [also] a request for a variance. I don't find any basis to vary based on the facts and circumstances surrounding why we are here some eight years later as it relates to Mr. Lee.
And I think it's very important to note that many individuals get sentenced and their families are completely destroyed. It happens regularly, which is why the goal is not to engage in criminal activity. But for you, [Petitioner], to say that you wanted to take the opportunity to raise your child, once again [demonstrates your] ignoring and showing a complete lack of respect for the law and somehow placing yourself in somewhat of a higher position than any other defendant that comes before the Court in making your situation one that requires some exceptional consideration, and it does not.

(Id. at 12-13). This Court thereafter sentenced Petitioner to seventy-five months imprisonment for the fraud count of his plea, and a concurrent term of thirty-six months imprisonment on the tax count of the Information to which he had pled guilty. (Docket No. 08-443 at ECF No. 28). Petitioner was also ordered to serve a three year term of supervised release upon the completion of his custodial sentence. (Id.). Following the issuance of Petitioner's sentence, this Court directly informed Petitioner that he had “14 days from . . . to [file] an appeal of his sentence” and that, if he could not afford the filing fee, he could “request that the Clerk of the Court file [a] notice of appeal on [his] behalf.” (See Document 2 attached to ECF No. 10 at 18). Petitioner did not appeal his sentence, nor did he submit anything to the Court indicating that he wished to appeal or wished for the Clerk to file a notice of appeal on his behalf. (Docket No. 08-443 ECF Docket Sheet).

         On or about February 23, 2017, however, Petitioner filed his current motion to vacate sentence. (ECF No. 1). In his motion, Petitioner contends that, after sentencing, he wished to appeal his sentence, but was not visited by counsel post-sentencing, and that counsel was therefore constitutionally ineffective because he had not conferred with him about a potential appeal. (Id.). Both Petitioner's plea counsel, Paul B. Brickfield, and Petitioner have submitted certifications addressing the factual basis for Petitioner's claim, in large part agreeing as to the course of events which occurred before, during, and after sentencing. The following facts are drawn from those certifications.

         Both Petitioner and counsel agree that Mr. Brickfield (hereafter “counsel”) began representing Petitioner in 2007, and that counsel represented Petitioner both during plea negotiations and during Petitioner's sentencing hearing after his return from South Korea. (Document 1 attached to ECF No. 10 at 3; ECF No. 11 at 16). Following Petitioner's capture in Los Angeles, counsel met with Petitioner three times at Essex County Jail. (Document 1 attached to ECF No. 10 at 3; ECF No. 11 at 16). Although counsel states that he discussed with Petitioner his right to appeal at that time, Petitioner “cannot recall any advi[ce] on his appeal” but does recall discussing the presentence report and sentencing issues. (Document 1 attached to ECF No. 10 at 3; ECF No. 11 at 16). Counsel further states that they met again on the day of the sentencing, and that, at that time, he advised Petitioner that an appeal was unlikely to succeed if the Court rejected his acceptance of responsibility argument. (Document 1 attached to ECF No. 10 at 4; ECF No. 11 at 16). Petitioner recalls discussing the sentencing issues, but states that he does not recall any discussion of appellate matters. (Document 1 attached to ECF No. 10 at 4; ECF No. 11 at 16).

         Following Petitioner's sentencing, Petitioner “asked [counsel] if anything could be done and [counsel] told him that in [his view] the District Court had not done or said anything that would [support] a viable appeal. [Petitioner] thanked [counsel] and said goodbye [and counsel] did not meet with Petitioner in the holding facility after the sentencing.” (Document 1 attached to ECF No. 10 at 4; ECF No. 11 at 16-17). Petitioner does not directly dispute this statement by counsel, but states that he only said goodbye “as [he] was in shock after receiving [his] sentence” and he was taken back to the holding area “thinking [his] lawyer [would] be by shortly to talk.” (ECF No. 11 at 16-17). Although Petitioner stated in his initial petition that he had attempted to contact counsel to request that an appeal be filed but was unable to reach him (See Document No. 1 attached to ECF No. 1 at 4), Petitioner in his reply certification agreed with counsel's certification that “[Petitioner] never called or wrote [counsel] after [sentencing] asking about an appeal or telling [counsel] to file an appeal, ” despite the following events[1]: counsel meeting with Petitioner's father in July 2016 at which point no appeal was discussed or requested; Petitioner's sending counsel some paperwork to hold onto until Petitioner was transferred to his final prison destination, without requesting an appeal, which counsel then returned to him upon his arrival in prison; Petitioner's sending counsel a request to have certain personal items sent to him in August 2016, which again failed to contain any mention of an appeal; and the lack of any request for an appeal in any of the documents in counsel's files for Petitioner's case. (Document 1 attached to ECF No. 10 at 5-6; ECF No. 11 at 17). Indeed, counsel notes that the first time Petitioner mentioned an appeal to him was the letter ...

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