United States District Court, D. New Jersey
JOHN Y. LEE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
D. WIGENTON U.S.D.J.
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
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).
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).
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).
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.
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).
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: 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 ...