Opinion
17-CV-6254 (LTS) (BCM) 11-CR-690 (LTS)
04-19-2019
YONG SUK HOWANG, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION TO THE HON. LAURA TAYLOR SWAIN
BARBARA MOSES, United States Magistrate Judge.
Petitioner Yong Suk Howang is a native and citizen of South Korea. On January 16, 2013, after a guilty plea, she was convicted in this Court of conspiracy to distribute crack cocaine and sentenced to five years in prison. On August 21, 2015, she was released from the custody of the Bureau of Prisons (BOP), whereupon she was detained by Immigration and Customs Enforcement (ICE) pending her removal from the United States. On August 17, 2017 - more than four years after her criminal conviction became final and almost two years after she was taken into ICE custody - Howang filed a pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (the Petition) (Dkt. No. 1), accompanied by a Memorandum of Law (Pet. Mem.) and Affidavit (Pet. Aff.) (both at Dkt. No. 4).
Howang challenges her 2013 conviction on the ground that her criminal defense attorney provided ineffective assistance by failing to advise her that the conviction would subject her to mandatory removal from the United States. On March 29, 2018, while the Petition was pending, Howang was deported to South Korea. (Dkt. No. 26-1.) For the reasons set forth below, I recommend that the Petition be denied because it was not filed within the period specified by 28 U.S.C. § 2255(f).
I. BACKGROUND
A. 2013 Conviction
In April 2011, petitioner was arrested and charged by complaint with a single count of conspiring to distribute 280 grams and more of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. (Dkt. No. 4 at ECF pp. 24-32; Dkt. No. 27 in United States v. Howang, et. al. No. 11-CR-690 (S.D.N.Y)). On August 11, 2011, petitioner was indicted on the same charge (Dkt. No. 27 in United States v. Howang) and on September 9, 2011, she appeared in front of the Hon. Robert P. Patterson, United States District Judge, for arraignment, pleading not guilty. On August 23, 2012, petitioner again appeared in front of Judge Patterson, with counsel, and pled guilty to the lesser included offense of conspiring to distribute 28 grams and more of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. Speaking through a Korean translator, petitioner admitted that she had been a "member of a conspiracy to possess with intent to distribute and to distribute crack during the period of October 2009 to April 2011." Plea Tr. (Dkt. No. 65 in United States v. Howang) at 7:8-13, 16:21-24. She testified that she had agreed with Christine Hong, one of her co-defendants, "to distribute 28 grams of cocaine and more." Id. at 17:4-6. Petitioner stated that she ran "drug errands" on behalf of Ms. Hong, and that she knew that it "was wrong." Id. at 21:6-22:11. She explained that she ran these errands to three "customers," and that while the amounts were generally "small," she was involved in the delivery of 28 grams of crack cocaine in March 2011. Id. at 22:12-24.
Judge Patterson twice asked petitioner whether she understood the immigration consequences of her guilty plea:
THE COURT: Do you understand that you will probably be deported if you are convicted of this crime?Plea Tr. at 6:17-19.
THE DEFENDANT: Yes.
THE COURT: Do you also understand that you have agreed not to challenge your conviction or sentence on direct appeal or through litigation under Title 28, United States Code, section 2255 or section 2241 on the basis that you were unaware of the actual or perceived adverse immigration consequences, including deportation, which may result from your guilty plea and conviction here?Id. at 11:15-21.
THE DEFENDANT: Yes.
On November 27, 2012, petitioner's attorney David K. Bertan submitted a sentencing memorandum to Judge Patterson, requesting the mandatory minimum sentence of 60 months in prison. Sent. Mem. (Dkt. No. 69 in United States v. Howang) at 5. Bertan argued that the minimum sentence would adequately promote respect for the law because petitioner would still "serve a substantial period of time in jail, followed by her deportation back to her native Korea, a country she has not seen in nearly 30 years." Id. at 6.
On January 16, 2013, petitioner was sentenced to 60 months of incarceration and four years of supervised release. See Sent. Tr. (Dkt. No. 76 in United States v. Howang) at 9:23-10:14. The United States requested that, as an "additional special condition" of petitioner's supervised release, she be required to "comply with the directives" of ICE. Id. at 12:1-5. Judge Patterson adopted that condition. Id. at 12:8-10. Judgment was entered the same day. (Dkt. No. 73 in United States v. Howang.)
Petitioner did not appeal.
B. Release from BOP Custody and Removal Proceedings
Petitioner was released from BOP custody on August 21, 2015. (Dkt. No. 10-1.) According to petitioner, after being released she was immediately "detained by [ICE] for an additional nine months." Pet. Mem. at 7. She explains that she was subject to "automatic deportation," but that her removal was delayed because the South Korean government could not locate her passport and therefore denied her entry. Id. She was "placed on supervised release" in May 2016 after being held by ICE for what she describes as "the maximum time permitted by law." Id.
In July 2017, the South Korean government located petitioner's passport and granted her permission to enter the country. Pet. Mem. at 7. This may have been what prompted her to file her Petition on August 17, 2017. That same day, petitioner filed an Emergency Request for a Temporary Restraining Order, stating that she would be "deported on August 22, 2017" and requesting an order staying her deportation until after the resolution of her Petition. (Dkt. No. 2.) The Hon. Valerie E. Caproni, United States District Judge, denied the request on August 18, 2017, without prejudice to her "renewing her request in her immigration proceedings." (Dkt. No. 6.)
On August 25, 2017, petitioner filed a Petition for Review/Emergency Stay of Deportation in the United States Court of Appeals for the Second Circuit, challenging the final Order of Removal in her immigration proceedings. See Petition, Howang v. Sessions, No. 17-2655 (2d Cir. Aug. 25, 2017), at 1-2. She also sought a stay of her impending deportation until this action was resolved "on its merits." Id. at 2.
According to petitioner's filings in the Second Circuit, the Order of Removal was issued on April 9, 2014, while she was serving her prison sentence. See Petition, Howang v. Sessions, No. 17-2655 (2d Cir. Aug. 25, 2017), at 1; Motion for Emergency Stay of Deportation, Howang v. Sessions, No. 17-2655 (2d Cir. Sept. 15, 2017), at 1. The papers filed in this action do not reveal when and how petitioner received notice of the Order of Removal.
By letter dated September 13, 2017, a "good friend" of petitioner informed the Court that petitioner had been taken into ICE custody, and provided the Court with her address at an immigration detention facility in New Jersey. (Dkt. No. 7.)
On February 14, 2018, the Second Circuit dismissed Howang's Petition for Review, see Motion Order, Howang v. Sessions, No. 17-2655 (2d Cir. Feb. 14, 2018), and on March 13, 2018, it denied reconsideration of that decision. See Motion Order, Howang v. Sessions, No. 17-2655 (2d Cir. March 13, 2018). On or about March 29, 2018, petitioner was removed from the United States. (Dkt. No. 26-1 at 2.)
In the meantime, on January 25, 2018, Howang filed another habeas corpus proceeding in this District, seeking release from immigration detention. See Petition, Howang v. United States, No. 18-CV-844 (S.D.N.Y. Jan. 25, 2018). On February 15, 2018, that case was transferred to the District of New Jersey, see Transfer Order, Howang v. United States, No. 18-CV-844 (S.D.N.Y. Feb. 15, 2018), where it was dismissed as moot in light of petitioner's removal from the United States. See Order, Howang v. Aviles, No. 18-CV-2610 (D.N.J. April 16, 2018).
C. Habeas Corpus Petition
In her Petition in this action, Howang asserts a single claim for ineffective assistance of trial counsel. Pet. at 4. She alleges that attorney Bertan "never advised [her] that a conviction for a narcotics-related offense would subject her to mandatory removal," Pet. Mem. at 3, and argues that she would not have pled guilty "but for her counsel's incompetent representation" that her immigration status "would remain an open question" and that she would "have an opportunity to present [her] case against being deported, once [she] completed the 5 year sentence." Id. at 10-11.
Though not raised as an independent ground for relief, petitioner also asserts that she was "never actually part of any conspiracy to distribute illicit drugs," and that she pled guilty in part because attorney Bertan had told her he did not believe her, and that she would "probably be imprisoned for 20 to 40 years unless [she] pleaded guilty." Pet. Aff. ¶¶ 5-6.
Petitioner's affidavit submitted in connection with her Petition elaborates:
7. Mr. Bertan never mentioned any possibility to me of any disposition to my case other than pleading guilty. He never explained the option of going to trial, or that a not guilty verdict would prevent any negative immigration consequences relating to this case. We always spoke through a Korean interpreter, and Mr. Bertan was terse and impatient, emphasizing only the maximum possible negative consequences of my situation, and never bringing up the possibility of any favorable resolution.
8. Mr. Bertan also never mentioned that pleading guilty would result in my automatic deportation, despite the fact that I specifically asked about the immigration consequences of my plea, and made it clear to him that remaining in the United States was my foremost priority, since I have lived here for 37 years, I have never returned to South Korea since I arrived here, and I have no family or contacts of any sort in South Korea.Pet Aff. ¶¶ 7-10. Petitioner also alleges that she likely would not have been found guilty had her case gone to trial. Pet. Mem. at 15-18.
9. On the contrary, he (falsely) informed me that my immigration status would remain an open question until after I served the 5 year sentence, and that I would have an opportunity to present my case against being deported, once I completed the 5 year sentence.
10. Furthermore, despite these assurances, and despite my repeated insistence that I did not want to accept any plea that would result in deportation, Mr. Bertan made no effort whatsoever to protect my immigration status or secure a plea that would prevent my deportation.
D. Supplemental Briefing
On November 15, 2017, in lieu of an answer, the United States filed a letter-brief asserting that the Court should deny the Petition "as a matter of law without reaching the underlying merits," because Howang filed it "well outside" of the one-year statute of limitations set forth in 28 U.S.C. § 2255(f). Gov. Ltr. dated Nov. 15, 2017 (Dkt. No. 9), at 1. The United States contends that plaintiff knew or should have known of the facts underlying her habeas claim - that her conviction would lead to her removal - at the time of her guilty plea, or, at the latest, on August 21, 2015, when she was released from BOP custody and detained by ICE pending her deportation. Id. at 5-7. The government further argues that petitioner is not entitled to equitable tolling of the statute during the nearly two years between August 21, 2015, when she was taken into ICE custody, and August 17, 2017, when she filed this action. Id. at 7.
In response, Howang asserts that her Petition is not time-barred because "the statute of limitations commenced in February, 2017," when - she says - she first learned of the possibility of filing this habeas claim. Pet. Resp. dated Nov. 29, 2017 (Dkt. No. 13) at 1-3; see also Pet. Aff. ¶ 17 ("It was not until February, 2017, when I was eventually made aware of the existence of legal aid clinics, that I was able to speak with a knowledgeable attorney, who informed [me] that filing the within Petition was even a possibility."). In the alternative, petitioner argues that even if the statute commenced running when she was detained by ICE in August 2015, it should be equitably tolled while she was in immigration detention, and for the first three months of her supervised release, due to the "difficult circumstances" she faced (which included "finding lodgings, gainful employment, attempt[ing] to locate old friends, making new friends and contacts, and faithfully reporting to both immigration and federal supervision authorities"). Id. at 5-10.
On October 25, 2018, this Court directed the United States to address whether petitioner had been deported and, if so, whether that deportation rendered this Petition moot. (Dkt. No. 22.) On November 21, 2018, the government submitted a supplemental letter-brief confirming that petitioner had been removed and arguing that this action was therefore moot. See Gov. Supp. Ltr. (Dkt. No. 26) at 1-2.
II. DISCUSSION
Before I can reach the merits of petitioner's claim, I must consider whether the Petition is either moot or barred by the statute of limitations. I conclude that the Petition is not moot but that it is untimely.
A. The Petition is Not Moot
This Court's subject-matter jurisdiction is limited by the "case or controversy" requirement of Article III, Section 2 of the United States Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998). "If a habeas petitioner's claim fails to satisfy this requirement at any point during the litigation, it must be dismissed as moot." Olivarez v. U.S., 2011 WL 4001070, at *2 (S.D.N.Y. Aug. 31, 2011) (citing Spencer). However, a habeas corpus petitioner's challenge to a criminal conviction is not necessarily mooted when the petitioner is released from prison. "[C]ollateral consequences of that conviction may still impinge on the petitioner post-release, and therefore a case or controversy may continue to exist." Perez v. Greiner, 296 F.3d 123, 125 (2d Cir. 2002).
Where, as here, a habeas petitioner has been released from custody and removed by immigration authorities from the United States, her petition may still present a live case or controversy for Article III purposes if there is a "material possibility" that she will suffer collateral [immigration] consequences on the basis of the challenged conviction." Perez, 296 F.3d at 125. Sufficient "collateral consequences" have been found to exist where the petitioner challenges a conviction (1) for "a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance," because such a conviction renders the alien inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II); or (2) for an aggravated felony, because such a conviction prohibits an alien from seeking cancellation of removal under 8 U.S.C. § 1229b(a) (permitting cancellation of removal for certain permanent residents who have "not been convicted of any aggravated felony" and who meet two other criteria). See Kamagate v. Ashcroft, 385 F.3d 144, 151 (2d Cir. 2004) ("Because a judicial ruling in Kamagate's favor could remedy the alleged injury of a lifetime bar from reentry with no possible cancellation of removal, we conclude that the appeal is not moot.").
The full text of 8 U.S.C. § 1229b(a) reads: "The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien - (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony." The record does not reveal, and the government does not address, whether petitioner Howang satisfies the first two elements of § 1229b(a), but the Court notes that petitioner appears to have resided in the United States continuously from approximately 1979 until her removal in 2017. See Sent. Mem. at 4.
Here, petitioner's federal conviction triggers both prongs of the test outlined above, because she was convicted of a crime (1) relating to the distribution of a controlled substance, as defined by 21 U.S.C. § 802, and (2) constituting an "aggravated felony" under 8 U.S.C. § 1229b. See Reyes v. I.N.S., 2003 WL 21649439, at *5 n.3 (S.D.N.Y. July 14, 2003) (noting that a violation of § 841(b)(1)(B), like other drug trafficking crimes as defined in the Controlled Substances Act, is an aggravated felony); Phillips v. United States, 2015 WL 4112483, at *5 (E.D.N.Y. July 7, 2015) ("Because this offense [violating 21 U.S.C. § 841(b)(1)(B)(iii)] carried a 40-year maximum sentence, it was most certainly an 'aggravated felony' assuring petitioner's deportation.")
This is not the end of the analysis, however. Even if the challenged conviction renders the petitioner inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II) and prohibits cancellation of removal under 8 U.S.C. § 1229b(a), her case may still be moot if an earlier conviction, independent of the challenged conviction, resulted in the same collateral consequences, such that habeas relief could have "no meaningful effect on [her] admissibility." Perez, 296 F.3d at 125; see also Olivarez, 2011 WL 4001070, at *3 (dismissing habeas petition as moot where the petitioner was already barred from re-entering the United States on "wholly separate grounds from the issues challenged in the Amended Petition").
In this case, the government argues that a "wholly separate ground" bars petitioner from entering the United States because in October 2000 she was convicted in state court of criminal possession of a controlled substance in the fourth degree in violation of N.Y. Penal Law § 220.09 (the State Law Conviction). (Dkt. No. 26-2 at 7-10.) According to the government, the State Law Conviction was also for "a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance," 8 U.S.C. § 1182(a)(2)(A)(i)(II), and therefore it too rendered her inadmissible, such that granting the Petition in this case would not remedy her inadmissibility. Gov. Supp. Ltr. at 1-2.
I agree with the United States that petitioner's State Law Conviction serves as a "wholly separate ground" to render her inadmissible to the United States under 8 U.S.C. § 1182(2)(A)(i)(II). See Perez, 296 F.3d at 126; Olivarez, 2011 WL 4001070, at *3 ("Even if the Court were to find in favor of Petitioner on all grounds, his previous controlled substance convictions would remain independently sufficient to trigger removal proceedings."). However, the State Law Conviction was not for an "aggravated felony," and therefore would not prohibit the Attorney General from cancelling her removal under 8 U.S.C. § 1229b(a).
An "aggravated felony," for purposes of § 1229b(a), includes "illicit trafficking in a controlled substance (as defined in § 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). "The general phrase 'illicit trafficking' is left undefined, but § 924(c)(2) of Title 18 identifies the subcategory by defining 'drug trafficking crime' as 'any felony punishable under the Controlled Substances Act.'" Lopez v. Gonzales, 549 U.S. 47, 50 (2006). In Lopez, the Supreme Court held that a state offense involving controlled substances "constitutes a 'felony punishable under the [CSA] only if it proscribes conduct punishable as a felony under that federal law." Id. at 60. For a state drug offense such as petitioner's to rank as an aggravated felony, therefore, "it must correspond to an offense that carries a maximum term of imprisonment exceeding one year under the CSA." Martinez v. Mukasey, 551 F.3d 113, 117-18 (2d Cir. 2008).
The question, then, is whether the conduct necessary to sustain a conviction under N.Y. Penal Law § 220.09 - the statute underlying petitioner's State Law Conviction - "would be punishable as a felony under federal criminal law." Pascual v. Holder, 707 F.3d 403, 405 (2d Cir. 2013), adhered to on reh'g, 723 F.3d 156 (2d Cir. 2013). I find that it would not, because § 220.09 describes a simple possession offense. The Supreme Court has explained that "when a defendant has been convicted" in state court "of a simple possession offense that has not been enhanced based on the fact of a prior conviction, he has not been 'convicted' under § 1229b(a)(3) of a 'felony punishable' as such 'under the Controlled Substances Act.'" Carachuri-Rosendo v. Holder, 560 U.S. 563, 582 (2010). Therefore, the drug crime of which petitioner was convicted in state court is not an "aggravated felony" under 8 U.S.C. § 1229b.
The test is a "categorical approach," which looks only at the "minimum criminal conduct necessary to sustain a conviction under a given statute," and does not consider "the singular circumstances of an individual petitioner's crimes." Gertsenshteyn v. U.S. Dep't of Justice, 544 F.3d 137, 143 (2d Cir. 2008).
An unpublished Second Circuit decision from 2005 treated a conviction under N.Y. Penal Law § 220.09 as an aggravated felony. Perez Cuevas v. I.N.S., 125 F. App'x 328, 329 (2d Cir. 2005). In light of the Supreme Court's later holdings in Lopez and Carachuri-Rosendo, however, Perez Cuevas is no longer good law. Notably, more recent case law reveals that New York state prosecutors and courts do not view N.Y. Penal Law § 220.09 as an aggravated felony for immigration purposes. See, e.g., Romero v. Shanahan, 2014 WL 6982937, at *2 n.5 (S.D.N.Y. Dec. 10, 2014) (noting that "a New York State criminal prosecutor and Supreme Court of the State of New York agreed to Romero's request to re-plead to a simple possession of cocaine [in violation of N.Y. Penal Law § 220.09] to alleviate the immigration consequences of the offense.").
Because petitioner's State Law Conviction does not constitute a "wholly separate ground" to prohibit cancellation of her removal under 8 U.S.C. § 1229b(a), it is possible that the grant of her Petition "could remedy the alleged injury of a lifetime bar from reentry with no possible cancellation of removal." Kamagate, 385 F.3d at 151. See also Batista-Taveras v. Ashcroft, 2004 WL 2149095, at *4 (S.D.N.Y. Sept. 23, 2004) ("To be sure, an alien convicted of violating 'any law' relating to controlled substances is inadmissible. But the offense of which petitioner was convicted concededly was not an aggravated felony. He therefore is eligible for cancellation of removal. Accordingly, the case is not moot.") Accordingly, the Petition is not moot.
B. The Petition is Time-Barred
28 U.S.C. § 2255(f) requires, in relevant part, that a § 2255 petition be filed within one year of the latest of:
(1) the date on which the judgment of conviction becomes final; [or]28 U.S.C. § 2255(f).
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Petitioner's time to appeal her January 16, 2013 conviction expired on January 30, 2013, see Fed. R. App. P. 4(b)(1)(A), rendering the conviction final for purposes of § 2255(f)(1). See Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005) ("an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires"); United States v. Torres, 2017 WL 78513, at *2 (S.D.N.Y. Jan. 9, 2017) (same). Petitioner did not file her Petition until August 17, 2017, more than four years later.
Petitioner advances two arguments in support of her contention that her Petition was nonetheless timely and hints at a third. First, she asserts that the Petition was filed within one year after she discovered or could have discovered "the facts supporting the claim or claims presented," 28 U.S.C. § 2255(f)(4), that is, that attorney Bertan failed to advise her accurately about the adverse immigration consequences of her guilty plea. See Pet. at 13; Pet. Resp. at 1-3. Second, she claims that the statute of limitations should be equitably tolled as a result of the difficult circumstances she faced and the diligence she displayed during and after the period she was detained in ICE custody. Pet. Mem. at 7-8; Pet. Resp. at 5-10. In addition, as noted above, petitioner asserts that she is "actual[ly] innocent" of the crime for which she was convicted in this Court. Pet. Mem. at 15-18. I will therefore assess whether her showing justifies an equitable "exception" to the statute of limitations.
Plaintiff first asserts that she filed her Petition within the time permitted by 28 U.S.C. § 2255(f)(4), which permits habeas petitions to be filed within one year of "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Section 2255(f)(4) "is not a tolling provision." Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000). "Rather, it resets the limitations period's beginning date, moving it from the time when the conviction became final, see § 2255(1), to the later date on which the particular claim accrued." Id.
Section 2255(f)(4) does not assist petitioner, because she knew the facts supporting her claim - that, notwithstanding anything her attorney had told her, her guilty plea was likely to result in her deportation - when she pled guilty on August 23, 2012. During the allocution, Judge Patterson asked Howang if she understood the immigration consequences of her guilty plea: "Do you understand that you will probably be deported if you are convicted of this crime?" Plea Tr. at 6:17-19. Petitioner responded in the affirmative. Id. She also agreed "not to challenge [her] conviction or sentence . . . on the basis that [she was] unaware of the actual or perceived adverse immigration consequences, including deportation, which may result from [her] guilty plea and conviction." Id. at 11:15-22. These objective warnings, from the court itself, "would have caused a duly diligent person to make a further inquiry into the possibility of deportation." Superville v. United States, 284 F. Supp. 3d 364, 374 (E.D.N.Y. 2018) (finding a habeas petition untimely based in part on similar objective warnings). Indeed, as explained in Superville, "[s]everal district courts have considered the applicability" of § 2255(f)(4) where, as here, "criminal defendants claim that their convictions should be vacated because they were not adequately informed of the immigration consequences of a guilty plea," and "[m]ost have held that a duly diligent petitioner would discover an ineffective [assistance] claim if and when he was advised of possible deportation during a plea colloquy." Id. at 372 (collecting cases).
Because I find the Petition time-barred, I do not reach the question whether plaintiff's waiver of her right to habeas relief in connection with her guilty plea constitutes an independent basis to deny her Petition. See, e.g., Castilo v. United States, 2012 WL 9500631, at *6 (S.D.N.Y. Nov. 12, 2012) (collecting cases enforcing waivers of the right to file habeas petitions pursuant to § 2255), report and recommendation adopted, 2016 WL 1610609 (S.D.N.Y. Apr. 20, 2016).
Nor was Judge Patterson's warning petitioner's only clue. The sentencing memorandum submitted by attorney Bertan on petitioner's behalf on November 27, 2012 acknowledged that "Ms. Howang will serve a substantial period of time in jail, followed by her deportation back to her native Korea." Sent. Mem. at 6.
Even if petitioner did not fully understand the immigration consequences of her guilty plea when she entered it, that knowledge was inescapable when she was released from BOP custody and detained by ICE pending her removal. As petitioner acknowledges, "That is why I was surprised to discover, after completing my 5 year sentence, that I would instead face automatic deportation proceedings, rather than the supervised release that was described at my sentencing." Pet. Aff. ¶ 14. BOP records reflect that petitioner was released from prison on or about August 21, 2015 (Dkt. No. 10-1), and petitioner concedes that it is a "reasonable conclusion" that the statute of limitations began to run on that date, when she "first became aware that her lawyer had misled her, upon entering INS custody." Pet. Resp. at 3. Yet petitioner did not commence this action until nearly two years later. Her Petition was therefore untimely under § 2255(f)(4).
2. Equitable Tolling
Petitioner next argues that, assuming that the statute of limitations began to run on August 21, 2015, it was equitably tolled until no earlier than February 2017, when she "became aware of the availability of legal clinics" and "was finally able to speak with a knowledgeable attorney who alerted her to the possibility of filing" the Petition. Pet. Mem. at 8.
Only in "rare and exceptional circumstances" may a habeas petitioner "invoke the courts' power to equitably toll the limitations period." Belot v. Burge, 490 F.3d 201, 205 (2d Cir. 2007) (citing Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004)). To qualify for equitable tolling, "the petitioner must establish that extraordinary circumstances prevented him from filing his petition on time, and that he acted with reasonable diligence throughout the period he seeks to toll." Id. "To show that extraordinary circumstances 'prevented' him from filing his petition on time, petitioner must 'demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the extraordinary circumstances.'" Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) (citing Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)).
Petitioner Howang asserts that she was entitled to equitable tolling while in ICE custody from August 2015 to approximately May 2016, because the "only legal advice" she received during that period was that she "needed to engage her own attorney." Pet. Aff. ¶ 16. Thereafter, she contends, the statute should be deemed tolled for another nine months, until February 2017, because that is when she "became aware of the availability of legal clinics" and "was finally able to speak with a knowledgeable attorney who alerted her to the possibility of filing" a habeas petition. Pet. Mem. at 8. Petitioner explains that she spent her first nine months on release "attend[ing] to the situation that face[s] most persons who have been incarcerated for years, and having very few funds - i.e., finding lodgings, gainful employment, attempt[ing] to locate old friends, making new friends and contacts, and faithfully reporting to both immigration and federal supervision authorities." Pet. Resp. at 6. Thus, under petitioner's theory, the statute of limitations was equitably tolled through February 2017, making her August 2017 Petition timely because it was filed within one year thereafter.
Petitioner also argues for equitable tolling from January 31, 2013 (when her conviction became final) to August 21, 2015 (when she "first became aware that her lawyer had misled her"), because until then she had been unaware of "any problems with immigration status" and was "incarcerated . . . with no access to competent legal counsel." Pet. Resp. at 3-4, 8. Because I do not find that petitioner is entitled to equitable tolling during and after her immigration detention, I do not reach the issue of whether she is entitled to tolling during her time in BOP custody.
Even assuming, arguendo, that the statute of limitations did not begin to run until petitioner was taken into ICE custody on August 21, 2015, her case does not present the "extraordinary" circumstances necessary to equitably toll the one-year statute of limitations.
First, petitioner has failed to show that the statute should be tolled while she was in ICE custody. It is well-settled that being in immigration custody and ignorant of the law does not justify equitable tolling. See, e.g., Watson v. United States, 865 F.3d 123, 132 (2d Cir. 2017) (plaintiff was not entitled to equitable tolling of his Federal Tort Claims Act claim based on his immigration detention, his pro se status, his lack of education and legal training, and his "unawareness that he could bring an FTCA claim until being advised by appointed counsel"). Similarly, limited English ability and limited access to legal advice or information do not ordinarily support a claim of equitable tolling. See, e.g., Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir. 2008) ("There is no allegation of any efforts to contact anyone outside the prison who might assist in making them aware, in their language, of legal requirements for filing a habeas corpus petition, nor what efforts were made to learn of such requirements within their places of confinement. Equitable tolling was properly rejected in their cases."); Madison v. Hulihan, 2009 WL 7028639, at *8 (S.D.N.Y. Dec. 22, 2009) ("[C]ourts have held that ignorance of the statute of limitations does not justify equitable tolling.") (collecting cases), report and recommendation adopted, 2010 WL 4258759 (S.D.N.Y. Oct. 27, 2010); Adkins v. Warden, 585 F. Supp. 2d 286, 299 (D. Conn. 2008) ("the combination of factors Mr. Adkins presents," including limited access to a law library and limited English ability - "even considered collectively - does not rise to the level of an 'extraordinary circumstance' that prevented Mr. Adkins from timely filing his application for habeas relief"), aff'd, 354 F. App'x 564 (2d Cir. 2009).
Moreover, petitioner acknowledges that while she was detained by ICE she "completed a habeas corpus petition," in an attempt to get out of immigration custody, "with the help of office personnel at her facility." Pet. Resp. at 6. She cannot, at the same time, credibly claim that "extraordinary circumstances" prevented her from preparing the claim now before this Court.
Petitioner's showing as to the time period after February 2017 is even less compelling. I have no doubt that she faced difficulties when newly released from custody. However, the hardships inherent in "attend[ing] to the situation that face[s] most persons who have been incarcerated for years, and hav[e] very few funds," Pet. Resp. at 6, are - as she acknowledges - shared by "most persons" who have recently been incarcerated, and cannot justify the "rare remedy" of equitable tolling, which is reserved for "unusual circumstances" and is not "a cure-all for an entirely common state of affairs." Watson, 865 F.3d at 133 (quoting Wallace v. Kato, 549 U.S. 384, 396 (2007)).
3. Actual Innocence
"In exceptional cases, the actual innocence doctrine provides petitioners a gateway to present an otherwise untimely habeas petition." King v. United States, 2017 WL 1483337, at *13 (S.D.N.Y. Apr. 25, 2017). The Second Circuit has recognized this "equitable exception" to the statute of limitations only "in extraordinary cases . . . in which the petitioner has made a credible and compelling showing of his actual innocence." Rivas v. Fischer, 687 F.3d 514, 552 (2d Cir. 2012) (emphasis added). To satisfy this exception, a petitioner must make two distinct showings. First, she must present a "credible and compelling" claim of actual innocence. Rivas, 687 F.3d at 541. A claim is "credible" if it is supported by "new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial." Id. (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). A claim is "compelling" if the petitioner demonstrates that "more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt." Rivas, 687 F.3d at 541 (quoting House v. Bell, 547 U.S. 518, 538 (2006)). Second, the petitioner must advance "a legitimate constitutional claim." Rivas, 687 F.3d at 540-41 ("It is the combination of the two claims - that the petitioner is likely innocent and that his conviction was likely the result of nonharmless constitutional error - that permits a habeas court to review the petition notwithstanding procedural obstacles in order to avoid a miscarriage of justice.").
Though Rivas involved the statute of limitations set forth in 28 U.S.C. § 2244(d)(1)(D), its analysis applies equally to § 2255(f), "as there are no material differences between the two statutory provisions at issue." Garcia v. United States, 2014 WL 6632969, at *7 n.2 (S.D.N.Y. Nov. 24, 2014). See also Anderson v. United States, 612 F. App'x 45, 46 n.1 (2d Cir. 2015) (applying Rivas in the context of § 2255(f)).
Petitioner asserts her innocence in her memorandum of law, see Pet. Mem. at 3-6, and in her affidavit, see Pet. Aff. ¶ 5, where she states:
In fact, I was never actually part of any conspiracy to distribute illicit drugs. In the 9 page complaint, spanning a period of almost 2 years, I am only mentioned twice. On the first occasion, when the complaint alleges that I met with a cooperating witness outside the apartment in order to let a "drug supplier" into the building, I had no idea that there were any drugs involved. I was just trying to be a helpful housemate by letting a guest into the apartment. On the second occasion where I am mentioned in the complaint, the allegation is that I was involved in a drug transaction. While it is true that I delivered a package from my employer, Ms. HONG, I had no idea that the package contained any drugs, and I only delivered it as favor for Ms. HONG.Id.
This claim is not "credible" because it is not supported by "new" or "reliable" evidence. Rivas, 687 F.3d at 541. If - as petitioner now asserts - she did not know that the package she delivered contained drugs, and was similarly ignorant of the purpose of her other "errands," those facts were available to her at the time of her guilty plea. Moreover, her current assertions directly contradict the statements she made, under oath, at the time of her plea in front of Judge Patterson. Her new statements therefore "lack the probative force necessary" to support a claim of actual innocence for purposes of § 2255(f)'s statute of limitations. Garcia v. Graham, 2016 WL 11483852, at *7 (S.D.N.Y. Mar. 15, 2016), report and recommendation adopted, 2016 WL 1718389 (S.D.N.Y. Apr. 29, 2016) (Swain, J.).
For substantially the same reasons, petitioner's claim of innocence is not "compelling." Ramos v. Cunningham, 2016 WL 4467559, at *4 (S.D.N.Y. Aug. 22, 2016) ("Ramos's self-serving denial of guilt is not credible or compelling proof of innocence. It is the sort of conclusory claim that does not satisfy the actual innocence standard."). Therefore, even if petitioner's ineffective assistance claim were a "legitimate constitutional claim" - a question I do not reach but about which I am skeptical in light of her plea allocution before Judge Patterson - she would still not be entitled to an equitable exception to the statute of limitations.
C. The Court Need Not Reach the Merits of Petitioner's Claims
Because I conclude that the Petition is time-barred, "I do not reach the merits of the constitutional claims alleged in [petitioner's] habeas petition." Barrientos v. Lee, 2015 WL 3767238, at *3 (S.D.N.Y. April 27, 2015), report and recommendation adopted, 2015 WL 3767238, at *1 (S.D.N.Y. June 17, 2015) (Swain, J.). See also Clarke v. United States, 2019 WL 422611, at *2 (S.D.N.Y. Feb. 4, 2019) (collecting authority for the proposition that a court need not reach the merits of a petitioner's claim where a sufficient basis exists for dismissal on limitations grounds); Tal v. United States, 2018 WL 4759788, at *3 (S.D.N.Y. Oct. 2, 2018) ("Because the motion is denied as untimely, the Court need not reach the merits of the petition.").
III. CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be DENIED as time-barred. The United States is directed to mail this Report and Recommendation to petitioner's last known address (whether in the United States or in South Korea), and to file proof of that mailing. Dated: New York, New York
April 19, 2019
/s/ _________
BARBARA MOSES
United States Magistrate Judge
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this report and recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Laura Taylor Swain at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl St., New York, New York 10007, and to the chambers of the undersigned Magistrate Judge. Any request for an extension of time to file objections must be directed to Judge Swain. Failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. Nov. 27, 2018); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).