United States District Court, Northern District of Georgia, Atlanta Division
MOTION TO VACATE 28 U.S.C. § 2255.
ORINDA D. EVANS, UNITED STATES DISTRICT JUDGE
In February 2014, Movant pled guilty to one count of immigration document fraud pursuant to a negotiated plea agreement. (Doc. 118-1.) In May 2014, the Court sentenced Movant to twenty-one months' imprisonment and three years' supervised release, which was the sentence Movant agreed to in the plea agreement. (Doc. 134.)
Movant also agreed to waive his right to challenge his judgment of conviction via appeal or 28 U.S.C. § 2255. (Doc. 118-1 at 8-9.) But in August 2014, Movant filed a motion challenging the judgment under §225 5. (Doc. 149.) Movant amended his § 2255 motion one month later. (Doc. 155.) Movant claims that he is actually innocent of the crime to which he pled guilty, that his lawyers were ineffective for allowing him to plead guilty despite his innocence, and that Respondent engaged in prosecutorial misconduct by seizing his bank account. (Docs. 149, 155.)
In March 2015, Magistrate Judge Brill issued a Report and Recommendation ("R&R") that Movant's § 2255 motion be denied. (Doc. 169.) Judge Brill found that the prosecutorial misconduct claim was barred by the appeal waiver in Movant's plea agreement and lacks merit. (Id. at 10-11.) As for Movant's challenge to his plea, Judge Brill found that the record, particularly the transcript of the plea hearing, established a factual basis for Movant's guilt of the one count of immigration document fraud to which he pled guilty. (Id. at 12-15.)
Judge Brill noted that Movant revised his actual innocence claim after Respondent filed its brief opposing the § 2255 motion. (Id.) Movant initially said only that he was innocent because he did not personally sign the immigration form. (Id. at 14.) But after Respondent pointed out that Movant was charged as an aider and abettor and admitted when he pled guilty to directing another person - co-defendant An Kil - to sign the fraudulent form, Movant changed his story to be that he did not direct An Kil to sign the form. (Id. ("Only in his reply brief, after realizing that his claim had no merit, did Movant change his version of the facts and say that he did none of the things he swore that he did when he pled guilty.").)
Judge Brill further noted that "Movant's current claim of innocence is not supported by any evidence other than his current assertions." (Id. at 14.) In response, Movant filed a motion for additional time to submit evidence and file objections to the R&R. (Doc. 171.) Movant filed objections and submitted his "evidence." (Doc. 172.) Movant submitted what he contends are transcripts of recorded conversations between him, his co-defendants, and undercover federal law enforcement agents in support of his claim of innocence. (Docs. 172-1, 172-2, 172-3, 172-4.)
A defendant's statements during a guilty plea colloquy, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any collateral challenge to the plea. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Solemn declarations made under oath in open court carry a strong presumption of verity. Id. at 73-74; United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). They are presumptively trustworthy and are considered conclusive absent compelling evidence showing otherwise. Blackledge, 431 U.S. at 73-74. Consequently, a defendant "bears a heavy burden to show his statements [under oath] were false." United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). "[I]f the Rule 11 plea taking procedure is careful and detailed, the defendant will not later be heard to contend that he swore falsely." United States v. Stitzer, 785 F.2d 1506, 1514 n. 4 (11th Cir. 1986) (citing United States v. Barrett, 514 F.2d 1241, 1243 (5th Cir. 1975)).
Movant's plea hearing was careful and detailed. Movant pled guilty to one clear, simple charge: that he aided and abetted An Kil's fraudulent preparation and execution of two 1-20 immigration forms on April 5, 2011. (Doc. 10 at 7, 10 (indictment).) At the plea hearing, after advising Movant of his rights, the Court had the following exchange with Movant:
THE COURT: I'm going to need to ask you a few questions to determine if there is a factual basis for a guilty plea in this case. I cannot accept a guilty plea unless there is a factual basis for it, so I am going to need to ask you some questions to determine that. And you do need to understand that your responses are being given under oath, so if you were to make a false answer to any question you could be prosecuted for perjury. Do you understand what I've just said?
[MOVANT]: I understand.
(Doc. 157 at 13.) The prosecutor then described An Kil's preparation and execution of the fraudulent immigration forms on April 5, 2011 and Movant's role in that crime. (Id. at 14-17.) And as discussed in the R&R, Movant agreed with the facts as described by the prosecutor and confirmed his guilt when questioned by the Court about the specifics of the crime. (Id. at 17-18; Doc. 169 at 3-5.)
One year after admitting under oath the facts of his crime, Movant now says he has made "honest, unrelenting declarations" of innocence. (Doc. 172 at 11.) Yet Movant incredulously contends that he relented in such protestations of innocence at the most important times - for the entirety of the plea hearing and when he negotiated and signed his plea agreement. And he contends that he did so despite telling the Court at the plea hearing that he understood the penalty of perjury and that he had to testify truthfully about the facts of the crime.
Movant blames his allegedly false testimony at the plea hearing on a language barrier: "Because of Movant's inability to fully understand the English language, Movant misunderstood several critical things that were said to him during the plea colloquy." (Doc. 172 at 16.) The record refutes Movant's eleventh-hour claim. An interpreter was present at the ...