Johney Pham v. United States

Nonetheless, we are concerned Johney PHAM, Petitioner-Appellant, previously errors identified

specific factual magis- on had some effect might have v. attrib- damages trate calculation of judge’s America, UNITED STATES of injuries. Presley’s We utable facial Respondent-Appellee. further consider- therefore believe that facial No. Presley’s past and future 00-2328. ation injuries is also warranted remand. Appeals, United States Court of Second Circuit. con summary, because we are In fac cerned that the identified erroneous Argued: Feb. may findings have influenced

tual 15, 2003. Decided: Jan. Presley’s magistrate judge’s decision award damages, damages we vacate for

against the remand United States we seek remanding,

reconsideration. correction of what

clarification either

appear some mischaracterizations or to be they

assurance that have not affected damages emphasize

ultimate award. We all wit the ultimate decision credibility persua as to

nesses’ testimony their for the

sive force of fact,

trier of as is the ultimate determina damages, subject only

tion of the outer

limits of reasonableness.

CONCLUSION reasons, foregoing

For we vacate

judgment against Hernandez and remand Rule 59 reconsideration of Hernandez’s damages

motion. also vacate We against

award States and re- United Presley’s

mand for further consideration of against

claim the United States. surgeries Presley’s using Presley deformity makeup, the further had tes- doctor without might appearance "very tified reduce the was still a attractive woman.”

Jeffrey Pittell, York, NY, G. New Petitioner-Appellant. Proceed- Governing Section 2255 R. Fed. Johnson, United Assistant F.

William court, having The district ings District 7 and 8. for the Southern Attorney States White, sentencing, United (Mary Jo trial and over Pham’s presided York of New Pesce, A. Assis- Teresa the back- Attorney, familiarity with a States had close also brief) Attorney, on the claims, States yet tant United it failed of ground petitioner’s NY, York, Respondent-Appellee. for New explicit knowledge to make on this to draw incredible. finding Pham reasons its SOTOMAYOR, and Before: POOLER an- the district to allow remand We KAPLAN, District and Judges, Circuit petition. to review opportunity other Judge.* KAPLAN and Judges SOTOMAYOR BACKGROUND opinions. concurring separate filed 1995, jury convicted a trial In October POOLER, Judge. Circuit in alien conspiracy engage Pham of filed from orders Johney appeals Pham conspir- taking hostage and and smuggling 2000, 13, 2000, and 12, October April money, in violation acy receive ransom 2000, 6, of the United States November 371, to commit conspiracy § of 18 U.S.C. of District for the Southern District Court of 18 U.S.C. in violation kidnaping, (Louis Stanton, Judge) de- L. York New in 1201(c), kidnaping, viola- § substantive pur- corpus petition filed nying his habeas 1201(a)(1), receipt § tion of 18 U.S.C. Pham § 2255. claims suant to 28 U.S.C. a kid- money connection with in ransom attorney ineffective that his trial rendered 1202, § of 18 U.S.C. naping, violation convey plea failed to a when he assistance aliens, in violation illegal transportation of in the record to Pham. We have 1324(a)(1)(B), § conceal- of 8 U.S.C. from Pham and submissions below serial aliens, in illegal harboring ment court, and the district from serial orders 1324(a)(1)(C). § of 8 violation U.S.C. litigation has created piecemeal this multi- that Pham and alleged government which we can determine record from kidnap- in a participated ple co-defendants appropriate. Pham’s denial of beginning conspiracy ransom ing and attorney’s Pham to show that undocu- they smuggled early 1994 which considering performance was unreasonable the Unit- immigrants into mented Chinese caused Pham all of the circumstances hostage held and then them ed States Washington, v. prejudice. See Strickland from payments demanding additional while 688, 694, 104 S.Ct. 466 U.S. de- immigrants’ families. Nine (1984). incorrectly By deter- L.Ed.2d 674 including guilty, pleaded fendants two— no preju- Pham had suffered mining that trial, after convictions Pham —sustained develop dice, fully court did not the district On fugitives. remained and two others defi- reasoning on the issue counsel’s its 12, 1997, the court sen- district November we now see performance, issue cient months imprisonment, Pham to 210 tenced has a wide A district court dispositive. years supervised release $300 three developing it in variety available to of tools assessment. On October special yet proceedings, during habeas the record and sentence we conviction do so here. See affirmed court faded to * York, sitting by designation. Kaplan of the New Lewis A. United The Honorable Southern District Court for the States District Wei, summary States v. lawyer order. United but Pham’s never told Pham (table). (2d Cir.1998) By F.3d about the offer. letter dated October 7, 2000, the government responded to 29, 1999, Pham On November filed supplement and attached an affir- pro corpus peti- district court se habeas mation from Pham’s trial counsel. peti- tion dated November 1999. The affirmation, attorney Siegel stated that he issues, including tion raised number of always related offers to Pham and trial claim of ineffective assistance of coun- client, discussed them with his “but lawyer’s pursue sel on the based failure always [Pham] maintained his innocence.” plea negotiations on Pham’s behalf. In an Siegel’s Attached to copy affirmation was a petition, affirmation filed with the 16, 1995, of June correspondence in which attorney, that stated he asked his Martin Siegel sent government’s global plea the Siegel, plea bargain to seek a J. but “Mr. offer to Pham prison at the in Otisville. In Siegel never communicated to me about 12, 2000, an order dated October the dis- sought plea negotiation, whether he the or trict court denied supplement Pham’s be- government might what the have said on government’s cause the submission “estab- request.” Pham also stated-that he lawyer lishes that his responsibly and lawyer willing plead told his he was to timely brought government’s plea the offer if guilty he received a sentence of between to his attention.” eight years five and but counsel “never gave an account on whether he ap- [him] Apparently unaware of proached government request, on [his] order, court’s latest Pham sent a letter to government anything or whether the said 17, the court dated October In 2000. request.” on that letter, Pham Siegel’s claimed that affirma- The district court summarily denied the tion was false and that Pham never re- petition in a memorandum and order dated ceived plea agreements letters or from 11, April 2000. The district court held Siegel while Pham inwas Otisville. Pham that, assuming allegations were also denied that Siegel ever visited him at true, Pham nonetheless failed to demon- Pham, According Otisville. prison’s performance strate that “counsel’s records would demonstrate that Pham range pro- outside the wide of reasonable never received the letter that Siegel judgment” fessional or that Pham suffered claimed to have sent. Pham also said prejudice. point, On the second the dis- prove he could Siegel never visited trict court held that Pham’s claim that he through prison records and evidence from plea would have taken a was frivolous in interpreter pres- who would have been light of his continued insistence on his a during ent visit. The district court re- innocence. sponded to by denying Pham’s letter him a appealed sought evidentiary hearing the order and a or an COA a memo- (“COA”) appealability 2, certificate of in dis- randum endorsement dated November court, protesting summary trict the court’s In a letter to the district court 30, 2000, facially petition. dismissal of his again valid a dated October un- Pham — “supplement” COA, to his motion for a aware of the court’s order-renewed his Pham informed request the district court that he for a or COA attached just through learned fulfillment of a Free- an unnotarized statement from a Vietnam- dom request interpreter of Information Act that the ese who said she “did not government offered accompany lawyer anyone co-defendants Mr. Pham’s case, Pham, Otisville, including global plea bargain a else to New York to trans- FCI

182 counsel have convey plea offer. Defense there, take and discuss toor late clients duty give their a constitutional Otisville.” at FCI Mr. Pham offer to crucial decision advice professional No- request on court denied district from the accept plea of whether 21, 2000. vember 492, Keane, F.3d v. 99 Boria government. filed on March By order Cir.1996). (2d States also United See for a motion pending granted Pham’s we (2d Gordon, Cir. F.3d 379-80 v. of “whether single issue COA on curiam). 1998) might if there “Even (per of a to advise him failed counsel [Pham’s] counsel where defense circumstances be Our by government.” made plea offer acceptance of as to render advice need not court’s denial of the district review no doubt bargain, there can be is for abuse hearing on the habeas always must communicate counsel States, 250 Chang v. United discretion. any plea bargain the terms of defendant Cir.2001). (2d pres it Because F.3d v. Cullen prosecution.” offered fact, law and question of a mixed ents (2d States, Cir 194 F.3d United ren counsel of whether defendant’s issue .1999) . de warrants assistance ineffective dered review. Id. novo Prejudice I. focusing on the first Rather than

DISCUSSION test, the Strickland part of argument renews his appeal preju Pham on to show that Pham failed court held ineffective assistance he received re part that of the test the second dice as lawyer his trial failed because Generally, counsel a defendant suffers quires. global plea government’s him of the probabili inform a if there is reasonable prejudice that he also contends Petitioner offer. ty his reliance on counsel’s ineffective that issue. to a on this pro entitled was of the affected assistance outcome district responds that government Gordon, The at 380. The ceedings. 156 F.3d on the petition properly court denied 2 order held court in its November district Pham failed to it because objective record before presented evidence that Pham no objective either with evidence demonstrate self-serving statements that his other than was defi- lawyer’s performance that his accepted plea offer. It he have would prejudice. or that suffered cient Pham precedent requires some our true other than defendant’s objective evidence on the relevant parties agree Gordon, prejudice. assertions to establish a Defendant suffers legal standards. However, signifi a 156 F.3d at 380-81. he re violation when Amendment Sixth sentencing disparity in combination cant In assistance of counsel. ineffective ceives of his intention statement defendant’s assistance, Pham prove order to ineffective support prejudice finding. is sufficient to (1) representa counsel’s must show “that McGinnis, 381; 233 also Mask v. Id. at see objective standard fell below tion (2d Cir.2000), cert. 141-42 de F.3d (2) reasonableness”; is a “that there nied, S.Ct. 151 534 U.S. 122 that, coun probability but for reasonable (2001). these 240 Both of ele L.Ed.2d errors, the result unprofessional sel’s present are here. ments have been different.” proceeding would here never con The district court Strickland, at 104 S.Ct. 466 U.S. sentencing dispari undisputed Amend sidered A suffers Sixth defendant high least 113 months between attorney ty of at fails injury ment where 183 tion, compels offer and reversal on government’s prejudice end of the trial Pham’s sentence after a conviction. prong. Siegel’s We note that affirmation Instead, rejected court Pham’s state- directly does not rebut Pham’s claims that accepted have ment that he would he was disparity unaware of the sentence years. The district eight offer of five to vulnerability or his to vicarious liability. court held that assertion he “[Pham’s] Additional evidence therefore required was pled guilty have is belied the fact would before the district court could find that § in his claims motion he still he Pham pleaded would not guilty have even In charges.” is innocent of the both its if government’s he knew of the plea offer. orders, April 11 and November the dis- quoted parts trict Pham’s habeas performance II. Deficient support of its conclusion. quotations These in context show that April orders, its and November consistently participat- while denied the district court seemed to acknowledge abuse, ing kidnaping the actual he that, taking true, allegations participating in certain admitted acts of defendant part satisfied the first conspiracy a truck renting such as to Strickland standard because Pham’s law- $5,000 transport exchange the aliens in yer did not communicate the terms of a procuring handgun. What dis- plea offer to defendant. There is some acknowledge trict court also failed to point subtle confusion on this due to the Pham’s assertion that he was unaware of piecemeal development of the record and liability vicarious theories would allow the evolution of Pham’s assertions. At the him guilty kidnaping to be found order, April time of 11 only the Pham smuggling conspiracy even if he did not lawyer pursue claimed that his failed to participate govern- certain acts as the plea negotiations, and the district court alleged. Contrary ment to the district failing pursue plea held that to was not assertion, court’s Pham’s did not performance. By deficient the time of the present a blanket claim of innocence. order, plea November 2 Pham knew that a disparity in We have held that where the offer had that existed and claimed his at- potential great, sentences is a finder of torney conveyed If never the offer to him. may fact infer that profess defendants who any question there is whether failure to plea. their innocence still will consider a pursue plea negotiations per- is deficient Cullen, (holding 194 F.3d at that Doe, formance, see Brown v. 2 F.3d magistrate district court could not overrule (2d Cir.1993), dispute there is no that factual judge’s finding point on this with- convey a plea failure to offer is unreason- conducting hearing). out its own The dis- Cullen, performance. able 194 F.3d at parity plea here was a offer of 78 to 97 failing 404. The distinction between to months and a sentence after trial of 210 pursue failing convey plea to offers is months, which is more than double. Our immaterial here because the district court precedent at a minimum indicates that the also found in its 12 order that the October summarily district court erred in deter- established, government through the affir- mining prejudice the absence of without counsel, mation of Pham’s trial considering disparity. even the sentence “lawyer timely responsibly brought Mask, 141-42; Cullen, at 233 F.3d government’s [Pham’s] 407; Gordon, F.3d at 156 F.3d at 381. evidence, it attention.” Because found Strickland’s coupled This with the district peti- prejudice prong dispositive, court’s of Pham’s the district mischaracterization pre- 8. Our required. is Id. hearing also perfor- findings regarding deficient court’s summary dismissal disapproves of cedent developed. fully mance are exists, but where factual issues petitions of appeal contends government The deciding dis- a “middle of permits it road” credible, objective produce Pham failed submis- facts on the basis written puted Specifi- his claim. support evidence F.3d at 86. Chang, 250 sions. Pham’s dismisses cally, government surrounding Pham’s circumstances The unnotarized, many and in “self-serving, unnecessary. may claim make statements,” af- unsworn, credits the cases report re- example, pre-sentence For criti- lawyer, trial from Pham’s firmation Pham, petitioner stated he garding which prison produce failing cizes Pham understood, that four de- noted read and mail, and incoming discounts records was indicted with whom Pham fendants interpreter’s statement weight Nonetheless, July guilty pleaded interpreters par- because several different years after his sentenc- Pham waited two case. The in the ticipated multi-defendant the uncon- raising the issue of ing before only issues arguments raise government’s conviction, veyed plea offer. After subject of addi- be the of fact that should Rule 33 Pham in an unsuccessful motion court. inquiry the district tional only attorney’s performance challenged his attempts also foreclose government lawyer had ground that his advised by stating that arguments testify though he must him not to even global under not have benefitted could additional fail- about counsel’s have known one other offer because co-defendant plea. pursuing possible ure in at least however, evidence, to trial. There went circumstances, are in of which These none did not government enforce decisions, may warrant court’s four provision of its offer because “global” finding against Pham. pleaded in the offer defendants named merely court here credited govern- unfair the The district also view as guilty. We trial counsel of Pham’s producing Pham for not affirmation criticism of ment’s affirmation and drew infer- over Pham’s during proceedings be- mail prison records the record adverse to Pham ences doing so be the burden of would low where support, ignoring such as the does not pro than se government less on the a far sentencing disparity and discussion litigant. incarcerated addition, the liability. fact of vicarious eviden- though demands an Even un- original petition in was that Pham his government contends tiary hearing, the lends some global of the aware the hearing required because no at ignorance his claim the weight to of to sufficient material paper record contains Indeed, the district fault of counsel. the court’s denial of support the district suggest that it decisions believed court’s the court’s It is within district petition. a “middle road” of hearing no or even hearing whether a to determine discretion necessary. development record Chang, 250 F.3d at 85-86. is warranted. to The ultimate here is admit of materials available issue Among the wealth close, may it that Pham’s tedly the well be court at its direction are the district Nonetheless, exhibits, letters, documents, lack merit. the record, allegations trial in court abused its discretion its district interrogatories. and written affidavits of the record and consideration Governing 2255 Proceed- selective Fed. R. Section parts record, upon existing to draw the its even ings expanding 7. After the failure support to its conclusions. evidentiary if of the record decides court then district

185 summarily § in adjudicating discretion risk of 2255 court has wide the district While record, unamplified “paper” claims on an it will use to developing the record pro petitioners, and the need to advise se that discre- petition, a habeas determine early proceedings, in the factual summary not extend to dismiss- tion does specificity required to dismissal of avoid facially presenting valid petitions als of § petitions. their interactions with claims and off-the-record Chang, 250 F.3d at 85. trial counsel. See Recognizing potentially unfair conse- quences summary it exists does not presently record as dismissal of habeas The petition, § requires “prompt hear- petition. denial of Pham’s support claims,

ing” except on the movant’s where “the motion and files and records CONCLUSION conclusively prison- that the case show reasons, foregoing judgment For the er to no is entitled relief.” U.S.C. is vacated and this of the district court provides § also that the 2255. The statute proceed- remanded for further matter is court, may granting hearing, after decide opinion. with this ings accordance requiring produc- the motion “without Id.; at prisoner hearing.” tion of the SOTOMAYOR, Judge, Circuit States, see also Machibroda v. United judgment. concurring U.S. 82 S.Ct. 7 L.Ed.2d 473 today holds that the dis- Judge Pooler (1962) “prompt (observing hear- its discretion its trict court “abused that a ing” requirement “imply does not of the record and selective consideration always appear movant must be allowed upon existing parts to draw its failure even in a court for a full if the district conclusions,” support its of the record to conclusively expressly record does judg- claim, that the accordingly vague, determines belie his no matter how con- clusory, allega- or palpably must vacated and the incredible ment be be”). may tions agree. I I further must be remanded. analysis of substantially

concur with her variety fact-finding approaches assistance of Pham’s claim of ineffective by expansion taken courts—from however, separately, I counsel. write by record means of affidavits and other I emphasize what see as fundamental discovery, through written submissions problem that led to much of the procedural hearings testimony with live to full-blown difficulty this case: with by movant and other witnesses —re- decisions, multiple responding § court’s flexibility fact-sensitive of 2255 flects the petitioner piecemeal applied prisoners’ submissions habeas motions.1 flexibility Although this is consistent government, and the illustrate both the States, 79, (2d Chang F.3d 86 variously scope v. United 250 1. Courts have tailored Cir.2001) "prompt hearing” § (noting under 2255 to meet court has that a district evidentiary perceived needs of the case. road” of ex- discretion "to choose middle instances, may needs lead the In some those panding by written sub- the record means of expansion district court to order an of the testimony requiring live missions without affidavits, motion and trial record to include counsel). trial In other of the movant and documents, records, or other evidence sub- cases, dispute of the before the the nature by parties mitted in written form. See may require a testimonial hear- district Machibroda, 495-96, 368 U.S. at 82 S.Ct. 510 495-96, Machibroda, ing. 368 at 82 See U.S. that, hearing (remanding §a at a 2255 510; Hayman, v. S.Ct. see also United States minimum, require expansion would of the 263, L.Ed. 232 342 U.S. 72 S.Ct. 96 docu- motion and trial record to include such (1952) ("Where is- ... there are substantial records); prison ments as visitation and mail 186 adjudication, it precludes summary tions of a district court to

the “sound discretion” should ensure that a Ml record is devel- evidentiary hearing, the kind of determine disputed issues and that a live oped on case, in a v. require if Sanders any, part of hearing be included as testimonial States, 1, 21, 83 S.Ct. 373 U.S. United process when warranted.2 (1963), 1068, sug- it also 10 L.Ed.2d 148 prisoner court has determined A not trained in the law or gests that once the legal process might familiar with reason- prisoner’s allega- the nature of disagree Judge Kaplan's prisoner I also with conclu which the sues of fact as to events in sion that the district court would be entitled require his participated, the trial court should credit the affirmation of Pham’s counsel hearing."); Cullen production 2255] for a [§ past over Pham’s affirmation based on his States, 401, (2d 407 Cir. 194 F.3d v. United Any with Pham. such determina interactions 1999) (remanding for de novo consideration credibility Pham’s lack of on this rec tion of findings ineffec magistrate judge’s in an of a premature, light ord would be of Pham's case, requiring a testimo tive-assistance evidence, documentary provide offer to in the event that nial in the prison form of the mail records and the testi any credibility findings judge rejected based mony interpreter, support of the Vietnamese magistrate testimony given live before the ing that he had never been his contentions Pisciotta, judge). v. F.2d In United States 199 plea agreement. possibility advised of the Court, 1952), (2d Cir. this dissatisfied 603 States, 1196, Gallego v. United 174 F.3d Cf. "conclusionary statements” offered in with (11th Cir.1999) (“[W]e adopt cannot 1198-99 movant, § pro per the affidavit of a se 2255 per se 'credit counsel in case of conflict remand to file a cura prisoner mitted the rule,’ allows that in case where the which 606-07; affidavit.” at "supplemental tive Id. issue comes down to the 'bare-bones testimo Allison, 63, Blackledge 431 82 n. v. U.S. cf. ny’ against contradictory of the defendant (1977) S.Ct. 52 L.Ed.2d 136 counsel, testimony going defendant is ("[BJefore dismissing facially adequate [habe- time.”). every generally Iragorri See v. lose evidentiary allegations of an hear as] short (2d Corp., United Techs. 274 F.3d Cir. judge ing, ordinarily should seek as a district banc) 2001) (in (noting importance of live per a minimum to obtain affidavits from all testimony credibility witness for assessment of likely knowledge fact). of the sons to have firsthand and demeanor the trier of Even any plea agreement.”). previously existence of where a district court has found a petitioner lacking credibility to be on issues § unrelated to claims asserted disagree Judge Kaplan’s I with conclusion rejection peti petition, the wholesale of the development the record that no further is support § tioner’s affirmations in necessary majority here and note that the improper might be where there holding. opinion does endorse such a corroborating petitioner’s other evidence Judge Kaplan the fact that makes much of contentions. The resolution of such credibili Sep- "Pham knew when he went to trial in ty against petitioner determinations based tember of 1995 that several of his co-defen- solely previous on the district court's interac dants, including present individuals when he petitioner and conclusion that tions with the July, arraigned were and that absent wolf,” "crying he more rather than on is once only other defendant on trial with him evidentiary concerning a full record material Nguyen.” was Nhat Due Even if Pham was issues, In would be an abuse of discretion. presentence report aware from the trial or the deed, "boy who cried wolf” even the fabled pleaded that several of his co-defendants had did, eventually, see an actual wolf. however, guilty, this does not mean Finally, even if there were not an issue here any possibility Pham knew of that he could respect Pham received the to whether Further, guilty. may plead while have there offer, global plea remain a there would still opportunities been other to discuss of- question whether Pham had re- substantial fers, global plea expire the offer was to before ceived effective assistance of counsel because appearances July August the two court in and explained to his counsel never stated that he 1995; dispute thus the over whether Pham accomplice liability conspiracy Pham that or global having received the letter and offer in committed could arise without Pham's herring.” June not a "red an overt act or a substantive crime. 1995 is

187 presentation of his ent of his factual claims be- that a heartfelt avowal ably suppose § is veracity, generalized, fore the court ruled on his 2255 motion. however or her evidentiary hearing. to secure an sufficient piecemeal practice of this motion Some might not infer from typical prisoner by giving pro could remedied se be habeas § the relevant § or or from 2254 reply movants time to to the Government’s the the local rules of dis federal rules or and answer defense counsel’s counter-affi courts, required for ob trict that more davit, by pro informing and se movants of plain “short and taining hearing than the in importance specificity the of factual the showing of the claim statement in affidavits or other written materials to relief” that is re pleader is entitled reply. roughly cluded in their In the anal Fed. pleadings initial under quired for summary mo ogous judgment context of § (“[Applica 2242 28 U.S.C. R.CivJP. Cf. Aiello, tions, see States v. 814 F.2d United shall corpus] a writ of habeas tion for (2d Cir.1987) (“[L]ike 109, 114 a motion for concerning applicant’s allege the facts cases, in summary judgment civil both the detention, name of the commitment government’s 2255 and affida [§ movant’s] custody by over him and who has person together used to deter vits—taken —are authority, if claim or virtue of what genuine issues of mine the existence known.”). Governing Fed. R. But see fact.”), adopted has material this Circuit advisory 4 committee’s note § 2254 Cases salutary pro se liti requirement sufficient, for pleading is C“[N]otice’ nature and gants must understand the expected to petition is habeas] the [federal evidentiary burden consequences their possibility point to a ‘real state facts under 56 be as nonmovants Fed.R.Civ.P. ”) Aubut (quoting error.’ of constitutional granted, can see fore such motions be (1st Maine, F.2d 689 v. State 431 Coombe, v. 174 F.3d McPherson Cir.1970)). (2d Cir.1999) (“[A]bsent indication a clear § Thus, pro se movant litigant se understands the pro that he or she need might context conclude consequences of Rule 56 ... he nature and witnesses, affidavits, or other only identify by so informed the movant or she must be that could made categories of evidence be or, that, failing of motion the notice evidentiary hearing, rather available at an court.”). for This solicitude allega- factual particularized than submit 56 context litigants in the Rule pro se In motion or affidavit itself. tions treating similarly-situ guidance offers circumstances, summary disposition such § context. movants in the ated Cf. might harsh and prisoner’s claim work Nelson, 286, 300, 89 394 U.S. Harris v. case, Pham offered unfair results. In this (1969) 1082, 22 L.Ed.2d S.Ct. evidence in the form present additional (“[W]here specific allegations before prison visitation and mail records the [ha- to believe that court show reason testimony interpreter of Vietnamese fully may, if the facts are petitioner beas] neither support his claim that he had that he developed, be able to demonstrate offer nor dis- received Government’s illegally and is therefore enti- is confined counsel, his defense cussed the offer with relief, duty it is the of the court tled to evidentiary submissions and but proce- necessary facilities provide piecemeal haphazard- proffers arrived Obviously, adequate inquiry. dures for ly, only after the district court may exercising power, this claims to in- initially determined his be appropriate, utilize procedures, familiar consequence, and frivolous. credible civil or are found in the whether these to make a full and coher- Pham was unable ‘usages protracted in the ted from the and inefficient elsewhere criminal rules or ”) in 28 U.S.C. here and principles (quoting process of law.’ that we see chronicled 1651). Governing R. generally § Fed. See other cases we have considered.3 (“If procedure no Proceedings § 2255 KAPLAN, in rules, Judge, concurring District by these

specifically prescribed may judgment. lawful proceed district court rules, with these manner not inconsistent view, my turns on wheth- appeal, This statute, may apply any applicable or rejecting court er the district erred of Criminal Procedure the Federal Rules Pham’s contention that his trial defendant Procedure, Rules of Civil the Federal provided inadequate representa- counsel appropriate, it most whichever deems pursue plea tion he failed to dis- because rules.”). these motions filed under behalf and to com- cussions defendant’s legal knowledge disparities of While majority a offer. The municate trained coun- and skill that exist between court its agrees that the district “abused fully pro litigants sel and se can never be discretion its selective consideration of remedied, should strive to level the courts the record and its failure even to draw process playing by rendering field as upon existing parts sup- of the record to practical fair and reasonable as is in the conclusions,” port including its its conclu- a district court circumstances. Whether provide sion that Pham’s counsel did not dispose prisoner’s decides to claims on representation. Judge Soto- inadequate the motion and trial record or after order- indeed, mayor, regards the current record ing expansion an of the record or a full inadequate justify such a conclusion. hearing, process leading up testimonial regard adequate I record than as more careful, to that determination involves a to resolve this matter and find no fault in by balanced evaluation the court. mak- the district court’s consideration of the evaluation, ing pleading this context of I judgment, evidence. concur in the how- case, given including the difficulties ever, it because is unclear whether untutored, pro an faced se movant seek- finding district court’s that Pham failed to ing in an unfamiliar obtain representation establish that his counsel’s forum, carefully medium should be constitutionally required fell below the assessed. Had the district court in the minimum last was intended survive the Pham, present encouraged case either be- view, my of Pham’s submissions below. In response fore the court invited a to the explicit finding point, on this without petition from government or after that re- record, expansion of the suffi- would be received, sponse was to come forward with judg- cient to affirmance of warrant materials, affidavits, relevant factual ment. potential particularly after witnesses— copy Pham had obtained a of the Global I Plea Offer from the DOJ —much this history saga piecemeal procedural The detañed of this submissions and serial rulings analysis pivotal proper could have been avoided. case is to the parties appeal, highly Neither the nor the court benefit- this as it is relevant to the See, e.g., Chang, (noting allegedly pro- 250 F.3d at 82 first time a witness who could Pisciotta, pro testimony); after the district court had denied the se vide corroborative § request (permitting supplemental affida- movant's 2255 motion and for an F.2d at 607 evidentiary hearing, prisoner vit remand to “cure” defects in the initial submitted affidavit). mentioning § motion for reconsideration for the 2255 motion and superceding full seventh indictments save not to hold a decision court’s district Pham, Nguyen fugitives Due and two Nhat hearing denying evidentiary before Thus, Pham pleaded guilty. by the time petition. habeas September to trial on Pham went and Trial A. The Indictments that all one of his co-defendants knew but (other fugitives) being than the were not were and six other defendants Pham him. tried with conspiracy 1995 with charged May on in a thir- variety of other offenses and Hearing D.The New Trial Motion and count, indictment. superceding sixth teen of his co-defendants were Pham and three Pham in was convicted October 1995 May judge on brought before the district trial, promptly moved for a new contend- Shortly conference. pretrial 1995 for a ing deprived right that he had been of his thereafter, jury a sev- grand returned testify defense the error to his own Pham naming indictment superceding enth interpret- or misconduct of the Vietnamese Pham and eight other defendants. affidavit, moving In his he contended er. the dis- arraigned were before four others upon interpreter that he had relied to that date. judge trict on in conversing aid him with his trial coun-

sel, Siegel, Mr. and that he failed to take Suppression Hearing B. The the stand in his own defense because the interpreter, relaying remarks the inter- trial, suppress Pham to Prior to moved at- preter Siegel, “your attributed to said statements, of custodial contend- evidence torney you does not want to come out and (a) fully to under- ing that he was unable testify, testify. you If do come out and it English language an Miranda ad- stand you, would hurt it would not be beneficial (b) form, rights “understand vice Pham, Siegel told you.” According to ad- and nature of the grasp the contents subsequent him in a conversation that Sie- was written in Viet- rights vice of which any thing, never had said such a state- gel hearing testimony from namese.” After by an affidavit from ment corroborated presented Pham agent an FBI who had Siegel. Pham, and from with the forms findings the effect court made detailed evidentiary judge district held carefully

that Pham read and understood interpreter Pham’s claim. The English that the the Vietnamese form and any interpreted that he never had testified by him. form was read to and understood concerning whether conversation found, my ob- specifically “[biased He Pham, contrast, testify at trial.4 should Pham, I do [that] servation of defendant question interpreter testified testimony accept his to the extent translated a conversation between contrary.” it is to the concerning whether Siegel Pham and the stand and that Pham should take C. The Trial Siegel did had told Pham that interpreter testify “because it will August not want Pham to During July the course of your case.”5 At the conclusion and be bad for all of the defendants on the sixth testify Nguyen because it is bad for subject was Due 4. The closest he came to such case.” message Bogatin, relay from Mr. to Pham representing Nhat Due who was co-defendant interpreter in Siegel then testified that the Nguyen, not “ask Mr. Nhan that Pham should in which question did translate a conversation (1) range wide court found that the formance was outside the hearing, of the the professional judgment” reasonable or that translated conversa- interpreter never a prejudiced by any he was failure to seek Siegel, Pham and nor said tions between plea agreement. It denied the motion and Pham, all to about whether anything at appealability. a certificate of (2) testify, Siegel Pham had should right testify had a to advised Pham he appeal Pham a and a then filed notice “no gave in his own behalf and recommen- appealability. a motion for certificate of to whether he dation or instruction as latter, document, The an unsworn reiterat- testify or not.” It concluded so should lawyer ed Pham’s contention that his had motion which rests on Mr. much “of the pursued plea bargain gov- a with the 27th, of November Pham’s affidavit also, It first ernment. asserted the on the facts and the law should be denied time, that Pham had heard from “a reliable government that the had offered

source” opportunity him plead guilty to Sentencing E. The sentence, year a five receive but counsel sentencing Pham came on for on No- never had communicated that offer to him. 12, 1997, years later, than supplement vember more two time a Some Pham filed appeala- after his conviction. The minutes reflect to the motion for a certificate of and, presentence report bility copy that he to which he a had attached letter, 14, 1995, indeed, that it had translated into dated June from the Assis- been Attorney tant to copy Vietnamese and a of that version United States the defen- provided dants’ counsel. The letter offered Pham to him. Pham stated that he had opportunity and his co-defendants an to Siegel. been over the PSR with The PSR plead guilty, acceptance by conditioned on disclosed that most of his co-defendants all, and, cases, arrangement pursuant under pleaded guilty some guideline range which Pham’s would have imposed. suggested sentences Yet Pham imprisonment. been 78 to 97 months of Siegel’s representa- no dissatisfaction with tion, Siegel let alone that had failed to government responded by submit- pursue plea bargain a on his behalf. alia, ting, Siegel inter a declaration of which he stated that he and Pham “had F. The Section 2255 Motion meetings numerous and conversations to Pham filed this motion on November trial strategy possible discuss as well as here, 1999. Insofar as it is relevant offers,” plea that he had Pham of advised supporting papers asserted plea government,” “all offers made “[fjrom very beginning that Pham copy that he had sent Pham a proceedings” Siegel to seek global plea instructed written offer that Pham had plea bargain a government, but supplement attached to his motion Siegel him never told whether he had appealability, for a certificate of and that what, if any, response gov- done so or repeatedly refused to consider By April ernment made. order dated pleading guilty. The declaration contained rejected the district court this claim copy Siegel’s transmitting letter grounds the alternative that Pham had government’s written offer to Pham. “not per- demonstrated that his counsel’s On October the district court Siegel right testify, advised Pham of his but er to take the stand Pham's. that he had told Pham the decision on wheth- discussions, assuming ar- responsibly and tion with “lawyer found guendo that failure to follow client’s plea offer timely brought government’s pursue plea bargain would denied a certifi- instruction again to his attention” constitutionally repre- constitute deficient appealability. cate of sentation. Meanwhile, a re- prepared Pham had submission, government’s sponse to the appears in the panel The to be united entry following the of the arrived

which enjoy view that district courts discretion In another unsworn 12 order. October determining hearing whether a testimonial letter, had received Sie- he denied that he necessary to resolve a Section 2255 mo- is plea transmitting global gel’s letter presents disputed that question tion that FCI Otisville re- offer. He asserted See, States, e.g., Chang fact. v. United correspondence sign inmates to quired (2d Cir.2001). 79, 86 the limits F.3d While rec- attorneys and thus should have from discretion, perhaps, of such are not entire- his denial of that would corroborate ords clear, ly Supreme Court has made Siegel never He contended that receipt. hearing required, that such as plain no is Otisville, allegedly him at had visited case, allegations are too in this where the apparent from a review of have been would conclusory, “palpably vague, incredible.” Finally, he maintained log. the visitors’ States, E.g., Machibroda v. United held, that, he would call were a 487, 495-96, 510, 7 L.Ed.2d 82 S.Ct. U.S. interpreter,” would “the who Vietnamese (1962). view, my That proposition, visited me with Mr. “testify that she never dispose Pham’s conten- is sufficient to not, He did how- Siegel at FCI Otisville.” pursue tion that his trial counsel failed ever, possi- discussed the deny that he had plea bargain. plea Siegel at other bility guilty that instructed Mr. Sie- Pham claims he locations. very pro- of the gel beginning “from the dated In a memorandum endorsement bargain with ceedings” pursue court recit- the district November any Yet he did not raise government. history plea bargaining of Pham’s ed the Siegel’s alleged failure to question about receipt acknowledged of his contention despite Siegel his claim that do so—this denying receipt global of the letter reported to him about such never back addressing the again Rather than offer. than November more effort—until Pham and conflict between the accounts of hearings years later and well after the four however, judge as- Siegel, Mr. trial motions. suppression and new on his Pham’s assertions arguendo that sumed powerful in itself is evidence This true, applica- but denied the renewed were after- Pham’s contention is belated faded to ground on the tion But, later. there thought, years invented in that he had not dem- prejudice establish persuasive proof. even more is probability that he onstrated a reasonable plea offer. accepted have would to trial Pham knew when he went co- 1995 that several of his September II defendants, present including individuals July, were ab- arraigned is when he was question threshold therefore The only other defendant in declin- sent and that the the district court erred whether Nguyen. Due with him was Nhat evidentiary hearing on trial ing to hold they had that he knew that counsel did The inference Pham’s contention that his trial a matter of pleaded guilty in connec- not render effective assistance —which to exercise their common sense.” Machib public compelling, which would record roda, until make silence on this issue Novem- 368 U.S. at 82 S.Ct. damning. more In the last ber 1999 even however, analysis, even this inference is Ill

unnecessary. becomes whether question then sentencing on for more than Pham came submission, Pham’s final in which he de- his conviction. The min- years two after receipt global plea nied both presentence that he had the utes reflect Otisville, him Siegel and that had visited at and, indeed, that it had trans- report been changed anything. copy and a of that lated into Vietnamese him. provided version He stated Certainly, Siegel Pham’s contention with his coun- he had been over the PSR never had visited him at Otisville raised no that of his sel. The PSR disclosed most Siegel only material issue of fact. swore and, in pleaded guilty had co-defendants had that he had numerous discussions and cases, imposed. the sentences Nev- some kept with Pham him meetings and had ertheless, suggestion still was no there fully apprized possibility of a about the Siegel disregarded that had Pham’s in- plea bargain, not that he had him at visited pursue plea bargain. structions to Otisville.6 So the matter boils down to really If Pham had interested in been Siegel’s Pham’s contention that letter with very negotiating plea begin- “from the copy plea of the written offer never ning” nothing but had heard from back implicit reached him and his that assertion Siegel, his failure to raise that contention Siegel. he never discussed it with and, certainly, prior to trial at or before majority The on conten- focuses Pham’s sentencing inexplicable. would be Even Siegel’s tion that he received letter never inexplicable more would be his failure to by checking and that this could be verified during raise the issue the two additional proceeds records at FCI Otisville and then years passed sentencing that between his “merely to fault the district court for cred- alone, filing and the of this motion. This it[ing] the affirmation of Pham’s trial coun- view, in my “palpably renders his claim view, my sel over Pham’s affirmation.” Moreover, incredible.” the district court however, dispute over the is a letter already evidentiary hearings had held two herring, red and the characterization of at which Pham had testified —one on the the district court’s con- treatment of the suppress motion to and the other on flict Pham and inaccu- Siegel between is Pham’s new trial motion—and found rate. testimony unworthy of belief both occa- sions. begin, question To whether Pham at circumstances, Siegel’s received letter Otisville is be-

In all the the district point. Siegel’s side the letter was dated surely in court did not abuse its discretion in appeared June 1995. Pham court rejecting, evidentiary hearing, without an Siegel July August Siegel Pham’s that and contention had ren- suppression hearing as well as for the and failing dered ineffective assistance to trial, pursue plea bargain. began September. Section 2255 “does which late strip ample not all him opportunity the district courts of discretion There was for suggestion 6. Pham of course was at the courthouse in in the record that he was incarcer- City pretrial post-trial New York hear- only ated at Otisville. ings, sentencing. the trial and his There is no plea of- that implicit assertion in Pham’s bargains have discussed to Siegel to him was communicated written never was fer government’s general Second, the district question assuming real The false. particular. the offer finding prior communicated to its Siegel to adhere court meant whether a written Pham received him, whether fully not informed kept Siegel So, of I find no abuse copy at Otisville. it possibilities, plea discussions about failure court’s in the district discretion the af- “merely certainly credit[] did not from mail records require production over trial counsel Pham’s firmation of addi- pursue or otherwise FCI Otisville had the benefit It affirmation.” Pham’s question regarding tional evidence declaration, but only Siegel’s letter, authenticity of Siegel’s whether claim in Pham’s improbability of utter actually ever unquestioned, which it, delay raising lengthy light reached Pham.7 against his when measured particularly the district suggestion Siegel pursue that he told insistence over Siegel’s declaration credited simply pro- very beginning “the plea from it, two letter, is flawed in as I see evidentiary hear- ceedings,” and of two court’s First, while respects. findings of which resulted ings, both Sie- certainly credited 12 order October false.8 by Pham claims were prior Pham’s, its November over account gel’s reasons, join the I cannot For these by Pham’s prompted was 2 order —which opinions. of the other reasoning of either Siegel’s received that he never contention lack Nevertheless, I troublesome the find written copy the the of letter with order finding in the November credi- the revisit explicitly not offer—did final submis- Pham, notwithstanding the arguendo It assumed bility issue. global the sion, fully apprized of was the regarding Pham’s assertion truth of court the district I believe While offer. ground the off instead went letter and making such justified have been would pleaded guilty would have that Pham record, may not we existing on the finding preju- was not and therefore any case I therefore that it did so. simply assume Thus, un- it is deficiency. diced further remanding for vacating and join in court, upon the district clear whether remand, the district If, on proceedings. submissions, in- of all of the consideration finding, even on to make such court were findings Sie- its to adhere to tended record, regard I would present and that was accurate account gel’s previous court's solely question based that the Sotomayor argues Judge 7. respectful- petitioner, I Siegel's with” the letter received interactions whether submit, Judge just point, while was global plea offer he does copy ly misses argument, significant. The sim- district court at Otisville however, contention that Pooler's important ignores the fact Pham's over Siegel's declaration ply credited discussed whether Pham knew issue is Rath- description is accurate. Neither letter. counsel, not whether he with his er, perhaps presents an unusual case this government’s letter copy of the received reinforcing mutually confluence unique The concurrence at Otisville. while he testi- previous false including Pham’s factors acknowledging, disregards, without simply story, of his improbability mony, the com- opportunities for such undisputed asserting claim notwith- delay long New was in York while Pham munication would facts which standing his awareness appearances. it were if earlier assertion prompted its have strongly suggest that of which accurate —all Thus, Sotomayor’s Judge suggest, as does was a fabrication. claim concurrence, wrong re- would be that it petitioner "against a credibility issues solve finding dispositive as sufficient and

ineffective assistance of counsel claim. ANDERSON,

Simon Plaintiff-

Appellant,

v. RECORE, Director,

James F. Tempo

rary Programs, Department Release Services,

of Correctional Joseph

Williams, Superintendent, Lincoln Facility, Hill,

Correctional Johnella Counselor, Department

Sr. of Correc Services,

tional Defendants-Appellees, GOORD,

Glenn Commissioner, S. New Department

York State of Correc Services,

tional Defendant.

No. 01-0161.

United States Appeals, Court of

Second Circuit.

Argued: Dec. 2001.

Decided: Jan. 2003.

Supplemental Briefing Completed:

April

Case Details

Case Name: Johney Pham v. United States

Court Name: Court of Appeals for the Second Circuit

Date Published: Jan 15, 2003

Citation: 317 F.3d 178

Docket Number: 00-2328

Court Abbreviation: 2d Cir.