Pham v. U.S.

• Decision Date: 15 January 2003
• Docket Number: No. 00-2328.,00-2328.
• Citation: 317 F.3d 178
• Parties: Johney PHAM, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

317 F.3d 178

Johney PHAM, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 00-2328.

United States Court of Appeals, Second Circuit.

Argued: February 4, 2002.

Decided: January 15, 2003.

Jeffrey G. Pittell, New York, NY, for Petitioner-Appellant.

William F. Johnson, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney, Teresa A. Pesce, Assistant United States Attorney, on the brief) New York, NY, for Respondent-Appellee.

Before: POOLER and SOTOMAYOR, Circuit Judges, and KAPLAN, District Judge.^*

Judges SOTOMAYOR and KAPLAN filed separate concurring opinions.

POOLER, Circuit Judge.

Johney Pham appeals from orders filed on April 12, 2000, October 13, 2000, and November 6, 2000, of the United States District Court for the Southern District of New York (Louis L. Stanton, Judge) denying his habeas corpus petition filed pursuant to 28 U.S.C. § 2255. Pham claims that his trial attorney rendered ineffective assistance when he failed to convey a plea offer to Pham. We have in the record below serial submissions from Pham and serial orders from the district court, and this piecemeal litigation has not created a record from which we can determine that denial of Pham's petition was appropriate.

Pham had to show that his attorney's performance was unreasonable considering all of the circumstances and caused Pham prejudice. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). By incorrectly determining that Pham had suffered no prejudice, the district court did not fully develop its reasoning on the issue of counsel's deficient performance, the issue we now see as dispositive. A district court has a wide variety of tools available to it in developing the record during habeas proceedings, yet the district court failed to do so here. See Fed. R. Governing Section 2255 Proceedings 4, 7 and 8. The district court, having presided over Pham's trial and sentencing, also had a close familiarity with the background of petitioner's claims, yet it failed to draw on this knowledge to make explicit its reasons for finding Pham incredible. We remand to allow the district court another opportunity to review the petition.

BACKGROUND

In October 1995, a trial jury convicted Pham of conspiracy to engage in alien smuggling and hostage taking and conspiracy to receive ransom money, in violation of 18 U.S.C. § 371, conspiracy to commit kidnaping, in violation of 18 U.S.C. § 1201(c), substantive kidnaping, in violation of 18 U.S.C. § 1201(a)(1), receipt of ransom money in connection with a kidnaping, in violation of 18 U.S.C. § 1202, transportation of illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(B), and concealment and harboring of illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(C). The government alleged that Pham and multiple co-defendants participated in a kidnaping and ransom conspiracy beginning in early 1994 in which they smuggled undocumented Chinese immigrants into the United States and then held them hostage while demanding additional payments from the immigrants' families. Nine of the defendants pleaded guilty, two — including Pham — sustained convictions after trial, and two others remained fugitives. On November 12, 1997, the district court sentenced Pham to 210 months imprisonment, three years supervised release and $300 special assessment. On October 1, 1998, we affirmed the conviction and sentence by summary order. United States v. Wei, 164 F.3d 620 (2d Cir.1998) (table).

On November 29, 1999, Pham filed in district court a pro se habeas corpus petition dated November 2, 1999. The petition raised a number of issues, including a claim of ineffective assistance of trial counsel based on the lawyer's failure to pursue plea negotiations on Pham's behalf. In an affirmation filed with the petition, Pham stated that he asked his attorney, Martin J. Siegel, to seek a plea bargain but "Mr. Siegel never communicated to me about whether he sought the plea negotiation, or what the government might have said on that request." Pham also stated that he told his lawyer he was willing to plead guilty if he received a sentence of between five and eight years but counsel "never gave [him] an account on whether he approached the government on [his] request, or whether the government said anything on that request."

The district court summarily denied the petition in a memorandum and order dated April 11, 2000. The district court held that, assuming Pham's allegations were true, Pham nonetheless failed to demonstrate that "counsel's performance was outside the wide range of reasonable professional judgment" or that Pham suffered prejudice. On the second point, the district court held that Pham's claim that he would have taken a plea was frivolous in light of his continued insistence on his innocence.

Pham appealed the order and sought a certificate of appealability ("COA") in district court, protesting the court's summary dismissal of his facially valid petition. In a "supplement" to his motion for a COA, Pham informed the district court that he just learned through fulfillment of a Freedom of Information Act request that the government offered co-defendants in his case, including Pham, a global plea bargain but that Pham's lawyer never told Pham about the offer. By letter dated October 7, 2000, the government responded to Pham's supplement and attached an affirmation from Pham's trial counsel. In the affirmation, attorney Siegel stated that he always related plea offers to Pham and discussed them with his client, "but [Pham] always maintained his innocence." Attached to Siegel's affirmation was a copy of June 16, 1995, correspondence in which Siegel sent the government's global plea offer to Pham at the prison in Otisville. In an order dated October 12, 2000, the district court denied Pham's supplement because the government's submission "establishes that his lawyer responsibly and timely brought the government's plea offer to his attention."

Apparently unaware of the district court's latest order, Pham sent a letter to the court dated October 17, 2000. In the letter, Pham claimed that Siegel's affirmation was false and that Pham never received any letters or plea agreements from Siegel while Pham was in Otisville. Pham also denied that Siegel ever visited him at Otisville. According to Pham, the prison's records would demonstrate that Pham never received the letter that Siegel claimed to have sent. Pham also said that he could prove Siegel never visited through prison records and evidence from the interpreter who would have been present during a visit. The district court responded to Pham's letter by denying him a COA or an evidentiary hearing in a memorandum endorsement dated November 2, 2000. In a letter to the district court dated October 30, 2000, Pham — again unaware of the court's order — renewed his request for a hearing or COA and attached an unnotarized statement from a Vietnamese interpreter who said that she "did not accompany Mr. Pham's lawyer or anyone else to FCI Otisville, New York to translate there, or to take and discuss a plea offer to Mr. Pham at FCI Otisville." The district court denied the request on November 21, 2000.

By order filed on March 15, 2001, we granted Pham's pending motion for a COA on the single issue of "whether [Pham's] counsel failed to advise him of a plea offer made by the government." Our review of the district court's denial of a hearing on the habeas petition is for abuse of discretion. Chang v. United States, 250 F.3d 79, 82 (2d Cir.2001). Because it presents a mixed question of law and fact, the issue of whether defendant's counsel rendered ineffective assistance warrants de novo review. Id.

DISCUSSION

Pham on appeal renews his argument that he received ineffective assistance of counsel because his trial lawyer failed to inform him of the government's global plea offer. Petitioner also contends that he was entitled to a hearing on this issue. The government responds that the district court properly denied the petition on the record before it because Pham failed to demonstrate with objective evidence either that his lawyer's performance was deficient or that Pham suffered prejudice.

The parties agree on the relevant legal standards. Defendant suffers a Sixth Amendment violation when he receives ineffective assistance of counsel. In order to prove ineffective assistance, Pham must show (1) "that counsel's representation fell below an objective standard of reasonableness"; and (2) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052. A defendant suffers a Sixth Amendment injury where his attorney fails to convey a plea offer. Defense counsel have a constitutional duty to give their clients professional advice on the crucial decision of whether to accept a plea offer from the government. Boria v. Keane, 99 F.3d 492, 498 (2d Cir.1996). See also United States v. Gordon, 156 F.3d 376, 379-80 (2d Cir. 1998) (per curiam). "Even if there might be circumstances where defense counsel need not render advice as to acceptance of a plea bargain, there can be no doubt that counsel must always communicate to the defendant the terms of any plea bargain offered by the prosecution." Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999).

I. Prejudice

Rather than focusing on the first part of the Strickland test, the district court held that Pham failed to show prejudice as the second part of the test requires. Generally, a defendant suffers prejudice if there is a reasonable probability that his reliance on counsel's ineffective assistance affected the outcome of the proceedings. Gordon, 156 F.3d at 380. The district court in its November 2 order held that Pham presented no objective evidence other than his self-serving...