Zhang v. U.S.

• Decision Date: 23 October 2007
• Docket Number: Docket No. 05-6662-pr.
• Citation: 506 F.3d 162
• Parties: Sean ZHANG, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

506 F.3d 162

Sean ZHANG, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.

Docket No. 05-6662-pr.

United States Court of Appeals, Second Circuit.

Argued: January 11, 2007.

Decided: October 23, 2007.

Gary Schoer, Syosset, NY, for Petitioner-Appellee.

Carrie Capwell, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, on the brief, and Peter A. Norling, Assistant United States Attorney, of counsel), United States Attorney's Office for the Eastern District of New York, Brooklyn, NY, for Respondent-Appellant.

Before: WINTER, CABRANES, Circuit Judges, and KORMAN, District Judge.^*

WINTER, Circuit Judge:

The government appeals Judge Spatt's order granting Sean Zhang's 28 U.S.C. § 2255 petition for habeas corpus and vacating his plea of guilty to mail fraud and resultant sentence of 60 months' imprisonment. Judge Spatt found that Zhang's guilty plea was involuntary because the magistrate judge and the prosecutor had affirmatively misled Zhang during the plea colloquy with respect to the likelihood of his being deported as a result of his conviction. Zhang v. United States, 401 F.Supp.2d 233, 243-44 (E.D.N.Y.2005) ("Zhang I"). On appeal, the government principally argues that the representations of the magistrate judge and prosecutor — that Zhang faced possible, rather than certain, deportation — were not affirmatively misleading or prejudicial, and that the court had no greater obligation to spell out the possible collateral effects of Zhang's guilty plea.

We conclude that the statements made during the colloquy were not affirmatively misleading, and that they did not render Zhang's guilty plea involuntary. We therefore vacate the order below. Zhang has also raised a claim of ineffective assistance of counsel, which we remand to the district court for further proceedings.

BACKGROUND

Sean Zhang came to the United States from China in 1985, at the age of seven. Zhang I, 401 F.Supp.2d at 235. Zhang's family was granted asylum on the basis of his father's public criticism of Communism and the Chinese government. Id. Zhang attended Cornell University and graduated with a Bachelor of Science degree in "Food Science." Id. Although Zhang has spent the bulk of his life in the United States, does not speak Chinese proficiently, is married to an American citizen, and has long been a legal permanent resident, he has never become an American citizen. Id.

In 2001, while working as a chemist, Zhang began mixing and selling capsules of the chemical 2, 4 Dinitrophenol ("DNP"). Id. In addition to its many industrial and research uses, DNP, when ingested by humans, acts as a metabolic stimulant and can reduce body fat. Id. Because of the effect of DNP, the drug is banned for human use by the Food and Drug Administration. Id. Nonetheless, DNP is sometimes used by bodybuilders seeking to quickly reduce their body fat. Id. Using the screen name "DNP Guru," Zhang used a bodybuilding website to promote and sell DNP. Id. One of Zhang's customers, Eric Perrin, died as a result of ingesting DNP purchased from Zhang. Id. Another customer, James Shull, lapsed into a 10-day coma caused by DNP prepared and sold by Zhang. Id.

Zhang was indicted on ten counts of introducing a misbranded drug into interstate commerce, in violation of 21 U.S.C. § 331(a), and ten counts of mail fraud, in violation of 18 U.S.C. § 1341. Zhang entered into a plea agreement in which he agreed to plead guilty to a single count of mail fraud with a maximum penalty of 60 months and waive his right to appeal if sentenced to 60 months or less. The plea agreement stated that the government would seek an upward departure based upon Perrin's death and Shull's injuries, and included the statement, "Other penalties: Removal." The plea agreement also contained the government's loss estimate of between $70,000 and $120,000.

According to Zhang, in discussing a guilty plea, his attorney told him that any resulting deportation proceeding would be discretionary, and that deportation was unlikely given his personal history and family circumstances. On June 25, 2002, Zhang entered his guilty plea before a magistrate judge. During the plea allocution, the prosecutor stated that Zhang "agrees he [is] subject to possible post sentence deportation." Plea Tr. at 14. The magistrate judge further stated that "it's not indicated as a consequence of your plea and the plea agreement but the government indicated that this felony conviction because of your immigration status could result in your deportation. Do you understand that?" Zhang answered "Yes, I understand." Id. at 15. Elsewhere in the allocution, the prosecutor noted that Zhang's counsel had reserved the right to move for a downward departure, and to challenge any loss calculation.

A year later, following a hearing pursuant to United States v. Fatico, 579 F.2d 707 (2d Cir.1978), Zhang was sentenced to 60 months' imprisonment plus three years' supervised release, and ordered to pay $113,414.53 in restitution. At the sentencing hearing, the prosecutor noted that "there is another condition of supervised release. He may be deported. If he does, if you can put on the judgment that he should not reenter without the permission of the Attorney General." Sentencing Tr. at 410. The sentencing judge agreed, and stated that "if the defendant is deported, he's not to reenter the United States illegally without the consent of the government." Id.

Pursuant to his plea agreement, Zhang did not appeal his conviction or sentence. After the time for filing a direct appeal had passed, Zhang received a Notice to Appear from the Bureau of Immigration and Customs Enforcement ("ICE"). Zhang claims at this time that he first became aware that he faced mandatory deportation as a result of having been convicted of an "aggravated felony" — defined in relevant part for deportation purposes as "an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." 8 U.S.C. § 1101(a)(43)(M)(i). On June 17, 2004, Zhang filed a habeas corpus petition in the district court pursuant to 28 U.S.C. § 2255, seeking to vacate his conviction on two grounds: (i) that the statements of the prosecutor and the court regarding possible deportation were affirmatively misleading and violated Fed.R.Crim.P. 11; and (ii) that he received ineffective assistance of counsel regarding deportation. Zhang I, 401 F.Supp.2d at 236. The government argued that the statements during the course of sentencing were accurate because Zhang could potentially avoid deportation by applying for asylum or relief under the Convention Against Torture ("CAT").

On July 29, 2005, the district court held a hearing on whether Zhang's guilty plea was involuntary because of the characterization of the chances of deportation as less than certain. Consideration of the ineffective assistance claim was deferred.

On November 18, 2005, the district court issued its decision vacating Zhang's conviction. Zhang I, 401 F.Supp.2d 233. The court first held that Zhang's claim was not procedurally barred by his failure to raise it on direct appeal or by his plea agreement's waiver of collateral attack. Id. at 237. The court then found that while Second Circuit law does not require a judge to alert a defendant to the immigration consequences of a guilty plea, affirmative misinformation about those consequences can render a plea involuntary under Rule 11. Id. at 237-38. Finally, the district court determined that it was, in fact, materially misleading to inform Zhang that deportation was "merely possible, not probably or certain," and that "the misrepresentation was sufficient to render Zhang's plea constitutionally involuntary." Id. at 244.

The government appealed.

DISCUSSION

In appeals under 28 U.S.C. § 2255, "this Court reviews factual findings for clear error and questions of law de novo." Harris v. United States, 367 F.3d 74, 79 (2d Cir.2004) (internal quotation marks omitted).

As a threshold issue, the government argues that Zhang procedurally defaulted by failing to bring his claims on direct appeal. "A motion under § 2255 is not a substitute for an appeal." United States v. Munoz, 143 F.3d 632, 637 (2d Cir.1998). In general, a claim may not be presented in a habeas petition where the petitioner failed to properly raise the claim on direct review. Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994). The rule does not generally apply to claims of ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 505-06, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). The claim ruled on in the district court and before us now, however, is not Zhang's ineffective assistance of counsel claim, but rather the claim that Zhang's guilty plea was involuntary. If such a claim has not been presented on direct review, the procedural default bar may be overcome only where the petitioner establishes either (1) "cause" for the failure to bring a direct appeal and "actual prejudice" from the alleged violations; or (2) "actual innocence." Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). "To satisfy the `cause' requirement, the petitioner must show circumstances `external to the petitioner, something that cannot be fairly attributed to him.'" Rosario-Dominguez v. United States, 353 F.Supp.2d 500, 508 (S.D.N.Y.2005) (quoting Marone v. United States, 10 F.3d 65, 67 (2d Cir.1993) and Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).

Zhang argues that because of the (mis)representations by the court, his counsel, and the government about the deportation consequences of his plea, he was unaware of those consequences until he received a letter from the ICE, and that this serves as "cause" justifying his failure to bring the claim on direct appeal. However, we cannot determine whether the allegedly misleading statements...