United States v. Chan Ho Shin

Citations: 891 F. Supp. 2d 849; 2012 WL 4127954Docket: Case No. 3:09 CR 427

Court: District Court, N.D. Ohio; September 20, 2012; Federal District Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Defendant Chan Ho Shin pled guilty to four counts of filing false tax returns and was sentenced to probation, aware that his conviction could lead to deportation. Immigration officials later classified his crime as an "aggravated felony," leading to imminent removal proceedings. Unable to appeal or seek habeas corpus relief, Shin petitions for a writ of error coram nobis, claiming ineffective assistance of counsel influenced his guilty plea. 

Shin, a lawful permanent resident from South Korea, was under investigation by the IRS for unreported income from 2002 to 2005. His counsel communicated concerns about the potential impact of a conviction on Shin's immigration status and suggested a plea deal that excluded specific loss amounts from the charging documents, which could prevent classification as an aggravated felony. Despite these concerns, Shin accepted the plea, resulting in a probation sentence with specific conditions, including home confinement and restitution.

After completing home detention, Shin returned to the U.S. from Korea, where he was detained by Customs and Border Protection due to his conviction, leading to a notice of removal proceedings scheduled for March 2013.

In 2011, Shin became aware through his immigration lawyer that the Supreme Court would hear the case Kawashima v. Holder, which addressed whether violations of Section 7206(1) could be classified as "aggravated felonies" leading to deportation if the loss exceeded $10,000. His attorney indicated that a ruling against Kawashima would leave Shin with "no chance of avoiding deportation" since convictions classified as "aggravated felonies" do not allow for discretionary cancellation under 8 U.S.C. § 1229b. Shin was not informed that his notice to appear did not allege his conviction was for an "aggravated felony," resulting in his lack of awareness regarding automatic removal until the pendency of Kawashima was disclosed. He claims he would not have pled guilty had he fully understood the ramifications of his plea.

Faced with unavoidable deportation, Shin sought legal counsel to explore withdrawing his guilty plea or overturning his conviction. However, he found that the window for a direct appeal had closed, and his release from probation precluded a collateral attack via a 28 U.S.C. § 2255 motion. Consequently, Shin filed a petition for a writ of error coram nobis, arguing that ineffective assistance of counsel led to his guilty plea. He asserts that his counsel provided inaccurate advice about the immigration consequences of the plea, including a false assurance that his conviction would not lead to removal and that omitting the tax loss amount would mitigate removal risks. Furthermore, counsel failed to negotiate a plea under 31 U.S.C. § 5324, which would have avoided grounds for removal, a mistake attributed to a lack of research.

The Court's authority to issue a writ of error coram nobis arises from the All Writs Act, 28 U.S.C. § 1651, serving as a remedy for those no longer in custody due to a criminal conviction. This extraordinary writ is reserved for cases with fundamental errors that invalidate the original proceeding. In evaluating such petitions, courts operate under the presumption of correctness in prior proceedings, placing the burden on the petitioner to demonstrate significant factual errors that could have changed the outcome. The Sixth Circuit has affirmed that claims of ineffective assistance of counsel meet these criteria, allowing the Court to examine Shin's ineffective assistance claim.

Shin's claim asserts that his guilty plea resulted from ineffective assistance of counsel, necessitating proof that his attorney's performance significantly impaired the adversarial process, making it unreliable (Strickland v. Washington). To succeed, Shin must demonstrate two elements: his counsel's performance was deficient and this deficiency prejudiced his defense (Pilla). The court applies a highly deferential standard to evaluate counsel's performance, presuming adequate assistance and sound legal strategy (Nix v. Whiteside, Strickland). To establish prejudice, Shin must show a reasonable probability that, had counsel not erred, he would have opted for a trial instead of pleading guilty (Hill v. Lockhart). Merely stating he would have gone to trial is insufficient; he must prove that rejecting the plea bargain would have been a rational decision under the circumstances.

Shin argues his counsel failed in three areas: providing incorrect advice on immigration consequences of his plea, misleading him about the benefits of omitting tax loss information, and not negotiating a plea under a different federal statute. The first two arguments are interrelated, focusing on the counsel's obligation to inform Shin about the immigration impact of his conviction—a duty established by the Supreme Court in Padilla, which emerged after his counsel's advice. The government contends this duty cannot be applied retroactively, a debate that has resulted in varying circuit court rulings on the retroactivity of Padilla. The Sixth Circuit previously avoided addressing this issue, concluding that the petitioner could not demonstrate the necessary prejudice. The Supreme Court has accepted a case to resolve the retroactivity question, specifically whether Padilla's ruling applies to convictions finalized prior to its announcement.

Shin's claim fails even if Padilla is applicable, as he cannot prove prejudice or that his attorney's performance breached Padilla's standards. The facts of Padilla differ significantly from Shin's situation. In Padilla, the petitioner, a long-term lawful permanent resident, faced deportation after a guilty plea for drug distribution, arguing that his lawyer failed to inform him of the deportation consequences and provided misleading reassurance about his immigration status. The Supreme Court ruled in favor of the petitioner, emphasizing the clear and explicit nature of the relevant immigration statute regarding deportation for drug convictions, which established a clear duty for counsel to provide accurate advice.

However, the Court cautioned against a broad application of this "duty to advise," acknowledging the complexities of immigration law and the limited obligation of attorneys when the law is not straightforward. In contrast, the immigration statute relevant to Shin does not clearly indicate that convictions for tax offenses result in deportation; specifically, 8 U.S.C. § 1227(a)(2)(A)(iii) addresses aggravated felonies without explicitly mentioning tax-related convictions. The definition of "aggravated felony" has evolved over time and requires specialized knowledge, with the Supreme Court only clarifying that willfully making a false tax return qualifies as an aggravated felony in the Kawashima case, which occurred after Shin's sentencing.

Shin acknowledged that at the time of his plea, the Supreme Court had not clearly defined whether his conviction would qualify as an "aggravated felony." Consequently, his attorney's responsibility was limited to informing him that pending charges could have negative immigration implications, which the attorney fulfilled by advising Shin that his conviction could lead to removal from the U.S. Shin claimed ineffective assistance of counsel, arguing that his lawyer failed to predict the Supreme Court's decision in Kawashima, which he believed was foreseeable in 2009. He based this assertion on two points: first, that three federal circuits had previously addressed the issue, though their opinions were inconsistent; and second, that the Supreme Court's decision in Nijhawan, which occurred shortly before Shin's plea, suggested a particular outcome for Kawashima. However, the court found that the differing circuit opinions indicated that the immigration statute was not "truly clear" when Shin pled. Additionally, it noted that Nijhawan dealt with a different legal matter and did not imply anything about tax convictions. The court also rejected the claim of deficient counsel regarding advice on the exclusion of the tax loss amount, clarifying that the attorney did not promise this would eliminate the risk of removal but merely suggested it might reduce the likelihood of deportation. Ultimately, Shin was aware that his conviction could result in deportation, and his lawyer acted appropriately given the legal uncertainties at the time.

Counsel's performance was not deficient in failing to negotiate a plea arrangement for structuring monetary transactions under 31 U.S.C. § 5324. Shin's argument relies solely on the assertion that there was a factual basis for such a plea due to investigations into his cash deposits. However, the case concerned tax violations, specifically the IRS's investigation into his failure to report income. The government stated it would not have agreed to substitute a non-tax plea, rendering Shin's speculation unfounded. Legal precedent establishes that dissatisfaction with a plea deal does not constitute ineffective assistance of counsel. Even if Shin could argue counsel's performance was deficient, he cannot demonstrate actual prejudice. His claim that he would have rejected the plea had he known it would lead to automatic removal from the U.S. is insufficient under the Strickland standard, as mere assertions do not satisfy the prejudice requirement. The objective test necessitates demonstrating that rejecting the plea would have been a rational decision. Shin failed to provide such evidence, and accepting the plea was deemed a rational choice, given that a trial conviction would likely have resulted in a harsher sentence, while cooperation led him to probation. There was no indication that Shin had a viable defense or a realistic chance of acquittal at trial, and his acceptance of the plea ultimately resulted in a more lenient outcome.

Shin's claim for a writ of coram nobis is denied because he did not demonstrate that his lawyer's advice created a "reasonable probability" of prejudice or that it likely changed the outcome of the trial. Despite Shin's successful life in the U.S. and his nearing citizenship, he committed significant tax fraud by diverting substantial funds from his business for personal use, leading to his deportation. The court notes that since immigration law categorizes his crime as a removable offense, Shin's failure to seek lawful means to achieve citizenship undermines his claims. Ultimately, no evidence of ineffective assistance of counsel was found, warranting the denial of Shin's petition.