The opinion of the court was delivered by: Ralph R. Erickson, District Judge United States District Court
ORDER DENYING MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255
Before the Court is Petitioner Jiyeon Kim's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. #265).
On March 21, 2007, a grand jury indicted Kim on two counts relating to distribution of a controlled substance. Count one charged her with conspiracy to possess with intent to distribute and distribute a controlled substance in violation of 21 U.S.C. § 846. Count two charged her with engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. Additionally, on June 5, 2007, the United States filed an information charging Kim with money laundering conspiracy to conceal and disguise nature, location, ownership, and control of proceeds of specified unlawful activity in violation of 18 U.S.C. § 1956(h).
Kim eventually reached a plea agreement with the United States and requested that the matter be set on for a change of plea hearing. On June 5, 2007, Kim appeared before the Court and entered a plea of guilty to counts one and two of the indictment and to the information. On May 16, 2008, the Court sentenced her to 252 months imprisonment and 5 years of supervised release.
Kim has now timely filed a motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. Kim essentially makes two claims for relief. She claims ineffective assistance of counsel based on her attorney failing to file any motions on her behalf. She also claims ineffective assistance of counsel for allowing her to be given "kingpin" status without any argument.
As part of her plea agreement, Kim waived her right to bring a motion under 28 U.S.C. § 2255 "except in the case of ineffective assistance of counsel." Plea Agreement ¶ 23. Kim claims her attorney was ineffectual for failing to file any motions on her behalf and for failing to argue against her "kingpin" title at sentencing. Therefore, Kim has not waived the claims she raises in her motion, insofar as they are claims of ineffective assistance of counsel, and the Court must consider the arguments on their merits.
A petitioner is entitled to an evidentiary hearing on her § 2255 petition unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (quoting 28 U.S.C. § 2255(b)). A district court does not err in dismissing a petitioner's motion under § 2255 without a hearing if: (1) the petitioner's allegations, accepted as true, would not entitle her to relief; or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Buster v. United States, 447 F.3d 1130, 1132 (8th Cir. 2006). A petitioner moving for post-conviction relief on the grounds of ineffective assistance of counsel "faces a heavy burden." Deroo v. United States, 223 F.3d 919, 925 (8th Cir. 2000). To show ineffective assistance of counsel, the petitioner must establish two elements: (1) counsel's performance fell below an objective standard of reasonableness; and (2) counsel's deficient performance prejudiced the defendant. Keys v. United States., 545 F.3d 644, 648 (8th Cir. 2008). The Court will address, in turn, the claims for relief set forth in the motion.
I. Ineffective Assistance of Counsel for Failing to File Any Pretrial Motions
Kim claims that her counsel was ineffective for failing to file any pretrial motions on her behalf. Failure to file a pretrial motion is not per se ineffective assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Furthermore, failure to make a pretrial motion is not ineffective assistance of counsel if there is not a reasonable probability of success. White v. Helling, 194 F.3d 937, 942 (8th Cir. 1999). "Judicial scrutiny of counsel's performance is highly deferential, indulging a strong presumption that counsel's conduct falls within the wide range of reasonable professional judgment." Armstrong v. Kemna, 534 F.3d 857, 863 (8th Cir. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).
In her petition, Kim has not alleged any particular pretrial motions her counsel should have filed, nor has she demonstrated a reasonable probability of success of any such motion. Thus, she has not overcome the strong presumption that counsel's conduct was reasonable. Additionally, Kim has not stated any facts showing how counsel's failure to file pretrial motions prejudiced her. She has made no showing that her situation would be different if counsel had filed pretrial motions. Therefore, even if counsel was deficient for failing to file a pretrial motion, Kim has not established the prejudice element required to sustain an ineffective assistance of counsel claim. For the foregoing reasons, Kim's claim for relief based on ineffective counsel for failure to file pretrial motions is DENIED.
II. Ineffective Assistance of Counsel for Failure to Argue Against "Kingpin" Status
Kim also claims her counsel was ineffective because he did not argue against "kingpin" status for her sentencing. Kim acknowledged in her plea agreement that she was an organizer, supervisor, and manager of at least five other persons, and that she was involved in a continuing criminal enterprise involving at least 15,000 grams of a mixture and substance containing a detectable amount of methamphetamine. Plea Agreement ¶6.During the change of plea hearing, the United States provided a factual basis that included classifying her as a leader of the conspiracy. COP Tr. 36, June 5, 2007. The Court then asked Kim if the factual basis the United States presented was correct, and she responded affirmatively. COP Tr. 37. Kim's representations during the change of plea hearing "carry a strong presumption of verity and pose a formidable barrier in any subsequent collateral proceedings." Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997); see also Smith v. Lockhart, 921 F.2d 154, 157 (8th Cir. 1990) ("Solemn declarations in open court carry a strong presumption of verity."). Furthermore, during her sentencing hearing, Kim's attorney represented that she acknowledged her role as one of the leaders in the conspiracy. Her agreement as to her role gave counsel no reason to object to her ...