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Kim v. Director, Va. Dep't of Corr.

United States District Court, E.D. Virginia, Alexandria Division

April 30, 2015

THOMAS KIM, Petitioner,
v.
DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, Respondent

For Thomas Kim, Petitioner: Bradley Rittenhouse Haywood, LEAD ATTORNEY, Sheldon Flood & Haywood, PLC, Fairfax, VA.

For Director, Virginia Department of Corrections, Respondent: Susan Elizabeth Baumgartner, LEAD ATTORNEY, Office of the Attorney General (Richmond), Richmond, VA.

MEMORANDUM OPINION

T. S. Ellis, III, United States District Judge.

Petitioner Thomas Kim, a state inmate who pled guilty to (i) abduction with the intent to defile, in violation of Va. Code § 18.2-48, (ii) forcible sodomy, in violation of Va. Code § 18.2-67.1, and (iii) use of a firearm during the commission of sodomy, in violation of Va. Code § 18.2-53.1, has filed a motion, by counsel, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, based on a claim of ineffective assistance of counsel. Specifically, petitioner contends that his trial counsel was ineffective in failing to inform petitioner prior to his plea that at the end of his sentence, he would be subject to a " re-sentencing" process labeled the Sexually Violent Predator Commitment Program, which carried a strong likelihood of, in petitioner's words, a " de facto life sentence." [1]

The petition was filed on December 12, 2014. On March 18, 2015, respondent filed a motion to dismiss and a Rule 5 answer. As the parties have fully briefed the issues presented and neither oral argument nor an evidentiary hearing would aid the decisional process, petitioner's motion is ripe for disposition.[2] For the reasons that follow, petitioner's motion must be denied.

I.[3]

A brief summary of the factual and procedural history of the case places petitioner's motion in context. Thus, the record reflects that on October 11, 2011, petitioner approached a Hispanic female, displayed a badge and handgun, and informed this female that he was an F.B.I. agent looking for " Maria." After querying the female (" R.N." ) about her status in the United States and finding that she did not have identification, petitioner fondled her breasts and, after placing R.N. in his car, inserted his hand into her underwear. When R.N. attempted to exit the vehicle, petitioner threatened to handcuff her. He then drove her to another location, forced her to perform oral sex on him, and ordered her out of the car when he was finished. R.N. reported this incident to the police. Earlier that same day, petitioner had approached another Hispanic female teenager, once again flashing a badge and displaying a gun under the guise of being a police officer who needed to see the teenager's identification. When the teenager ignored petitioner's request and continued walking, petitioner fondled her breasts outside her home and then left.

Thereafter, on October 14, 2011, petitioner approached a different Hispanic teenager and again displayed a badge, asking the teenager if she knew where " Maria Lopez" lived. Although petitioner drove away on account of traffic, this teenager reported petitioner's description and license plate number to the police. On the basis of this information, police identified petitioner as the vehicle owner and then showed petitioner's picture to R.N., who identified petitioner as the individual who had abducted and sexually assaulted her.

On October 24, 2011, police had petitioner under surveillance when he approached yet another Hispanic woman, but this woman walked away from him. Petitioner then proceeded to follow a different Hispanic woman into her apartment building. The police officers surveilling petitioner followed petitioner and the woman up to her apartment and then asked the woman to leave. Petitioner was briefly inside the apartment with the door shut, but exited with a gun on his hip and a condom in his pocket. He was then arrested. The woman told police that petitioner had shown her a badge, had identified himself as a law enforcement officer, and accompanied her to her apartment to inspect her identification documents. When taken into custody, petitioner admitted to being in the relevant locations and further admitted to looking for a " Lopez family" that owed him money, but he denied ever carrying a badge. Physical evidence undermined petitioner's denial, however, as several weeks later, the final victim found a badge containing petitioner's DNA under a mattress in her apartment.

On March 19, 2012, a Fairfax County grand jury returned a three-count indictment charging petitioner with abduction with the intent to defile in violation of Va. Code § 18.2-48 (Count I), forcible sodomy in violation of Va. Code § 18.2-67.1 (Count II), and use of a firearm during the commission of sodomy in violation of Va. Code § 18.2-53.1 (Count III). After conferring with counsel, petitioner pled guilty to all three counts based on the October 11, 2011 incident with R.N. In exchange, the Commonwealth agreed not to pursue charges for the other October 11, 2011 incident or the October 24, 2011 incidents.

Petitioner entered his plea of guilty on May 9, 2012, in the course of which the Fairfax County Circuit Judge advised petitioner of the possible consequences of his felony conviction as follows:

THE COURT: As a United States citizen these felony convictions can negatively affect your citizenship. Certainly citizenship can't be taken away from you, but it can have a negative impact because there are certain civil consequences to felony convictions. I'm going to go through a few of those.
Those variety of consequences may include but would not be limited to possible civil commitment, possible civil forfeiture, certainly loss of your right to vote because these are felonies . . .
Do you understand that these are some additional civil consequences that can result from pleas of ...

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