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Zhao v. United States

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

July 23, 2015

CHUN-YU ZHAO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION AND ORDER

GERALD BRUCE LEE, District Judge.

THIS MATTER is before the Court on Petitioner Chun-Yu Zhao's ("Petitioner") Motion to Vacate Conviction and Sentence under 28 U.S.C. § 2255 ("§ 2255 Motion") (Doc. 429). A jury found Petitioner guilty of violating Title 18, United States Code, Section 1425(a), Procuring Naturalization Unlawfully ("Count 14"). (Doc. 236 at 15). As a consequence of her conviction, this Court revoked Petitioner's United States citizenship as required by 8 U.S.C. § 1451(e). (Doc. 292). Petitioner now challenges her conviction based on insufficiency of evidence and ineffective counsel.

There are three issues before the Court. The first issue is whether the Court should grant Petitioner's § 2255 Motion where Petitioner argues that appellate counsel was ineffective in failing to raise issues on appeal surrounding Petitioner's Count 14 conviction. The second issue is whether the Court should grant Petitioner's § 2255 Motion where Petitioner argues that trial counsel was ineffective in failing to object to Count 14 jury instructions. The third issue is whether the Court should grant Petitioner's § 2255 Motion where Petitioner argues that evidence presented on Count 14 was insufficient for any reasonable jury to find her guilty beyond a reasonable doubt. The Court DENIES Petitioner's § 2255 Motion because (1) Petitioner fails to show that appellate counsel rendered ineffective assistance by ignoring issues on appeal that were "clearly stronger" than those presented; (2) trial counsel's performance did not fall below an objective standard of reasonableness and even if it did, Petitioner cannot show prejudice; and (3) Petitioner cannot challenge sufficiency of evidence because she cannot show cause for failing to raise the evidence issue on direct appeal.

I. BACKGROUND

Petitioner Chun-Yu Zhao arrived in the United States from China on January 23, 2004 on a business visa, and she married codefendant Donald Cone ("Cone") on April 20, 2004, three days before her visa expired. (Doc. 319 at 200-201). On or about December 1, 2007, Petitioner and Cone separated, and Cone moved from their home in Virginia to a condominium in Maryland. (Doc. 429 at 6; Doc. 319 at 206). On January 21, 2008, Petitioner applied for naturalization based on her marriage to Cone, a United States citizen. (Doc. 436-1 at 2). She falsely listed Cone's address as her home in Virginia and falsely certified that she had lived with Cone for the three years preceding her application. ( Id. at 2, 5). Petitioner filed for divorce, and in 2009 her divorce became final. (Doc. 319 at 207).

From 2004 to 2010, Petitioner, Cone, and members of Petitioner's family were involved in a conspiracy to import more than 200 shipments of genuine and counterfeit Cisco Systems products from China for resale in the United States. See generally United States v. Cone, 714 F.3d 197, 201-03 (4th Cir. 2013). Federal agents working for the U.S. Customs and Border Patrol and Immigration and Customs Enforcement investigated the crimes, and the investigation led to Petitioner's arrest. Id. On November 10, 2010, the United States issued a 29 count superseding indictment against Petitioner and others related mostly to improper importation and the trafficking of counterfeit goods. (Doc. 69). Count 14 of the indictment, however, charged Petitioner with making false statements in procuring naturalization in violation of 18 U.S.C. § 1425(a). ( Id. at 26).

On May 24, 2011, a jury found Petitioner guilty on 16 counts including Count 14. (Doc. 236). This Court sentenced Petitioner to 60 months imprisonment, three years supervised release, fines, restitution, and, as a consequence of her Count 14 conviction, denaturalization. (Doc. 293; Doc. 292). Petitioner appealed her convictions to the Fourth Circuit, with appellate counsel focusing the brief mostly on a question of first impression (Point I) as to whether material alteration of a trademarked product was cognizable under 18 U.S.C. 2320, Trafficking in Counterfeit Goods and Labels. ( See Br. Appellants). Appellate counsel also made three smaller points, one involving sufficiency of evidence (Point II), one involving confrontation clause rights (Point III), and one involving an evidentiary ruling (Point IV). ( Id. ) Appellate counsel was effective on points I and III; thus, the Fourth Circuit vacated five of Petitioner's convictions, but not her conviction on Count 14. (Doc. 413). This Court then reduced Petitioner's prison sentence to time served. Id.

II. STANDARD OF REVIEW

A federal prisoner may, under 28 U.S.C. § 2255, file a motion to vacate, set aside, or correct sentence on the grounds that (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence exceeds the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a) (2008). The prisoner bears the burden of proof and must establish by a preponderance of the evidence that she is entitled to the collateral relief sought. Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967); United States v. Hawkins, 2012 WL 3578924, at *1 (E.D. Va. Aug. 17, 2012).

Section 2255 safeguards against miscarriages of justice by allowing for the correction of constitutional, jurisdictional, or other fundamental errors. See United States v. Addonizo, 442 U.S. 178, 185 (1979). Section 2255 does not, however, substitute for an appeal; thus, "to obtain collateral relief based on trial errors to which no contemporaneous objection was made, " petitioner must make a showing of both "cause" and "actual prejudice resulting from the errors." United States v. Frady, 456 U.S. 152, 165-67 (1982). Petitioners may bring ineffective assistance of counsel claims under Section 2255 without having brought them on appeal. Massaro v. United States, 538 U.S. 500, 504 (2003). Petitioners may raise ineffective assistance of counsel independently, or as cause for other errors. Dretke v. Haley, 541 U.S. 386, 394 (2004).

To show ineffective assistance of counsel, petitioner must demonstrate (1) that counsel's performance fell short of the standard of objective reasonableness, and (2) that counsel's deficient performance prejudiced petitioner's defense. Strickland v. Washington 466 U.S. 668, 687-88 (1984). The first factor "requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. The second factor "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. When evaluating whether counsel rendered ineffective assistance, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Mason, 774 F.3d 824, 828 (4th Cir. 2014) (citing Strickland 466 U.S. at 689).

III. ANALYSIS

The Court DENIES Petitioner's § 2255 Motion because Petitioner fails to show any miscarriage of justice whereby the Court should vacate her conviction and sentence on Count 14. Petitioner moves the Court to vacate her Count 14 conviction on three grounds. First, Petitioner argues that the evidence at trial was insufficient for any reasonable jury to find Petitioner guilty beyond a reasonable doubt of violating 18 U.S.C. § 1425(a). Second, Petitioner argues that her trial counsel was ineffective in failing to object to erroneous and insufficient jury instructions regarding Count 14. Third, Petitioner argues that her appellate counsel was ineffective in failing to raise the insufficiency of evidence and erroneous jury instruction arguments on ...


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