United States District Court, E.D. Virginia, Alexandria Division
C. Cacheris, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on pro se Petitioner
Ging-Hwang Tsoa's (also known as “Felicia
Tsoa” or “Tsoa” or
“Petitioner”) Section 2255 Motion to Vacate or
Set Aside Criminal Judgment. [Dkt. 242.] For the reasons set
forth below, the Court will deny Petitioner's motion.
November 15, 2013, Tsoa was convicted of conspiracy and bank
fraud charges. [Dkt. 137.] On February 21, 2014, this Court
sentenced her to 30 months of incarceration on each count, to
run concurrently; three years of supervised release;
restitution in the amount of $1, 416, 200, jointly and
severally with her co-conspirators; forfeiture in the amount
of $45, 737.69; and $300 in special assessments. [Dkt. 167.]
March 18, 2016, Tsoa petitioned to vacate, set aside, or
correct her sentence pursuant to 28 U.S.C. § 2255,
asserting actual innocence and ineffective assistance of
counsel. [Dkt. 242.] On March 30, 2016, the Government filed
its opposition to Tsoa's motion. [Dkt. 245.] Tsoa filed a
response on April 21, 2016. [Dkt. 247.] This § 2255
petition is now ripe for disposition.
28 U.S.C. § 2255, a prisoner in federal custody may
collaterally attack her sentence on four grounds: (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 the sentence; (3) the sentence was in
excess of the maximum authorized by law; or (4) the sentence
is otherwise subject to collateral attack. See Hill v.
United States, 368 U.S. 424, 426-27 (1962). The
petitioner bears the burden of proof, which must be
established by a preponderance of the evidence. Miller v.
United States, 261 F.2d 546, 547 (4th Cir. 1958).
“Relief under § 2255 is designed to correct for
fundamental constitutional, jurisdictional, or other errors,
and it is therefore reserved for situations in which failing
to grant relief would otherwise inherently result in a
complete miscarriage of justice.” United States v.
Hawkins, 2012 WL 3578924, at *1 (E.D. Va. Aug. 17, 2012)
(internal quotation marks and citation omitted).
based upon actual innocence “should not be granted
casually.” Wilson v. Greene, 155 F.3d 396, 404
(4th Cir. 1998). In fact, such claims “must be based on
reliable evidence not presented at trial.” Id.
at 404-05 (citation and internal quotation marks omitted).
The Court should consider this new evidence along with
“any other admissible evidence of the defendant's
guilt, ” id., to decide whether
“‘[no] rational trier of fact could [find] guilt
beyond a reasonable doubt.'” Hazel v. United
States, 303 F.Supp.2d 753, 761 (E.D. Va. 2004 (quoting
Herrera v. Collins, 506 U.S. 390, 401-02 (1993)).
argues in her § 2255 petition that her co-conspirators,
Robert Mikail and Bing-Sing “Cindy” Wang, are the
real guilty parties here. She asserts that she was an
unwitting participant who did not understand the loan
business and, consequently, did not realize that Mikail and
Wang were breaking the law. However, Tsoa has offered no new
evidence of actual innocence in her petition. Instead, she
repeats claims that were already presented at trial. As a
result, the Court finds that she has failed to meet her
burden of proof to justify relief under § 2255 based
upon actual innocence.
actual innocence, claims based upon ineffective assistance of
counsel must also meet a specific standard in order for a
petitioner's § 2255 motion to succeed. In
Strickland v. Washington, 466 U.S. 668 (1984), the
United States Supreme Court established a two-pronged test
for ineffective assistance claims. This test requires a
showing that: (1) the performance of counsel fell below an
objective standard of reasonableness, based upon prevailing
professional norms; and (2) as a result, there was prejudice
to the defendant. Id. 687-88. To satisfy the
performance prong, the petitioner must demonstrate that the
errors were “so serious that counsel was not
functioning as the ‘counsel' guaranteed by the
Sixth Amendment.” Id. at 687. To satisfy the
prejudice prong, the petitioner must demonstrate that
“there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. Petitioner fails to establish either prong here.
essence, Tsoa argues that her attorneys did not properly
present a mistake defense. One only has to look at the trial
transcript, however, to see that her attorneys presented
exactly that type of defense. Her attorneys pointed out to
the jury that she did not understand the loan business and
could not speak fluent English. Defense counsel also
described her co-conspirators as manipulative and dishonest
in their dealings with Tsoa. Furthermore, her attorneys
attempted to elicit testimony from two experts in order to
present a mistake defense on Tsoa's behalf. The Court is
unable to identify from petitioner's motion what, if
anything, Tsoa expected her attorneys to do that they failed
to do, other than convince a jury to render a not guilty
verdict. Accordingly, this Court finds that Tsoa has failed
to meet her burden of proof to justify relief under §
2255 based upon ineffective assistance of counsel.
foregoing reasons, the Court will deny Petitioner Ging-Hwang
Tsoa's motion to vacate, set aside, or ...