United States District Court, W.D. Washington, Seattle
KEITH K. LY, Defendant-Petitioner,
UNITED STATES OF AMERICA, Plaintiff-Respondent
ORDER DENYING MOTION FOR WRIT OF HABEAS
J. Pechman United States District Judge
MATTER comes before the Court on Petitioner's Motion for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255.
(Dkt. No. 1.) Having reviewed the Motion, the Response (Dkt.
No. 5), the Reply (Dkt. No. 6) and all related papers, the
Court DENIES the Motion.
Keith K. Ly moves to vacate his sentence under 28 U.S.C.
§ 2255 (“Section 2255”). (Dkt. No. 1.) In
2014, a jury convicted Ly of ten counts relating to his
involvement in a conspiracy to manufacture marijuana in
several residential properties he owned. See United
States v. Ly, No. 13-157MJP, Dkt. No. 191. Over eight
days of trial, the jury heard testimony from nearly 30
witnesses including purported tenants who described growing
marijuana for Ly in exchange for food and housing; officers
who conducted surveillance, searches, and seizures; a
financial auditor who explained Ly's income, debt, and
mortgage history during the relevant period, and others.
(See Dkt. No. 5 at 8-9.) Ly denied any knowledge of
the marijuana grow operations and testified that his wife,
Thi Nguyen Tram Bui, was responsible for overseeing the
properties. (Id. at 9.) However, the jury was not
convinced. (Id.) Throughout the trial, Ly was
represented by retained counsel. (Dkt. No. 5 at 8.)
the jury's verdict, the Court sentenced Ly to 60
months' imprisonment, the statutory mandatory minimum
term. (Dkt. No. 5 at 10-11.) Ly appealed to the Ninth
Circuit, challenging, in relevant part, the sufficiency of
the evidence supporting the jury's verdict. See
United States v. Keith K. Ly, No. 14-30269, Dkt. No. 21
(9th Cir. 2014). The Ninth Circuit affirmed his conviction
and upheld his sentence. (Id.) Ly sought further
review in the Supreme Court, which declined to hear the case.
See Ly v. United States, 137 S.Ct. 518 (Nov. 28,
moves to vacate his sentence under Section 2255. (Dkt. No.
1.) Ly claims he is innocent of all charges, and challenges
the validity of his conviction and sentence on the grounds of
ineffective assistance of counsel and prosecutorial
misconduct. (Id.) Specifically, Ly contends his
counsel rendered ineffective assistance by “failing to
investigate exculpatory witness and evidence, presenting
exculpatory witnesses and evidence at trial, falsifying
petitioner's signature on forfeiture documents, failing
to explain a plea agreement offered to petitioner pre-trial,
” and “converting petitioner's assets for
personal gain in collusion with the Bell[e]vue Police
Department.” (Id. at 1.) Ly further contends
that the United States “knowingly and deliberately
withheld material exculpatory evidence and witnesses, and
knowingly made misstatement of facts to the trial court,
judge, and jury.” (Id. at 1-2.)
government denies any error in Ly's convictions or
sentence, and responds that his petition should be dismissed
because it is vague and devoid of specific facts that would
justify relief. (Dkt. No. 5 at 2.) Further, the government
contends that several of his claims are subject to procedural
Section 2255, the Court may grant relief to a federal
prisoner who challenges the imposition or length of his or
her incarceration on the grounds that: (1) the sentence was
imposed in violation of the Constitution or laws of the
United States; (2) the court was without jurisdiction to
impose such sentence; (3) the sentence was in excess of the
maximum authorized by law; or (4) the sentence is otherwise
subject to collateral attack. 28 U.S.C. § 2255(a).
obtain relief, the petitioner must prove, by a preponderance
of the evidence, the existence of an error rendering his
conviction unlawful. See Simmons v. Blodgett, 110
F.3d 39, 42 (9th Cir. 1997). The Court may dismiss a Section
2255 petition if “it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.”
See Rules Governing § 2255 Proceedings, Rule
general, a claim may not be raised in a Section 2255 petition
if the petitioner had an opportunity to raise it during trial
or on direct appeal and failed to do so. See Massaro v.
United States, 538 U.S. 500, 504 (2003); Bousley v.
United States, 523 U.S. 614, 621-22 (1998). The same is
true for a claim that was already disposed of on direct
appeal. United States v. Currie, 589 F.2d 993, 995
(9th Cir. 1979); see also Odom v. United States, 455
F.2d 159, 160 (9th Cir. 1972) (“The law in this circuit
is clear that when a matter has been decided adversely on
appeal from a conviction, it cannot be litigated again”
in a Section 2255 petition). There is an exception for an
ineffective assistance of counsel claim, which may be raised
for the first time in a Section 2255 petition regardless of
whether the petitioner could have raised the claim on direct
appeal. Massaro, 538 U.S. at 504.
Ineffective Assistance of Counsel
prevail on his ineffective assistance of counsel claim, Ly
must show that (1) counsel's representation fell below an
objective standard of reasonableness, and (2) “there is
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984). There is a strong
presumption that defense counsel rendered adequate
assistance. Jones v. Ryan, 583 F.3d 626, 637-38 (9th
Cir. 2009). Conclusory allegations that ...