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Ly v. United States

United States District Court, W.D. Washington, Seattle

March 7, 2018

KEITH K. LY, Defendant-Petitioner,
UNITED STATES OF AMERICA, Plaintiff-Respondent


          Marsha J. Pechman United States District Judge

         THIS 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.


         Petitioner 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.)

         Following 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, 2016.)

         Ly now 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.)

         The 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 dismissal. (Id.)


         I. Legal Standard

         Under 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).

         To 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 4(b).

         In 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.

         II. Ineffective Assistance of Counsel

         To 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 ...

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