Yong Wong Park v. United States

SUMMARY ORDER Petitioner Yong Wong Park appeals the district court’s denial of his motion to reconsider its 2005 dismissal of his petition for writ of error coram nobis. Petitioner also moves to recall the mandate of this Court affirming the district court’s 2005 dismissal and to reconsider our summary order explaining that affirmance. See Park v. United States, 222 Fed.Appx. 82, 83 (2d Cir.2007) (summary order). Park previously filed a petition for rehearing on April 25, 2007, raising the same arguments regarding prejudice he now raises. This petition was denied, as was Park’s subsequent motion to the United States Supreme Court to direct the Clerk to file a petition for a writ of certiorari out of time. In his current appeal and motion, he argues that the Supreme Court’s recent decision in Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), merits reconsideration of our determination that he could not demonstrate prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We assume the parties’ familiarity with the facts, procedural context, and issues on-this appeal and motion. We review a district court’s denial of a motion to reconsider under Federal Rule of Civil Procedure 60(b) for abuse of discretion. See, e.g., Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998). “Under this standard, we must affirm ... unless the ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Rodriguez v. Mitchell, 252 F.3d 191, 200 (2d Cir.2001) (internal quotation marks and alterations omitted). Under the well-established Strickland standard, a court will not vacate a plea due to ineffective assistance of counsel unless the petitioner shows both: “(1) that counsel’s performance was objectively unreasonable; and (2) that the unreasonable performance resulted in prejudice.” United States v. Bailey, 652 F.3d 197, 207 (2d Cir.2011). “To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the *20 proceeding would have been different, considering the totality of the evidence before the judge or jury.” Id. (internal quotation marks omitted). Strickland applies to advice concerning the decision whether to plead to an offense. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In Padilla v. Kentucky, the Supreme Court recognized a new ground for attacking the validity of guilty pleas under Strickland and Hill: Padilla established that the Sixth Amendment’s guarantee of effective assistance of counsel requires that counsel advise defendants prior to a plea that the plea “carries a risk of deportation.” 130 S.Ct. at 1486. Pad,ilia, however, expressly did not alter or address the prejudice analysis under Strickland. See Padilla, 130 S.Ct. at 1478; see also id. at 1486-87. In Park’s previous appeal, this Coui't ruled that, regardless of whether Park’s counsel had a Sixth Amendment duty to advise him of immigration consequences of his plea, Park could not prevail in an ineffective assistance of counsel claim because he could not satisfy the “prejudice” requirement of Strickland. See Park, 222 Fed.Appx. at 83-84. Thus, while petitioner moved for reconsideration in the district court on the basis of Padilla, his ineffective assistance of counsel claim was already foreclosed by our 2007 determination that he could not establish prejudice, and Padilla did not affect this determination. Moreover, under the mandate rule, a trial court must follow an appellate court’s previous ruling on an issue in the same case. United States v. Quintieri., 306 F.3d 1217, 1225 (2d Cir.2002). The district court concluded that “[sjince Park is unable to establish prejudice and therefore cannot establish ineffective assistance of counsel, Padilla does not compel this Court to reverse its previously entered order denying Park’s petition.” United, States v. Park, No. 05 Civ. 693 (S.D.N.Y. Sept. 17, 2010). This conclusion was not an abuse of discretion; to the contrary, the district court properly applied both Strickland and the mandate rule in reaching this conclusion. Petitioner also urges us to reconsider our 2007 summary oi*der and recall the mandate in light of Padilla. “This court has an inherent power to recall its mandate, subject to review for abuse of discretion.” Bottone v. United States, 350 F.3d 59, 62 (2d Cir.2003). “However, in light of the profound interests in repose that attach to the mandate of a court of appeals, recall should be granted only in extraordinary circumstances.” Id. (internal quotation marks omitted). “One circumstance that may justify recall of a mandate is a supervening change in governing law that calls into serious question the correctness of the court’s judgment.” Mancuso v. Herbert, 166 F.3d 97, 100 (2d Cir.1999) (internal quotation marks and alterations omitted). Petitioner argues that his motion presents such a case, but, given that prejudice was the basis for our decision in Park’s previous appeal and that Padilla does not appear to have altered the prejudice analysis, this case does not present the extraordinary circumstances that would merit recalling our mandate. This court already made a prejudice determination and denied petitioner’s motion for rehearing and rehearing en banc. Padilla did not change the definition of prejudice under the Strickland standard, and petitioner does not provide a legal basis for concluding otherwise, nor does he alert us to any new law or facts that would affect our previous analysis. We have considered petitioner-appellant’s remaining arguments and find them *21 to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED and the motion to reconsider and recall the mandate is DENIED.