10-4033-pr
Park v. United States of America

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 27th day of September, two thousand eleven,

Present:       ROSEMARY S. POOLER,
               BARRINGTON D. PARKER,
               SUSAN L. CARNEY,

                               Circuit Judges.

_____________________________________________________

YONG WONG PARK,
                               Petitioner-Appellant,

                         -v-                                        10-4033-pr

UNITED STATES OF AMERICA,
                     Respondent-Appellee.




Appearing for Petitioner-Appellant:          Raymond J. Aab, Koehler & Isaacs LLP, New
                                             York, N.Y.

Appearing for Respondent-Appellee:           Marcia S. Cohen, Jesse M. Furman, Assistant
                                             United States Attorneys (of counsel) for Preet
                                             Bharara, United States Attorney for the Southern
                                             District of New York, New York, N.Y.

       Appeal from the United States District Court for the Southern District of New York
(Rakoff, J.).
        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED, and
that the motion to recall the mandate issued on March 30, 2007 is DENIED.

        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 F. App’x 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 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, 130 S. Ct. 1473 (2010), merits reconsideration of
our determination that he could not demonstrate prejudice under Strickland v. Washington, 466
U.S. 668 (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, No. 07-3719, 2011 WL 2623442, at *8 (2d Cir. July 6,
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 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 (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.
Padilla, 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 Court 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 F. App’x 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

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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 “[s]ince 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 order 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 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.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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