United States of America v. MADY CHAN, AKA Maddy, AKA Mandy, AKA Manny

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MADY CHAN, AKA Maddy,
AKA Mandy, AKA Manny,
Defendant-Appellant.
No. 16-15503
D.C. Nos. 2:15-cv-01367-WBS
2:96-cr-00350-WBS-5
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted April 9, 2018
San Francisco, California
Before: WARDLAW and CLIFTON, Circuit Judges, and KATZMANN,** Judge.
Mady Chan appeals the district court’s denial of his Motion to Vacate, Set
Aside, or Correct a Sentence by a Person in Federal Custody pursuant to 28 U.S.C.
§ 2255. We affirm.
FILED
MAY 03 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.

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A waiver of a defendant’s right to appeal or collaterally attack a conviction
does not preclude a subsequent claim of ineffective assistance of counsel in which
the defendant calls into question his entry into the agreement that contained the
waiver. Washington v. Lampert, 422 F.3d 864, 869-70 (9th Cir. 2005). Because
Chan argues that he involuntarily and unknowingly entered into the plea agreement
that contained the waiver as a result of ineffective assistance of counsel, we have
jurisdiction to hear Chan’s claim.
Chan’s argument fails on the merits, however, because he did not prove that
his representation “fell below an objective standard of reasonableness.” Strickland
v. Washington, 466 U.S. 668, 688-96 (1984).
From the outset, as the district court found, Chan expressed primary concern
for other family members who had also been charged. Specifically, Chan wanted
to obtain dismissal of the charges against other family members and also wanted to
preserve a home for his father. Because he was already serving a long sentence for
a conviction in the Northern District, avoiding this conviction was of much less
significance to Chan than it might have been in other circumstances. The plea
agreement represented the most definite means of dismissing the charges against
Chan’s family members and preserving the home. While a motion to dismiss for a
Speedy Trial Act violation could have been pursued, the district court concluded
that “there was nevertheless a risk that the court would deny the motion and
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petitioner would lose the ability to protect his family members.” The district
court’s findings were not clearly erroneous.
A defendant’s representation is not “constitutionally defective” because he
“lacked a crystal ball” that would “give an accurate prediction of the outcome of
[the] case.” Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002). That Warriner
did not state that the outcome of a potential dismissal motion was absolutely
certain did not render his representation of Chan ineffective. Counsel was only
under an obligation to provide Chan with the ability to “make a reasonably
informed decision whether to accept a plea offer.” Id. at 880. Warriner effectively
informed Chan of the effect of the plea agreement and, in doing so, provided the
necessary information to make an informed decision to accept the plea.
We decline to broaden the scope of the certificate of appealability to include
Chan’s uncertified claims. The failure to file a motion to dismiss at an earlier point
in time did not present a more serious ineffectiveness claim than the claim
discussed above. Chan was incarcerated anyway, and it was not unreasonable to let
sleeping dogs lie. As for the district court’s decision not to hold an evidentiary
hearing, Chan did not make a showing that there were additional facts that needed
to be developed.
AFFIRMED.
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