Sullivan v. USA
Filing
7
ORDER DENYING AMENDED MOTIONS UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND DENYING CERTIFICATES OF APPEALABILITY re: 2 in 1:12-cv-00559-LEK-KSC and doc no. (74) in 1: 10-cr-00680-LE K. Signed by JUDGE LESLIE E. KOBAYASHI on 10/30/2013. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on October 31, 2013. Andrew T. Park, Esq. served electronically via NEF>
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
vs.
)
)
JOSEPH W. SULLIVAN,
)
)
Defendant.
)
_____________________________ )
JOSEPH W. SULLIVAN,
)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Defendant.
)
____________________________ )
CR. NO. 10-00680 LEK
CV. NO. 12-00559 LEK-KSC
ORDER DENYING AMENDED MOTIONS UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON
IN FEDERAL CUSTODY AND DENYING CERTIFICATES OF APPEALABILITY
Before the Court are Defendant/Petitioner Joseph W.
Sullivan’s (“Sullivan”):1 Amended Motion under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (“§ 2255 Motion”), filed on November 26, 2012 in United
States v. Sullivan, CR 10-00680 LEK, [CR 10-00680, dkt. no. 74;2]
1
Sullivan initiated these post-conviction proceedings pro
se. On June 21, 2013, this Court appointed Andrew Park, Esq., to
represent Sullivan. [Dkt. no. 102.]
2
The § 2255 Motion is filed both in United States v.
Sullivan, CR 10-00680 LEK, and Sullivan v. United States, CV 1200559 LEK-KSC. It is substantively identical to the motion filed
(continued...)
and Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody, filed on
November 26, 2012 in United States v. Sullivan, CR 11-00604 LEK,
[CR 11-00604, dkt. no. 36].3
Plaintiff/Respondent the United
States of America (“the Government”) filed its memorandum in
opposition in each case on March 15, 2013.4
no. 94; CR 11-00604, dkt. no. 59.]
each case on April 12, 2013.
[CR 10-00680, dkt.
Sullivan filed his reply in
[CR 10-00680, dkt. no. 95; CR 11-
2
(...continued)
in both United States v. Sullivan, CR 11-00604 LEK, and Sullivan
v. United States, CV 12-00560 LEK-KSC. As explained, infra,
although the motions address two different cases, they address
the same alleged error. Unless otherwise specified, all
citations related to the § 2255 Motion refer to the filing in CR
10-00680. When necessary, this Court will refer to both motions
collectively as “the § 2255 Motions”.
3
Sullivan originally alleged the claim brought in the
§ 2255 Motions as part of a 28 U.S.C. § 2241 petition. [Sullivan
v. Hendershot, CV 12-00204 LEK-BMK, Petition under 28 U.S.C.
§ 2241 for a Writ of Habeas Corpus (“§ 2241 Petition”), filed
4/18/12 (dkt no. 1).] On September 11, 2012, this Court issued
an order construing the first ground in the § 2241 Petition as a
§ 2255 motion and, on October 24, 2012, this Court ordered
Sullivan to file an amended § 2255 motion.
On October 16, 2012, Sullivan also filed a § 2255 motion in
CR 10-00680 and CR 11-00604, but those motions alleged different
grounds than the § 2255 claim he originally raised in the § 2241
Petition. [CR 10-00680, dkt. no. 68; CR 11-00604, dkt. no. 31.]
Sullivan subsequently withdrew the § 2255 motions filed on
October 16, 2012. [CR 10-00680, dkt. no. 72; CR 11-00604, dkt.
no. 34.]
4
The Government’s memorandum in opposition filed in CR 1100604 is substantively identical to the Government’s memorandum
in opposition filed in CR 10-00680. All references in this order
to the Government’s memorandum in opposition refer to the version
filed in CR 10-00680.
2
00604, dkt. no. 60.]
On September 20, 2013, this Court held an evidentiary
hearing regarding a factual issue raised in one of Sullivan’s
reply memoranda - whether Sullivan gave his counsel in the
underlying proceedings an express direction to file notices of
appeal in the two cases.
Appearing on behalf of Sullivan, who
was present, was Andrew Park, Esq., and appearing on behalf of
the Government was Assistant United States Attorney Ronald
Johnson.
At a status conference on September 24, 2013, the
parties rested on their written submissions as to the remaining
issues in the § 2255 Motions.
After careful consideration of the § 2255 Motions,
supporting and opposing memoranda, the evidence presented, and
the relevant legal authority, Sullivan’s § 2255 Motions are
HEREBY DENIED, and a certificate of appealability is also DENIED
as to both CR 10-00680 and CR 11-00604, for the reasons set forth
below.
BACKGROUND
On September 30, 2010, a grand jury indicted Sullivan
in a two-count indictment in CR 10-00680 for wire fraud, in
violation of 18 U.S.C. § 1343.
The charges involved the
marketing and sale of fraudulent offshore investment products.
Sullivan’s court-appointed attorney, Thomas Otake, Esq.,
represented him in the proceedings following the indictment.
3
After his initial appearance, Sullivan was released on
bail and required to comply with various conditions of release.
One of the conditions was the surrender of all passports and
travel documents.
Sullivan was also prohibited from applying for
or obtaining a passport.
10/26/10 (dkt. no. 7).]
[CR 10-00680, Amended Minutes, filed
At an October 29, 2010 bail review
hearing, the magistrate judge limited Sullivan’s travel to the
island of O`ahu.
[CR 10-00680, Minutes, filed 10/29/13 (dkt. no.
11).]
Sullivan ultimately pled guilty to both counts of the
CR 10-00680 Indictment pursuant to a plea agreement.
sentencing was scheduled for September 15, 2011.
Sullivan’s
[CR 10-00680,
Minutes, filed 4/29/11 (dkt. no. 37).]
On June 15, 2011, the grand jury indicted Sullivan in
CR 11-00604 with one count of making false statements in an
application for a United States passport, in violation of 18
U.S.C. § 1542.5
The alleged offense occurred on or about
April 12, 2011, while Sullivan was on pretrial release and before
he entered his guilty plea in CR 10-00680.
Indictment, filed 6/15/11 (dkt. no. 12).]
[CR 11-00604,
On July 14, 2011,
Sullivan withdrew his plea of not guilty in CR 11-00604 and
5
Sullivan’s initial appearance occurred on June 1, 2011,
after the filing of a Criminal Complaint. Mr. Otake was
appointed as Sullivan’s counsel. [CR 11-00604, Minutes, filed
6/1/11 (dkt. no. 2).]
4
entered a plea of guilty.
There was no plea agreement.
Sentencing was scheduled for October 27, 2011.
Minutes, filed 7/14/11 (dkt. no. 19).]
[CR 11-00604,
The sentencing in CR 10-
00680 was continued to October 27, 2011, to occur simultaneously
with the sentencing in CR 11-00604.
[CR 10-00680, EO, filed
7/14/11 (dkt. no. 49).]
The Probation Office issued a Presentence Investigation
Report (“PSR”) addressing both cases.
under seal 11/2/11 (dkt. no. 59).]
[CR 10-00680, PSR, filed
The PSR, inter alia,
recommended a two-level upward adjustment, pursuant to United
States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)
§ 3C1.1, for obstruction of justice in CR 10-00680 because of the
conduct charged in CR 11-00604.
The PSR explained that Sullivan
attempted to obtain a passport under the name Donald Elbert Allen
(“the Allen Passport”) with a false birth certificate and a false
State of Hawai`i identification card.
According to the PSR,
Sullivan’s total offense level was twenty-four and his criminal
history category was I.
In light of U.S.S.G. §§ 3D1.2 and 3D1.3,
the sentence for CR 11-00604 would be the same as the sentence
for Count 1 in CR 10-00680.
Sullivan objected to the obstruction of justice
adjustment, arguing that there was no evidence of intent to flee
the jurisdiction and that he was not in custody when he tried to
obtain the Allen Passport.
The Probation Office responded that:
5
Sullivan did not provide federal agents with a reasonable
explanation why he tried to obtain the Allen Passport; Sullivan’s
only reason was that he believed it would give him peace of mind;
the only reason to obtain a passport is to travel abroad; the
magistrate judge revoked Sullivan’s bail on June 27, 2011,
finding that Sullivan was a flight risk; and case law from the
Ninth Circuit and other circuits supported the imposition of the
adjustment when a defendant obtained a false passport.
In
addition, the Probation Office responded that attempting to
abscond from pretrial release constituted escape from custody
pursuant to Ninth Circuit case law.
This Court agreed with the Probation Office’s response
to Sullivan’s objection and found that there was a sufficient
basis for the two-level increase.
[10/27/11 Sentencing Trans.,
filed 12/27/12 (dkt. no. 84), at 9.]
This Court adopted the
recommendation of the PSR, and found that Sullivan’s total
offense level was twenty-four and his criminal history category
was I.
This Court noted that the Guidelines sentencing range for
the two counts in CR 10-00680 was fifty-one to sixty-three
months’ imprisonment.
This Court also noted that the two counts
in CR 10-00680 carried a twenty-year statutory maximum, and the
maximum term of imprisonment for the count in CR 11-00604 was ten
years’ imprisonment.
[Id. at 12.]
This Court ultimately
sentenced Sullivan to, inter alia, concurrent terms of fifty-five
6
months’ imprisonment as to each count in CR 10-00680 and the
single count in CR 11-00604.
[Id. at 38.]
in each case on November 3, 2011.
Judgment was entered
[CR 10-00680, dkt. no. 61; CR
11-00680, dkt. no. 28.]
I.
The § 2255 Motions
In his § 2255 Motions, Sullivan asserts that this Court
erred in imposing the obstruction of justice adjustment because
the record does not support a finding that he willfully attempted
either to obstruct or to impede the prosecution of CR 10-00680
when he attempted to obtain the Allen Passport.6
Sullivan also
argues that this Court should not have imposed the obstruction of
justice adjustment because obtaining the Allen Passport while on
pretrial release did not constitute escape from custody.
According to Sullivan, he did not challenge the obstruction of
justice adjustment in a direct appeal because of the ineffective
assistance of counsel.
Sullivan’s reply in CR 11-00604 raises another issue.
The reply appears to suggest that, in an October 29, 2011
telephone call, Sullivan told Mr. Otake that, although Sullivan
did not want to file a direct appeal at that time, he wanted to
6
As noted, supra, the sentence for the count in CR 11-00604
was determined in the same manner as the counts in CR 10-00680.
Thus, the alleged error in the determination of Sullivan’s
sentence in CR 10-00680 also resulted in the same alleged error
in Sullivan’s sentence in CR 11-00604. Unless expressly noted,
the analysis of Sullivan’s claim for relief is identical in the
two cases.
7
do so after they had the chance to discuss other options and the
possible grounds for appeal.
According to Sullivan, he
subsequently attempted to discuss his concerns with Mr. Otake,
but Mr. Otake neither took his phone calls, answered his emails,
nor came to see him at the detention center.
The reply contends
that Sullivan was unable to file an appeal because Mr. Otake
failed to follow through after the October 29, 2011 conversation.
II.
Evidentiary Hearing
At the evidentiary hearing, Sullivan testified that,
after his sentencing, he was surprised at the imposition of the
obstruction of justice adjustment.
He had questions about the
sentencing that he wanted to discuss with Mr. Otake, but
Mr. Otake did not come to see him, either when he was held in the
Marshall’s office immediately after the sentencing hearing or
when he was returned to the detention center.
According to
Sullivan, he spoke with Mr. Otake on the phone two days after the
sentencing hearing.
Sullivan asked Mr. Otake about his options
for a possible appeal, and what grounds he could raise in the
appeal.
Mr. Otake informed Sullivan that he was going out of
town for a week, and they would discuss the case when he
returned.
Sullivan testified that Mr. Otake asked him if he
wanted to file an appeal at that time, and Sullivan said no
because he wanted to discuss the case with Mr. Otake first.
8
According to Sullivan, after some time passed, he tried
to contact Mr. Otake every day for two to three weeks before he
was finally able to speak to Mr. Otake on the telephone.
At that
time, Mr. Otake said that his obligation to represent Sullivan
ended after sentencing.
Sullivan testified that, at that time,
he believed that, based on Mr. Otake’s previous representations,
he had one year to file an appeal.
Further, if he had known that
he only had fourteen days from the entry of judgment to file the
notice of appeal, he would have insisted on talking to Mr. Otake
before he went out of town.
On cross-examination, Sullivan admitted that he knew
the one-year period referred to the deadline to seek an
adjustment of his sentence and, at the sentencing hearing, this
Court informed him that there was a limited time period in which
Sullivan could file any appeal.
Sullivan believed that period to
be ten to fourteen days.
The Government called Mr. Otake as a witness and
submitted two exhibits, which this Court received into evidence.
Exhibit 1 is Mr. Otake’s Criminal Justice Act (“CJA”)
compensation claim form, which he submitted to the district court
to obtain payment for his services as Sullivan’s court-appointed
attorney.
Exhibit 2 is a list of the hours performed and the
descriptions of the services rendered in the course of
Mr. Otake’s representation of Sullivan.
9
Mr. Otake testified that
he recorded the entries in Exhibit 2 either contemporaneously
with the services rendered or the day afterward.
He used Exhibit
2 to prepare his CJA form, although he admitted that, in some of
his cases, he does not prepare his CJA forms until months after
rendering the services in the requests.
Both Exhibit 1 and
Exhibit 2 state that Mr. Otake met with Sullivan for 0.5 hours on
the day of the sentencing hearing, October 27, 2011, and for 1.5
hours the next day, October 28, 2011.
During the October 28
meeting, they discussed Sullivan’s right to appeal.
Mr. Otake testified that, when he met with Sullivan
after the sentencing hearing, they discussed the obstruction of
justice adjustment, but Mr. Otake reminded him about the
appellate waiver in the plea agreement.
instruct him to file an appeal.
Sullivan did not
Mr. Otake advised Sullivan that
an appeal would be a waste of time and that this Court was within
its discretion when it imposed the obstruction of justice
adjustment.
Mr. Otake also warned Sullivan that an appeal could
be detrimental to Sullivan.
For example, it was possible that,
after an unsuccessful appeal, Sullivan could lose some of the
benefits in his plea agreement.
After the discussion, Sullivan
said that he did not want to file an appeal and he wanted to
focus on other issues.
Sullivan had some ideas about seeking a
sentence reduction pursuant to Fed. R. Crim. P. 35 and about
seeking a transfer to an east coast correctional facility.
10
STANDARD
28 U.S.C. § 2255 states, in pertinent part:
(a) A prisoner in custody under sentence of a
court established by Act of Congress claiming the
right to be released upon the ground that the
sentence was imposed in violation of the
Constitution or laws of the United States, or that
the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise
subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or
correct the sentence.
(b) Unless the motion and the files and records of
the case conclusively show that the prisoner is
entitled to no relief, the court shall cause
notice thereof to be served upon the United States
attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and
conclusions of law with respect thereto. If the
court finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not
authorized by law or otherwise open to collateral
attack, or that there has been such a denial or
infringement of the constitutional rights of the
prisoner as to render the judgment vulnerable to
collateral attack, the court shall vacate and set
the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or
correct the sentence as may appear appropriate.
. . . .
Insofar as this Court held an evidentiary hearing
regarding the issue of whether Sullivan expressly instructed
Mr. Otake to file a notice of appeal, Sullivan
must prove by a preponderance of the evidence that
he was denied a constitutional right. See Farrow
v. United States, 580 F.2d 1339, 1355 (9th Cir.
1978); see also Hearn v. United States, 194 F.2d
647, 649 (7th Cir. 1952). Therefore, to succeed
on his motion, Petitioner must prove by a
11
preponderance of the evidence that he was provided
with ineffective assistance of counsel in
violation of his Sixth Amendment rights.
See Soto-Lopez v. United States, Nos. 07–cr–3475–IEG,
10–cv–1852–IEG, 2012 WL 3134253, at *3 (S.D. Cal. Aug. 1, 2012);
see also Farrow, 580 F.2d at 1355 (“following Johnson v. Zerbst,
[304 U.S. 458, 469 (1938),] the proof of each factor that must be
established at a § 2255 evidentiary hearing into the validity of
the petitioner’s prior convictions must satisfy the
preponderance-of-the-evidence standard”).
As to the remainder of the issues in the § 2255
Motions, this Court has ruled that an evidentiary hearing is not
necessary.
A court may deny a § 2255 motion 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.” R. 4(b)
Governing Section 2255 Proceedings. A court need
not hold an evidentiary hearing if the allegations
are “palpably incredible or patently frivolous” or
if the issues can be conclusively decided on the
basis of the evidence in the record. See
Blackledge v. Allison, 431 U.S. 63, 76 (1977); see
also United States v. Mejia–Mesa, 153 F.3d 925,
929 (9th Cir. 1998) (noting that a “district court
has discretion to deny an evidentiary hearing on a
§ 2255 claim where the files and records
conclusively show that the movant is not entitled
to relief”). Conclusory statements in a § 2255
motion are insufficient to require a hearing.
United States v. Johnson, 988 F.2d 941, 945 (9th
Cir. 1993). A petitioner must allege specific
facts that, if true, would entitle him or her to
relief. See United States v. Rodrigues, 347 F.3d
818, 824 (9th Cir. 2003) (citing United States v.
McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996)).
12
Claxton v. United States, Civ. No. 12–00433 JMS–KSC, 2013 WL
1136704, at *4 (D. Hawai`i Mar. 18, 2013).
DISCUSSION
I.
Procedural Default
At the outset, this Court must determine if Sullivan’s
failure to file a direct appeal from his judgments of conviction
and sentence precludes him from challenging the judgments in the
§ 2255 Motions.
This district court has stated:
Absent a showing of cause and prejudice, a
federal habeas petitioner procedurally defaults on
all claims that were not raised on direct appeal,
other than claims asserting that the petitioner
was deprived of effective assistance of counsel.
See Massaro v. United States, 538 U.S. 500, 504
(2003); Bousley v. United States, 523 U.S. 614,
621–22 (1998); United States v. Frady, 456 U.S.
152, 167–68 (1982). The Supreme Court has
explained:
[T]o obtain collateral relief based on trial
errors to which no contemporaneous objection
was made, a convicted defendant must show
both (1) “cause” excusing his double
procedural default, and (2) “actual
prejudice” resulting from the errors of which
he complains.
Frady, 456 U.S. at 167–68.
“‘[C]ause’ under the cause and prejudice test
must be something external to the petitioner,
something that cannot fairly be attributed to
him.” Coleman v. Thompson, 501 U.S. 722, 753
(1991). Examples of external factors that
constitute cause include “interference by
officials,” or “a showing that the factual or
legal basis for a claim was not reasonably
available to counsel.” Murray v. Carrier, 477
U.S. 478, 488 (1986). To show “actual prejudice,”
a § 2255 petitioner “must shoulder the burden of
13
showing, not merely that the errors at his trial
created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage,
infecting his entire trial with error of
constitutional dimensions.” Frady, 456 U.S. at
170.
Gaitan-Ayala v. United States, Civ. No. 12–00002 JMS–BMK, 2013 WL
958361, at *4 (D. Hawai`i Mar. 12, 2013).
Ineffective assistance
of counsel claims, however, are not subject to the procedural bar
rule.
Massaro v. United States, 538 U.S. 500, 504 (2003)
(holding that “an ineffective-assistance-of-counsel claim may be
brought in a collateral proceeding under § 2255, whether or not
the petitioner could have raised the claim on direct appeal”).
Thus, the portions of the § 2255 Motions alleging ineffective
assistance of counsel claims are not procedurally barred.
Sullivan has not identified any other grounds that would
constitute “cause” for his failure to file a direct appeal.
This
Court therefore concludes that any claims in the § 2255 Motions
that do not allege ineffective assistance of counsel are
procedurally barred.
II.
Ineffective Assistance of Counsel
The United States Supreme Court has held that, when
defense counsel fails to file an appeal after the defendant
expressly instructs him to do so, it is ineffective assistance of
counsel per se, irrespective of the merits of the appeal the
defendant wished to file.
See, e.g., Roe v. Flores-Ortega, 528
U.S. 470, 477 (2000) (“We have long held that a lawyer who
14
disregards specific instructions from the defendant to file a
notice of appeal acts in a manner that is professionally
unreasonable.” (citing cases)); Peguero v. United States, 526
U.S. 23, 28 (1999) (“when counsel fails to file a requested
appeal, a defendant is entitled to resentencing and to an appeal
without showing that his appeal would likely have had merit”).
Having considered the testimony and exhibits presented
at the evidentiary hearing, and having evaluated the evidence in
the context of the record as a whole in CR 10-00680 and CR 1100604, this Court finds that Mr. Otake’s testimony was more
credible than Sullivan’s testimony.
In particular, this Court
does not credit Sullivan’s testimony that he believed he had up
to one year to file his direct appeal.
During the sentencing
hearing, this Court explained to Sullivan that he had fourteen
days from the entry of judgment to file his appeal.
Sentencing Trans. at 41.]
[10/27/11
Sullivan also admitted in his CR 11-
00604 Reply that Mr. Otake advised him on October 29, 2011 that a
direct appeal would have to be filed within fourteen days of the
sentencing.
[CR 11-00604, Reply, Notes on Attorney Thomas
Otake’s Decl. at 1.]
Further, Sullivan admitted during the
evidentiary hearing that, when he spoke to Mr. Otake on October
29, 2011, he told Mr. Otake he did not want to file an appeal at
that time.
This Court therefore concludes that Sullivan has
failed to meet his burden of proving, by a preponderance of the
15
evidence, that his counsel rendered ineffective assistance per se
by failing to follow an express request to file a direct appeal
from the judgments in CR 10-00680 and CR 11-00604.
Sullivan also makes the related argument that
Mr. Otake’s failure to challenge the obstruction of justice
adjustment on appeal constituted ineffective assistance of
counsel.
This district court has stated:
To prevail on an ineffective assistance
claim, a § 2255 movant must show (1) that
counsel’s representation fell below an objective
standard of reasonableness, and (2) that 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, 687–88 (1984).
Counsel “is strongly presumed to have
rendered adequate assistance and made all
significant decisions in the exercise of
reasonable professional judgment.” Id. at 690;
see Hughes v. Borg, 898 F.2d 695, 702 (9th Cir.
1990). “[S]trategic choices made after thorough
investigation of law and facts relevant to
plausible options are virtually unchallengeable;
and strategic choices made after less than
complete investigation are reasonable precisely to
the extent that reasonable professional judgments
support the limitations on investigation.”
Strickland, 466 U.S. at 690–91.
Even upon showing that counsel’s performance
is deficient, the petitioner must also show that
the deficiency was prejudicial to the petitioner’s
defense. Id. at 692. Stated differently, the
petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have
been different.” Id. at 694. A court need not
determine whether counsel’s performance was
deficient before examining the prejudice suffered
by the petitioner as a result of the alleged
16
deficiencies. See id. at 697. In other words,
any deficiency that does not result in prejudice
necessarily fails.
Gaitan-Ayala, 2013 WL 958361, at *8-9.
First, the Court notes that Mr. Otake did object to the
PSR’s recommendation to impose the obstruction of justice
adjustment.
Mr. Otake raised the same arguments that Sullivan
now raises in the § 2255 Motions - that there was no evidence of
intent to flee and that Sullivan was not in custody when he tried
to obtain the Allen Passport.
Mr. Otake elaborated on those
arguments during the sentencing hearing.
He emphasized that
there are situations where people obtain passports but never try
to leave the country.
Mr. Otake pointed out that, when Sullivan
tried to obtain the Allen Passport, Sullivan did not have an
airline ticket or flight reservations.
Trans. at 5-6.]
[10/27/11 Sentencing
In his rebuttal to the Government’s argument,
Mr. Otake argued that, although Sullivan had approximately $2,000
in cash when he tried to obtain the Allen Passport, Sullivan also
had a deposit slip with him because he was going to deposit the
money in a family member’s account.
Mr. Otake therefore argued
that Sullivan’s possession of the money was not evidence of an
intent to leave the country.
Mr. Otake also reiterated
Sullivan’s position that, even though it was not something that
other people might take comfort in, Sullivan took comfort from
the mere possession of a passport which he did not intend to use.
17
[Id. at 8-9.]
Although this Court ultimately concluded that the
adjustment was warranted, this Court’s conclusion was not the
result of Mr. Otake’s failure to raise arguments on Sullivan’s
behalf.
Having reviewed the record in the underlying
proceedings, as well as the submissions addressing the § 2255
Motions, this Court finds that Mr. Otake raised all of the
challenges to the obstruction of justice adjustment that Sullivan
now brings in the § 2255 Motions.
Sullivan’s argument is
essentially that Mr. Otake rendered ineffective assistance by
failing to revisit those arguments in a direct appeal.
This Court has already found that Sullivan has not
proven that he instructed Mr. Otake to file an appeal.
However,
even if one assumes that the failure to appeal the obstruction of
justice adjustment was objectively unreasonable (despite the
absence of the client’s direction to do so), Sullivan has not
shown that, if the appeal had been filed, it had the reasonable
probability of being successful.
See Gaitan-Ayala, 2013 WL
958361, at *9.
First, Sullivan’s plea agreement in CR 10-00680
contained a waiver of Sullivan’s right to appeal his sentence,
except in certain limited circumstances.
[CR 10-00680, Mem. of
Plea Agreement, filed 4/29/11 (dkt. no. 38), at ¶ 13.]
Even if
the waiver did not apply to an appeal of the obstruction of
justice adjustment, Sullivan’s intended appeal would have failed
18
on the merits.
U.S.S.G. § 3C1.1 states:
If (1) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the
administration of justice with respect to the
investigation, prosecution, or sentencing of the
instant offense of conviction, and (2) the
obstructive conduct related to (A) the defendant’s
offense of conviction and any relevant conduct; or
(B) a closely related offense, increase the
offense level by 2 levels.
One example of conduct covered by § 3C1.1 is “escaping or
attempting to escape from custody before trial or sentencing; or
willfully failing to appear, as ordered, for a judicial
proceeding[.]”
U.S.S.G. § 3C1.1, cmt. 4(E); see also
United States v. Yepez, 704 F.3d 1087, 1100 (9th Cir. 2012) (en
banc) (per curiam) (“Commentary in the Application Notes
interpreting or explaining a guideline is authoritative unless it
violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline.” (citations and internal quotation marks omitted)),
cert. denied, 133 S. Ct. 2040 (2013).
Sullivan’s first argument is that there was no evidence
that he intended to use the Allen Passport to flee the country.
His argument is misplaced.
The issue is not whether he intended
to use the passport to flee, but whether he obtained it
willfully.
If he did so and obtained the passport under a false
name, this Court can reasonably infer that he may have intended
to flee the country.
The Guidelines provide that:
19
Unless otherwise specified, . . . adjustments in
Chapter Three, shall be determined on the basis of
the following:
(1) (A) all acts and omissions committed,
aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the
defendant;
U.S.S.G. § 1B1.3(a) (emphasis added).
Further, the commentary to
§ 3C1.1 emphasizes that § 1B1.3(a)(1)(A) applies to the
obstruction of justice adjustment.
U.S.S.G. § 3C1.1, cmt. 9
(“Under [§ 1B1.3(a)(1)(A)], the defendant is accountable for the
defendant’s own conduct and for conduct that the defendant aided
or abetted, counseled, commanded, induced, procured, or willfully
caused.”).
In order to apply for the Allen Passport, on April
12, 2011, Sullivan completed an application at the Downtown Post
Office and presented, as proof of identity, a birth certificate
in the name of Donald Elbert Allen and a State of Hawai`i
identification card in the name of Donald Allen.7
an oath, signing the name Donald Allen.
He also swore
These were all willful
actions that Sullivan deliberately took in order to obtain the
Allen Passport, and for which he is accountable pursuant to
§ 1B1.3(a)(1)(A) and § 3C1.1.
Sullivan obtained the Allen
Passport when he knew his conditions of pretrial release in
CR 10-00680 specifically prohibited him from traveling outside of
7
“Donald Allen” was one of the fictitious names Sullivan
used to sign fraudulent investment certificates for his victims.
The application for the Allen Passport was therefore related to
the offenses in CR 10-00680.
20
the country and from possessing his passport or applying for a
new passport.
[CR 10-00680, Order Setting Conditions of Release,
filed 10/27/10 (dkt. no. 6).]
At the time Sullivan applied for
the Allen Passport, the proceedings in CR 10-00680 were on-going.
The Ninth Circuit has recognized that it is reasonable to infer
that a defendant who applies for a passport under a false name
may have been attempting to flee the country.
Donaghe, 924 F.2d 940, 945 (9th Cir. 1991).
United States v.
Thus, his willful
actions had the potential to obstruct or impede the
administration of justice with respect to the prosecution in
CR 10-00680.
Finally, Sullivan’s position that he was not “in
custody” when he attempted to obtain the Allen Passport is wholly
without merit.
The Ninth Circuit has clearly held that pretrial
release constitutes “custody” for purposes of § 3C1.1.
United
States v. Draper, 996 F.2d 982 (9th Cir. 1993) (affirming
imposition of obstruction of justice adjustment where the
defendant failed to return to the community treatment center
where his conditions of pretrial release required him to reside);
see also United States v. Chapman, 64 Fed. Appx. 619, 619 (9th
Cir. 2003) (affirming obstruction of justice adjustment where the
defendant absconded from pretrial custody, resulting in the
failure to appear for sentencing).
21
This Court therefore finds that the record conclusively
shows that Sullivan has not meet his burden to prove that Mr.
Otake rendered ineffective assistance by failing to appeal the
obstruction of justice adjustment.
Nor can Sullivan establish a
reasonable probability that, if a direct appeal had been filed,
Sullivan would have prevailed on that appeal and succeeded in
getting the portion of his sentence attributable to the
obstruction of justice adjustment overturned.
466 U.S. at 694.
See Strickland,
Thus, Sullivan’s claim that Mr. Otake’s
representation was deficient fails because Sullivan was not
prejudiced by the lack of an appeal challenging the obstruction
of justice adjustment.
See Gaitan-Ayala, 2013 WL 958361, at *9.
Sullivan’s § 2255 Motions are therefore DENIED.
III. Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts provides that
“[t]he district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.”
Because it has denied the sole claim in each of
Sullivan’s § 2255 Motions, this Court must address whether to
grant Sullivan a certificate of appealability in each case.
This district court has recognized that a certificate
of appealability
may issue only if the petitioner “has made a
substantial showing of the denial of a
22
constitutional right.”
28 U.S.C. § 2253(c)(2).
“The standard for a certificate of
appealability is lenient.” Hayward v. Marshall,
603 F.3d 546, 553 (9th Cir. 2010) (en banc),
overruled on other grounds by Swarthout v. Cooke,
131 S. Ct. 859 (2011). The petitioner is required
to demonstrate only “that reasonable jurists could
debate the district court’s resolution or that the
issues are adequate to deserve encouragement to
proceed further.” Id. (citation and internal
quotation marks omitted). The standard “requires
something more than the absence of frivolity but
something less than a merits determination.” Id.
(internal quotation marks omitted).
Claxton, 2013 WL 1136704, at *11.
This Court has carefully reviewed Sullivan’s § 2255
Motion and considered the testimony and exhibits presented at the
evidentiary hearing, as well as the record in CR 10-00680 and CR
11-00604 as a whole.
This Court has found that Sullivan did not
establish that his counsel failed to follow an express
instruction to file notices of appeal, and this Court cannot find
that counsel’s failure to challenge the obstruction of justice
adjustment on appeal, in the absence of an express instruction to
do so, was objectively unreasonable.
Further, even assuming,
arguendo, that the failure to file the appeals was unreasonable,
Sullivan cannot establish that it was prejudicial.
Thus,
Sullivan has failed to prove his ineffective assistance of
counsel claims, and any other claims in the § 2255 Motions are
procedurally barred.
This Court concludes that reasonable
jurists would not find this Court’s rulings to be debatable.
23
Accordingly, this Court DENIES issuance of a certificate of
appealability as to both CR 10-00680 and CR 11-00604.
CONCLUSION
On the basis of the foregoing, Sullivan’s Amended
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody, filed November 26, 2012
in United States v. Sullivan, CR 10-00680 LEK, and Sullivan’s
Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody, filed November
26, 2012 in United States v. Sullivan, CR 11-00604 LEK, are
HEREBY DENIED.
Further, this Court also DENIES a certificate of
appealability in both cases.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 30, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
USA VS. JOSEPH W. SULLIVAN; CR. 10-00680 LEK; JOSEPH W. SULLIVAN
VS. USA; CV. 12-00559 LEK-KSC; ORDER DENYING AMENDED MOTIONS
UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
BY A PERSON IN FEDERAL CUSTODY AND DENYING CERTIFICATES OF
APPEALABILITY
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