Roswell v. USA
ORDER DENYING AMENDED MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND DENYING CERTIFICATE OF APPEALABILITY re: 4 . Signed by JUDGE LESLIE E. KOBAYASHI on 5/31/2013. (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 June 3, 2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
FREDERICK SCOTT ROSWELL,
CR. NO. 10-00822 LEK
CV. NO. 12-00567 LEK-KSC
ORDER DENYING AMENDED MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON
IN FEDERAL CUSTODY AND DENYING CERTIFICATE OF APPEALABILITY
Before the Court is pro se Defendant/Petitioner
Frederick Scott Roswell’s (“Roswell”) 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
December 5, 2012.1
[Dkt. no. 44.2]
United States of America (“the Government”) filed its memorandum
in opposition on March 12, 2013.
file a reply.
[Dkt. no. 55.]
Roswell did not
After careful consideration of the § 2255 Motion,
supporting and opposing memoranda, and the relevant legal
authority, Roswell’s § 2255 Motion is HEREBY DENIED, and a
Roswell filed his original motion on October 22, 2012, and
this Court ordered him to amend the motion.
The § 2255 Motion is filed both in United States v.
Roswell, CR 10-00822 LEK, and Roswell v. United States, CV 1200567 LEK-KSC. All citations related to the § 2255 Motion refer
to the filings in CR 10-00822.
certificate of appealability is also DENIED, for the reasons set
On November 17, 2010, a grand jury indicted Roswell in
a thirteen-count indictment for various fraud offenses involving
the misappropriation of money belonging to his employers.
Assistant Federal Public Defender Salina Kanai Althof represented
Roswell in the proceedings following the indictment.
ultimately pled guilty to Counts 2, 8, and 11 pursuant to a plea
[Minutes, filed 4/7/11 (dkt. no. 18).]
sentenced Roswell to concurrent terms of imprisonment of 120
months as to each of Counts 2 and 8 and 175 months as to Count
This Court also sentenced him to concurrent terms of
supervised release of three years as to each of Counts 2 and 8
and five years as to Count 11.
[Minutes, filed 10/11/11 (dkt.
Judgment was entered on October 17, 2011, and an
Amended Judgment was entered on October 18, 2011.
[Dkt. nos. 30,
In his § 2255 Motion, Roswell asserts the following
grounds: his counsel was ineffective because she advised him to
enter into the plea agreement based on a promise that Roswell
Count 2 was interstate transportation of stolen property,
in violation of 18 U.S.C. § 2314; Count 8 was access device
fraud, in violation of 18 U.S.C. § 1029(a)(2); and Count 11 was
mail fraud, in violation of 18 U.S.C. § 1341.
would receive a term of imprisonment of seven years (eighty-four
months) or less (“Ground One”); this Court erroneously considered
“conduct that does not pertain to this case” as part of “Relevant
Conduct” (“Ground Two”); [§ 2255 Motion at 6;4] this Court should
have granted him a downward departure for his severe medical
issues pursuant to United States Sentencing Guidelines
(“Guidelines” or “U.S.S.G.”) § 5K.2 (“Ground Three”); and this
Court improperly enhanced his sentence based on facts that were
not proven and which a jury should have found (“Ground Four”).
The Government responds that there is no evidence to
support Roswell’s claim that Ms. Althof promised him he would
receive a term of imprisonment of eighty-four months or less.5
Ms. Althof also explained to Roswell that the Court would make an
independent calculation of the Guidelines range, and that the
Court could sentence him up to the statutory maximum.
plea agreement and during the change of plea colloquy, Roswell
acknowledged that there were no promises or guarantees as to the
Guidelines provisions, and that the ultimate sentence could be
higher than he expected.
Thus, the Government argues that
Roswell knowingly and voluntarily entered his guilty plea with
The Court notes that the form page marked “Page 6” is
actually the fifth page in the § 2255 Motion because the form
page marked “Page 2” is not included in Roswell’s § 2255 Motion.
On March 5, 2013, this Court filed its Order Granting
Government’s Motion Seeking Order Finding Waiver of
Attorney-Client Privilege. [Dkt. no. 54.]
the knowledge that there was no guarantee about the sentence he
Further, the Government contends that Roswell has
failed to prove that Ms. Althof provided ineffective assistance
which resulted in prejudice to him.
The Government also argues that Roswell has not proven
that he would have gone to trial if he had not been promised a
sentence of eighty-four months’ imprisonment or less.
Government emphasizes that, after Roswell changed his plea, the
Presentence Investigation Report (“PSR”) found that the amount of
loss was higher than the parties anticipated in the plea
agreement, and the PSR ultimately calculated Roswell’s Guidelines
sentencing range at 140-175 months’ imprisonment.
stated that it would not oppose a motion to withdraw Roswell’s
guilty plea but, after consulting with Ms. Althof, Roswell
decided to abide by the plea agreement.
Even assuming, arguendo,
that Ms. Althof “promised” Roswell a sentence of eighty-four
months’ imprisonment or less, Roswell cannot prove that the
purported promise prejudiced him.
As to Roswell’s Ground Two and Four arguments that this
Court improperly considered relevant conduct and made sentencing
findings of fact that a jury should have made, the Government
argues that there was no violation of Apprendi v. New Jersey, 530
U.S. 466 (2000).
The Government emphasizes that this Court
sentenced Roswell within the Guidelines range and that U.S.S.G.
§ 2B1.1 actually requires the court to make findings about the
amount of loss.
The Government argues that the Ninth Circuit has
recognized that such judicial fact-finding does not violate a
defendant’s Sixth Amendment right to a jury trial.
As to Roswell’s Ground Three argument, the Government
argues that defense counsel raised the issue of whether Roswell’s
mental health issues warranted a downward departure, and this
Court considered and rejected the argument.
Roswell has not
raised a constitutional challenge as to this issue.
The Government therefore argues that the record
conclusively shows that Roswell cannot establish either
constitutionally ineffective assistance of counsel or that his
sentence was imposed in violation of the law.
therefore urges this Court to deny Roswell’s § 2255 Motion
without an evidentiary hearing.
This district court has recently stated the standard of
review for a § 2255 motion as follows:
Title 28 U.S.C. § 2255(a) provides:
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
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)).
Claxton v. United States, Civ. No. 12–00433 JMS–KSC, 2013 WL
1136704, at *4 (D. Hawai`i Mar. 18, 2013).
Procedural Bar & Waiver
At the outset, this Court notes that Roswell did not
file a direct appeal from his judgment of conviction.
Motion at 3.]
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
[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
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
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
Gaitan-Ayala v. United States, Civ. No. 12–00002 JMS–BMK, 2013 WL
958361, at *4 (D. Hawai`i Mar. 12, 2013).
of counsel claims, however, are not subject to the procedural bar
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”).
This Court also notes that Roswell’s plea agreement
acknowledges that he had the right to appeal his sentence but
Defendant knowingly waives the right to appeal,
except as indicated in subparagraph “b” below, any
sentence within the maximum provided in the
statute(s) of conviction or the manner in which
that sentence was determined on any of the grounds
set forth in Section 3742, or on any ground
whatever, in exchange for the concessions made by
the prosecution in this plea agreement.
The Defendant also waives his right to
challenge his sentence or the manner in which it
was determined in any collateral attack,
including, but not limited to, a motion brought
under Title 28, United States Code, Section,
except that defendant [sic] may make such a
challenge (1) as indicated in subparagraph “b”
below, or (2) based on a claim of ineffective
assistance of counsel.
If the Court imposes a sentence greater
than specified in the guideline range determined
by the Court to be applicable to the Defendant,
the Defendant retains the right to appeal the
portion of his sentence greater than specified in
that guideline range and the manner in which that
portion was determined under Section 3742 and to
challenge that portion of his sentence in a
. . . .
[Mem. of Plea Agreement, filed 4/7/11 (dkt. no. 19), at ¶ 13.]
Thus, Roswell did not waive his right to bring Ground One, and he
alleges that the plea agreement is invalid because he would not
have entered into the plea agreement but for counsel’s
This Court therefore turns to the merits
of Ground One.
Ground One - Ineffective Assistance of Counsel
In Ground One, Roswell alleges that his counsel
provided ineffective assistance because she promised him that, if
he pled guilty, he would receive a sentence of less than eightyfour months’ imprisonment.
based on this promise.
Roswell asserts that he pled guilty
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
deficiencies. See id. at 697. In other words,
any deficiency that does not result in prejudice
Gaitan-Ayala, 2013 WL 958361, at *8-9.
Roswell has not identified any evidence to support his
claim that his counsel, Ms. Althof, promised him that he would
receive a sentence of less than eighty-four months’ imprisonment.
The Government submitted a declaration by Ms. Althof in which she
states, inter alia, that she did not promise Roswell a sentence
of eighty-four months’ imprisonment.
[Mem. in Opp., Decl. of
Salina Kanai Althof (“Althof Decl.”) at ¶ 3.]
She also states
that, when she discussed the possibility of entering into a plea
agreement, she advised Roswell that she estimated his Guidelines
sentencing range to be 100-125 months or 120-150 months,
depending upon the amount of loss.
She explained that this was
only an estimation and the Court would ultimately decide what the
applicable range was, as well as his criminal history score.
also advised him that there could be an upward variance in light
of his criminal history.
[Id. at ¶ 6.]
Ms. Althof sent Roswell
a letter, which included her notes, memorializing the
conversation that they had, including her estimation of his
[Althof Decl., Exh. 1.]
Further, Roswell’s plea agreement expressly noted the
following maximum terms of imprisonment: Count 2 - ten years (120
months); Count 8 - ten years (120 months); and Count 11 - thirty
years (360 months).
[Mem. of Plea Agreement at ¶ 7.]
agreement also acknowledges that the Court was not bound by the
agreement, and that the Court would determine the facts relevant
to sentencing with the aid of the PSR.
[Id. at ¶ 11.]
acknowledged that he “understands that the District Court in
imposing sentence will consider the provisions of the Sentencing
The Defendant agrees that there is no promise or
guarantee of the applicability or nonapplicability of any
Guideline or any portion thereof, notwithstanding any
representations or predictions from any source.”
[Id. at ¶ 14.]
Roswell also acknowledged that “no threats, promises, or
representations have been made, nor agreement reached, other than
those set forth in this Agreement, to induce Defendant to plead
[Id. at ¶ 18.]
Roswell repeated many of these acknowledgments at the
April 7, 2011 change of plea hearing
[4/7/11 Hrg. Trans., filed
11/6/12 (dkt. no. 40),6 at 9-10 (maximum penalties for each
count); id. at 13 (sentence could be different from any that he
discussed with his counsel); id. at 14 (sentence could be higher
than he expected).]
Roswell also stated that he was fully
satisfied with the legal representation that Ms. Althof and her
[4/7/11 Hrg. Trans. at 5.]
The Government attached a copy of the 4/7/11 Hearing
Transcript to its memorandum in opposition as Exhibit A.
The PSR ultimately found that Roswell’s Guideline
sentencing range was 140-175 months, which was higher than
anticipated in the plea agreement because of the final
determination of the amount of loss and the application of an
enhancement for the use of sophisticated means.
obtained a continuance of the sentencing hearing so that she
could review the PSR with Roswell.
In light of the higher loss
amount, the Government informed Ms. Althof that it would not
oppose a motion to withdraw Roswell’s guilty plea.
discussed the matter with Roswell, but he ultimately decided not
to withdraw his plea.
[Althof Decl. at ¶¶ 9-12.]
Further, in a
September 22, 2011 letter that Ms. Althof sent Roswell to respond
to concerns he raised, Ms. Althof reminded him that the Court was
not bound by the plea agreement and that there was no guarantee
as to any Guidelines provision.
[Id., Exh. 2 at 1.]
the sentencing hearing, the Court reminded Roswell of the maximum
penalties for each count.
[10/11/11 Sentencing Trans., filed
10/19/11 (dkt. no. 35),7 at 5.]
Having considered all of the relevant portions of the
record, this Court FINDS that the record conclusively shows that
Roswell’s counsel did not promise him that he would receive a
sentence of eighty-four months’ imprisonment or less if he pled
The Government attached a copy of the 10/11/11 Sentencing
Transcript to its memorandum in opposition as Exhibit B.
Further, the record conclusively shows that Roswell
understood that there were no promises as to his sentence and
that this Court would independently determine his Guidelines
sentencing range with the assistance of the PSR.
has failed to prove that his counsel’s representation fell below
an objective standard of reasonableness.
This Court CONCLUDES
that Roswell is not entitled to an evidentiary hearing as to
Ground One, and this Court also CONCLUDES that it plainly appears
from the § 2255 Motion, and the record in this case, that Roswell
is not entitled to relief on Ground One.
Roswell’s § 2255 Motion is therefore DENIED as to
III. Remaining Grounds
Other than the Ground One assertion of ineffective
assistance of counsel, Roswell has not identified any other
reasons for his failure to raise Grounds Two to Four in a direct
Roswell therefore has not established any cause for his
failure to raise these issues on appeal, and therefore he is
procedurally barred from challenging these claims through § 2255.
See Frady, 456 U.S. at 167–68.
In addition, Roswell was sentenced to 120 months’
imprisonment for Count 2 and Count 8, and 175 months’
imprisonment for Count 11.
These terms were within Roswell’s
Guidelines sentencing range for each count.
Thus, Roswell’s plea
agreement waived his § 2255 challenges in Grounds Two, Three, and
Even if procedural bar and waiver did not apply, this
Court would conclude that Grounds Two, Three, and Four all fail
on the merits.
Ground Two alleges that this Court improperly
considered relevant conduct, and Ground Four alleges that this
Court improperly made findings of fact regarding the amount of
These claims fail because the Guidelines “give the
sentencing judge discretion to sentence outside the guideline
range, but still allows the sentencing judge (as distinct from a
jury) to make the findings of fact necessary to determine the
guideline range in the first place.”
See United States v. Dupas,
417 F.3d 1064, 1067 (9th Cir. 2005); see also United States v.
Buckland, 289 F.3d 558, 570 (9th Cir. 2002) (en banc) (“Apprendi
does not alter the authority of the judge to sentence within the
statutory range provided by Congress.” (emphasis in original)).
Ground Three alleges that Roswell should have received
a downward departure because of his mental health issues.
claim fails because Ms. Althof argued that Roswell’s mental
health issues warranted a downward departure, and this Court
considered and rejected that argument.
Trans. at 31-32 (defense counsel’s argument); id. at 37 (stating,
before announcing sentence, that the Court took Roswell’s mental
health history into account).]
This Court CONCLUDES that Roswell is not entitled to an
evidentiary hearing because the record conclusively shows that
Roswell is not entitled to relief on Ground Two, Ground Three, or
Roswell’s § 2255 Motion is therefore DENIED as to
Ground Two, Ground Three, and Ground Four.
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
In light of the denial of all of the claims in
Roswell’s § 2255 Motion, this Court must address whether to grant
Roswell a certificate of appealability (“COA”).
This district court has recognized that:
A COA may issue only if the petitioner “has made a
substantial showing of the denial of a
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 Roswell’s § 2255
Motion and liberally construed the allegations therein.
however, did not point to any evidence supporting his ineffective
assistance claim, and he did not respond to the Government’s
There is no evidence that Roswell’s counsel
promised him that he would be sentenced to eighty-four months’
imprisonment or less if he pled guilty, nor is there any evidence
that counsel’s representation was deficient, or that any
deficiency was prejudicial.
Further, in light of the failure of
Roswell’s ineffective assistance claim, all of Roswell’s
remaining claims are both waived by the plea agreement and
procedurally barred by his failure to bring those claims in a
As to the four grounds in Roswell’s § 2255
Motion, reasonable jurists could not find this Court’s rulings to
Accordingly, this Court DENIES issuance of a COA.
On the basis of the foregoing, Roswell’s Amended Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody, filed December 5, 2012, is HEREBY
Further, this Court also DENIES a certificate of
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, MAY 31, 2013.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
USA V. FREDERICK SCOTT ROSWELL; CIVIL NO. 12-00567 LEK-KSC; ORDER
DENYING AMENDED MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET
ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND
DENYING CERTIFICATE OF APPEALABILITY
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