Kimball v. USA
Filing
2
ORDER Denying Motion To Vacate Sentence Pursuant to 28 U.S.C. 2255. Signed by JUDGE HELEN GILLMOR on 2/13/14. (gab, )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 were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
) Cr. No. 00-00105HG-01
UNITED STATES OF AMERICA,
) Cv. No. 12-00646HG-BMK
)
Plaintiff/Respondent, )
)
)
vs.
)
)
)
ALLEN KIMBALL,
)
)
Defendant/Petitioner. )
)
ORDER DENYING MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C.
§ 2255 (ECF No. 527)
On December 3, 2012, Petitioner Allen Kimball filed a Motion
to Vacate Sentence Pursuant to 28 U.S.C. § 2255. (ECF No. 527.)
Petitioner claims that, at sentencing, he was wrongfully
denied downward adjustments for cooperation and acceptance of
responsibility. Petitioner’s claims have been heard and denied by
the Ninth Circuit Court of Appeals on Plaintiff’s direct appeal,
and by the District Court on Petitioner’s initial Section 2255
Motion, decided in April 2009.
Petitioner now claims that the alleged sentencing errors
were made due to the false representations of a Drug Enforcement
Administration (“DEA”) Agent regarding Petitioner’s willingness
1
to cooperate. Petitioner claims that the Government failed to
disclose the DEA Agent’s alleged misconduct.
Petitioner’s Section 2255 Motion is a successive petition,
filed without the required certification from the Ninth Circuit
Court of Appeals, pursuant to 28 U.S.C. § 2255(h). The Court
lacks jurisdiction over the Motion.
Petitioner’s Section 2255 Motion also lacks merit.
Petitioner’s allegation, that the Court determined his offense
level based on the misrepresentations of the DEA Agent, is not
supported by the record.
Petitioner’s Motion to Vacate (ECF No. 527) is DENIED.
BACKGROUND
The Original and Superseding Indictments
On March 16, 2000, a federal grand jury in the District of
Hawaii returned a seven-count Indictment against Petitioner Allen
Kimball. Six counts of the Indictment charged various drug
crimes. One count of the Indictment charged a firearm offense.
(ECF No. 9.)
On June 22, 2000, a federal grand jury returned a thirteencount Superseding Indictment against Petitioner and six codefendants. The Superseding Indictment charged Petitioner with:
Counts 1 and 2: possessing with intent to distribute and
distributing in excess of five grams of crystal methamphetamine,
2
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Counts
3, 4, and 5: possessing with intent to distribute and
distributing in excess of 50 grams of crystal methamphetamine, in
violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2; Count 6:
conspiring to possess with intent to distribute in excess of 50
grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)
and 846; Counts 7, 8, and 9: conducting a financial transaction
affecting interstate commerce, which involved the proceeds of an
unlawful activity, in violation of 18 U.S.C. § 1956(a)(1)(B)(i)
and 18 U.S.C. § 2; and Count 12: conspiring to conduct a
financial transaction with proceeds affecting interstate
commerce, which involved the proceeds of an unlawful activity, in
violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (h). Petitioner was
not named in Counts 10 and 11 of the Superseding Indictment. The
Superseding Indictment did not charge Petitioner with a firearm
offense.
Guilty Plea and Original Sentencing Hearing
On September 8, 2000, Petitioner pled guilty to the First
Superseding Indictment. (ECF No. 87.) There was no plea
agreement.
On April 7, 8, and 9, 2003, the District Court Judge held
Evidentiary Sentencing Hearings. On April 7, 2003, Reuben Silva,
one of Petitioner’s co-defendants, testified that he had “nothing
3
to do with Allen Kimball” and denied ever obtaining drugs from
Petitioner or engaging in any illegal activity with Petitioner.
Silva’s testimony was inconsistent with his earlier grand jury
testimony, which implicated Petitioner. The Government indicted
Silva for perjury, in violation of 18 U.S.C. § 1623, charging him
with testifying falsely at the April 7, 2003 hearing.
(Indictment, Crim. No. 03-00487, ECF No. 1.) Silva pleaded guilty
to the perjury charge. (Crim. No. 03-00487, ECF No. 24.)
At Petitioner’s Sentencing Hearing on December 3, 2003,
Silva admitted that Petitioner had asked him to lie during the
April 7, 2003 Evidentiary Hearing. (Hearing Tr., Dec. 3, 2003,
pgs. 19-21.)
On March 5, 2004, Petitioner was sentenced to 360 months
imprisonment. (ECF No. 358.) Petitioner’s total offense level was
assessed at Level 42, Criminal History Category I, with a
guideline range of 360 months to life imprisonment. The sentence
included a two-level upward adjustment for obstruction of
justice, based on the finding that Petitioner had convinced Silva
to give false testimony at the April 7, 2003 hearing. The
District Court also assessed a two-level upward adjustment for
possession of a dangerous weapon, and a four-level upward
adjustment for Petitioner’s leadership role in the offense. The
District Court determined that Petitioner was not entitled to a
downward departure for acceptance of responsibility, pursuant to
4
U.S.S.G. § 3E1.1, based on suborning Silva to commit perjury.
Original Appeal to the Ninth Circuit Appellate Court
On March 15, 2004, Petitioner appealed his conviction and
sentence to the Ninth Circuit Court of Appeals. (ECF No. 362.)
Petitioner claimed that his sentence enhancements were
unconstitutional and that the Government wrongfully submitted his
protected statements to the District Court.
On April 12, 2006, the Ninth Circuit Court of Appeals
affirmed Petitioner’s conviction, but vacated the sentence and
remanded for re-sentencing before a different judge. The
Appellate Court held that the Government may have tainted the
sentencing process by submitting Petitioner’s protected
statements to the District Court in breach of the proffer
agreement. The Appellate Court did not reach the other sentencing
issues raised by Petitioner. United States v. Kimball, 175 Fed.
Appx. 883, 884 (9th Cir. 2006).
Re-sentencing on Remand
On May 12, 2006, the matter was reassigned to District Judge
Helen Gillmor, the sentencing judge who is now reviewing
Petitioner’s current Section 2255 Motion. The Parties were
ordered to determine the relevant issues the District Court Judge
should consider prior to sentencing. (ECF No. 452.)
5
On October 19, 2006, the District Court held a hearing on
Petitioner’s objections to the Presentence Report, including the
drug quantity, the firearm enhancement, and the enhancements for
leadership and obstruction of justice. Following briefing by the
Parties and oral arguments, the Court overruled all of
Petitioner’s objections to the Presentence Report.
The newly assigned District Court Judge found the
obstruction of justice enhancement was appropriate. The finding
was based on the Petitioner asking Silva to commit perjury at the
April 7, 2008 hearing. Petitioner wanted Silva to lie in order to
avoid receiving a leadership enhancement. (PSR Hearing Tr., Oct.
19, 2006, at pg. 35, attached as Ex. C to ECF No. 508.) The
District Court denied Petitioner a downward adjustment for
acceptance of responsibility, pursuant to Section 3E1.1 of the
United States Sentencing Guidelines. Petitioner’s actions as to
Silva were inconsistent with acceptance of responsibility. (Id.)
The District Court found, by clear and convincing evidence,
that Petitioner was responsible for distribution of 362.6 grams
of methamphetamine. (PSR Hearing Tr., Oct. 19, 2006, at pg. 34,
attached as Ex. C to ECF No. 508.)
The District Court found the gun enhancement appropriate,
pursuant to Section 2D1.1(b)(1) of the United States Sentencing
Guidelines, as Defendant possessed a firearm, and Defendant had
not shown that it was clearly improbable that a firearm was
6
connected with the offense. The District Court’s finding was
based, in part, on the fact that a search of Defendant’s
residence and cars resulted in the seizure of a 12-gauge shotgun,
a 9 millimeter caliber pistol, and ammunition. The Government
also provided a recording of a telephone call, in which Defendant
stated that he owned a gun. (PSR Hearing Tr., Oct. 19, 2006, at
pgs. 13-14, 34, attached as Ex. C to ECF No. 508.)
The District Court found “ample evidence” to support the
leadership role enhancement, stating that “[i]t would take . . .
mental gymnastics” to believe that Petitioner was not a leader.
(PSR Hearing Tr., Oct. 19, 2006, at pgs. 34-37, attached as Ex. C
to ECF No. 508.)
Petitioner’s total offense level was again
assessed at Level 42, Criminal History Category I, with a
guideline range of 360 months to life imprisonment.
On November 2, 2006, at the Re-Sentencing Hearing, the
District Court adopted the Presentence Report. The District Court
further clarified that all of its findings from the October 19,
2006 Hearing on the Petitioner’s objections to the Presentence
Report were supported by clear and convincing evidence. The
District Court also specifically found that Petitioner was
responsible for having Silva testify incorrectly, and Silva’s
perjured testimony was material. (Re-sentencing Hearing Tr., Nov.
2, 2006, at pgs. 3-4, attached as Ex. C to ECF No. 508.) The
District Court found a a two-level upward adjustment for
7
obstruction of justice, based on Silva’s April 7, 2003 testimony;
a two-level upward adjustment for possession of a dangerous
weapon; and a four-level upward adjustment for Petitioner’s
leadership role.
Petitioner was sentenced to 300 months imprisonment, sixty
months below the guideline range. (ECF Nos. 471 and 474.) In
imposing a sentence below the guideline range, the District Court
considered the factors set forth in 18 U.S.C. § 3553(a),
including Petitioner’s initial guilty plea, the delay in
Petitioner’s sentencing, and Petitioner’s efforts to better
himself during the six years he had been incarcerated. (Resentencing Hearing Tr., Nov. 2, 2006, at pgs. 27-32, attached as
Ex. C to ECF No. 508.)
Second Appeal to the Ninth Circuit Court of Appeals and Denial of
Certiorari by the United States Supreme Court
Petitioner appealed his conviction to the Ninth Circuit
Court of Appeals. (ECF No. 473.) Petitioner challenged the
constitutionality of the District Court’s inclusion of the
following sentence enhancements in calculating Petitioner’s
offense level: (1) drug type and quantity; (2) possession of a
firearm; (3) leadership role; and (4) obstruction of justice.
Petitioner also claimed that the District Court wrongly denied
him a downward adjustment for acceptance of responsibility and
safety valve relief. United States v. Kimball, 260 Fed. Appx. 3
8
(9th Cir. 2007).
On October 10, 2007, the Ninth Circuit Court of Appeals
affirmed Petitioner’s sentence. The Ninth Circuit Appellate Court
specifically addressed and rejected each of Petitioner’s
arguments raised on appeal. United States v. Kimball, 260 Fed.
Appx. 3 (9th Cir. 2007).
On April 3, 2008, the Supreme Court of the United States
denied Petitioner’s petition for writ of certiorari. Kimball v.
United States, 128 S.Ct. 1759 (2008).
Initial Section 2255 Motion
On April 6, 2009, Petitioner filed his initial Section 2255
Motion, raising claims of ineffective assistance of counsel,
based on the calculation of his offense level. Petitioner also
claimed that, although he had provided assistance to the
government, the Government wrongfully failed to file a motion to
reduce his sentence, pursuant to either Federal Rule of Civil
Procedure 35(b) or Section 5K1.1 of the United States Sentencing
Guidelines. Petitioner alleged that his attorney failed to
challenge the Government’s failure to file a motion to reduce his
sentence. (ECF No. 503.)
On August 31, 2009, the District Court denied Petitioner’s
initial Section 2255 Motion. The District Court determined that
Petitioner’s Counsel was not deficient, nor would Petitioner have
9
been prejudiced by any of the alleged deficiencies. In rejecting
Petitioner’s claims regarding the Government’s failure to file a
motion to reduce his sentence, the District Court held that
Petitioner’s conclusory assertion that the Government acted in
bad faith was insufficient. Petitioner did not provide testimony
at any trial or sentencing hearing against any criminal
defendant. The District Court further held that Petitioner’s
challenges to the sentencing enhancements were barred, having
been decided on Petitioner’s Appeal. The District Court found
that Petitioner was not entitled to a certificate of
appealability. (Gov’t Resp. Ex. A, ECF No. 539.)
On September 16, 2009, Petitioner filed a Motion for
Reconsideration of the Order denying his Section 2255 Motion.
Petitioner claimed that the District Court committed clear error
by holding that Petitioner had asked Silva to give false
testimony at the April 7, 2003 hearing. Petitioner also
challenged the leadership role enhancement, claiming that his
counsel failed to raise the possibility that he should receive a
downward adjustment for being a minor participant. (ECF No. 514.)
On October 28, 2009, the District Court denied the Motion
for Reconsideration. The District Court found by clear and
convincing evidence that Petitioner had suborned perjury by
asking Silva to give false testimony. The Ninth Circuit Appellate
Court had upheld the finding on Petitioner’s direct appeal. The
10
District Court found that the issue of Petitioner’s leadership
role had been raised on at least three occasions, including
direct appeal, and had been found appropriate by clear and
convincing evidence. (ECF No. 517.)
On December 7, 2009, Petitioner filed a “Motion Requesting
Court to Reopen Proceedings and for Leave to Amend Section 2255
Motion.” Petitioner sought to amend his initial Section 2255
Motion, by adding a challenge to his money laundering
convictions. (ECF No. 518.)
On January 21, 2010, the District Court denied Petitioner’s
Motion to reopen proceedings and amend his Section 2255 Motion.
The District Court held that, pursuant to 28 U.S.C. § 2255(h),
Petitioner must first obtain proper authorization from the
appeals court before the District Court may consider a “second or
successive” Section 2255 Motion. (ECF No. 521.)
On February 2, 2010, Petitioner again filed a request for a
certificate of appealability with the District Court. (ECF No.
523.) On February 8, 2010, the District Court denied the request.
(ECF No. 524.)
On August 12, 2001, the Ninth Circuit Court of Appeals
denied Petitioner’s request for a certificate of appealability
from the denial of his initial Section 2255 Motion and his Motion
for Reconsideration. (ECF No. 525.)
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Second Section 2255 Motion
On December 3, 2012, Petitioner filed his second Section
2255 Motion, entitled “MOTION TO VACATE SENTENCE PURSUANT TO 28
U.S.C. § 2255," which is currently before the District Court.
(ECF No. 527.) Petitioner did not file a Memorandum and Affidavit
in support of his Motion to Vacate at the time it was filed. He
represented that he would file the Memorandum and Affidavit
before mid-January. (Motion to Vacate at pg. 11, ECF No. 527.)
On December 6, 2012, Petitioner filed a Motion to Stay
consideration of his claims until he filed his Memorandum and
Affidavit in support of his Motion to Vacate. (Notice of Filing
of Motion to Vacate and Request to Hold Motion in Abeyance at pg.
3, ECF No. 528.)
On December 10, 2012, the District Court granted the Motion
to Stay. (ECF No. 529.)
On June 19, 2013, six months having passed without a filing
by Petitioner, the District Court ordered Petitioner to file the
supporting Memorandum and Affidavit, or file a statement
explaining why his Section 2255 Motion should not be denied for
failure to prosecute, by August 6, 2013. (ECF No. 530.)
On August 5, 2013, Petitioner filed Memorandum and Affidavit
in support of his Section 2255 Motion. (ECF No. 531.)
On August 6, 2013, the District Court issued a Minute Order
stating that Petitioner’s Section 2255 Motion appears to be a
12
successive petition, filed without the required certification by
the Ninth Circuit Court of Appeals, pursuant to 28 U.S.C. §§
2244(b)(3)(A) and 2255(h). The District Court ordered the
Government to file a Response, stating its position with respect
to whether certification by the Ninth Circuit Court of Appeals is
required. (ECF No. 534.)
On September 30, 2013, the Government filed its Response.
(ECF No. 539).
On January 6, 2014, Petitioner filed a Reply. (ECF No. 543.)
SUMMARY OF PETITIONER’S CLAIMS
Petitioner claims that following his guilty plea, between
December 2000 and March 2002, he participated in multiple
debriefings with a Drug Enforcement Administration (“DEA”) Agent.
Petitioner alleges that, during the debriefings, he informed the
DEA Agent about the drug trafficking activity of his codefendant, Jose Serpa, and others. Petitioner claims that the DEA
Agent was not interested in the information Petitioner provided,
and was only interested in information concerning two brothers,
who the DEA Agent suspected of drug trafficking. Petitioner
claims that he was unable to provide information about the two
brothers, as he had no personal knowledge of their drug-related
activities. Petitioner claims that the DEA Agent incorrectly
13
believed Petitioner possessed, and withheld, knowledge of the two
brothers’ drug trafficking activities. (Mem. Supp. Section 2255
Motion at ¶¶ 29-35, ECF No. 531.)
Petitioner claims that the DEA Agent made misrepresentations
to the District Court and the Government regarding Petitioner’s
credibility and willingness to cooperate. Petitioner alleges that
the misrepresentations caused him to be found ineligible for
downward adjustments for acceptance of responsibility and
cooperation, and to receive an enhanced sentence. (Motion at pg.
5, 19-23, ECF No. 527.) Petitioner claims that the DEA Agent’s
alleged misrepresentations also deprived him of a meaningful
consideration of a Section 5K1.1 Motion for a Reduced Sentence,
based on substantial assistance. (Id. at pgs. 24-26.) Petitioner
alleges that the Government violated Brady v. Maryland, 373 U.S.
83 (1963), by failing to disclose to Petitioner information
regarding the DEA Agent’s alleged history of misconduct and
fabrication of evidence. (Id. at pgs. 26-29.)
Petitioner claims that the factual predicate for his claims
emerged from the proceedings in United States v. Ferreira, No.
Cr. 07-00608, 2011 WL 6012525 (D. Haw. Nov. 30, 2011), in which a
new trial was granted based upon the government’s failure to
disclose evidence that was material to the same DEA Agent’s
credibility. (Section 2255 Motion at pg. 11, ECF No. 527; Mem.
Supp. Section 2255 Motion at pgs. 21-22, ECF No. 531.)
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Petitioner requests that he be resentenced on the basis of a
complete and accurate record, or returned to the pretrial stage
of the proceedings. (Section 2255 Motion at pg. 7, ECF No. 527.)
ANALYSIS
I.
PETITIONER’S SECTION 2255 LACKS THE REQUIRED CERTIFICATION
FROM THE NINTH CIRCUIT COURT OF APPEALS
A.
Successive Section 2255 Motions Alleging Violations of
Brady v. Maryland Require Certification
The Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2255, provides that a prisoner who wishes to file a
second or successive habeas petition in the district must first
move the appropriate court of appeals for an order authorizing
the district court to hear the successive petition. 28 U.S.C. §§
28 U.S.C. §§ 2244(b)(3)(A) and 2255(h). The Court of Appeals must
certify that the successive petition contains either:
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found
the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C. § 2255(h)(“Gatekeeping Provisions”).
15
A district court lacks jurisdiction over a successive
Section 2255 motion filed without certification from the
appropriate appellate court. United States v. Buenrostro, 638
F.3d 720, 723 (9th Cir. 2011).
Petitioner previously filed a Section 2255 Motion (ECF No.
503), which was denied on August 31, 2009. (Attached as Ex. A to
Gov’t Resp., ECF No. 539.) Petitioner, in filing his second
Section 2255 Motion, has not presented the Court with
certification from the Ninth Circuit Court of Appeals, as
required by 28 U.S.C. §§ 2244(b)(3)(A) and 2255(h).
Petitioner claims that his Section 2255 Motion does not
require certification from the Appellate Court, as it sets forth
claims that are meritorious under Brady v. Maryland, 373 U.S. 83
(1963)1 and the Due Process Clause, which were not available to
him until after his first Section 2255 Motion was denied.
Petitioner claims that such claims are exempt from the AEDPA’s
Gatekeeping Provisions, and authorized to be heard by the
District Court. (Section 2255 Motion at pg. 4, ECF No. 527; Reply
at pg. 7, ECF No. 543.)
Petitioner’s theory is built upon his interpretation of
1
In Brady v. Maryland, the Supreme Court held that the
prosecution’s suppression of evidence favorable to an accused
violates due process where the evidence is material either to
guilt or to punishment, regardless of whether the prosecution
acted in good or bad faith. Brady, 373 U.S. 83, 87 (1963).
16
United States v. Lopez, 577 F.3d 1053 (9th Cir. 2009), cert.
denied, 559 U.S. 984 (2010), and its discussion of Panetti v.
Quarterman, 551 U.S. 930 (2007). Petitioner claims that Lopez and
Panetti stand for the proposition that successive habeas
petitions that were permitted by the pre-AEDPA abuse-of-the-writ
doctrine, are exempt from AEDPA’s requirement of appellate court
certification for successive habeas petitions. (Section 2255
Motion at pg. 4, ECF No. 527.)
Prior to the 1996 enactment of AEDPA, the federal courts’
consideration of successive habeas petitions was guided by the
abuse-of-the-writ doctrine, a “complex and evolving body of
equitable principles informed and controlled by historical usage,
statutory developments, and judicial decisions.” Lopez, 577 F.3d
at 1059 (citing McCleskey v. Zant, 499 U.S. 467, 489 (1991)).
Pursuant to the abuse-of-the-writ doctrine, a court could
consider a petitioner’s successive habeas petition where a
petitioner showed cause for failing to raise the claim earlier,
and actual prejudice resulting from the errors of which the
petitioner complains. A court could also consider a successive
petition where a petitioner showed that a fundamental miscarriage
of justice would result from the failure to entertain the claim.
Id. at 1060.
In 1996, Congress enacted AEDPA, 28 U.S.C. §§ 2244, 2255,
“codifying the judicially established principles reflected in the
17
abuse-of-the-writ doctrine and further restricting the
availability of relief to habeas petitioners.” Lopez, 577 F.3d at
1060-61. AEDPA restricted the availability of successive habeas
relief by requiring that a successive habeas petition be
certified by the appellate court, pursuant to the standards set
forth in 28 U.S.C. § 2255(h). Without certification from the
appellate court, the district court lacks jurisdiction to
consider a successive petition. Id.
In Panetti v. Quarterman, the Supreme Court held that
competency-to-be-executed claims based on Ford v. Wainwright, 477
U.S. 399 (1986), were not subject to the AEDPA’s Gatekeeping
Provisions regarding second or successive habeas petitions.
The
Supreme Court, in exempting such claims from the AEDPA’s
Gatekeeping Provisions, in part, relied on the fact that secondin-time Ford claims were permitted under the pre-AEDPA abuse-ofthe-writ doctrine. The Supreme Court’s holding also relied on the
fact that Ford-based competency claims do not become ripe until
after the first habeas proceeding, as they are based on the
petitioner’s mental condition at the time of his scheduled
execution, and are not actually “second or successive.”
In Lopez, the Ninth Circuit Appellate Court considered the
possible impact of the Panetti decision on second-in-time Brady
claims. The Appellate Court determined that non-meritorious Brady
claims are subject to the AEDPA’s Gatekeeping Provisions, as such
18
claims would have been barred as successive petitions under the
pre-AEDPA abuse-of-the-writ doctrine.
The Appellate Court went on to discuss, in dicta, whether
meritorious Brady claims, in which material evidence was newly
disclosed to a petitioner, may be exempt from the AEDPA’s
Gatekeeping Provisions. The Appellate Court was concerned that it
would lack jurisdiction over certain meritorious claims which
were permitted under the pre-AEDPA abuse-of-the writ doctrine.
Pursuant to the pre-AEDPA abuse-of-the-writ doctrine, a secondin-time Brady claim based on newly discovered evidence was not
considered successive if a prisoner established by a “reasonable
probability” that, had the evidence been disclosed, the result of
the proceeding would have been different. The AEDPA’s Gatekeeping
Provisions, in contrast, only permit second-in-time Brady claims
that establish by “clear and convincing” evidence that no
reasonable factfinder would have found petitioner guilty of the
offense had the newly disclosed evidence been available at trial.
28 U.S.C. §
2255(h)(1). The Appellate Court explained that a
literal application of § 2255(h)(1) would bar federal
jurisdiction over an entire subset of meritorious Brady claims:
those where a petitioner can show the suppressed evidence
established a “reasonable probability” of a different result, but
cannot show, by “clear and convincing” evidence, that no
reasonable juror would have voted to convict the petitioner.
19
The Appellate Court explicitly stated that it was not
deciding whether certain meritorious Brady claims were exempt
from the AEDPA’s Gatekeeping Provisions, as the defendant’s claim
lacked merit. Lopez, 577 F.3d at 1066-68; King v. Trujillo, 638
F.3d 726, 729 n.10 (9th Cir. 2011). The Lopez decision discussed
considerations weighing against such an exception, including the
fact that two Circuits have held that all second-in-time Brady
claims are subject to the AEDPA’s Gatekeeping Provisions.
Tompkins v. Sec'y, Dep't of Corr., 557 F.3d 1257, 1259-60 (11th
Cir. 2009)(refusing to extend Panetti’s reasoning to Brady
claims, as such claims are ripe for inclusion in an initial
habeas petition); Evans v. Smith, 220 F.3d 306, 323 (4th Cir.
2000).
Contrary to Petitioner’s theory, Lopez does not grant a
district court authority to hear any second-in-time Brady claim
without the appellate court’s certification. Fellman v. Davison,
2011 WL 2471579, at *1-3 (N.D. Cal. 2011)(discussing Lopez). The
dicta in Lopez merely suggests that it may be appropriate for the
appellate court to apply the “reasonable probability” standard,
rather than the “clear and convincing standard” in 28 U.S.C.
§ 2255(h)(1) in determining whether a second-in-time meritorious
Brady claim, based on newly disclosed evidence, should be
certified.
Petitioner cannot show that there is a “reasonable
20
probability” that the result of his proceeding would have been
different if the Government had provided him with evidence that
it was required to disclose.
The Court, here, lacks jurisdiction over Petitioner’s
Section 2255 Motion, even if Petitioner’s interpretation of Lopez
was correct, as Petitioner’s Brady claim lacks merit. All courts
agree that such second-in-time Brady claims, which lack merit,
are subject to the AEDPA’s Gatekeeping Provisions, 28 U.S.C. §
2255(h). Lopez, 477 F.3d at 1065; Crawford v. Minnesota, 698 F.3d
1086, 1089-90 (8th Cir. 2012).
Petitioner’s Section 2255 Motion is barred as a successive
petition filed without required certification from the Ninth
Circuit Appellate Court, as non-meritorious Brady claims are
subject to the AEDPA’s Gatekeeping Provisions.
B.
Petitioner’s Claims Lack Merit
Petitioner claims that, based on the DEA Agent’s
misrepresentations regarding Petitioner’s credibility and
willingness to cooperate with the Government, Petitioner received
an enhanced sentence. Petitioner alleges that the DEA Agent had a
history of fabricating evidence and engaging in other misconduct,
which the Government failed to disclose, in violation of Brady v.
Maryland, 373 U.S. 83, 87 (1963).
In Brady v. Maryland, the Supreme Court held that “the
21
suppression by the prosecution of evidence favorable to an
accused violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.” Brady, 373 U.S. 83, 87 (1963).
Evidence is material when there is a “reasonable probability
that, had the [newly discovered] evidence been disclosed to the
defense, the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985).
1.
Determination of Petitioner’s Sentence
At Petitioner’s Re-Sentencing Hearings on October 19, 2006
and November 2, 2006, the District Court overruled Petitioner’s
objections to the Presentence Report. The District Court found
that the drug quantity of 362.6 grams was supported by clear and
convincing evidence, as was the firearm enhancement. The District
Court imposed a leadership role enhancement, specifically finding
that “[i]t would take . . . mental gymnastics that would not be
credible, to believe that [Petitioner] was not a leader . . .
[T]here is ample evidence of him being a leader.” (PSR Hearing
Tr., Oct. 19, 2006, at pg. 34, attached as Ex. C. To ECF No.
508.)
The District Court found Petitioner subject to an
enhancement for obstruction justice, pursuant to Section 3C1.1 of
the United States Sentencing Guidelines. Petitioner had
22
obstructed justice by having his co-defendant, Silva, testify
falsely at Petitioner’s evidentiary sentencing hearing on April
7, 2003. At Petitioner’s Sentencing Hearing on December 3, 2003,
Silva admitted that Petitioner had asked him to commit perjury.
(Hearing Tr. Dec. 3, 2003, pgs. 19-21.)
Petitioner was found ineligible for a downward adjustment,
pursuant to Section 3E1.1 of the United States Sentencing
Guidelines, based on the obstruction of justice enhancement.
Section 3E1.1 of the United States Sentencing Guidelines
provides for a two-level downward adjustment “[i]f the defendant
clearly demonstrates acceptance of responsibility for his
offense,” and an additional one-level decrease for defendants who
cooperate with the government or timely notify authorities of an
intention to plead guilty. Generally, a defendant who is subject
to an enhancement for obstruction justice, pursuant to U.S.S.G. §
3C1.1, is ineligible for an acceptance of responsibility
adjustment.
Simultaneous adjustments for obstruction of justice and
acceptance of responsibility are warranted only in “extraordinary
cases.” U.S.S.G. § 3E1.1, cmt. n.4. A case is only
“extraordinary” if the defendant's obstructive conduct is not
inconsistent with the defendant's acceptance of responsibility.
United States v. Jeter, 236 F.3d 1032, 1034-35 (9th Cir. 2001).
Cases in which obstruction is not inconsistent with an acceptance
23
of responsibility arise when a defendant, although initially
attempting to conceal the crime, eventually accepts
responsibility for the crime and abandons all attempts to
obstruct justice. Id.
The District Court found Petitioner ineligible for a
downward adjustment for acceptance of responsibility, as
convincing Silva to commit perjury after Petitioner’s guilty plea
was inconsistent with acceptance of responsibility. (PSR Hearing,
Oct. 19, 2006, at pg. 35.)
On November 2, 2006, the District Court adopted the
Presentence Report. Petitioner was assessed at offense level 42
and Criminal History Category I, with a sentencing guideline
range of 360 months to life imprisonment. The District Court
assessed each of the factors set forth in 18 U.S.C. § 3553(a) to
determine a sentence that was sufficient, but not greater than
necessary. The District Court considered Petitioner’s attempts to
better himself while incarcerated, and his initial guilty plea,
and sentenced Petitioner to 300 months imprisonment, sixty months
below the guideline range.
The Ninth Circuit Court of Appeals affirmed Petitioner’s
sentence, rejecting Petitioner’s various challenges to the
calculation of his offense level. (United States v. Kimball, No.
06-10727, Dec. 10, 2007.)
Petitioner claims that the DEA Agent’s alleged
24
misrepresentations regarding Petitioner’s credibility and
willingness to cooperate prejudiced Petitioner in the District
Court’s 18 U.S.C. § 3553(a) analysis. Section 3553(a) provides
the factors which a judge must consider to determine if a
sentence is reasonable, including the characteristics of the
defendant. Petitioner claims that, absent the DEA Agent’s alleged
misrepresentations, the District Court would have departed below
the guideline range.
The District Court, at Petitioner’s Re-sentencing Hearing on
November 2, 2006, specifically considered the factors set forth
in 18 U.S.C. § 3553(a), and imposed a sentence sixty months below
the guideline range. There is no support for the claim that
Petitioner would have been offered any further reduction, nor is
there any support for the assertion that the District Court
relied on the DEA Agent’s representations regarding Petitioner’s
credibility and willingness to cooperate.
Petitioner also claims that he would have been afforded a
downward adjustment for acceptance of responsibility, pursuant to
U.S.S.G. § 3E1.1, if the DEA Agent had not represented that
Petitioner was uncooperative and lacked credibility.
The District Court’s finding regarding Petitioner’s
ineligibility of a § 3E1.1 downward adjustment did not rely on
any representation by the DEA Agent. Petitioner’s co-defendant,
Reuben Silva, testified before the District Court that Petitioner
25
had asked him to commit perjury regarding Petitioner’s role in
the offense, and also pleaded guilty to a perjury charge.
Petitioner was ineligible for a § 3E1.1 downward adjustment for
accepting responsibility for obstructing justice by suborning
perjury.
Petitioner incorrectly claims that the enhancement for
obstruction of justice was based on the finding that Petitioner
made inconsistent statements during a motion to withdraw his
guilty plea. (Mem. Supp. Section 2255 Motion at pg. 22, ECF No.
531.)
The record is clearly contrary to Petitioner’s assertion. It
is also unclear how Petitioner’s assertion supports the theory
that a misrepresentation by the DEA Agent caused the District
Court to deny Petitioner a § 3E1.1 downward adjustment or
otherwise improperly calculate Petitioner’s offense level.
Petitioner has challenged the appropriateness of his offense
level calculation on at least five occasions: first at
sentencing, again on direct appeal, again at re-sentencing, again
on his second direct appeal, and again on his initial Section
2255 Motion. The District Court and Appellate Court have rejected
those challenges, finding the sentencing adjustments
appropriate.2
2
The Appellate Court did not reach the issue on
Petitioner’s first appeal.
26
2.
The Government’s Choice Not to File a Motion to
Reduce Sentence
Petitioner claims that, based on the DEA Agent’s alleged
misrepresentations regarding Petitioner’s lack of cooperation, he
was deprived of a meaningful consideration of a motion to reduce
his sentence, pursuant to United States Sentencing Guidelines §
5K1.1. (Mem. Supp. Section 2255 Motion at pgs. 24-25, ECF No.
531.)
United States Sentencing Guidelines § 5K1.1 provides:
Upon a motion of the government stating that the defendant
has provided substantial assistance in the investigation of
another person who has committed an offense, the court may
depart from the guidelines.
U.S.S.G. § 5K1.1. Section 5K1.1 empowers the government to move
for a departure when a defendant has substantially assisted, but
it imposes no duty to do so, even if a defendant has provided
substantial assistance. United States v. Flores, 559 F.3d 1016,
1019 (9th Cir. 2009). The government, however, cannot refuse to
file a § 5K1.1 motion based on the claim that the government’s
motive was unconstitutional, arbitrary, or constituted a breach
of a plea agreement. Id.
A defendant's insistence that he provided substantial
assistance does not entitle him to an evidentiary hearing. To
warrant a hearing, a defendant must “make a substantial threshold
showing that the Government's refusal to file a § 5K1.1 motion
27
was unconstitutional, arbitrary, or breached the plea agreement.”
Flores, 559 F.3d at 1020.
Petitioner challenged the Government’s failure to file a
Section 5K1.1 in his initial Section 2255 Motion. The District
Court rejected the claim, holding that Petitioner had not made a
substantial threshold showing that the Government’s refusal to
file a § 5K1.1 motion was unconstitutional, arbitrary, or
breached a plea agreement. The District Court pointed to the
facts that Petitioner did not provide testimony at trial or any
sentencing hearing against any criminal defendant, nor did
Petitioner sign a plea agreement or receive any other promise
from the government. (Gov’t Resp. Ex. A, ECF No. 539.)
Petitioner attempts to support his claim that he was
entitled to a § 5K1.1 motion, by pointing to the fact that he
identified people involved in drug-related activities, including
his co-defendant, Jose Serpa, and Fraser during his debriefings
with the Government. (Mem. Supp. Section 2255 Motion at ¶ 31, ECF
No. 531.) Petitioner also contends that the DEA Agent induced a
defendant in a different case to plea guilty, by threatening to
have Petitioner testify against him. (Mem. Supp. Section 2255
Motion at pg. 25, ECF No. 531.)
Petitioner’s allegations regarding misrepresentation by the
DEA Agent regarding Petitioner’s willingness to cooperate, even
if true, do not alter the analysis in the Order denying
28
Petitioner’s initial Section 2255 Motion. Petitioner’s assertion
that he provided assistance does not automatically permit him to
challenge the government’s refusal to file a § 5K1.1 motion.
Flores, 559 F.3d at 1020. Also weighing against Petitioner’s
challenge is his admission that, prior to his debriefing, his
attorney advised him that the “train had already left the
station” with respect to information he might provide about Serpa
and Fraser. (Mem. Supp. Section 2255 Motion at ¶ 29, ECF No.
531.)
Petitioner has not made a substantial threshold showing that
the Government’s refusal to file a § 5K1.1 motion was
unconstitutional, arbitrary, or breached a plea agreement.
3.
Petitioner Fails to Identify Evidence of
Misconduct that Required Disclosure
Petitioner claims that the “factual predicates” for his
Brady claim regarding the DEA Agent emerged from the granting of
a new trial in United States v. Ferreira, No. 07-00608, 2011 WL
6012515 (D. Haw. Nov. 30, 2011).
In Ferreira, a defendant was found guilty after a jury
trial, in which the DEA Agent’s testimony was “central.” The
defendant moved for a new trial, claiming that the Government
violated Brady by failing to disclose two Memoranda, dated May 8
and 22, 2008. The May 2008 Memoranda include allegations of the
29
DEA Agent’s misconduct. The investigation into the DEA Agent’s
alleged misconduct, detailed in the May 2008 Memoranda, had been
ongoing at the time of Ferreira’s June 2008 trial, but the
Memoranda were not disclosed to Ferreira. United States v.
Ferreira, No. 07-00608, 2011 WL 6012515 (D. Haw. Nov. 30, 2011).
In 2011, the District Court granted Ferreira’s motion for a
new trial, finding that the Government had violated Brady by
failing to disclose the May 2008 Memoranda prior to Ferreira’s
June 2008 trial. The information about the DEA Agent was material
to Ferreira’s guilt, as the DEA Agent’s credibility was “central
to the prosecution’s case.”
The DEA Agent’s testimony provided
the only corroboration to testimony which led to the defeat of
Ferreira’s entrapment defense. The DEA Agent also misplaced tape
recordings, which allegedly supported his version of events.
Ferreira was unable to attack the DEA Agent’s credibility, as
Ferreira did not have access to the May 2008 Memoranda. Ferreira,
2011 WL 6012515, at *8.
Petitioner, here, fails to show that the Government
suppressed information, as required for a Brady claim. Petitioner
pleaded guilty in 2000 to crimes that occurred in 1997 and 2000.
Petitioner was initially sentenced in 2004, and again in 2006.
The May 2008 Memoranda, at issue in Ferreira, were created
approximately a year-and-a-half after defendant was re-sentenced.
The Government could not be required to disclose evidence which
30
had not yet existed.
Petitioner also fails to demonstrate the materiality of the
evidence regarding the DEA Agent’s credibility, as required to
establish a Brady violation. Petitioner alleges that the DEA
Agent falsely represented that Petitioner was uncooperative,
which caused the District Court to deny Petitioner a downward
adjustment for his cooperation and acceptance of responsibility.
The District Court’s denial of a downward adjustment for
cooperation and acceptance of responsibility were not based upon
any representation by the DEA Agent, but upon Petitioner
suborning perjury of a witness at his Sentencing Hearing. The DEA
Agent’s credibility was not material to the finding.
Petitioner asks the Court to consider the evidence contained
in his declaration and attached exhibits, filed in the case of
United States v. Scott Robinson, No. 96-cr-1018, as docket
entries No. 208 and 209. (Mem. Supp. Section 2255 Mot. at pg. 3,
ECF No. 531) Petitioner’s declaration and exhibits filed in
Robinson do not alter the above analysis.
Petitioner has failed to assert a meritorious claim based on
the DEA Agent’s alleged misconduct or the Government’s alleged
failure to disclose any allegations of the DEA Agent’s
misconduct.
C.
Petitioner is Not Entitled to an Evidentiary Hearing
31
An evidentiary hearing in a Section 2255 action is required
“[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b).
An evidentiary hearing is not required if a prisoner’s
allegations, “when viewed against the record, do not state a
claim for relief or are so palpably incredible or patently
frivolous as to warrant summary dismissal.” United States v.
Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003)(citing United States
v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)).
The Court lacks jurisdiction over Petitioner’s Section 2255
Motion, as it is a successive petition filed without the required
certification from the Ninth Circuit Court of Appeals. The record
also conclusively establishes that Petitioner’s claims lacks
merit. Petitioner is not entitled to an evidentiary hearing.
II.
PETITIONER IS NOT ENTITLED TO A CERTIFICATE OF APPEALABILITY
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
provides that a Certificate of Appealability may be issued “only
if the applicant has made a substantial showing of the denial of
a constitutional right”, 28 U.S.C. § 2253(c)(2). A “substantial”
showing requires a prisoner to show that “reasonable jurists
could debate whether . . . the petition should have been resolved
32
in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Slack v. McDaniel,
529 U.S. 473, 483–84 (2000)(quoting Barefoot v. Estelle, 463 U.S.
880, 893, n.4 (1983)). When a habeas petition is denied on
procedural grounds, without reaching the merits of the underlying
constitutional claim, a prisoner seeking a Certificate of
Appealability must show, at least, “that jurists of reason would
find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in
its procedural ruling.” Slack, 529 U.S. at 484.
Petitioner’s Section 2255 Motion was filed without the
required certification from the Ninth Circuit Appellate Court and
lacks merit. Petitioner does not make a substantial showing that
he was deprived of a constitutional right, and there is no reason
to encourage further proceedings.
Petitioner is not entitled to a Certificate of
Appealability.
CONCLUSION
Petitioner Allen Kimball’s Motion to Vacate Sentence,
pursuant to 28 U.S.C. § 2255 (ECF No. 527) is DENIED. Petitioner
33
is not entitled to a Certificate of Appealability.
IT IS SO ORDERED.
DATED: February 13, 2014, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
United States of America v. Allen Kimball; Crim. No.00-00105HG-01
Civ. No. 12-00646HG-BMK; ORDER DENYING MOTION TO VACATE SENTENCE
PURSUANT TO 28 U.S.C. § 2255 (ECF No. 527)
34
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