Sua v. USA
Filing
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ORDER DENYING DEFENDANT EDWARD SUA'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER TO 28 U.S.C. § 2255. Signed by JUDGE HELEN GILLMOR on 7/24/2013. ~ Defendant's request for a Certificate of Appealability is DENIED. (ecs, )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). Participant Edward Sua was served by first class mail on 7/25/2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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UNITED STATES OF AMERICA,
Plaintiff,
vs.
EDWARD SUA,
Defendant.
Cr. No. 98-00411HG-02
Cv. No. 13-00127HG-BMK
ORDER DENYING DEFENDANT EDWARD SUA’S MOTION TO VACATE, SET ASIDE
OR CORRECT SENTENCE UNDER TO 28 U.S.C. § 2255 (ECF NO. 406)
On March 13, 2013, Defendant Edward Sua filed a Motion to
Vacate, Set Aside or Correct Sentence (ECF No. 406), pursuant to
28 U.S.C. § 2255. Defendant challenges his sentence of 336 months
imprisonment, which was imposed on February 14, 2000.
Defendant’s Motion to Vacate, Set Aside or Correct Sentence
Under Title 28 U.S.C. § 2255(f)(3) (ECF No. 406) is DENIED, as
untimely and lacking in merit.
BACKGROUND
On July 8, 1988, an Indictment was filed, charging Defendant
Edward Sua and three co-defendants, with: Count 1: conspiracy to
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possess, with intent to distribute, more than 100 grams of
methamphetamine and more than 500 grams of a mixture or substance
containing cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(A)(viii) and
841(b)(1)(B)(ii); Count 2: attempting to
possess, with intent to distribute, more than 100 grams of
methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(A)(viii) and 841(b)(1)(B)(ii)(II); and Count 3:
attempting to possess, with intent to distribute, more than 500
grams of a mixture or substance containing cocaine, in violation
of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(viii) and
841(b)(1)(B)(ii)(II).
On August 19, 1998, a First Superseding Indictment was
filed, alleging the same charges against Defendant as in the
original Indictment. The First Superseding Indictment added an
additional defendant. (Government’s Response Ex. A, ECF No. 411.)
On March 5, 1999, a jury found Defendant guilty on all three
counts in the First Superseding Indictment. (ECF No. 248.)
On February 7, 2000, Defendant was sentenced to 336 months
imprisonment. (ECF No. 313.)
On February 14, 2000, Judgment was entered against
Defendant. (ECF No. 317.)
On October 9, 2002, the Ninth Circuit Court of Appeals
denied Sua’s timely Appeal. (ECF No. 387.)
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On February 24, 2003, the United States Supreme Court denied
certiorari. Sua v. United States, 537 U.S. 1221 (2003).
On March 13, 2013, approximately ten years after the Supreme
Court denied certiorari, Defendant filed the Motion to Vacate,
Set Aside or Correct Sentence, pursuant to Title 28 U.S.C.
§ 2255(f)(3) (“Section 2255 Motion”). (ECF No. 406.) The Section
2255 Motion asserts a claim for ineffective assistance of counsel
for failure to communicate a plea offer and accurately advise
Defendant of his possible sentence. Defendant also claims that
his rights were violated because he lacked access to an attorney
during the permissible time for filing a Section 2255 Motion.
Defendant’s second ground for relief, regarding lack of access to
habeas counsel, is interpreted as a claim that Defendant’s
Section 2255 Motion is timely.
On March 13, 2013, Defendant filed an Application for
Appointment of Counsel to assist him with his Section 2255
Motion. (ECF No. 408.)
On March 22, 2013, the Court issued a Minute Order, setting
a briefing schedule for the Section 2255 Motion. (ECF No. 409.)
On April 18, 2013, the Court denied Defendant’s request for
appointment of Counsel at that time, as his Section 2255 Motion
appeared to be time-barred. The Court would determine if an
evidentiary hearing was required, after briefing was completed.
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Defendant would be appointed counsel to assist with an
evidentiary hearing, if appropriate. (ECF No. 410.)
On May 31, 2013, the Government filed a Response in
opposition to the Section 2255 Motion. (ECF No. 411.)
On June 24, 2013, Defendant filed a Reply in support of his
Section 2255 Motion. (ECF No. 412.)
DISCUSSION
I.
DEFENDANT IS NOT ENTITLED TO POST-CONVICTION RELIEF PURSUANT
TO 28 U.S.C. § 2255
A.
Defendant’s Section 2255 Motion is Time-Barred
The Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2255,1 provides a one-year limitation period for filing
a petition for habeas corpus relief (“a Section 2255 Motion”). The
limitation period for a Section 2255 Motion runs from the date on
which a judgment of conviction becomes final, unless an alternative
start date is established by a condition set forth in the statute.
28 U.S.C. § 2255(f). The statute provides:
The one-year limitations period for filing a Section 2255
Motion runs from the latest of:
(1) the date on which the judgment of conviction becomes
final;
1
The AEDPA is codified as 28 U.S.C. §§ 2241 through 2255
and 28 U.S.C. §§ 2261 through 2266. Habeas relief sought by
federal prisoners is governed by 28 U.S.C. § 2255.
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(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review;
or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f). Equitable tolling may apply to the AEDPA’s
one-year statute of limitations in limited circumstances. United
States v. Buckles, 647 F.3d 883, 889 (9th Cir. 2011).
Defendant
Edward
Sua’s
conviction
became
final
when
the
Supreme Court denied certiorari on February 24, 2003. See Sua, 537
U.S. 1221 (2003). Defendant does not raise a claim for equitable
tolling. Absent some alternative start date, Defendant’s time for
filing a Section 2255 Motion expired on or about February 24, 2004.
Defendant’s Section 2255 Motion was filed approximately nine
years after the limitations period expired. Defendant claims that
his Section 2255 Motion is timely, pursuant to 28 U.S.C. Section
2255(f)(3), because he is asserting rights newly recognized by the
United States Supreme Court that he maintains should be made
retroactively applicable. A Section 2255 Motion asserting such a
right is timely if it is filed within one year of the Supreme Court
decision recognizing that right. 28 U.S.C. § 2255(f).
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Defendant relies on the cases of Missouri v. Frye, – U.S. -,
132 S.Ct. 1309 (2012) and Lafler v. Cooper, - U.S. -, 132 S.Ct.
1376 (2012), in asserting that his claim for ineffective assistance
of counsel is timely, based on newly recognized rights regarding a
defendant’s
right
to
be
informed
of
and
accurately
advised
regarding a plea offer. Defendant also relies on the case of
Martinez v. Ryan, - U.S. -, 132 S.Ct 1309 (2012), in asserting that
his Section 2255 Motion is proper because he was not represented
during the permitted time for filing a Section 2255 Motion.2
(Section 2255 Motion at pgs. 24-26.)
Although Defendant’s Section 2255 Motion was filed within one
year of the cited Supreme Court decisions, the cited cases do not
establish an alternative start date for the limitations period, or
otherwise require consideration of the merits of Defendant’s claim.
See Buenrostro v. United States, 697 F.3d 1137 (9th Cir. 2012).
The cases of Frye and Lafler applied a defendant’s right to
effective assistance of counsel to specific facts in the plea
bargaining context. They did not create new rules of constitutional
law or recognize a new right. Buenrostro, 607 F.3d at 1140. In
Buenrostro, the Ninth Circuit Court of Appeals explained::
The Supreme Court in both [Frye and Lafler]
merely applied the Sixth Amendment right to
effective assistance of counsel according to
the
test
articulated
in
Strickland
v.
2
Defendant claims that Martinez v. Ryan provides a
second ground for relief. (Section 2255 Motion at pg. 24.)
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Washington, 466 U.S. 668, 686 (1984), and
established in the plea-bargaining context in
Hill v. Lockhart, 474 U.S. 52 (1985). Because
the Court in Frye and Lafler repeatedly noted
its application of an established rule to the
underlying facts, these cases did not break
new ground or impose a new obligation on the
State or Federal Government.
697 F.3d at 1139-40 (internal citations omitted). The ruling of the
Ninth Circuit Appellate Court is consistent with decisions by the
Appellate Courts in the Fifth, Seventh, and Eleventh Circuits. In
re Perez, 682 F.3d 930, 933–34 (11th Cir. 2012); In re King, –––
F.3d ––––, 2012 WL 4498500, at *1 (5th Cir. 2012); Hare v. United
States, 688 F.3d 878, 879 (7th Cir. 2012).
The case of Martinez, 132 S.Ct. 1309, similarly fails to
establish a new rule that is retroactively applicable. Buenrostro,
697 F.3d at 1140. The Martinez case addressed circumstances in
which
ineffective
assistance
of
counsel
in
a
state
habeas
proceeding may excuse a procedural bar to pursuing a federal habeas
claim. The Supreme Court characterized its decision in Martinez as
an “equitable ruling,” and not a constitutional one. 132 S.Ct. at
1319; Buenrostro, 697 F.3d at 1140.
The Martinez case, moreover,
does not apply to federal convictions, such as Defendant Sua’s
conviction here. Id.
Defendant asks the Court to make a ruling contrary to
Buenrostro and the decisions of other Appellate Courts, and find
his
Section
2255
Motion
timely
made,
pursuant
to
§ 2255(f)(3). (Sua’s Reply at pgs. 3, 6, ECF No. 412.)
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28
U.S.C.
The Court finds, in accordance with the analysis in
Buenrostro, that the Supreme Court’s rulings in Frye, Lafler and
Martinez did not create new rules of constitutional law or
recognize a new right that applies here.
Defendant has not pointed to any case or circumstance, as
set forth in 28 U.S.C. §
2255(f), that resets the one-year
statute of limitations or otherwise provides support for the
Court to rule on the merits of his habeas claim. Defendant’s time
for filing a Section 2255 Motion expired on or about February 24,
2004. Defendant’s Section 2255 Motion is time-barred.
B.
Appointment of Counsel for Section 2255 Motions
Defendant, relying on Martinez v. Ryan, 132 S.Ct. 1309,
claims that he was entitled to counsel during the period set out
in AEDPA for filing a Section 2255 Motion, pursuant to 28 U.S.C.
§ 2255(f). Defendant claims that, had he been provided with
counsel, he would have timely filed his ineffective assistance of
counsel claim. (Section 2255 Motion at pgs. 24-26.)
The Sixth Amendment to the United States Constitution does
not apply to state or federal prisoners’ habeas corpus actions.
McCleskey v. Zant, 499 U.S. 467, 495 (1991). A federal prisoner
may be entitled to appointed counsel for a Section 2255 Motion in
some circumstances, such as when an evidentiary hearing is
required. United States v. Duarte-Higareda, 68 F.3d 369-70 (9th
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Cir. 1995)(citing Rule 8(c) of the Federal Rules Governing
Section 2255 Proceedings).
The Court finds that Defendant has not articulated a claim
that would have entitled him to appointed counsel during the
period provided by AEDPA for filing a Section 2255 Motion.
C.
Defendant’s Ineffective Assistance of Counsel Claim
Lacks Merit
Defendant states he received ineffective assistance of
counsel. He claims his former defense counsel failed to inform
him of the Government’s plea offer of a maximum term of
imprisonment of fifteen years (“the Fifteen-Year Plea Offer”).
Defendant also claims that his former defense counsel failed to
inform him that he faced a twenty-eight-year term of
imprisonment. (Section 2255 Motion at pg. 12.) Defendant seeks to
be sentenced according to the terms of the Fifteen-Year Plea
Offer. (Id. at pgs. 22-24.)
An ineffective assistance of counsel claim requires a
defendant to 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, 694 (1984). A defendant
must overcome the strong presumption that a defense counsel
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rendered adequate assistance. Jones v. Ryan, 583 F.3d 626, 637-38
(9th Cir. 2009).
Defendant Sua’s conclusory allegations, regarding his Former
Counsel’s failure to adequately advise him regarding the FifteenYear Plea Offer, are not supported by the record. Defendant’s
Former Counsel submitted a Declaration, stating that she recalls
advising Defendant to seriously consider accepting the
Government’s plea offer, although Defendant maintained that he
was innocent throughout the proceedings. (Government’s Response
Ex. B, Declaration of Defense Counsel at ¶ 7, ECF No. 411.)
Defendant’s Former Counsel also states that she accurately
advised Defendant of the penalties he faced. (Id. at ¶ 8.)
Defendant was facing three serious charges and was in Category IV
of the Criminal History Scale. Defendant’s own statements also
undermine his position that Former Counsel’s representation was
deficient. Defendant states that Counsel informed him, at the
beginning of trial, that he could plead guilty to a fifteen-year
sentence of imprisonment. (Section 2255 Motion at pg. 15, ECF No.
406.)
The record also fails to show prejudice arising from the
allegedly deficient representation. Strickland v. Washington, 466
at 694.
Defendant admits that he rejected the Government’s
initial plea offer of a five- to eight-year term of imprisonment.
(Section 2255 Motion at pg. 14, ECF No. 406.) Defendant
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maintained his innocence throughout the proceedings and decided
to proceed with trial, with knowledge of the Fifteen-Year Plea
Offer. Defendant’s own statements do not support his claim that
he received ineffective assistance of counsel.
D.
Defendant is Not Entitled to an Evidentiary Hearing
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, however, 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)).
Defendant Sua’s Section 2255 Motion is time-barred and lacks
merit. Defendant is not entitled to an evidentiary hearing.
Defendant Edward Sua’s Motion to Vacate, Set Aside or
Correct Sentence, pursuant to 28 U.S.C. § 2255, (ECF NO. 406) is
DENIED.
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II.
DEFENDANT 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
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.
Defendant’s Section 2255 Motion is untimely and asserts an
ineffective assistance of counsel claim that lacks merit.
Defendant does not make a substantial showing that he was
deprived of a constitutional right, and there is no reason to
encourage further proceedings. See Wright v. United States, No.
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12-1348TSZ, 2012 WL 5866419 (W.D.Wash. Nov. 19, 2012)(denying
Certificate of Appealability when rejecting a prisoners claim
that his habeas claim was timely, pursuant to the cases of Frye
and Lafler).
Defendant relies on the case of United States v. RodriguezMendez, 2011 WL 3799943 (D.Neb. Aug. 29, 2011), in support of his
request for a Certificate of Appealability. (Sua’s Reply at pg.
7, ECF No. 412.) In Rodriguez, the Nebraska District Court’s
issuance of a Certificate of Appealability was based on the fact
that the Eighth Circuit Court of Appeals had not yet ruled on
whether the Supreme Court case, which the prisoner relied on to
establish the timeliness of his Section 2255 Motion, was
retroactive for the purposes of 28 U.S.C. § 2255(f)(3) . Id. at
*6.
Defendant’s request for a Certificate of Appealability is
not supported by the ruling in Rodriguez. The Ninth Circuit Court
of Appeals ruled in Buenrostro, 697 F.3d at 1139-40 that the
cases that Defendant claims establish the timeliness of his
Section 2255 Motion (Frye, Lafler, and Martinez), are not new
rules.
Defendant’s request for a Certificate of Appealability is
DENIED.
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CONCLUSION
Defendant Edward Sua’s Motion to Vacate, Set Aside or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (ECF NO. 406) is DENIED.
IT IS SO ORDERED.
DATED: July 24, 2013, Honolulu, Hawaii.
/S/ Helen Gillmor
Helen Gillmor
United States District Judge
United States of America v. Edward Sua; Crim. No. 98-00411HG-02;
Civ. No. 13-00127HG-BMK; ORDER DENYING DEFENDANT EDWARD SUA’S
MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. §
2255 (ECF NO. 406)
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