Postadan v. USA
Filing
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ORDER DENYING PETITIONER MARVIN POSTADAN'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 re 1 - Signed by JUDGE HELEN GILLMOR on 4/4/2014. "A Certificate of Appealability is DENIED.&qu ot; "Petitioner Marvin Postadan's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 536) is DENIED." (emt, )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). Marvin Postadan served by first class mail at the address of record on April 4, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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MARVIN POSTADAN,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
Cr. No. 03-00496 HG-01
Cv. No. 13-00463 HG-KSC
ORDER DENYING PETITIONER MARVIN POSTADAN’S MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. §
2255 (ECF NO. 536)
On September 9, 2013, Petitioner Marvin Postadan filed a
Motion to Vacate, Set Aside or Correct Sentence, Pursuant to
28 U.S.C. § 2255 (ECF No. 536).
Petitioner challenges his
sentence of 200 months imprisonment.
Petitioner Marvin Postadan’s Motion to Vacate, Set Aside
or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 536)
is DENIED, as lacking in merit.
BACKGROUND
On October 8, 2003, a thirteen count Indictment was
filed, charging Petitioner Marvin Postadan and fifteen co1
defendants with conspiracy to possess with intent to
distribute methamphetamine and related offenses.
(ECF No. 1).
Petitioner was charged as follows:
Count 1: conspiracy to possess with intent to distribute,
50 grams or more of methamphetamine, in violation of 21 U.S.C.
§§ 846, 841(a)(1), 841(b)(1)(A);
Count 2: possession with intent to distribute 50 grams or
more of methamphetamine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A) and 18 U.S.C. § 2; and
Count 13: conspiracy to commit money laundering in
violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(h).
(Id.)
On May 28, 2004, Petitioner Marvin Postadan filed a
Motion to Change Venue, a Motion to Suppress his statements,
and a Motion to Suppress wiretap evidence.
(ECF Nos. 225,
226, 227).
On July 16, 2004, at the hearing on the Motions,
Petitioner Marvin Postadan decided not to pursue his Motions
and requested he be allowed to withdraw his not guilty plea
and to plead anew.
(ECF No. 267).
On the same date, Petitioner Marvin Postadan pled guilty
on the three counts against him in the Indictment.
(Id.)
On September 27, 2004, Petitioner Marvin Postadan filed a
Response to the Draft Presentence Report.
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(ECF No. 311).
On September 30, 2004, Petitioner Marvin Postadan
withdrew his Objection to Paragraph 60 of the Draft
Presentence Report.
(ECF No. 314).
On October 15, 2004, the Government filed a Motion to
Continue Sentencing.
(ECF No. 322).
On October 18, 2004, the Government filed a Sentencing
Statement.
(ECF No. 324).
Also on October 18, 2004, the Court granted the
Government’s Motion to Continue Sentencing.
(ECF No. 325).
On February 2, 2005, the Government filed a Second
Sentencing Statement.
(ECF No. 397).
On February 4, 2005, the Government filed a Second Motion
to Continue Sentencing.
(ECF No. 400).
On February 8, 2005, Petitioner Marvin Postadan filed a
Sentencing Statement and Objections to the Presentence Report.
(ECF No. 401).
On February 9, 2005, the Court granted the Government’s
Second Motion to Continue Sentencing.
(ECF No. 402).
On March 16, 2005, Petitioner Marvin Postadan filed a
Second Sentencing Statement and Response to the Presentence
Report.
(ECF No. 416).
3
On March 23, 2005, Petitioner Marvin Postadan filed a
Motion to Withdraw and for Appointment of New Counsel.
(ECF
No. 420).
On March 24, 2005, the Government filed a Third
Sentencing Statement.
(ECF No. 421).
On March 28, 2005, a hearing was held at which time
Petitioner Marvin Postadan withdrew his Motion for Appointment
of New Counsel.
(ECF Nos. 423, 424).
Petitioner stated he
had no problem with Mr. Barbee’s representation of him and he
wished to proceed to sentencing.
(Id.)
On March 30, 2005, Petitioner’s Sentencing Hearing was
held.
(ECF No. 425).
The Government called witnesses
Francisco Ramirez, Jeffrey Silva, and Albert Pi to prove
Petitioner’s role in the offense, Petitioner’s conduct
regarding obstruction of justice, and the quantity of the
methamphetamine for which Petitioner Marvin Postadan was
responsible.
On April 4, 2005, Petitioner Marvin Postadan’s continued
Sentencing Hearing was held.
(ECF No. 430).
The Court found,
by a preponderance of the evidence, that there were sufficient
facts upon which to increase Petitioner Postadan’s offense
level pursuant to the United States Sentencing Guidelines.
Petitioner’s offense level was decreased two levels for his
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acceptance of responsibility.
Petitioner’s imprisonment range
was calculated to be 292 to 365 months, based on a total
offense level of 40 and criminal history category of 1.
Petitioner Marvin Postadan was sentenced to 200 months
imprisonment as to Counts 1, 2, and 13, with all terms to run
concurrently. (Id.)
The Judgment was entered on April 20,
2005. (ECF No. 440).
On April 5, 2005, Petitioner Marvin Postadan filed an
Appeal of his sentence. (ECF No. 431).
On November 8, 2006, the United States Court of Appeals
for the Ninth Circuit affirmed Petitioner’s sentence.
United
States v. Postadan, Dkt. No. 05-10335, 204 Fed. Appx. 637 (9th
Cir. 2006).
On February 1, 2007, Petitioner Marvin Postadan filed a
petition for a writ of certiorari with the United States
Supreme Court.
Dkt. No. 06-9264, 529 U.S. 1273 (2007).
On March 5, 2007, the United States Supreme Court denied
Petitioner Marvin Postadan’s petition for a writ of
certiorari.
(Id.)
On September 9, 2013, more than six years after the
United States Supreme Court denied his petition for a writ of
certiorari, Petition Marvin Postadan filed a Motion to Vacate,
Set Aside or Correct Sentence, Pursuant to 28 U.S.C. § 2255.
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(ECF No. 536).
The Section 2255 Motion argues that
Petitioner’s rights found in the Sixth Amendment of the United
States Constitution were violated by judicial fact finding
that enhanced his sentence.
On September 17, 2013, the Court issued a Minute Order,
setting a briefing schedule for the Section 2255 Motion. (ECF
No. 537).
On November 6, 2013, the Government filed UNITED STATES’
MOTION FOR EXTENSION OF TIME TO FILE AN OPPOSITION TO
DEFENDANT’S 2255 MOTION.
(ECF No. 538).
On November 7, 2013, the Court granted the Government’s
Motion, extending the deadline to file an Opposition until
January 15, 2014 and extending the deadline to file a Reply
until February 3, 2014.
(ECF No. 539).
On January 14, 2014, the Government filed UNITED STATES’
RESPONSE TO MARVIN POSTADAN’S MOTION UNDER 28 U.S.C. § 2255,
TO VACATE, SET ASIDE, OR CORRECT SENTENCE.
(ECF No. 540).
Petitioner Postadan did not file a reply to the
Government’s Response.
STANDARD OF REVIEW
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The Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2255,1 provides federal prisoners with
a right of action to challenge a sentence if it was imposed in
violation of the Constitution or laws of the United States,
the court was without jurisdiction to impose such a sentence,
the sentence was in excess of the maximum authorized by law,
or the sentence is otherwise subject to collateral attack.
U.S.C. § 2255(a).
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A prisoner may file a motion (“a Section
2255 Motion”) to vacate, set aside, or correct a sentence.
28
U.S.C. § 2255.
The scope of collateral attack of a sentence is limited,
and does not encompass all claimed errors in conviction and
sentencing.
ANALYSIS
The Court construes Petitioner Marvin Postadan’s filings
liberally, as he is proceeding pro se.
Woods v. Carey, 525
F.3d 886, 890 (9th Cir. 2008).
Petitioner Postadan argues that the Court erred by making
factual findings at his sentencing hearing that enhanced his
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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sentence.
Petitioner asserts that the Court erred in
enhancing his sentence by applying:
(1)
a 2-level increase pursuant to U.S. Sentencing
Guideline § 2S1.1(b)(2)(B) because he was
convicted of a violation of 18 U.S.C. § 1956;
(2)
a 4-level increase pursuant to U.S. Sentencing
Guideline § 3B1.1(a) as an organizer or leader of a
criminal activity that involved five or more
participants or was otherwise extensive; and
(3)
a 2-level increase pursuant to U.S. Sentencing
Guideline § 3C1.1 for obstruction of justice.
Petitioner Marvin Postadan claims the Court violated his
Sixth Amendment rights.
Petitioner argues that the Court may
not find facts that enhance his sentence based on the United
States Supreme Court decision in Alleyne v. United States, 133
S.Ct. 2151, 2158 (2013).
Petitioner’s claims are without
merit.
I.
TIMELINESS OF PETITIONER’S SECTION 2255 MOTION
A.
One-Year Limitation Period For Filing a Section 2255
Motion Pursuant to AEDPA
AEDPA provides a one-year limitation period for filing a
Section 2255 Motion.
The limitation period for a Section 2255
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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;
(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).
A Section 2255 Motion asserting a newly recognized
constitutional right is timely if it is filed within one year
of the date on which the newly recognized constitutional right
was initially recognized by the Supreme Court, and if that new
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right is retroactively applicable to cases on collateral
review.
28 U.S.C. § 2255(f); Dodd v. United States, 545 U.S.
353, 358 (2005).
Retroactivity is determined by application of the test
set forth in Teague v. Lane, 489 U.S. 288, 310 (1989).
In
general, a new rule of law decided after a defendant’s
conviction becomes final may not be applied to the defendant’s
case on collateral review.
Id.
There are two exceptions to
the general rule of non-retroactivity: (1) new rules that
place an entire category of primary conduct beyond the reach
of the criminal law, or new rules that prohibit imposition of
a certain type of punishment for a class or defendants because
of their status or offense; or (2) new watershed rules of
criminal procedure that are necessary to the fundamental
fairness of the criminal proceeding.
Beard v. Banks, 524 U.S.
406, 416-17 (2004).
Petitioner Postadan’s conviction became final on March 5,
2007, when the United States Supreme Court denied Petitioner’s
application for a writ of certiorari.
United States v.
Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010)
(explaining that a conviction becomes final when the Supreme
Court “affirms a conviction on the merits on direct review or
denies a petition for a writ of certiorari, or when the time
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for filing a certiorari petition expires”).
Petitioner did
not file his Section 2255 Motion until September 9, 2013, more
than six years after his conviction became final.
Petitioner Postadan does not raise a claim for equitable
tolling.
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
Absent some alternative start date, Petitioner Postadan’s time
for filing a Section 2255 Motion expired on or about March 5,
2008, one year after the Supreme Court denied his application
for a writ of certiorari.
Petitioner filed his Section 2255
Motion on September 9, 2013, approximately five and a half
years after the limitations period expired on March 5, 2008.
B.
The Government Did Not Plead the Affirmative Defense
that Petitioner Postadan’s Section 2255 Motion is
Time-Barred
A procedural default is an affirmative defense.
v. Mueller, 322 F.3d 573, 585 (9th Cir. 2003).
Bennett
The Government
must assert the procedural default as a defense to the
petition otherwise the defense is waived.
Franklin v.
Johnson, 290 F.3d 1223, 1229 (9th Cir. 2002); Vang v. Nevada,
329 F.3d 1069, 1072-73 (9th Cir. 2003).
A district court is not required to consider a procedural
default sua sponte.
Trest v. Cain, 522 U.S. 87, 89 (1997).
The court may, in its discretion, raise a procedural bar if
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the circumstances warrant so long as the parties are given
notice and the opportunity to respond.
Day v. McDonough, 547
U.S. 198, 210 (2006); Herbst v. Cook, 260 F.3d 1039, 1043 (9th
Cir. 2001).
The United States Supreme Court has emphasized in the
context of an untimely habeas petition that “[t]he court must
assure itself that the petitioner is not significantly
prejudiced by the delayed focus on the limitation issue, and
determine whether the interests of justice would be better
served by addressing the merits or by dismissing the petition
as time barred”).
Day, 547 U.S. at 210 (internal quotations
omitted); see Franklin, 290 F.3d at 1232 (“courts are
empowered to, and in some cases should, reach the merits of
habeas petitions” despite a procedural bar issue); Lambrix v.
Singletary, 520 U.S. 518, 525 (1997) (declining to remand a
habeas petition on a procedural issue in the interest of
judicial economy when the petition failed on the merits).
In its Response, the Government did not raise the
affirmative defense that Petitioner Marvin Postadan’s Section
2255 Motion is time-barred pursuant to AEDPA.
(ECF No. 540).
Nothing in the record suggests that the Government
strategically withheld the defense or chose to relinquish it.
Day, 547 U.S. at 211.
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In order to put to rest the issues raised by Petitioner,
the Court declines to raise the timeliness of Petitioner
Marvin Postadan’s Section 2255 Motion sua sponte.
II.
Id. at 210.
PETITIONER’S SECTION 2255 MOTION DOES NOT ESTABLISH A
RIGHT TO RELIEF
A.
The Ninth Circuit Court of Appeals On Direct Appeal
Rejected Petitioner’s Argument Concerning The
Enhancements To His Sentence For His Role In The
Offense And Obstruction Of Justice
A claim that was raised and denied on direct appeal
generally cannot be re-litigated as part of a Section 2255
Motion.
2000).
United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir.
The issue in question must have been decided
explicitly or by necessary implication in the previous
disposition.
United States v. Jingles, 702 F.3d 494, 500 (9th
Cir. 2012).
Petitioner’s direct appeal to the Ninth Circuit Court of
Appeals challenged the District Court’s ability to find facts
that enhanced his sentence pursuant to the Sentencing
Guidelines.
At the continued sentencing hearing on April 4, 2005, the
District Court imposed a leadership role enhancement, pursuant
to Section 3B1.1 of the United States Sentencing Guidelines.
The District Court credited the testimony given at the March
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30, 2005 sentencing hearing by Petitioner Postadan’s codefendants Francisco Ramirez, Jeffrey Silva, and Albert Pi.
The District Court found, by a preponderance of the evidence,
that Petitioner Postadan was a leader of a criminal activity
involving five or more participants in the offense.
The
testimony of Mr. Ramirez, Mr. Silva, and Mr. Pi established
that Petitioner led his co-conspirators by setting the sale
price for the drugs and directing their distribution.
The District Court also found the co-defendants’
testimony warranted sentence enhancement for Petitioner for
obstruction of justice, pursuant to Section 3C1.1 of the
United States Sentencing Guidelines.
At the sentencing hearing on March 30, 2005, Mr. Silva
and Mr. Pi testified that Petitioner ordered Mr. Pi to take
off his clothes so Petitioner could check for a recording
device.
The District Court found the testimony established,
by a preponderance of the evidence, that Petitioner Postadan
attempted to obstruct justice when he ordered Mr. Pi to remove
his clothes to check for a recording device.
At the continued sentencing hearing on April 4, 2005, the
District Court acknowledged that the Sentencing Guidelines
were advisory.
The District Court considered the factors set
forth in 18 U.S.C. § 3553(a), including Petitioner Postadan’s
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age and the sentences of the others being sentenced in the
same criminal scheme, when determining Petitioner’s sentence.
Petitioner Postadan was sentenced to 200 months
imprisonment, well below the advisory Sentencing Guidelines
range of 292 to 365 months and the statutory maximum of life
imprisonment.
(ECF No. 440).
Petitioner Postadan pled guilty.
Petitioner elected not
to have a jury trial.
On direct appeal, Petitioner Postadan argued that the
District Court violated his Sixth Amendment right to a jury
trial when it made factual findings at sentencing.
The Ninth
Circuit Court of Appeals rejected Petitioner Postadan’s
challenge to his sentence on Sixth Amendment grounds.
United
States v. Postadan, 204 Fed. Appx. 637, 639, (9th Cir. 2006).
The Court of Appeals explained, “it is well-settled that
judicial fact finding, within the context of the advisory
Guidelines, does not violate a Sixth Amendment right to jury
trial.”
Id.
The Ninth Circuit Court of Appeals relied on the
holding in United States v. Booker, 543 U.S. 220, 226 (2005),
which permits sentencing courts to make factual findings that
increase a defendant’s Sentencing Guidelines range, as long as
the Guidelines are treated as advisory.
15
The Ninth Circuit Court of Appeals found Postadan’s
sentence was reasonable.
Postadan, 204 Fed. Appx. at 639.
The appellate court held that “the district court correctly
applied the Sentencing Guidelines to the facts warranting
enhancements for leadership and obstruction of justice.”
Id.
Petitioner’s claim that the District Court violated his
Sixth Amendment rights by engaging in fact finding at his
sentencing was already rejected by the Ninth Circuit Court of
Appeals.
Petitioner Postadan has no basis upon which he can
raise the same claim again in his Section 2255 Motion.
Hayes,
231 F.3d at 1139.
B.
The Holding in Alleyne Does Not Apply to
Petitioner’s Case
In his Section 2255 Motion, Petitioner Marvin Postadan
relies on the recent United States Supreme Court decision in
Alleyne v. United States, 133 S.Ct. 2151, 2158 (2013).
(Section 2255 Motion at p. 1-2, ECF No. 536).
In Alleyne, the United States Supreme Court extended the
holding announced in Apprendi v. New Jersey, 530 U.S. 466
(2000) and held that “[a]ny fact that, by law, increases the
penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.”
2155.
133 S.Ct. at
The Supreme Court explained that a jury must find
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beyond a reasonable doubt any fact that increases a minimum
statutory penalty.
133 S.Ct. at 2158.
Petitioner Postadan pled guilty and elected not to go to
trial.
Petitioner admitted to the elements of his conviction
when he pled guilty.
No. 540).
(Government’s Response at pp. 2-3, ECF
Alleyne applies specifically to jury trials and it
is unclear the extent, if any, the holding applies to guilty
pleas.
The sentence enhancements applied to Petitioner Postadan
pursuant to U.S. Sentencing Guidelines §§ 2S1.1(b)(2)(B),
3B1.1 and 3C1.1 did not change the statutory mandatory minimum
sentence and were treated as advisory.
The United States Supreme Court in Alleyne explained that
its holding “does not mean that any fact which influences
judicial discretion must be found by a jury.”
Id. at 2163.
The Alleyne holding does not stand for the proposition that
factors elevating advisory guideline calculations must be
proved to a jury beyond a reasonable doubt or admitted in a
plea colloquy.
Id.; see United States v. Peters, 2013 WL
5492913 at *1 (D. Mont. October 1, 2013); Booker, 543 U.S. at
226.
Petitioner’s reliance on the decision in Alleyne is
misplaced.
The Alleyne case does not provide Petitioner with
17
a right to relief.
The United States Supreme Court’s holding
in Alleyne did not overrule United States v. Booker, 543 U.S.
220, 226 (2005).
Petitioner’s sentence was already found to
be reasonable pursuant to Booker.
Postadan, 204 Fed. Appx. at
639.
The holding in Alleyne does not apply to Petitioner
Postadan’s case.
Petitioner Postadan’s Motion to Vacate, Set
Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF
No. 536) is DENIED.
III.
PETITIONER 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)).
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Petitioner’s claims do not provide grounds for relief.
Petitioner is not entitled to an evidentiary hearing.
IV.
PETITIONER IS NOT ENTITLED TO A CERTIFICATE OF
APPEALABILITY
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)).
Petitioner Marvin Postadan’s Section 2255 Motion has not
made a substantial showing that Petitioner was deprived of a
constitutional right.
Petitioner’s arguments are not
supported by the record and applicable law.
Reasonable
jurists would not debate the Court’s conclusion, and there is
no reason to encourage further proceedings.
A Certificate of Appealability is DENIED.
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CONCLUSION
Petitioner Marvin Postadan’s Motion to Vacate, Set Aside
or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 536)
is DENIED.
IT IS SO ORDERED.
Dated: April 4, 2014, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
Marvin Postadan v. United States; Cr. No. 03-00496 HG-01; Cv.
No. 13-00463 HG-KSC; ORDER DENYING PETITIONER MARVIN
POSTADAN’S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
PURSUANT TO 28 U.S.C. § 2255 (ECF NO. 536).
20
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