Bonilla-Galeas v. USA
Filing
4
ORDER DENYING PETITIONER RAMON BONILLA-GALEAS'S MOTION TO VACATE,SET ASIDE OR CORRECT SENTENCE, PURSUANT TO 28 U.S.C. § 2255 (ECF No. 137) re 1 - Signed by JUDGE HELEN GILLMOR on 1/24/2017. "Petitioner Ramon Bonilla-Galeas& #039; Motion to Vacate, Set Aside or Correct Sentence, pursuant to Title 28 U.S.C. § 2255, (ECF No. 137), is DENIED. Petitioner is not entitled to an evidentiary hearing. Petitioner is not entitled to a certificate of appeala bility. This case is now CLOSED." (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). Ramon Bonilla-Galeas served by first class mail at the address of record on January 24, 2017.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RAMON BONILLA-GALEAS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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Criminal No. 13-00765 HG-2
Civil No. 16-00440 HG-RLP
ORDER DENYING PETITIONER RAMON BONILLA-GALEAS’S MOTION TO VACATE,
SET ASIDE OR CORRECT SENTENCE, PURSUANT TO 28 U.S.C. § 2255
(ECF No. 137)
On August 8, 2016, Petitioner Ramon Bonilla-Galeas filed a
Motion to Vacate, Set Aside or Correct Sentence, pursuant to 28
U.S.C. § 2255.
(ECF No. 137).
Petitioner argues that his
attorneys provided ineffective assistance of counsel during the
change of plea, sentencing, and appellate phases of the case.
Petitioner also challenges the duration of his sentence.
Petitioner’s Motion to Vacate, Set Aside or Correct
Sentence, pursuant to Title 28 U.S.C. § 2255 (ECF No. 137), is
DENIED.
Petitioner is not entitled to an evidentiary hearing because
his claims do not provide grounds for relief.
Petitioner is not entitled to a certificate of appealability
1
because he has not made a substantial showing of the denial of a
constitutional right.
BACKGROUND
The United States’ Indictment
On August 1, 2013, the United States filed a four-count
Indictment as to Petitioner Ramon Bonilla-Galeas (“Petitioner”)
and a co-defendant.
Petitioner was charged as follows:
Count 1 - conspiracy to distribute and possess with intent
to distribute fifty grams or more of methamphetamine, its salts,
isomers, and salts of its isomers in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A), and 21 U.S.C. § 846.
Count 4 - possession with intent to distribute fifty grams
or more of methamphetamine, its salts, isomers, and salts of its
isomers in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A),
and 18 U.S.C. § 2.
Counts 2 and 3 of the Indictment did not name Petitioner.
(ECF No. 10).
Attorney Mario Rodriguez’ Representation of Petitioner
On March 18, 2014, Petitioner’s court-appointed attorney
filed a Motion to Withdraw as Counsel.
(ECF No. 47).
On the
same date, the Magistrate Judge held a hearing concerning the
motion to withdraw.
At the hearing, Petitioner indicated that he
wished to hire a private attorney of his choosing.
2
The
Magistrate Judge granted the court-appointed attorney’s motion to
withdraw and instructed Petitioner to retain new counsel.
(ECF
No. 49).
On May 1, 2014, Attorney Mario Rodriguez (“Attorney
Rodriguez”) appeared pro hac vice on behalf of Petitioner. Alan
Okamoto appeared as local counsel.
(ECF No. 61).
Petitioner’s Guilty Plea
On September 29, 2014, Petitioner entered into a plea
agreement with the United States.
(Agmt., ECF No. 72).
The plea
agreement contained an appeal waiver, as well as a collateral
attack waiver.
(Id. at pp. 7-8).
The collateral attack waiver
precludes Petitioner from challenging his sentence or the manner
in which it was determined, unless the Court imposed a sentence
greater than specified in the applicable sentencing guidelines or
Petitioner alleges ineffective assistance of counsel.
(Id.)
On the same date, September 29, 2014, Petitioner appeared
before the Magistrate Judge and pled guilty as to Count 1 of the
Indictment, concerning conspiracy to distribute and possess with
intent to distribute fifty grams or more of methamphetamine.
At
the hearing, the Government indicated that Count 4 was to be
dismissed at sentencing.
(ECF No. 70).
Attorney Hironaka’s Appointment to Represent Petitioner
On April 8, 2015, the Court held a sentencing hearing as to
Petitioner.
At the hearing, Attorney Rodriguez requested to
3
withdraw as counsel for Petitioner.
The Court granted the
request and continued the sentencing hearing.
(ECF No. 113).
On April 9, 2015, Attorney Randall K. Hironaka (“Attorney
Hironaka”) was appointed to represent Petitioner.
(ECF No. 89).
Petitioner’s Sentencing
On June 26, 2015, Attorney Hironaka filed an amended
sentencing statement on behalf of Petitioner.
(ECF No. 92).
The
sentencing statement argued, in part, that Petitioner qualified
for a below-mandatory-minimum sentence pursuant to the “safety
valve” provision of 18 U.S.C § 3553(f).
(Sentencing Statement at
pp. 5-7).
On July 2, 2015, the Court held the final sentencing hearing
as to Petitioner.
At the hearing, Attorney Hironaka argued that
Petitioner qualified for the safety valve provision.
Hearing Transcript at pp. 3-6, ECF No. 126).
(Sentencing
The Court found
Petitioner to be ineligible for application of the safety valve
provision.
(Id. at p. 8).
The Court granted the Government’s
motion to dismiss Count 4 of the Indictment.
Petitioner was
sentenced to the mandatory minimum sentence of ten years
imprisonment and five years supervised release.
(ECF No. 93).
Attorney Verna Wefald’s Representation of Petitioner
On July 9, 2015, Judgment was entered as to Petitioner.
(ECF No. 98).
On the same date, Attorney Hironaka filed a motion
to withdraw as counsel.
(ECF No. 94).
4
Attorney Hironaka
requested that the Court appoint appellate counsel for
Petitioner, who wished to file a notice of appeal.
(Atty.
Hironaka Decl. at p. 2, ECF No. 94-1).
On July 17, 2015, Attorney Verna Wefald (“Attorney Wefald”)
was appointed to represent Petitioner in appellate proceedings.
(ECF No. 109).
On July 19, 2015, Attorney Wefald filed a notice of appeal
on behalf of Petitioner.
(ECF no. 105).
On December 18, 2015, Attorney Wefald filed a motion, in
which she requested to withdraw as counsel pursuant to Anders v.
California, 386 U.S. 738 (1967).
(9th Cir. Dkt. No. 6).
Attorney Wedfald stated that she was unable to discover any
meritorious, non-frivolous issues on appeal.
(Id.)
On January 29, 2016, the Ninth Circuit Court of Appeals
filed an order permitting Petitioner to file a pro se
supplemental opening brief that raises any issues in his case.
(9th Cir. Dkt. No. 12).
Petitioner did not file a supplemental
opening brief.
On July 12, 2016, the Ninth Circuit Court of Appeals affirmed
Petitioner’s conviction and sentence in an unpublished opinion.
The appellate court remanded the case to the district court to
correct the Judgment to reflect that counts 2, 3, and 4 of the
Indictment were dismissed as to Petitioner.
Petitioner’s Habeas Corpus Motion
5
(ECF No. 135).
On August 8, 2016, Petitioner timely filed a MOTION UNDER 28
U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY (“2255 Motion”).
(ECF No. 137).
On August 11, 2016, the United States requested additional
time to respond to Petitioner’s 2255 Motion.
(ECF No. 138).
On
the same date, the United States filed a request for the Court to
find that Petitioner waived his attorney-client privilege as to
Attorneys Rodriguez, Hironaka, and Wefald.
(ECF No. 139).
On August 11, 2016, the Court filed an Amended Judgment
pursuant to the Ninth Circuit Court of Appeals’s July 12, 2016
order.
(ECF No. 140).
On August 12, 2016, the Court found that Petitioner waived
his attorney-client privilege as to Attorneys Rodriguez,
Hironaka, and Wefald.
(ECF No. 142).
The Court also granted the
United States’ request for additional time, and ordered that its
Opposition to Petitioner’s 2255 Motion be filed by November 14,
2016.
(ECF No. 143).
On November 14, 2016, the United States filed RESPONSE OF
THE UNITED STATES TO DEFENDANT’S MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY.
(ECF No. 146).
Petitioner did not file a Reply.
STANDARD OF REVIEW
6
The
Antiterrorism
and
Effective
Death
Penalty
Act
("AEDPA"), 28 U.S.C. § 2255, 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.
2255(a).
28 U.S.C. §
A prisoner may file a motion ("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.
Courts do not hold pro se petitioner submissions to the same
standard as filings submitted by counsel.
Corjasso v. Ayers, 278
F.3d 874, 878 (9th Cir. 2002), as amended on denial of reh'g (Feb.
8, 2002).
Pro se submissions are liberally construed “to afford
the petitioner the benefit of any doubt.”
Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (quoting Bretz v. Kelman, 773 F.2d
1026, 1027 n. 1 (9th Cir. 1985)) (internal quotations omitted).
ANALYSIS
Petitioner Ramon Bonilla-Galeas’ (“Petitioner”) Motion to
Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C. §
2255 (“2255 Motion”) challenges his sentence.
(ECF No. 137).
Petitioner asserts that Attorneys Mario Rodriguez (“Attorney
7
Rodriguez”), Randall K. Hironaka (“Attorney Hironaka”), and Verna
Wefald (“Attorney Wefald”) provided ineffective assistance of
counsel.
Attorney Rodriguez represented Petitioner when he pled
guilty as to the Indictment.
Attorney Hironaka served as counsel
for Petitioner when Petitioner was sentenced.
Attorney Wefald
served as appellate counsel for Petitioner.
I.
PETITIONER’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
A. Petitioner’s Claims Against Attorney Rodriguez
Petitioner appears to bring three allegations of ineffective
assistance of counsel against Attorney Rodriguez.
According to
Petitioner, Attorney Rodriguez allegedly (1) refused to meet him
to discuss the case and the contents of the plea agreement
Petitioner subsequently signed; (2) made the decision for
Petitioner to plead guilty without protecting him from
deportation or reviewing the evidence; and (3) precluded
Petitioner from meeting with a probation officer during the
preparation of the Presentence Investigation Report.
Ineffective assistance of counsel claims are analyzed under
the two-part framework set forth in Strickland v. Washington, 466
U.S. 668 (1984).
A petitioner asserting an ineffective
assistance allegation must demonstrate that (1) his attorney’s
representation fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that,
but for his attorney’s unprofessional errors, the result of the
8
proceeding would have been different.
Id. at 687-88.
Counsel
are presumed to have “rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment.”
Id. at 690.
The conjunctive nature of the Strickland framework permits
the Court to address the second factor first, especially if the
petitioner suffered no prejudice as a result of the alleged
performance deficiency.
Id. at 697.
Where, as here, the
petitioner is challenging the performance of his counsel during
the change of plea phase of the case, the Ninth Circuit Court of
Appeals has stated that the prejudice prong of the Strickland
framework requires the petitioner to show that but for the
attorney’s errors, he would have insisted on proceeding to trial
instead of pleading guilty.
Doe v. Woodford, 508 F.3d 563, 568
(9th Cir. 2007) (quoting Hill v. Lockhart, 474 U.S. 52, 59
(1985)).
1. Petitioner Met with Attorney Rodriguez on Multiple
Occasions to Discuss the Case
Petitioner claims Attorney Rodriguez failed to meet and
confer with him to discuss the case or the plea agreement.
The Ninth Circuit Court of Appeals has held that “adequate
consultation between attorney and client is an essential element
of competent representation of a criminal defendant.”
Correll v.
Ryan, 539 F.3d 938, 943 (9th Cir. 2008) (quoting United States v.
Tucker, 716 F.2d 576, 581 (9th Cir. 1983)).
9
The answer to what
is an adequate consultation depends on the facts of each case,
but the general guideline is that the attorney should have
consultations sufficient to give the client an understanding of
the legally relevant information that the defense possesses.
Tucker, 716 F.2d at 581–82.
Attorney Rodriguez attests that he visited Petitioner at the
Federal Detention Center in Honolulu on six separate occasions.
Specifically, Attorney Rodriguez met with Petitioner on May 5,
2014; May 10, 2014; June 30, 2014; July 2, 2014; July 11, 2014;
and September 27, 2014. (Atty. Rodriguez Decl. at ¶ 5, ECF No.
146-4.
In each instance, Attorney Rodriguez, who is fluent in
Petitioner’s native language of Spanish, states he met with
Petitioner for at least two hours.
5).
(Atty. Rodriguez Decl. at ¶
At the meetings, there was discussion of the evidence,
defenses available to Petitioner, and the plea agreement. (Id.)
Attorney Rodriguez’ representations concerning his
communications with Petitioner are supported by the record.
On September 29, 2014, Petitioner initialed and signed a
plea agreement presented by the United States.
The signed plea
agreement specifically stated that Petitioner agreed Attorney
Rodriguez apprised him of the charges he faced and the rights he
waived by entering into a plea agreement. (Plea Agmt. at ¶¶ 2-3;
15, ECF No. 72).
On the same date, September 29, 2014, that Petitioner signed
10
the plea agreement Petitioner appeared before the Magistrate
Judge at a Change of Plea hearing.
(ECF No. 70).
At the
hearing, the Magistrate Judge inquired as to the scope of
Petitioner’s discussions with Attorney Rodriguez:
THE COURT: Have you discussed the charges and all of
the facts surrounding the charges with your attorneys?
THE DEFENDANT: (Through interpreter) Yes.
THE COURT: Are you satisfied with the legal
representation that you've received from your attorneys
in this case?
THE DEFENDANT: (Through interpreter) Yes.
THE COURT: Mr. Rodriguez, is the defendant's guilty
plea before the Court today pursuant to your advice and
recommendation?
MR. RODRIGUEZ: Yes.
THE COURT: Mr. Bonilla-Galeas, I have before me a
written plea agreement. Is this your signature on the
last page?
THE DEFENDANT: (Through interpreter) Yes.
THE COURT: And are these your initials on the first
page?
THE DEFENDANT: (Through interpreter) Yes.
THE COURT: Did you have an opportunity to read and
discuss the plea agreement with your lawyer before you
signed it?
THE DEFENDANT: (Through interpreter) Yes.
THE COURT: Do you understand the terms of the plea
agreement?
THE DEFENDANT: (Through interpreter) Yes.
THE COURT: Does the plea agreement cover every aspect
11
of the agreement that you have with the government in
this case?
THE DEFENDANT: (Through interpreter) I'm sorry?
THE COURT: Does the plea agreement cover every aspect
of the agreement that you have with the government?
THE DEFENDANT: (Through interpreter) Yes.
. . .
THE COURT: The United States Sentencing Commission
has issued guidelines for judges to use in determining
the sentence in a criminal case. While judges are not
bound to apply the guidelines, judges must consult the
guidelines and take them into account in determining a
sentence. Have you and your attorneys talked about how
the guidelines might apply to your case?
THE DEFENDANT: (Through interpreter) Yes.
(Change of Plea Hearing Transcript at pp. 5-7; 12, ECF No. 125).
The sworn declaration produced by Attorney Rodriguez,
Petitioner’s own statements to the Court, and the plea agreement
Petitioner signed all establish that Attorney Rodriguez did in
fact discuss the case with Petitioner.
A review of the record
shows no issues associated with Attorney Rodriguez’ understanding
of the case.
Attorney Rodriguez’ conduct as to his
communications with Petitioner was objectively reasonable.
United States v. Mejia-Aviles, No. 1:10-CR-00436-LJO, 2012 WL
293175, at *2 (E.D. Cal. Jan. 31, 2012) (citing Kimmelman v.
Morrison, 477 U.S. 365, 381 (1986)).
Even if Petitioner could establish that Attorney Rodriguez’
efforts to confer with him were deficient, Petitioner fails to
show what benefit additional discussions would have afforded him.
12
See Payton v. Woodford, 258 F.3d 905, 922 (9th Cir. 2001)
(overruled on other grounds by Payton v. Woodford, 299 F.3d 815
(9th Cir. 2002) (holding that although the petitioner complained
that his trial counsel conferred with him for only 8.1 hours, no
prejudice was shown, as the petitioner “point[ed] to nothing that
would have happened differently had [counsel] and he spent more
time together”).
Petitioner has failed to demonstrate that
additional consultations would have spurred him to proceed to
trial instead of pleading guilty.
See Doe, 508 F.3d at 568
(holding that the prejudice prong in guilty plea cases requires
the petitioner to show that he would have insisted on going to
trial instead of pleading guilty).
2. Petitioner Entered a Valid Guilty Plea as to Count 1
of the Indictment
Petitioner appears to argue that his guilty plea was
invalid, as Attorney Rodriguez advised him to enter a guilty plea
without ensuring that he would not be subject to removal
proceedings.
The Ninth Circuit Court of Appeals has instructed that where
a petitioner asserts an ineffective assistance of counsel claim
that attacks the validity of his guilty plea, the focus of the
inquiry is whether he entered a constitutionally valid guilty
plea.
Lambert v. Blodgett, 393 F.3d 943, 979-80 (9th Cir. 2004).
The petitioner in a habeas corpus action bears the burden of
13
establishing that his guilty plea is invalid.
Little v.
Crawford, 449 F.3d 1075, 1080 (9th Cir. 2006).
In the context of an ineffective assistance of counsel
claim, a defendant’s guilty plea may be invalid if it was based
upon advice from counsel that is not “within the range of
competence demanded of attorneys in criminal cases,” and
prejudice arose as a result.
United States v. Delgado-Ramos, 635
F.3d 1237, 1239-40 (9th Cir. 2011) (quotations and citations
omitted) (per curiam).
The United States Supreme Court and the
Ninth Circuit Court of Appeals have recognized that criminal
defense attorneys have a constitutional duty to apprise their
non-citizen clients of the immigration consequences of a guilty
plea.
Padilla v. Kentucky, 559 U.S. 356, 368-69 (2010); United
States v. Sun Hwang,
Fed. Appx.
, No. 15-16334, 2016 WL
4137663, at *1 (9th Cir. Aug. 4, 2016).
Petitioner’s Attorney’s Warning
Attorney Rodriguez’ sworn declaration, Petitioner’s own
statements, and the plea agreement Petitioner signed establish
that Attorney Rodriguez informed Petitioner that he would be
subject to removal proceedings upon pleading guilty, and that
Petitioner nonetheless decided to enter a guilty plea.
Attorney Rodriguez attests that prior to pleading guilty,
Petitioner reviewed the case with him and concluded that the
14
Government had sufficient evidence for a jury to convict at
trial.
Facing the prospect of a likely conviction, Petitioner
made the strategic decision to plead guilty in the hope of
receiving a lesser sentence. (Atty. Rodriguez Decl. at ¶ 6, ECF
No. 146-4).
Attorney Rodriguez states that he specifically
informed Petitioner that a guilty plea would result in his
removal from the United States.
(Id. at ¶ 7).
Attorney
Rodriguez states that it was after he explained the immigration
consequences of pleading guilty that Petitioner decided to enter
a guilty plea.
(Id.)
The Magistrate Judge’s Warning
At the September 29, 2014 Change of Plea hearing, the
Magistrate Judge conducted a detailed colloquy with Petitioner.
(See generally Change of Plea Hearing Transcript, ECF No. 125).
The Magistrate Judge questioned Petitioner as to whether he was
induced by promises or threats in exchange for pleading guilty,
(id. at p. 7).
Petitioner was also asked if he understood the
terms of his plea agreement and its associated waiver of rights,
(id. at pp. 9; 18), the consequences of pleading guilty, (id. at
pp. 10-12), the nature of sentencing, (id. at pp. 10-13), the
constitutional rights he would forfeit by pleading guilty, (id.
at pp. 13-15; 17), and the government’s burden of proof at trial,
(id. at pp. 15-18).
The Magistrate Judge specifically cautioned Petitioner that
15
he may be subject to removal proceedings:
THE COURT: In addition, because you are not a citizen
of the United States a conviction in this case might
have adverse consequences on your immigration status
and may affect your right to remain in this country. Do
you understand that?
THE DEFENDANT: (Through interpreter) Yes.
(Id. at pp. 11-12).
After answering the Magistrate Judge’s
questions in the affirmative, Petitioner indicated his desire to
plead guilty.
(Id. at p. 23).
The Plea Agreement’s Warning
In addition to both Attorney Rodriguez and the Magistrate
Judge’s warnings concerning the immigration consequences of
pleading guilty, the plea agreement cautioned Petitioner that the
offenses to which he pled guilty would subject him to removal
from the United States:
d. Defendant recognizes that pleading guilty may have
consequences with respect to his immigration status if
he is not a citizen of the United States. Under federal
law, a broad range of crimes are removable offenses,
including the offense to which defendant is pleading
guilty. Indeed, because defendant is pleading guilty to
conspiring to distribute 50 grams or more of
methamphetamine, removal is presumptively mandatory.
Removal and other immigration consequences are the
subject of a separate proceeding, however, and
defendant understands that no one, including his
attorney or the district court, can predict to a
certainty the effect of his conviction on his
immigration status. Defendant nevertheless affirms
that he wants to plead guilty regardless of any
immigration consequences that his plea may entail, even
if the consequence is his automatic removal from the
United States.
(PSR at pp. 3-4, ECF No. 72).
Petitioner told the Court while
16
under oath that he discussed the terms of his plea agreement with
Attorney Rodriguez.
(Change of Plea Hearing Transcript at pp. 5-
7).
The evidence presented before the Court and the record
demonstrate that Attorney Rodriguez fulfilled his constitutional
duty to inform Petitioner of the immigration consequences of
pleading guilty.
Sun Hwang, 2016 WL 4137663, at *1.
entered a valid guilty plea.
Petitioner
See Doe, 508 F.3d at 572 (rejecting
habeas corpus attack on a guilty plea where the petitioner
“participated in a thorough plea colloquy, in which he answered
in the affirmative that his plea was voluntary under the
circumstances and, specifically answered in the affirmative when
asked if he had enough time to discuss the plea with his
attorneys”).
3. Petitioner Met with a Probation Officer to Assist in
the Preparation of the Presentence Investigation Report
Petitioner claims Attorney Rodriguez precluded him from
meeting with a probation officer during the preparation of the
Presentence Investigation Report.
After Petitioner pled guilty as to Count 1 of the
Indictment, the Probation Office began drafting a Presentence
Investigation Report.
As part of the preparation of the
Presentence Investigation Report, Petitioner was referred to the
Probation Office for an interview.
100).
(PSR at p. 4; ¶ 7, ECF No.
On October 14, 2014, a probation officer interviewed
17
Petitioner at the Federal Detention Center in Honolulu. (Id. at
p. 7; ¶ 23).
Petitioner.
Local counsel Alan Okamoto was present with
(Atty. Rodriguez Decl. at p. 3; ¶ 8, ECF No. 146-4).
The substance of Petitioner’s interview is reflected in the
Presentence Investigation Report.
(PSR at pp. 12-15, ECF No.
100).
The record establishes that Petitioner’s allegation that
Attorney Rodriguez prevented him from meeting with a probation
officer is without merit.
B. Petitioner’s Claim Against Attorney Hironaka
Petitioner appears to contend that Attorney Hironaka
provided ineffective assistance at the sentencing phase of
proceedings, as he allegedly failed to advocate for Petitioner to
receive a below-mandatory-minimum sentence pursuant to the
“safety valve” provision of 18 U.S.C. § 3553(f).
The safety valve provision permits a court to sentence a
defendant to a term of imprisonment that is lower than a
statutory minimum sentence in limited circumstances. 18 U.S.C. §
3553(f); see generally United States v. Shrestha, 86 F.3d 935
(9th Cir. 1996) (summarizing the function of the safety valve
provision).
A key requirement of the safety valve provision is
that an eligible defendant must have no more than one criminal
history point.
18 U.S.C. § 3553(f)(1).
The record establishes that Attorney Hironaka advocated for
18
Petitioner to receive a below-mandatory-minimum sentence pursuant
to the safety valve.
Prior to Petitioner’s sentencing, Attorney Hironaka met with
Petitioner to discuss the case and sentencing strategy.
generally Atty. Hironaka Decl., ECF No. 146-6).
(See
Attorney
Hironaka reviewed the case and recognized that Petitioner
committed the instant offense while wanted on an outstanding
arrest warrant that stemmed from a prior conviction.
12-13; PSR at pp. 10-11; ¶ 44).
(Id. at ¶¶
The applicable sentencing
guidelines ascribe a two-point increase to Petitioner’s criminal
history, thereby disqualifying Petitioner from a lower sentence
under the safety valve provision.
U.S.S.G. § 4A1.1(d); 4A1.2
(2014).1
1
The Probation Officer’s response to Attorney Hironaka’s
objection, which was adopted by the Court, stated in part:
Response: Superior Court of California records reflect
that the defendant was convicted of DUI on 4/12/2005,
imposition of sentence was suspended, and the defendant
was placed on 36 months summary probation, with special
conditions, including $1457.00 in
fines/fees/restitution. However, the defendant failed
to appear for Proof of Completion hearings on
05/02/2006 and 05/09/2006, and his probation was
revoked, due to his failure to pay the
fines/fees/restitution. Consequently, a bench warrant
in the amount of $26,000.00 was issued for his arrest
and remains outstanding.
. . .
Further, the evidence establishes that the defendant
committed the instant offense in 2013, while the DUI
violation warrant issued on 05/09/2006 was outstanding.
19
Attorney Hironaka attests that he informed Petitioner of the
situation and presented him with two options: (1) attempt to
withdraw the guilty plea and proceed to trial, or (2) argue that
Petitioner should qualify for relief under the safety valve
provision.
(Atty. Hironaka Decl. at ¶¶ 14-16). Attorney Hironaka
states that Petitioner deliberated and declined to seek a
withdrawal of the guilty plea.
(Id. at ¶¶ 17-19).
Attorney
Hironaka responded by informing Petitioner that he would advocate
for a lower sentence pursuant to the safety valve provision.
(Id. at ¶ 20).
On June 26, 2015, Attorney Hironaka filed an Amended
Sentencing Statement, in which he argued that Petitioner
qualified for a lower sentence under the safety valve provision.
(ECF No. 92).
The Probation Office rejected Attorney Hironaka’s
position in an addendum to the Presentence Investigation Report,
explaining that the circumstances of Petitioner’s commission of
the instant offense warranted a two-point increase in the
USSG §4A1.1(d) provides for a two point increase if the
defendant committed any part of the instant offense
while under any criminal justice sentence. This
section defines “criminal justice sentence” as a
sentence countable under USSG §4A1.2, having a
custodial or supervisory component, although active
supervision is not required. This section further
provides that, a defendant who commits the instant
offense while a violation warrant from a prior sentence
is outstanding shall be deemed to be under a criminal
justice sentence for purposes of applying USSG
§4A1.2(d), if that sentence is otherwise countable.
20
calculation of his criminal history score pursuant to the
sentencing guidelines.
(PSR at pp. 20-21).
On July 2, 2015, the Court held the final sentencing hearing
as to Petitioner.
(ECF No. 93).
At the hearing, Attorney
Hironaka advocated for Petitioner to receive a lower sentence
pursuant to the safety valve provision.
Transcript at pp. 3-6, ECF No. 126).
(Sentencing Hearing
The Court rejected Attorney
Hironaka’s argument and adopted the Probation Office’s
explanation, as stated in the addendum to the Presentence
Investigation Report.
(Id. at p. 8).
Petitioner’s claim that Attorney Hironaka failed to advocate
for Petitioner to receive a below-mandatory-minimum sentence
pursuant to the “safety valve” provision of 18 U.S.C. § 3553(f)
is without merit.
C. Petitioner’s Claims Against Attorney Wefald
Petitioner asserts that Attorney Wefald was
unconstitutionally ineffective, as she allegedly (1) failed to
confer with Petitioner and notify him before withdrawing as
appellate counsel; and (2) refused to assist Petitioner’s effort
to appeal his conviction and sentence.
Ineffective assistance of appellate counsel claims are
evaluated under the framework set forth in Strickland.
Smith v.
Robbins, 528 U.S. 259, 285 (2000); Moormann v. Ryan, 628 F.3d
1102, 1106 (9th Cir. 2010).
As applied to this case, the
21
Strickland framework requires Petitioner to first show that
Attorney Wefald’s performance was objectively unreasonable, which
requires him to demonstrate that she acted unreasonably in
failing to discover and brief a meritorious issue.
Should
Petitioner succeed in demonstrating objectively unreasonable
performance, he must then establish prejudice, which in this
context means that but for Attorney Wefald’s alleged errors,
Petitioner would have prevailed in his appeal.
Id.
1. Attorney Wefald Provided Competent and Diligent
Representation
a. Attorney Wefald Reasonably Consulted with
Petitioner
Attorney Wefald submitted a sworn declaration concerning her
representation of Petitioner.
(ECF No. 146-5).
Attorney Wefald
states that on July 19, 2015, two days after she was appointed as
appellate counsel for Petitioner, she wrote a letter to
Petitioner.
In the letter, she stated:
I have just been appointed to represent you in the
above case on appeal. Today I filed the notice of
appeal, which is enclosed. I spoke briefly to your
previous attorney Randy Hironaka. I understand you
should be transferred soon, hopefully to Southern
California. In the meantime, please fill out the
enclosed confidential client questionnaire and sign the
authorization and return them to me in the enclosed
envelope. I am aware that you pled guilty and there
was an appeal waiver. However, I will review the
entire record to determine what issues can be raised.
Please tell me specifically why you wanted to appeal.
I look forward to hearing from you soon.
(Atty. Wefald Decl. at ¶ 5a).
22
On August 7, 2015, Attorney Wefald sent Petitioner a copy of
the transcript designation and order form.
She also informed
Petitioner that he could communicate with her in Spanish if he
preferred to do so, as she was conversant in that language.
(Id.
at ¶ 5b).
Attorney Wefald attests that on August 14, 2015, she
received a letter from Petitioner.
In the letter, which was
written entirely in English, Petitioner complained that he did
not see or sign a plea agreement, did not see his Presentence
Investigation report, did not agree to the sentence the Court
imposed, and did not understand his Miranda rights.
also indicated that he had a poor command of English.
Petitioner
(Id. at ¶
5c).
On August 18, 2015, Attorney Wefald responded to
Petitioner’s August 14, 2015 letter:
Thank you for your letter which will help me to
determine if there are any issues that can be raised in
light of the plea agreement waiving your right to
appeal if the sentence is greater than the guideline
range. Enclosed is the plea agreement which was filed
with the court and bears your signature. See page 8
for the waiver. I cannot send you the PSR because it
is under seal but you may request to review through
your counselor. Some of the issues you mention may
have to be raised in a 2255 motion which would be filed
after the appeal is concluded. Please don't file
anything now. I will send you the transcripts when they
are prepared and give you more advice at that time.
(Id. at ¶ 5d).
Petitioner did not reply to Attorney Wefald’s
August 18, 2015 letter.
(Id. at ¶ 5c).
23
Attorney Wefald attests that on October 2, 2015, Petitioner
called her on the telephone.
Attorney Wefald indicates that she
had a substantive discussion about Petitioner’s case, and
recalled that they spoke in English.
(Id. at ¶ 5e).
On October 9, 2015, Attorney Wefald wrote another letter to
Petitioner.
In the letter, Attorney Wefald stated:
Enclosed is the request for extension of time to file
the Appellant's Opening Brief. I also enclose the
transcripts. I have already sent you the plea
agreement where you waived your right to appeal. The
two point reduction in the guidelines will not help
you, unfortunately, because you were sentenced to the
ten year mandatory minimum. A lower guideline sentence
will not permit the judge to go below that. You were
not eligible for the safety valve based on your prior
California case. I will do additional research and get
back to you. Please let me know what specific questions
you have.
(Id. at ¶ 5f).
Petitioner did not reply to Attorney Wefald’s
letter. (Id. at ¶¶ 5c; 5e).
Attorney Wefald attests that after conducting her legal
research, conferring with Petitioner, and reviewing the district
court filings, the hearing transcripts, and the Presentence
Investigation Report, she concluded that Petitioner had no nonfrivolous issues to raise on appeal.
(Id. at ¶ 2).
Attorney
Wefald then drafted a motion pursuant to Anders v. California,
386 U.S. 738 (1967), wherein she requested to withdraw as
counsel, having been unable to discover any meritorious, nonfrivolous issues on appeal.
(9th Cir. Dkt. No. 6-1).
On December 18, 2015, Attorney Wefald sent a letter to
24
Petitioner, in which she stated:
Enclosed is the motion to withdraw as counsel pursuant
to Anders v. California, 386 U.S. 738 (1967) and the
supporting brief. You waived your right to appeal any
sentence that was not above the guidelines. The
guidelines in your case were 150-188 months and the
judge sentenced you to 120 months, well below the
guidelines. I have thoroughly reviewed the entire
record to determine if there were any issues that could
be raised in spite of the appeal waiver.
Unfortunately, I could not find any.
The Ninth Circuit Court of Appeals will soon issue an
order permitting you to file your own brief if you
wish. I realize this is not what you hoped for, but
there was nothing I could do. The 120 months sentence
you received was the lowest possible sentence under the
circumstances. If you have any questions, please let
me know.
(Atty. Wefald Decl. at ¶ 5g).
On the same date, December 18,
2015, Attorney Wefald filed the Anders motion to withdraw as
counsel.
(9th Cir. Dkt. No. 6-1).
Petitioner did not reply.
(Atty. Wefald Decl. at ¶ 5c).
On December 24, 2015, Attorney Wefald sent Petitioner a copy
of the of the Excerpts of Record that accompanied the Anders
motion she filed with the Ninth Circuit Court of Appeals. (Id. at
¶ 5h).
On January 29, 2016, the Ninth Circuit Court of Appeals
filed an order advising Petitioner that in light of Attorney
Wefald’s filing of the Anders motion, Petitioner could file a pro
se supplemental opening brief raising any issues in his case.
(9th Cir. Dkt. No. 12).
On February 2, 2016, Attorney Wefald wrote to Petitioner,
25
stating:
You should have received the enclosed order from the
Ninth Circuit allowing you to file your own brief. If
you wish to do so and need more time you can request an
extension of time. I also received today the enclosed
order denying your motion for reduction of sentence.
The judge found that the guideline reduction had
already been applied to your case. Plus, you received
the lowest sentence you could have received under the
mandatory minimum, regardless of any guideline
calculation. Please let me know if you have any
questions. Hope all is well.
(Atty. Wefald Decl. at ¶ 5i).
Petitioner did not reply to
Attorney Wefald’s letter, nor did he file a supplement opening
brief.
(Id. at ¶ 5c; 9th Cir. Order Affirming Conviction and
Sentence at p. 2, ECF No. 135).
On July 12, 2016, the Ninth Circuit Court of Appeals
affirmed Petitioner’s conviction and sentence.
(ECF No. 135).
On the same date, Attorney Wefald wrote a letter to Petitioner,
in which she informed him of the appellate court’s decision and
advised him of his ability and the deadline to file a habeas
corpus motion with the district court.
(Atty. Wefald Decl. at ¶
5j).
On July 13, 2016, Attorney Wefald wrote another letter to
Petitioner, in which she explained that she enclosed the trial
file and informed Petitioner that he could request his
Presentence Investigation Report from his counselor.
5k).
(Id. at ¶
Petitioner did not reply to Attorney Wefald’s letter.
at ¶ 6).
26
(Id.
Attorney Wefald’s sworn declaration establishes that she
made a good-faith effort to confer with Petitioner throughout the
course of her representation.
Attorney Wefald took care to
discuss her impressions of the case and the attendant issues that
posed significant roadblocks on appeal, such as the appeal waiver
Petitioner signed as part of the plea agreement.
Attorney Wefald
consistently communicated significant concerns she had as to the
merits of Petitioner’s appeal before filing the Anders motion.
(Id. at ¶¶ 5d; 5e; 5f).
She invited Petitioner to reply in the
various letters she sent to him, but he often failed to respond.
See Chavez v. Pulley, 623 F.Supp. 672, 685 (E.D. Cal. 1985)
(stating that “petitioner cannot complain of counsel's failure to
communicate where his own refusal to see counsel is the cause of
a lack of communication”).
Even if Petitioner could demonstrate that Attorney Wefald
should have more thoroughly consulted with him, he has not
established prejudice.
See Bowling v. Parker, 344 F.3d 487, 506
(6th Cir. 2003) (“the mere fact that counsel spent little time
with [the petitioner] is not enough under Strickland, without
evidence of prejudice or other defects”).
There is no indication
that further discussions would have produced a different result
on appeal.
See United States v. Lucas, 873 F.2d 1279, 1280 (9th
Cir. 1989); Hill v. Mitchell, 400 F.3d 308, 324-25 (6th Cir.
2005).
27
b. Attorney Wefald’s Withdrawal from the Case was
Neither Deficient nor Prejudicial
Petitioner faults Attorney Wefald for filing a motion to
withdraw as appellate counsel pursuant to Anders, 386 U.S. 738.
Petitioner appears to allege that Attorney Wefald’s conduct
constituted a refusal to assist with his appeal.
The Constitution provides appellate defense counsel with
discretion to craft the scope of issues raised on appeal.
v. Barnes, 463 U.S. 745, 751-54 (1983).
Jones
Appellate counsel are
not duty-bound to raise weak issues at the behest of the
defendant.
Bailey v. Newland, 263 F.3d 1022, 1028-29 (9th Cir.
2001) (citing Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir.
1989)).
In Anders, the Supreme Court addressed the extent to which
court-appointed appellate counsel must pursue a criminal appeal,
even after diligently determining that the appeal is of no merit.
The Supreme Court held that if, after a conscientious examination
of the case, appellate counsel finds the case to be wholly
frivolous, she may advise the appellate court and request
permission to withdraw.
386 U.S. at 744.
The request to
withdraw, however, must be supported by briefing that identifies
any issues in the record that might arguably support an appeal.
Id.
In addition, the attorney must provide a copy of her brief
to the defendant, so that he may raise his own arguments in
28
support of his appeal.
Id.
Once appellate counsel fulfills this
burden, the appellate court, after a full examination of all
proceedings, must then decide whether the appeal is wholly
frivolous.
Id.
Attorney Wefald’s acts of finding Petitioner’s appeal to be
frivolous and filing an Anders motion do not constitute
ineffective assistance of counsel.
As the Supreme Court
recognized, the framework set forth in the Anders decision “would
not force appointed counsel to brief his case against his client
but would merely afford the latter that advocacy which a
nonindigent defendant is able to obtain.”
Id.
Filing a motion
to withdraw pursuant to Anders is not, by itself, a prejudicial
act, as an Anders motion places a duty upon the appellate court
to review the record for nonfrivolous issues and address those
that arise.
See United States v. Davis, 508 F.3d 461, 464 (8th
Cir. 2007) (citing Anders, 386 U.S. at 744); Jennison v.
Goldsmith, 51 F.3d 280, *3 (9th Cir. 1995) (unpublished).
Attorney Wefald’s Anders motion comprehensively discussed
the facts of the case and explained why she believed Petitioner’s
appeal was frivolous.
(9h Cir. Dkt. No. 6-2).
Attorney Wefald
provided a copy of her Anders motion to Petitioner, and apprised
him of his ability to file a pro se supplemental brief.
Wefald Decl. at ¶ 5g).
(Atty.
Petitioner did not submit a supplemental
brief.
29
The Ninth Circuit Court of Appeals conducted an independent
review of the record and concluded that there were “no arguable
grounds for relief with respect to the conviction.”
Order Affirming Conviction and Sentence at p. 2).
(9th Cir.
Petitioner’s
appeal of his sentence was also dismissed, as there was “no
arguable issue as to the validity” of the appeal waiver that was
included in the plea agreement Petitioner signed.
(Id.)
The
Ninth Circuit Court of Appeals granted Attorney Wefald’s Anders
Motion; her conduct in seeking to withdraw as counsel was
objectively reasonable.
See Barajas-Ocampo v. United States, No.
CIV. 07-00522JMS-BMK, 2008 WL 563473, at *17 (D. Haw. Feb. 29,
2008).
II.
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).
The underlying standard for an evidentiary
hearing asks whether the prisoner “has made specific factual
allegations that, if true, state a claim on which relief could be
granted.”
United States v. Schaflander, 743 F.2d 714, 717 (9th
Cir. 1984).
An evidentiary hearing is not required if a prisoner’s
allegations, “when viewed against the record, do not state a
30
claim for relief or are so palpably incredible or patently
frivolous as to warrant summary dismissal.”
Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003).
United States v.
Mere conclusory
statements do not warrant an evidentiary hearing.
743 F.2d at 721.
Schaflander,
To the extent that a prisoner’s allegations are
contradicted by the record, the Court need not accept them as
true.
United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986).
No evidentiary hearing is required in this case.
Petitioner’s allegations are contrary to the record and therefore
are not accepted as true.
Id. Petitioner fails to state a claim
for relief because his allegations conflict with governing law,
the record, the transcripts, the memorandum of plea agreement,
the declaration of his counsel, and the parties’ filings.
Petitioner is not entitled to an evidentiary hearing.
III. 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
in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.”
31
Slack v. McDaniel,
529 U.S. 473, 483–84 (2000)(quoting Barefoot v. Estelle, 463 U.S.
880, 893, n. 4 (1983)).
Petitioner’s 2255 Motion has not made a substantial showing
that he 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.
Petitioner is not entitled to a Certificate of
Appealability.
CONCLUSION
Petitioner Ramon Bonilla-Galeas’ Motion to Vacate, Set Aside
or Correct Sentence, pursuant to Title 28 U.S.C. § 2255, (ECF No.
137), is DENIED.
Petitioner is not entitled to an evidentiary hearing.
Petitioner is not entitled to a certificate of appealability.
This case is now CLOSED.
IT IS SO ORDERED.
T
DATED: January 24, 2017, Honolulu, Hawaii.
ATED:
.
Ramon Bonilla-Galeas v. United States of America; Cr. No. 13Bonilla-Galeas
l
00765-HG-2; Cv. No. 16-00440-HG-RLP; ORDER DENYING PETITIONER
RAMON BONILLA-GALEAS’ MOTION TO VACATE, SET ASIDE OR CORRECT
SENTENCE, PURSUANT TO 28 U.S.C. § 2255 (ECF No. 137)
32
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