Penitani v. USA

Filing 5

ORDER Denying Motion To Vacate, Set Aside, Or Correct A Sentence By A Person In Federal Custody Under 28 U.S.C. § 2255; Order Granting Certificate of Appealability."The court denies Penitani's Motions to Vacate, Set Aside, or C orrect a Sentence by a Person in Federal Custody under 28 U.S.C. § 2255. The court, however, grants Penitani a certificate of appealability. The Clerk of Court is directed to enter judgment against Penitani and to close these § 2255 action s." Signed by JUDGE SUSAN OKI MOLLWAY on 3/13/18. (cib, )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
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
)
JOHN PENITANI,
)
)
Defendant.
)
_____________________________ )

Cr. No. 13-00514 SOM (03)
Cr. No. 13-00653 SOM (01)
Civ. No. 16-00443 SOM/KJM
Civ. No. 16-00444 SOM/KJM
ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR CORRECT
A SENTENCE BY A PERSON IN
FEDERAL CUSTODY UNDER 28
U.S.C. § 2255; ORDER GRANTING
CERTIFICATE OF APPEALABILITY

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE
BY A PERSON IN FEDERAL CUSTODY UNDER 28 U.S.C. § 2255;
ORDER GRANTING CERTIFICATE OF APPEALABILITY
I.

INTRODUCTION.
Defendant John Penitani was convicted of drug-related

crimes in two cases and sentenced to a total of 168 months of
imprisonment, 5 years of supervised release, and a $200 special
assessment.

Penitani unsuccessfully appealed and then timely

moved for relief under 28 U.S.C. § 2255 in his two cases.
Penitani then submitted numerous handwritten letters.

The court

issues a single ruling applicable to all his motions.
Although Penitani initially raised numerous claims in
support of his motions, he ultimately restricts himself to
arguing that his former counsel, Myles S. Breiner, had a conflict
of interest based on Breiner’s representation of both Charles
Foster and Penitani, and that the Assistant United States

Attorney (“AUSA”) should have informed the court about that
alleged conflict of interest.
II.

The court denies the motions.

THE ISSUES BEFORE THIS COURT HAVE BEEN SIGNIFICANTLY
NARROWED.
After filing his § 2255 motions, Penitani himself

mailed numerous letters to this court.

This court appointed

counsel for Penitani and asked counsel to clarify what issues
Penitani wanted the court to consider.

The court told Penitani

that any issue not identified in the requested response would be
deemed waived.

See ECF No. 249, 251.1

On July 7, 2017, Penitani identified as issues for the
court to adjudicate alleged ineffective assistance of counsel by
Myles S. Breiner based on (1) Breiner’s alleged conflicts of
interest relating to his representation of Charles Foster,
Subrina Toomey, and Penitani; (2) Breiner’s failure to challenge
the presentence investigation report; (3) Breiner’s failure to
insist that certain alleged plea agreement terms be in writing;
and (4) Breiner’s bargaining away of Penitani’s appellate rights.
Penitani additionally identified alleged prosecutorial misconduct
by AUSA Chris Thomas based on (1) Thomas’s failure to move to
disqualify Breiner because of Breiner’s conflicts of interest;
(2) Thomas’s alleged misrepresentations as to the whether

1

In this order, the court’s citation to the docket refers to
documents filed in Crim. No. 13-00514 SOM, although identical
documents are filed in Crim. No. 13-00653 SOM.
2

Penitani would receive a sentence of less than 10 years; and
(3) Thomas’s alleged use of information in violation of a proffer
agreement.

Finally, Penitani identified a breach of an alleged

agreement that a sentence of less than 10 years be sought,
judicial misconduct,2 and ineffective assistance by appellate
counsel Pamela O’Leary Tower.

See ECF No. 255.

After multiple hearings and live testimony with respect
to Penitani’s motions, the court asked for supplemental closing
argument briefs, telling the parties that any issue not raised in
the supplemental brief would be deemed waived:
[Y]ou are limited in your closing argument
briefs to issues that were raised in your
list of issues, but you are not required to
rely on all issues raised in your list of
issues[. I]f you do not in your closing
argument briefs mention an issue that was on
your list, I will deem that issue waived.
Mr. Penitani, do you understand what I’m
saying? I’m kind of trying to figure out
what really do I need to address. And there
may--there’s already been a narrowing because
I made your lawyer give me a list. If it’s
not on the list, it’s not an issue. He gets
to write briefs now. If it’s not in the
brief, even if it’s in your list, I'm not
going to consider it to be something I need
to decide. Do you understand?
THE DEFENDANT: Yeah, most of it.

2

Penitani withdrew the judicial misconduct claim at the
hearing of October 3, 2017. See Transcript of Proceedings (Oct.
3, 2017) at 3, ECF No. 275, PageID # 1717 (“THE COURT: So the
accusation that I’m somehow conspiring to protect counsel acting
wrongfully is withdrawn? MR. HIRANAKA: That’s correct.”).
3

THE COURT: What don’t you understand?
THE DEFENDANT: I mean I understand.
. . . .
THE COURT: . . . in any event, whatever’s in
the brief[,] that’s all that I’m going to
consider. Do you understand?
THE DEFENDANT: Yes.
Transcript of Proceedings (Dec. 19, 2017) at 38-39, ECF No. 297,
PageID #s 1889-90.
In his closing argument of February 9, 2018, ECF No.
300, Penitani limited his discussion to whether Breiner had a
conflict of interest based on his representation of both Penitani
and Charles Foster, and whether AUSA Thomas should have brought
that conflict of interest to the court’s attention.

This court

deems all other issues raised by Penitani in support of his
§ 2255 motions to have been waived.
III.

FACTUAL BACKGROUND.
On November 28, 2017, Drug Enforcement Administration

Special Agents Clement B. Sze and Lauren A. Carney, Federal
Bureau of Investigation Special Agent Grant Knorr, Breiner, and
Lani Nakamura, Esq., testified.

See ECF No. 291.

29, 2017, Breiner and Thomas testified.
December 1, 2017, Penitani testified.

On November

See ECF No. 292.
See ECF No. 293.

On
Most of

the testimony was unrelated to the issues now remaining before
this court.

Unless specifically noted in the present order, each
4

witness testified credibly, although witnesses’ memories
sometimes had faded.
Breiner began representing Charles Foster in February
2013, when Foster was in state court on drug charges.

When

charges related to the same drugs were brought in federal court,
Breiner continued to represent Foster with respect to his federal
drug charges.

See Crim. No. 13-00219, ECF No. 7; see also

Declaration of Attorney Myles S. Breiner ¶ 2, ECF No. 278, PageID
# 1771 (“I represented Charles Foster in the case of United
States vs. Charles Foster, Cr. No. 13-00219 DKW . . . from
February 2013 through August 7, 2013.”); Transcript of
Proceedings (Nov. 28, 2017) at 92, ECF No. 305, PageID # 2015.

A

federal court indictment of Foster was filed on March 6, 2013.
See Crim. No. 13-00219, ECF No. 24.

It charged that, on or about

February 14, 2013, Foster, John Garcia IV, and Chrystyan Burke
possessed methamphetamine with intent to distribute (Count 1);
and possessed cocaine with intent to distribute (Count 2).

It

also charged Foster and Garcia with carrying a firearm during and
in relation to the drug trafficking crimes (Count 3).

Id.

That

case, assigned to Senior District Judge Helen Gillmor, was the
first of three federal criminal cases relevant to the present
order.
Breiner says that, “[a]t no time during my
representation of Foster was the name of John Penitani ever
5

brought up, disclosed by Foster or discussed in any way.”

See

Breiner Decl. ¶ 4, ECF No. 278, PageID # 1772; accord Transcript
of Proceedings (Nov. 29, 2017) at 107, ECF No. 306, PageID # 2198
(“During the representation of Charles Foster by Myles Breiner,
from February until the time that he was discharged as an
attorney, or terminated his representation of Mr. Penitani,
Mr. Penitani's name was not raised a single time.”)
Breiner testified that, after Penitani’s arrest,
Penitani gave statements to the Government on May 14 and 15,
2013, without legal representation.

Transcript of Proceedings

(Nov. 28, 2017) at 94, ECF No. 305, PageID # 2017.

On May 23,

2013, Penitani was indicted along with Hien Nguyen and Sugalu
Galu and charged with drug-related crimes, including possession
of and conspiracy to possess with intent to distribute more than
50 grams 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).
See Crim. No. 13-00514 SOM, ECF No. 17.

The May 2013 indictment,

filed in the second federal criminal case relevant here, did not
mention Foster.

Breiner first appeared on behalf of Penitani at

his detention hearing of May 21, 2013.

See Crim. No. 13-00514

SOM, ECF No. 14.
About a month later, on June 20, 2013, in the third
federal criminal case relevant here, Penitani faced another
indictment with drug charges, this one naming him along with
6

Siaosi Mafileo, Mukusi Penitani, Salvador Maciel, Michael
Coleman, Jacob Del Mundo Faagai, Michael Nguyeun, Julius
Mitchell, Keschan Taylor, Robert Akolo, and Donald Seals.
Crim. No. 13-00653 SOM, ECF No. 1.

See

This indictment charged

Penitani with possession of and conspiracy to distribute and
possess with intent to distribute more than 50 grams 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
included two counts referring to 5 grams or more of the drug.
Id.

Breiner appeared on behalf of Penitani at his initial

appearance in this case on June 27, 2013.
SOM, ECF No. 36.

See Crim. No. 13-00653

A Superseding Indictment charging the same

defendants with similar drug crimes was filed on August 22, 2013.
See Crim. No. 13-00653 SOM, ECF No. 88.
AUSA Thomas prosecuted all three cases.

See Transcript

of Proceedings (Nov. 29, 2017) at 24, ECF No. 306, PageID # 2115.
Breiner conceded that there was some overlap in time
with respect to his representation of Foster and Penitani.
Transcript of Proceedings (Nov. 28, 2017) at 106, ECF No. 305,
PageID # 2029.

That is, Breiner was representing Foster when he

began representing Penitani in May 2013.

Breiner did not move to

withdraw as Foster’s counsel until July 26, 2013.
13-00219, ECF No. 54.

See Crim. No.

On August 5, 2013, a hearing was held in

Foster’s federal case on the motion to withdraw as counsel.
7

The

court orally granted the motion.

Id., ECF No. 56.

A written

order granting the withdrawal was filed on August 7, 2013.

Id.,

ECF No. 58.
Breiner testified that, after Penitani was arrested,
Penitani made inculpatory statements to the Government before he
was represented by an attorney.

Most of the co-defendants in the

later federal case naming him cooperated against him.

Penitani’s

focus was on reducing his sentence, not asserting his innocence.
See Transcript of Proceedings (Nov. 28, 2017) at 95-98, ECF No.
305, PageID #s 2018-21; Transcript of Proceedings (Nov. 29, 2017)
at 15, 23, 28, ECF No. 306, PageID # 2106, 2114, 2119.
To that end, Penitani participated in a number of
meetings, or “debriefings,” with Government agents to provide
them with information concerning his drug distribution
activities.

AUSA Thomas says that Penitani had seven debriefings

with Government agents at which he was represented by Breiner or
his associate, Lani Nakamura, plus two meetings before Breiner
began representing him.

Special Agent Sze put the total number

of debriefings at eight, with Breiner or Nakamura being present
at six of the eight.

Penitani testified that there were more

than five meetings and possibly more than ten meetings.

Breiner

testified that there were eleven or twelve debriefings.
Transcript of Proceedings (Nov. 29, 2017) at 9, ECF No. 306,
PageID # 2100.
8

Although Breiner and AUSA Thomas at first told the
court that Penitani began discussing Foster in a debriefing in
May 2014, they both corrected themselves, testifying that
Penitani began discussing Foster on October 1, 2013.

Transcript

of Proceedings (Nov. 29, 2017) at 24, 96, ECF No. 306, PageID
#s 2115, 2187; see also ECF No. 279, PageID # 1801 (Report of
Investigation prepared by Special Agent Clement B. Sze on October
2, 2013, memorializing that Penitani told Government agents on
October 1, 2013, that Penitani had supplied Foster with both
methamphetamine and cocaine); see also Transcript of Proceedings
(Nov. 28, 2017) at 16-17, ECF No. 305, PageID #s 1939-40 (Special
Agent Sze testifying about the first time Penitani discussed
Foster).

Breiner and Nakamura were present at the debriefing on

October 1, 2013.

Transcript of Proceedings (Nov. 28, 2017) at

20, ECF No. 305, PageID # 1943.
On October 1, 2013, Penitani was shown pictures of
various people and identified Foster as a person to whom he had
been selling drugs.
connection.

Breiner said he was “surprised” by that

Transcript of Proceedings (Nov. 29, 2017) at 18-19,

ECF No. 306, PageID #s 2109-10; ECF No. 279, PageID # 1801.
Breiner believed that he did not have a conflict of interest at
that time because the drugs Penitani was talking about were not
the drugs involved in the charges against Foster.

Transcript of

Proceedings (Nov. 29, 2017) at 25, ECF No. 306, PageID # 2116.
9

Breiner testified that, in a debriefing on May 16,
2014, Penitani further discussed having supplied Foster with
drugs. Id. at 21-22, PageID #s 2112-13.
Foster to a grand jury.

Penitani testified about

Transcript of Proceedings (Nov. 29,

2017) at 27, ECF No. 306, PageID # 2118.

On May 22, 2014, a

Superseding Indictment was filed in Foster’s case.

See id. at

26, PageID # 26; see also Crim. No. 13-00219 DKW, ECF No. 99,
PageID # 239 (charging Foster, Garcia, and Nguyen with conspiring
to commit drug crimes with Sheldon Koyanagi and Penitani).
As of May 2014, Breiner still believed that he had no
conflict of interest, reasoning that he no longer represented
Foster and that Penitani was describing drug deals unrelated to
the charges Breiner had represented Foster on.

Transcript of

Proceedings (Nov. 29, 2017) at 28-29, ECF No. 306, PageID # 211920.
Penitani testified against Foster in Foster’s trial.
See Partial Transcript of Jury Trial (Dec. 11, 2014) at 93-130,
Crim. No. 13-00219 HG, ECF No. 172, PageID #s 767-804; Partial
Transcript of Jury Trial (Dec. 15, 2014) at 3-15, Crim. No. 1300219 HG, ECF No. 173, PageID #s 808-20.

While testifying

on December 11, 2014, Penitani noted that his attorney, Breiner’s
colleague Nakamura, was present in court.

See Partial Transcript

of Jury Trial at 130, Crim. No. 13-00219 HG, ECF No. 172, PageID
# 804.

Foster’s first trial ended in a mistrial.

10

See Crim. No.

13-00219 HG, ECF No. 153.

Penitani also testified in Foster’s

retrial before District Judge Derrick Watson.

See Transcript of

Jury Trial (Feb. 18, 2015) at 61-112, Crim. No. 13-00219 DKW, ECF
No. 229, PageID #s 2071-2122.
Penitani did not sign a waiver of any conflict of
interest by Breiner.

Transcript of Proceedings (Nov. 29, 2017)

at 36, ECF No. 306, PageID # 2127.

Breiner could not recall

whether he obtained a waiver from Foster.

Id. at 35, PageID

# 2126.

Nakamura did not think a waiver had been obtained from

Foster.

See Transcript of Proceedings (Nov. 28, 2017) at 144,

ECF No. 305, PageID # 2067.

According to Penitani, Breiner never

mentioned any conflict of interest and never asked him to sign a
conflict waiver.

Transcript of Proceedings (Dec. 1, 2017) at 36-

37, ECF No. 307, PageID # 2257-58.
Breiner says that he disclosed to Penitani and AUSA
Thomas that he had previously represented Foster.

Transcript of

Proceedings (Nov. 29, 2017) at 53, ECF No. 306, PageID # 2144.
Breiner says that, even if he had a conflict of interest, he did
not act adversely to Penitani, as he shared nothing with Foster.
Breiner notes that “Foster may have an issue,” given Breiner’s
representation of Penitani when Penitani testified against
Foster.

Id. at 50, PageID # 2141.
On May 16, 2014, Penitani appeared before a magistrate

judge and entered a guilty plea to the conspiracy charges in both

11

of his criminal cases pursuant to a plea agreement.

See ECF Nos.

79 (minutes of change of plea hearing in which Penitani pled
guilty to Count 1 of the Indictment), 80 (Report and
Recommendation Concerning Plea of Guilty), 82 (Memorandum of Plea
Agreement), 181 (transcript of change of plea hearing); Crim. No.
13-00653 SOM, ECF Nos. 179 (minutes of change of plea hearing in
which Penitani entered guilty plea to Count 1 of the Superseding
Indictment), 181 (Memorandum of Plea Agreement), 182 (Report and
Recommendation Concerning Plea of Guilty), 443 (transcript of
change of plea hearing).

On June 3, 2014, the district judge

assigned to Penitani’s case accepted the Report and
Recommendation and judged Penitani guilty of the charges.

See

Crim. No. 13-00514 SOM, ECF No. 87; Crim. No. 13-00653 SOM, ECF
No. 575.
A single Presentence Investigation Report (“PSR”) was
prepared for both cases.
729.

See Crim. No. 13-00514 SOM, ECF No.

The PSR calculated Penitani’s sentencing guideline range as

360 months to life imprisonment.

Id.

Penitani filed no objections to the PSR.

Breiner

testified that Penitani instructed him to refrain from filing any
objections out of concern that objections would alienate
Government counsel and affect what sentence Government counsel
recommended to the court.

Transcript of Proceedings (Nov. 29,

2017) at 66-67, ECF No. 306, PageID # 2157-58.

12

Penitani, on the

other hand, testified that Breiner told him not to worry about
the PSR.

Transcript of Proceedings (Dec. 1, 2017) at 30, ECF No.

307, PageID # 2251.

There is no direct evidence that Breiner’s

prior representation of Foster affected the decision not to
object to the PSR.

See Transcript of Proceedings (Nov. 28, 2017)

at 157, ECF No. 305, PageID # 2080 (“Q: . . . were those
decisions not to file objections to the presentence report
affected by the representation of Mr. Foster?

A [by Lani

Nakamura]: No.”).
At the time of sentencing, the court had before it a
record showing several reasons, including Penitani’s Fosterrelated assistance, supporting a below-guideline sentence.

The

Government recommended a below-guideline sentence of 188 to 235
months.

See ECF No. 152, PageID # 576.

Breiner, on behalf of

Penitani, asked for a further reduction to 26 months.
No. 154, PageID # 580.

See ECF

Breiner argued that Penitani certainly

deserved a sentence of less than 10 years, see ECF No. 218-14
¶ 10, although, according to Breiner’s testimony in these § 2255
proceedings, there was no agreement by the Government to any such
sentence.

ECF No. 218-14 ¶¶ 15-16; Transcript of Proceedings

(Nov. 29, 2017) at 79, ECF No. 306, PageID # 2170.

Breiner’s

position on what the Government had represented has changed over
time.

In a motion filed earlier seeking reconsideration of

Penitani’s sentence, Breiner, through his associate, Nakamura,
had argued that Penitani understood “that his testimony at grand
13

jury and at trial would result in a sentence of imprisonment of
less than 10 years. . . .
misleading Defendant . . .

The Government acted in bad faith in
that the Government would recommend a

sentence of less than 10 years.”
# 787.3

See ECF No. 165-1, PageID

Nakamura explained that this argument was based on

Penitani’s belief, even though counsel had no factual basis for
that belief.

See Transcript of Proceedings (Nov. 28, 2017) at

149-50, ECF No. 305, PageID # 2072-73.
At his sentencing hearing, Penitani said he had
reviewed the PSR and had no objections to it.

See Transcript of

Proceedings (July 20, 2015) at 3, ECF No. 187, PageID # 935.
Adopting and relying on the PSR, the court concluded that
Penitani’s guideline range was 360 months to life, and that the
statutory mandatory minimum sentence was 10 years, with a
statutory maximum of life imprisonment.

Id. at 6, PageID # 938.

The court noted that the guidelines suggested a five-year
supervised release term and a $200 special assessment.
PageID # 939.

Id. at 7,

Neither the Government nor the defense challenged

these calculations.

Id.

3

Breiner had negotiated an agreement that the Government not
charge Penitani with a violation of 18 U.S.C. § 924(c), which
would have added a five-year consecutive sentence on top of what
would be his drug sentence. Transcript of Proceedings (Nov. 28,
2017) at 104, ECF No. 305, PageID # 2027.
14

After arguments by both sides, the court sentenced
Penitani to 168 months of imprisonment.

Id. at 36-37, PageID

#s 968-69, 973.
On August 7, 2015, Penitani appealed.

See ECF No. 166.

Pamela O’Leary Tower, Esq., was appointed as Penitani’s appellate
counsel.

See ECF No. 174.
On July 25, 2016, the Ninth Circuit affirmed the

judgment in a memorandum decision.

See ECF No. 193.

The Ninth

Circuit noted that Penitani’s attorney had filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), indicating that
there were no grounds for appellate relief.

Id., PageID # 992.

After giving Penitani an opportunity to file a supplemental
brief, which he did not file, the Ninth Circuit stated that it
had independently reviewed the record and had determined that
there were “no arguable grounds for relief.”

Id.

Noting that

Penitani had waived his right to appeal his sentences, the Ninth
Circuit dismissed the appeals.

Id., PageID #s 992-93.

On August 8, 2016, Penitani, proceeding pro se, timely
filed the present motions in both of his criminal cases pursuant
to 28 U.S.C. § 2255.

See Crim. No. 13-00514 SOM, ECF No. 194;

Crim No. 13-00653 SOM, ECF No. 489.

Before the expiration of the

one-year limitation period, Penitani sent this court a letter in
which he asked, “How can attorney Myles Breiner truly represent
someone in a case 100% without bias if he’s representing someone
15

who’s co-operating against them.”

ECF No. 209, PageID # 1141.

Penitani explained, “I believe Myles S. Breiner represents at
least 2 people involved in cases that involved me, as well as
others who were debriefing against me.”

Id.

The court deems

this letter to have supplemented Penitani’s § 2255 motions and
determines that he timely raised the conflict issue.
IV.

ANALYSIS.
A federal prisoner may move to vacate, set aside, or

correct his or her sentence if it “was imposed in violation of
the Constitution or laws of the United States, . . . the court
was without jurisdiction to impose such sentence, or . . . the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”

28 U.S.C. § 2255.

While there are limits on the kinds of claims that can and cannot
be raised in a § 2255 petition, these limits are not applicable
to the present motions, which claim that Penitani’s counsel,
Breiner, was ineffective in representing Penitani because of a
conflict of interest arising out of Breiner’s representation of
both Penitani and Foster and that the Government should have
notified this court of that conflict of interest.
300.

See ECF No.

Penitani’s “Sixth Amendment right to counsel encompasses a

right to representation free from conflicts of interest.”

16

Hovey

v. Ayers, 458 F.3d 892, 907 (9th Cir. 2006) (quotation marks and
citation omitted).
A.

To Prevail on an Ineffective Assistance of Counsel
Claims Based on an Attorney’s Conflict of
Interest, a Petitioner Must Show More than the
Existence of a Conflict.

To demonstrate ineffective assistance of counsel, a
defendant must usually show that (1) his or her counsel’s
performance was deficient, and (2) the deficient performance
prejudiced his defense.
668, 687 (1984).

See Strickland v. Washington, 466 U.S.

There is “a strong presumption” that counsel’s

conduct was reasonable and that counsel’s representation did not
fall below “an objective standard of reasonableness” under
“prevailing professional norms.”

Id. at 688.

Even if a

petitioner can overcome the presumption of effectiveness, the
petitioner must still demonstrate a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”

Id. at 694.

Because

“[i]t is all too tempting for a defendant to second-guess
counsel’s assistance after conviction,” judicial scrutiny of
counsel’s performance is highly deferential.

Id. at 689.

The requirements for an ineffective assistance of
counsel claim based on counsel’s alleged actual conflict of
interest have been the subject of several cases that are
17

controlling here.

See United States v. Walter-Eze, 869 F.3d 891,

900 (9th Cir. 2017).

Because it is difficult to measure the

precise effect on defense counsel’s representation when that
representation is corrupted by conflicting interest, prejudice is
presumed when “counsel actively represented conflicting interests
and . . . an actual conflict of interest adversely affected [the]
lawyer’s performance.”

Strickland, 466 U.S. at 692.

The Supreme Court has explained:
[A] defendant who shows that a conflict of
interest actually affected the adequacy of
his representation need not demonstrate
prejudice in order to obtain relief. But
until a defendant shows that his counsel
actively represented conflicting interests,
he has not established the constitutional
predicate for his claim of ineffective
assistance.
Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980) (quotation marks
and citation omitted).

However, the Supreme Court, in Mickens v.

Taylor, 552 U.S. 162 (2002), made it clear that, while saying
that a defendant “need not demonstrate prejudice,” it was not
relieving the defendant of the need to show something more than
the existence of a conflict.

The Court explained that an “actual

conflict” for Sixth Amendment purposes is “a conflict of interest
that adversely affects counsel’s performance.”

18

Id. at 172 n.5.

The Ninth Circuit has stated, “Although a defendant who
raises an effective assistance of counsel claim is ordinarily
required to show prejudice, prejudice is presumed if the alleged
violation is based on an actual conflict of interest.”

United

States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992) (citation
omitted).

Penitani relies on Miskinis for the proposition that

prejudice in this case should be presumed because Breiner had an
“actual conflict” by virtue of his representation of Foster and
Penitani.

See ECF No. 200, PageID # 1904, 1907-11; ECF No. 301-

1, PageID # 2318.

But the Ninth Circuit has clarified that a

defendant does not demonstrate ineffective assistance of counsel
simply because he or she shows that counsel was burdened with a
conflict of interest.

Prejudice is presumed upon a showing of an

“actual conflict of interest,” which has been defined by the
Supreme Court as “‘a conflict of interest that adversely affects
counsel’s performance.’”

Hovey, 458 F.3d at 908 (quoting

Mickens, 552 U.S. at 172 n.5).
In other words, a defendant asserting an actual
conflict has the benefit of a presumption of prejudice only upon
showing that a negative consequence flowing from the conflict was
at least likely, even if that negative consequence might not
satisfy the ordinary prejudice burden.

19

An “actual conflict of

interest” must have “affected counsel’s performance--as opposed
to [being] a mere theoretical division of loyalties.”
Walter-Eze, 869 F.3d at 901 (quotation marks and citation
omitted).

“The inquiry is accordingly fact specific and does not

rely on the characterization or type of conflict presented: an
actual conflict is defined by its impact on counsel’s
representation.”

Id. (quotation marks and citation omitted).

To establish an impact on counsel’s representation, a
defendant must show “‘that some plausible alternative defense
strategy or tactic might have been pursued but was not and that
the alternative defense was inherently in conflict with or not
undertaken due to the attorney’s other loyalties or interests.’”
Id. (quoting United States v. Wells, 394 F.3d 725, 733 (9th Cir.
2005)).

Counsel’s performance was adversely affected if “some

effect on counsel’s handling of particular aspects of the trial
was likely.”

Id. at 901. (quotation marks and citation omitted).

This could include a counsel’s failure to put on certain defenses
and witnesses, failure to explore the possibility of a plea
agreement, or failure to seek a continuance.

20

Id.

B.

Penitani Does Not Establish an Entitlement to
Relief Based on Breiner’s Concurrent or
Consecutive Representation of Both Foster and
Penitani.

This court’s local rules provide: “Every member of the
bar of this court . . . shall be governed by and shall observe
the standards of professional and ethical conduct required of
members of the Hawaii State Bar.”

Local Rule 83.3.

Attorneys

practicing in the Hawaii state courts must comply with the Hawaii
Rules of Professional Conduct.

See Rules of the Supreme Court of

the State of Hawaii Rule 2.2(a) (“The Hawai`i Rules of
Professional Conduct . . . shall govern the conduct of all
attorneys subject to discipline under this rule.”).

In examining

whether Breiner had a conflict of interest, this court therefore
looks to the Hawaii Rules of Professional Conduct.
1.

Penitani Does Not Show that Breiner Violated
Rule 1.7(a) of the Hawaii Rules of
Professional Conduct by Concurrently
Representing Penitani and Foster.

Breiner’s representation of Foster overlapped Breiner’s
representation of Penitani for about 2½ months in 2013.
Concurrent representation of clients is governed by Rule 1.7 of
the Hawaii Rules of Professional Conduct, which states in
relevant part:
(a) Except as provided in paragraph (b), a
lawyer shall not represent a client if the
21

representation involves a concurrent conflict
of interest. A concurrent conflict of
interest exists if:
(1) the representation of one client
will be directly adverse to another client;
or
(2) there is a significant risk that the
representation of one or more clients will be
materially limited by the lawyer’s
responsibilities to another client, a former
client, or a third person, or by a personal
interest of the lawyer.
(b) Notwithstanding the existence of a
concurrent conflict of interest under
paragraph (a), a lawyer may represent a
client if:
(1) the lawyer reasonably believes that
the lawyer will be able to provide competent
and diligent representation to each affected
client;
(2) the representation is not prohibited
by law;
(3) the representation does not involve
the assertion of a claim by one client
against another client represented by the
lawyer in the same litigation or other
proceeding before a tribunal; and
(4) each affected client gives consent
after consultation, confirmed in writing.
Haw. R. Prof. Conduct 1.7.4

4

The Hawaii Rules of Professional Conduct are taken from the
American Bar Association’s Model Rules of Professional Conduct.
Baham v. Ass'n of Apartment Owners of Opua Hale Patio Homes, 2014
WL 413495, at *2 (D. Haw. Feb. 4, 2014). Although Penitani
relies on Rule 1.7(a)(2) of the model rules, see ECF No. 300,
22

Notably, Rule 1.7(b), which includes the requirement of
written conflict waivers, applies only if there is a concurrent
representation conflict under Rule 1.7(a).
Breiner indisputably represented both Foster and
Penitani with respect to drug crimes.

However, Penitani offers

no evidence that, at the time of the concurrent representation,
the representation of either was directly adverse to the other or
that there was a significant risk that the representation of
Penitani was materially limited by Breiner’s responsibility to
Foster.

At the time of the concurrent representation, neither

Breiner nor the Government had reason to think that the drugs in
Foster’s case had anything to do with Penitani.

If there was a

directly adverse representation or a significant risk that
Breiner’s responsibility was materially limited, Penitani has not
shown that.

Penitani similarly fails to show that AUSA Thomas

should have informed the court about Breiner’s alleged concurrent
representation conflict of interest.
It was, of course, later discovered that Penitani had
been supplying drugs to Foster, but Penitani must show more than
that.

Penitani is required to show that this circumstance

PageID # 1905, the court examines his argument under Rule
1.7(a)(2) of the Hawaii Rules of Professional Conduct, which is
identical to its model rules counterpart.
23

created a significant risk that Breiner’s representation of
Penitani would be materially limited by his representation of
Foster.

But Breiner was not representing Foster by the time

Breiner knew or should have known of the drug connection between
Foster and Penitani.

Penitani gives this court no evidence that,

at the time Breiner was representing both clients, there was a
significant risk that his representation of either would be
materially limited by his representation of the other.
2.

Penitani Does Not Establish a Right to Relief
Based on Breiner’s Alleged Violation of Rule
1.9(a) of the Hawaii Rules of Professional
Conduct, Governing Successive Representation.

After Breiner withdrew as Foster’s counsel in August
2013, Breiner continued to represent Penitani.

On October 1,

2013, Breiner and the Government learned that Penitani had been
supplying drugs to Foster.

A Superseding Indictment was filed in

Foster’s case in May 2014.

Eventually, Penitani testified

against Foster at his two trials, with Breiner representing
Penitani.

Whether Breiner had a conflict of interest arising

from these facts is governed by Rule 1.9(a) of the Hawaii Rules
of Professional Conduct, which states:
(a) A lawyer who has formerly represented a
client in a matter shall not thereafter
represent another person in the same or a
substantially related matter in which that
person’s interests are materially adverse to
24

the interests of the former client unless the
former client consents after consultation,
and confirms in writing.
Haw. R. Prof. Conduct 1.9.
Comment 9 to Rule 1.9 states:
The provisions of this Rule are for the
protection of former clients and can be
waived if the former client gives consent
after consultation, the consent to be
confirmed in writing under paragraphs (a) and
(b). See Rule 1.0(c) of these Rules
(defining consultation). A waiver is
effective only if there is disclosure of the
circumstances, including the lawyer's
intended role on behalf of the new client.
Haw. R. Prof. Conduct 1.9, cmt. 9.
Penitani says “it is impossible to see how Mr. Breiner
could be a zealous advocate for Mr. Penitani while maintaining
the confidences obtained in his representation of Mr. Foster.”
See ECF No. 255, PageID #s 1608-09.

No evidence was presented to

this court indicating that Breiner did anything but zealously
represent Penitani, and Penitani does not even hint at any
confidence Breiner obtained in representing Foster that somehow
affected Penitani.
It is important to note that Rule 1.9(a) clearly speaks
to protecting the former client.

If the consecutive

representation violated Rule 1.9(a), that violation hurt Foster,
not Penitani, who testified against Foster in both of Foster’s
25

trials.

Whether Breiner violated Rule 1.9(a) with respect to

Foster is not a matter before this court on the present motions.
What is clear is Rule 1.9(a) does not support Penitani’s claim
for relief.
3.

Even Assuming Breiner Had a Conflict of
Interest Under the Hawaii Rules of
Professional Conduct, Penitani Fails to
Demonstrate That Breiner Had an “Actual
Conflict” For Purposes of the Ineffective
Assistance of Counsel Analysis.

As discussed above, it is not enough that Penitani
demonstrate that his counsel had a conflict of interest for
purposes of his ineffective assistance of counsel claim.
Instead, even assuming that Breiner violated the Hawaii Rules of
Professional Conduct, Penitani must show that the conflict of
interest adversely affected Breiner’s performance with respect to
Penitani.

Mickens, 552 U.S. at 172 n.5; Sullivan, 446 U.S. at

349–50; Hovey, 458 F.3d at 908.

As the Ninth Circuit recently

stated in Walter-Eze, 869 F.3d at 901, a defendant must show “a
conflict that affected counsel’s performance--as opposed to a
mere theoretical division of loyalties.”

Walter-Eze, 869 F.3d at

901 (quotation marks and citation omitted).
Penitani only shows a theoretical division of
loyalties.

He does not show or even argue in his post-hearing

briefs “‘that some plausible alternative defense strategy or
26

tactic might have been pursued but was not and that the
alternative defense was inherently in conflict with or not
undertaken due to the attorney’s other loyalties or interests.’”
Id. (quoting United States v. Wells, 394 F.3d 725, 733 (9th Cir.
2005)).

Nor does he show the likelihood of “some effect” on

Breiner’s handling of particular aspects going to Penitani’s
conviction or sentence.

Id. at 901.

Instead, citing Miskinis, 966 F.2d at 1268, Penitani
asks the court to presume that Breiner’s conflict adversely
affected his representation.

But even Miskinis stated,

“To establish that a conflict of interest adversely affected
counsel’s performance, the defendant need only show that some
effect on counsel’s handling of particular aspects of the trial
was likely.”

Id. (quotation marks and citation omitted).

Penitani has made no showing that Breiner’s handling of anything
was likely affected by his alleged conflict.
At best, Penitani earlier argued that Breiner did not
file objections to his presentence investigation report.
No. 194, PageID # 997.

See ECF

However, Penitani himself told the court

during his sentencing hearing that he had no objections to the
presentence investigation report.
ECF No. 187, PageID #s 936.

See Crim. No. 13-00514 SOM,

In his memorandum of July 7, 2017,

27

Penitani also contended that Breiner failed to challenge the
amount of drugs he was responsible for, the two-level increase
for possession of a firearm, and a four-level increase for being
a leader or organizer.

But Penitani fails to describe why the

drug amount attributed to him was incorrect, or why he should not
have received the enhancements for possession of a firearm and
for being a leader or organizer.

In other words, it is not clear

what bases Breiner should allegedly have advanced in aid of
getting a more favorable guideline calculation.
Penitani is similarly unpersuasive in arguing that
Breiner “refused to file any motions to address issues of
contradictory statements by agents.”
# 997.

See ECF No. 194, PageID

Penitani provides no description of what motions Breiner

should have filed.

The court has no way of determining whether

any such motion would have been colorable.
To the extent Penitani previously argued that Breiner
failed to get certain agreements in writing or bargained away
appellate rights, Penitani fails to show that either alleged
failure was likely affected by the alleged conflict of interest.
The claimed failure to get agreements in writing pertained to
Penitani’s earlier claim that he expected to be sentenced to less

28

than 10 years of imprisonment.

Nothing in the record suggests

that Breiner could have gotten such a written agreement.
In fact, there is considerable dispute about whether
such an agreement existed at all.

See Transcript of Proceedings

(Nov. 28, 2017) at 99, 148 ECF No. 305, PageID #s 2022, 2071;
Transcript of Proceedings (Nov. 29, 2017) at 83, ECF No. 306,
PageID # 2174.

Penitani was not credible in testifying that AUSA

Thomas guaranteed a sentence of less than ten years.

See, e.g.,

Transcript of Proceeding (Dec. 1, 2017) at 26-27, ECF No. 307,
PageID #s 2247-48.
First, the purported “guarantee” came in the form of
AUSA Thomas’s alleged “kind of” nodding of his head in response
to Penitani’s description of what Breiner had allegedly told him.
It is not clear to this court what the alleged “kind of” nod
signified.

Id. at 26, PageID # 2247 (Penitani testified, “So

before I even debriefed, when I sat down with Chris Thomas, I
asked him, I said, Hey, I was told by Myles that you were saying
that I’m guaranteed less than ten years if I admit to these
things on this paper.

And he sits back, he kind of nods.

look at Myles and I said, Myles, is that how it works?
Yeah.

It’s good.

I said, Okay.”).

29

And I

He goes,

Second, a guarantee would have been a departure from
Department of Justice protocol, made particularly unlikely by its
alleged occurrence during a meeting at which the AUSA was
observed not only by Penitani, but also by FBI agents and defense
counsel.
Third, the testimony by Breiner, AUSA Thomas, the
agents, and defense counsel was that AUSA Thomas had not promised
to recommend a sentence of less than ten years.

See, e.g.,

Transcript of Proceedings (Nov. 29, 2017) at 79, ECF No. 306,
PageID # 2170 (Breiner testifies that AUSA Thomas did not commit
to any particular sentence); at 103, ECF No. 306, PageID # 2194
(AUSA Thomas testifies that no particular sentence was conveyed
to Penitani); Transcript of Proceedings (Nov. 28, 2017) at 22,
ECF No. 305, PageID # 1945 (Special Agent Sze testifies that
Penitani wanted to talk numbers but couldn’t be given “that kind
of proposition”); at 45, PageID # 1968 (Special Agent Carney
testifies that AUSA Thomas never promised a particular sentence);
and at 148, PageID # 2071 (Nakamura testifies that AUSA Thomas
did not promise that Penitani would get less than ten years).
Fourth, it is by no means clear that this purported
“guarantee” had anything to do with any conflict of interest.

30

As noted earlier in this order, Penitani’s counsel has
not been consistent on the issue of whether AUSA Thomas provided
a guarantee.

Nakamura explained that she wrote the

reconsideration motion that stated Penitani’s belief that he
would be sentenced to less than ten years, but tha counsel had no
factual basis supporting Penitani’s belief.
PageID # 2072-73.

Id. at 149-50,

Critical here is whether there was any

connection between Breiner’s repesentation of Foster and either
this alleged guarantee or the failure to get it in writing.

Even

Penitani testified that such agreements are not put in writing
because their existence would make Penitani look bad when he was
testifying against other people.

Id. at 27, PageID # 2248.

In

short, Penitani does not show that any conflict of interest
likely adversely affected Breiner’s actions with respect to any
alleged guarantee or the lack of a written agreement.
Without evidence tending to show that Breiner’s conduct
was likely affected by the alleged conflict of interest, Penitani
fails to show the requisite adverse effect on Breiner’s advocacy.
Without such a showing, Penitani’s ineffective assistance of
counsel claim based on Breiner’s alleged conflicts of interest
fails.

For the same reasons, Penitani’s claim that he is

31

entitled to relief because the AUSA failed to tell this court
about the conflict of interest also fails.
V.

ORDER GRANTING CERTIFICATE OF APPEALABILITY.
Because reasonable jurists might find the court’s

assessment of the merits of Penitani’s claims debatable or wrong,
the court grants Penitani a certificate of appealability with
respect to his § 2255 motions.

See 28 U.S.C. § 2253(c)(2)

(stating that a court shall issue a certificate of appealability
“only if the applicant has made a substantial showing of the
denial of a constitutional right”); Slack v. McDaniel, 529 U.S.
473, 484 (2000).
V.

CONCLUSION.
For the reasons set forth above, the court denies

Penitani’s Motions to Vacate, Set Aside, or Correct a Sentence by
a Person in Federal Custody under 28 U.S.C. § 2255.

32

The court,

however, grants Penitani a certificate of appealability.

The

Clerk of Court is directed to enter judgment against Penitani and
to close these § 2255 actions.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 13, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

United States of America v. Penitani, Cr. No. 13-00514 SOM (03); Cr. No. 13-00653 SOM
(01); Civ. No. 16-00443 SOM/KJM; Civ. No. 16-00444 SOM/KJM; ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN FEDERAL CUSTODY UNDER 28
U.S.C. § 2255; ORDER GRANTING CERTIFICATE OF APPEALABILITY

33