Kealakekua v. USA

Filing 4

ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE,SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND DENYING A CERTIFICATE OF APPEALABILITY. Signed by JUDGE LESLIE E. KOBAYASHI on 01/16/2018. (eps, )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 served by first class mail on the date of this docket entry: JULIAN KUKAILIMOKU KEALAKEKUA 40189-019; FDC SEATAC FEDERAL DETENTION CENTER; INMATE MAIL/PARCELS; P.O. BOX 13900; SEATTLE, WA 98198

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
JULIAN KEALAKEKUA,
)
)
)
Defendant.
_____________________________ )

CR 14-00374 LEK

ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY AND DENYING A CERTIFICATE OF APPEALABILITY
Before the Court is pro se Defendant/Petitioner
Julian Kealakekua’s (“Kealakekua” or “Defendant”) Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (“§ 2255 Motion”), filed on December 5,
2016.

[Dkt. no. 96.]

Plaintiff/Respondent the United States of

America (“the Government”) filed its response to the § 2255
Motion (“Response”) on April 3, 2017, and Kealakekua filed his
reply on May 1, 2017.

[Dkt. nos. 113, 114.]

Kealakekua’s § 2255

Motion is hereby denied, and a certificate of appealability is
also denied, for the reasons set forth below.
BACKGROUND
On April 2, 2014, Kealakekua was indicted for nineteen
counts of bank fraud, in violation of 18 U.S.C. § 1344 and 18

U.S.C. § 2.1

[Dkt. no. 1.]

The Indictment alleged Kealakekua

created and operated various companies and created websites which
made it appear the companies were established and profitable.

He

recruited individuals to be investors or employees and induced
them to apply for bank loans.

The proceeds were to be turned

over to him for business operations, but Kealakekua used the
proceeds for his personal purposes.

[Id. at ¶¶ 2-3.]

Kealakekua initially entered a plea of not guilty,
[Minutes, filed 7/10/14 (dkt. no. 10), at 1,] but, on
September 30, 2015, he withdrew his plea and entered a plea of
guilty to Counts 11 and 17, pursuant to a plea agreement.

[Dkt.

nos. 55 (Minutes), 56 (Memorandum of Plea Agreement (“Plea
Agreement”)).]

In the Plea Agreement, Kealakekua acknowledged

that, by pleading guilty, he was waiving certain rights and his
attorney had explained those rights and the consequences of the
waiver to him.

[Plea Agreement at ¶¶ 16-17.]

At all times

relevant to the § 2255 Motion, Thomas Otake, Esq., represented
Kealakekua.2

[CJA 20 form, filed 5/4/15 (dkt. no. 41).]

Kealakekua’s sentencing hearing was held on
February 29, 2016.

[Minutes, filed 2/29/16 (dkt. no. 67).]

1

The

Kealakekua was indicted under the name Clarence Hobbs, who
was “also known as Julian McClinton, Julian Kealakekua and Julian
Brandt.” [Indictment at ¶ 1.]
2

The § 2255 Motion refers to Mr. Otake as Kealakekua’s
“trial counsel.” [Mem. in Supp. of § 2255 Motion at 1.]
2

Plea Agreement was accepted and the factual findings in the
presentence report were adopted.

[“Presentence Investigation

Report (2)” (“PSR”), filed 2/17/16 (dkt. no. 63).]

The PSR found

that Kealakekua’s base offense level was seven, with: a sixteenlevel increase because Kealakekua was responsible for total loss
of $1,531,430.81; a two-level increase because the offense
involved ten or more victims; and another two-level increase
because the offense involved sophisticated means, conducted or
caused by Kealakekua.
twenty-seven.

His adjusted offense level was therefore

[Id. at ¶¶ 104-27.]

After a total decrease of

three levels for acceptance of responsibility, Kealakekua’s total
offense level was twenty-four.
history category was V.

[Id. at ¶¶ 113-15.]

[Id. at ¶ 126.]

His criminal

His imprisonment range

under the United States Sentencing Guidelines (“U.S.S.G.” or “the
Guidelines”) was therefore 92 to 115 months, and his range for
supervised release was 2 to 5 years.

[Id. at ¶¶ 162, 166.]

The

PSR noted that a total of $291,615.31 in restitution was due to
six individual victims and four banks.

[Id. at ¶ 174.]

Kealakekua was sentenced to 84 months of imprisonment,
and 5 years of supervised release, and he was ordered to pay
$291,615.31 in restitution, and $200 in special assessments.
This Court granted the Government’s oral motion to dismiss
Counts 1-10, 12-16, 18, and 19.
no. 67).]

[Minutes, filed 2/29/16 (dkt.

The Judgment in a Criminal Case was filed on March 1,

3

2016.

[Dkt. no. 68.]
Kealakekua filed his Notice of Appeal on March 4, 2016.

[Dkt. no. 70.]
appeal.

Lars Isaacson, Esq., represented Kealakekua on

[Dkt. nos. 73 (order granting Mr. Otake’s motion to

withdraw); 74 (order appointing Mr. Isaacson).]

According to the

§ 2255 Motion, Kealakekua argued on appeal that his criminal
history score was improperly calculated.

[§ 2255 Motion at 3.]

On July 20, 2016, the Ninth Circuit granted the Government’s
motion to dismiss the appeal in light of the valid appeal waiver.
[Dkt. no. 93.]

The Ninth Circuit’s Mandate was issued on

October 21, 2016.

[Dkt. no. 95.]

In the § 2255 Motion, Kealakekua argues that Mr. Otake
rendered ineffective assistance by: 1) failing to argue that the
clear and convincing evidence standard applied at sentencing to
the losses that were not the subject of the charged offenses;
2) failing to investigate the accuracy of the criminal history
section of the PSR; and 3) failing to provide Kealakekua with a
copy of the Plea Agreement and failing to advise him regarding
the agreement.

The Government responds that the § 2255 Motion

fails to establish ineffective assistance because Mr. Otake:
presented a vigorous challenge to the amount of loss, and the
clear and convincing standard was met; challenged Kealakekua’s
criminal history score; and carefully explained the Plea
Agreement to Kealakekua.

4

STANDARD
Section 2255(a) states:
A prisoner in custody under sentence of a court
established by Act of Congress claiming the right
to be released upon the ground that the sentence
was imposed in violation of the Constitution or
laws of the United States, or that the court was
without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to
collateral attack, may move the court which
imposed the sentence to vacate, set aside or
correct the sentence.
This district court has described the standards applicable to
§ 2255 motions as follows:
A court may dismiss a § 2255 motion if “it
plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that
the moving party is not entitled to relief.”
R. 4(b), Rules Governing Section 2255 Proceedings.
A court need not hold an evidentiary hearing if
the allegations are “palpably incredible [or]
patently frivolous,” Blackledge v. Allison, 431
U.S. 63, 76 (1977) (internal quotation marks and
citation omitted), or if the issues can be
conclusively decided on the basis of the evidence
in the record. See United States v. Mejia-Mesa,
153 F.3d 925, 929 (9th Cir. 1998) (noting that a
“district court has discretion to deny an
evidentiary hearing on a § 2255 claim where the
files and records conclusively show that the
movant is not entitled to relief”). Conclusory
statements in a § 2255 motion are insufficient to
require a hearing. United States v. Johnson, 988
F.2d 941, 945 (9th Cir. 1993). A petitioner must
“allege specific facts which, if true, would
entitle him to relief.” United States v.
Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003)
(internal quotation marks and citation omitted).
United States v. Sherman, Cr. No. 16-00169 JMS, 2017 WL 4560150,
at *1 (D. Hawai`i Oct. 12, 2017) (alteration in Sherman).
5

The issues raised in Kealakekua’s § 2255 Motion are
legal issues that “can be conclusively decided on the basis of
the evidence in the record,” including the record of the
underlying proceedings.

See Mejia-Mesa, 153 F.3d at 929.

An

evidentiary hearing is therefore unnecessary in this case.
DISCUSSION
This district court has stated:
To prevail on an ineffective assistance
claim, a petitioner must show that (1) counsel’s
representation fell below an objective standard of
reasonableness, and (2) there is a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have
been different. Strickland v. Washington, 466
U.S. 668, 687-88 (1984). That is, the petitioner
must also show that the deficiency was
prejudicial. Id. at 692.
Counsel “is strongly presumed to have
rendered adequate assistance and made all
significant decisions in the exercise of
reasonable professional judgment.” Id. at 690.
But, a court need not determine whether counsel’s
performance was deficient before examining the
prejudice suffered by the petitioner as a result
of the alleged deficiencies. See id. at 697. In
other words, any deficiency that does not result
in prejudice necessarily fails.
United States v. Chaves, Cr. No. 14-00579 JMS (03), 2016 WL
5660327, at *4 (D. Hawai`i Sept. 28, 2016).

As to the

reasonableness of representation prong, a court must “determine
whether, in light of all the circumstances, the identified acts
or omissions were outside the wide range of professionally
competent assistance.”

Strickland, 466 U.S. at 690.

6

Kealakekua

bears the burden of proof as to both prongs of the Strickland
analysis.

See Turk v. White, 116 F.3d 1264, 1265 (9th Cir.

1997).
I.

Representation Regarding the Plea Agreement
This Court turns first to Kealakekua’s argument that

Mr. Otake rendered ineffective assistance during the period prior
to the entry of the guilty plea.
applicable to those claims.

The Strickland analysis is

See Hedlund v. Ryan, 854 F.3d 577,

576 (9th Cir. 2017) (quoting Hill v. Lockhart, 474 U.S. 52, 57,
106 S. Ct. 366, 88 L. Ed. 2d 203 (1985)).

Kealakekua “must show

that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial.”

See Hill, 474 U.S. at 59.

Further, in the

plea context, the Strickland analysis “is based on ‘counsel’s
judgment and perspective when the plea was negotiated, offered
and entered,’ not on a post-adjudication assessment of the case.”
Baldwin v. Muniz, Case No. 14-cv-03271-JST(PR), 2016 WL 97454, at
*6 (N.D. Cal. Jan. 8, 2016) (quoting Premo v. Moore, 562 U.S.
115, 126 (2011)).

In Premo, the United States Supreme Court

stated:
The art of negotiation is at least as nuanced as
the art of trial advocacy, and it presents
questions farther removed from immediate judicial
supervision. There are, moreover, special
difficulties in evaluating the basis for counsel’s
judgment: An attorney often has insights borne of
past dealings with the same prosecutor or court,
and the record at the pretrial stage is never as
7

full as it is after a trial. In determining how
searching and exacting their review must be,
habeas courts must respect their limited role in
determining whether there was manifest deficiency
in light of information then available to
counsel. . . .
562 U.S. at 125.

The Ninth Circuit has stated that “[t]hough a

mere inaccurate prediction, standing alone, would not constitute
ineffective assistance, the gross mischaracterization of the
likely outcome . . . , combined with the erroneous advice on the
possible effects of going to trial, falls below the level of
competence required of defense attorneys.”

United States v.

Manzo, 675 F.3d 1204, 1209-10 (9th Cir. 2012) (citation and
quotation marks omitted).
Kealakekua contends that Mr. Otake rendered ineffective
assistance because Mr. Otake failed to “thoroughly review and
discuss the legal terms of” the Plea Agreement with him and
failed to “ensure that defendant possessed a reasonable
understanding of the law in relation to the facts that were
written in” the Plea Agreement.
at 12.]

[Mem. in Supp. of § 2255 Motion

In particular, Kealakekua asserts that Mr. Otake never

provided him with a copy of the proposed Plea Agreement and, in
reviewing the proposed agreement with Kealakekua, Mr. Otake never
explained the language of 18 U.S.C. § 3742(a) to him.

[Id. at

12-14.]
The Ninth Circuit has already held that the waiver of
Kealakekua’s appeal rights in the Plea Agreement was valid.
8

[Dkt. no. 93 (citing United States v. Harris, 628 F.3d 1203, 1205
(9th Cir. 2011) (stating that an appeal waiver is enforceable if
its language encompasses the right to appeal on the grounds
raised and the waiver is knowingly and voluntarily made)).]
Further, at Kealakekua’s change of plea hearing, he stated, under
oath, that: he had the opportunity to read the entire Plea
Agreement and discuss it with Mr. Otake before he signed it; and
he understood the terms of the Plea Agreement.

[Trans. of

9/30/15 Hrg., filed 4/7/16 (dkt. no. 81), at 3, 5.]

The

Government’s attorney – Assistant United States Attorney (“AUSA”)
Lawrence Tong – then summarized the major terms of the Plea
Agreement, and Kealakekua confirmed that the Government’s summary
was what Kealakekua understood his agreement with the Government
to be.

Kealakekua also confirmed that he understood the specific

terms that this Court reviewed with him, including his appeal
waiver and the elements of his potential sentence.
10.]

[Id. at 6-

When asked: “And are you fully satisfied with the legal

representation that you received from [Mr. Otake] and his
office?”

Kealakekua responded, “I am.”

[Id. at 4.]

In the § 2255 Motion, Kealakekua admits affirming his
satisfaction with Mr. Otake’s representation, but he states that
“this affirmation was predicated on defendant’s belief that trial
counsel was forthright and honest in explaining the details of
the agreement.”

[§ 2255 Motion at 14.]

9

Kealakekua now claims

that Mr. Otake was not forthright and honest because Mr. Otake
did not provide him with a copy of the Plea Agreement that he
could keep, and Mr. Otake did not explain § 3742(a) to him.
However, those are concerns that Kealakekua was aware of at the
time of his change of plea hearing and could have raised during
his colloquy with this Court and requested more time to consider
his plea, but he did not.
Mr. Otake states his “practice has always been to
provide [his] clients with copies of their plea agreements when
they want it.”
at ¶ 14.]

[Response, Decl. of Thomas Otake (“Otake Decl.”)

Although Mr. Otake does not have a specific

recollection of doing so in this case, he “would assume that [he]
would have.”

[Id.]

Even assuming that Kealakekua is correct

that Mr. Otake did not provide him with a copy of the Plea
Agreement to keep, under the circumstances of this case, the
failure to do so did not fall below an objective standard of
reasonableness.

It is undisputed that Mr. Otake met with

Kealakekua at the Federal Detention Center prior to the change of
plea hearing, and Kealakekua had the opportunity to review the
Plea Agreement.

[Mem. in Supp. of § 2255 Motion at 13 (“On

September 19, 2015, trial counsel visited defendant and brought a
copy of the plea memorandum. . . .

[D]efendant proceeded to read

through the agreement and notated [sic] changes he wanted the
government to make pertaining to counts 11 and 17.”); Otake Decl.

10

at ¶ 15 (“I most definitely sat with Mr. Kealakekua at the
Federal Detention Center, I believe on September 19, 2015, and
reviewed his plea agreement with him paragraph-by-paragraph,
line-by-line.”).]

Kealakekua suggested extensive changes, and

AUSA Tong ultimately “agree[d] to almost all the proposed
changes.”

[§ 2255 Motion, Exh. 10 (email dated 9/23/16 to

Kealakekua from Mr. Otake) at 1.]
The Plea Agreement contains multiple citations to
§ 3742.

[Plea Agreement at ¶¶ 13.a-c.]

If, as Kealakekua

alleges, he believed Mr. Otake failed to sufficiently explain
§ 3742 to him, he could have raised this issue during the change
of plea hearing, but he did not do so.

Kealakekua alleges that,

had he “known he would not be able to appeal based on the
language setforth [sic] in Title 18, U.S.C.S., Section 3742(a),
defendant would not have accepted the plea memorandum.”
Supp. of § 2255 Motion at 18.]

[Mem. in

As previously noted, Kealakekua

confirmed in his colloquy with this Court that he understood the
waiver of his appellate rights, and the Ninth Circuit held that
Kealakekua’s appeal waiver was knowingly and voluntarily made.
Viewing the record as a whole, Kealakekua has not
established that Mr. Otake’s alleged failure to provide
Kealakekua with a copy of the Plea Agreement and his alleged
failure to explain § 3742 to Kealakekua fell outside of what is
considered competent assistance for purposes of an ineffective

11

assistance of counsel claim.

Further, Kealakekua’s claim that,

had Mr. Otake provided him with a copy of the Plea Agreement and
fully explained § 3742 to him, he would not have pled guilty is
palpably incredible in light of the record in this case.
Kealakekua fails to establish either that Mr. Otake rendered
constitutionally ineffective assistance regarding the Plea
Agreement or that Kealakekua was prejudiced by the allegedly
deficient representation.

Kealakekua’s effective assistance of

counsel claim fails as to Mr. Otake’s representation related to
the guilty plea.
II.

Representation at Sentencing
The Strickland analysis also applies to § 2255 motions

alleging ineffective assistance related to sentencing.

See,

e.g., United States v. Carlsen, 441 F. App’x 531, 535 (9th Cir.
2011) (applying Strickland analysis to a claim that defense
counsel failed to advocate for the application of a relevant
provision of the United States Sentencing Guidelines).
A.

Amount of Loss
In the § 2255 Motion, Kealakekua argues that his total

offense level was determined based on loss amount of
$1,531,430.81, which included losses from Counts 11 and 17, the
other counts that were dismissed, and other conduct.

He contends

that, other than the losses from Counts 11 and 17, the losses
could only be considered during sentencing if they were proven by
12

clear and convincing evidence.

Kealakekua alleges that Mr. Otake

rendered ineffective assistance by failing to argue that the
clear and convincing standard applied.

[Mem. in Supp. of § 2255

Motion at 2-4.]
District courts generally use the
“preponderance of the evidence standard of proof
when finding facts at sentencing, such as the
amount of loss caused by a fraud.” United States
v. Treadwell, 593 F.3d 990, 1000 (9th Cir. 2010).
The higher clear and convincing standard may
apply, however, “when a sentencing factor has an
extremely disproportionate effect on the sentence
relative to the offense of conviction.” United
States v. Mezas de Jesus, 217 F.3d 638, 642 (9th
Cir. 2000) (citing United States v. Restrepo, 946
F.2d 654, 659 (9th Cir. 1991) (en banc)); see also
Treadwell, 593 F.3d at 1000. Particularly “where
a severe sentencing enhancement is imposed on the
basis of uncharged or acquitted conduct, due
process may require clear and convincing evidence
of that conduct.” Treadwell, 593 F.3d at 1000.
Our precedents “have not been a model of
clarity in deciding what analytical framework to
employ when determining whether a disproportionate
effect on sentencing may require the application
of a heightened standard of proof.” United States
v. Berger, 587 F.3d 1038, 1048 (9th Cir. 2009).
We have indicated that, “where the sentencing
enhancements are based on . . . the offense of
conviction,” the preponderance of the evidence
standard is sufficient. Id. (citing United States
v. Harrison-Philpot, 978 F.2d 1520, 1524 (9th Cir.
1992)) (internal quotation marks omitted). We
have also held that “there is no bright-line rule
for the disproportionate impact test;” instead,
the court examines the “totality of the
circumstances” using six factors first articulated
in United States v. Valensia, 222 F.3d 1173 (9th
Cir. 2000) (“Valensia factors”).[3] Berger, 587

3

Valensia, 222 F.3d 1173, was vacated and remanded “for
(continued...)
13

F.3d at 1048 (citing United States v. Jordan, 256
F.3d 922, 928 (9th Cir. 2001)) (internal quotation
marks omitted).
Under the Valensia totality of the
circumstances test, six factors, none of which is
dispositive, guide the determination of whether a
sentencing factor has a disproportionate impact on
the sentence:
(1) whether the enhanced sentence falls
within the maximum sentence for the crime
alleged in the indictment; (2) whether the
enhanced sentence negates the presumption of
innocence or the prosecution’s burden of
proof for the crime alleged in the
indictment; (3) whether the facts offered in
support of the enhancement create new
offenses requiring separate punishment;
(4) whether the increase in sentence is based
on the extent of a conspiracy; (5) whether an
increase in the number of offense levels is
less than or equal to four; and (6) whether
the length of the enhanced sentence more than
doubles the length of the sentence authorized
by the initial sentencing guideline range in
a case where the defendant would otherwise
have received a relatively short sentence.
Treadwell, 593 F.3d at 1000.
United States v. Hymas, 780 F.3d 1285, 1289-90 (9th Cir. 2015)
(alteration in Hymas) (footnote omitted).
The $1,531,430.81 total loss in this case consisted of:
$490,175.05 for the scheme that was the subject of the indictment
in this case; $924,787.76 for a mortgage fraud scheme deemed

3

(...continued)
further consideration in light of Apprendi v. New Jersey, 530
U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).” Valensia
v. United States, 532 U.S. 932 (2001). However, it did not
affect the totality of the circumstances analysis. See, e.g.,
Berger, 587 F.3d at 1048.
14

relevant conduct to the charged offenses; and $116,468.00 for a
loan fraud scheme in Seattle that was also deemed relevant
conduct.

[PSR at ¶¶ 97-103.]

Kealakekua argues that, if only

the losses for Counts 11 and 17 were considered, his base offense
level would only have been increased by 6 because the total loss
from those offenses was $43,198.87.

Instead, the $1,531,430.81

loss resulted in a 17-level increase.
Motion at 2-3.]

[Mem. in Supp. of § 2255

The Government concedes that “the clear and

convincing standard probably applied” to losses from conduct
other than the charged offenses.

[Response at 14 n.6.]

The Government also concedes that Mr. Otake did not
expressly argue that the clear and convincing standard should
have been applied to the calculation of the amount of loss.
at 13-14.]

[Id.

Kealakekua’s argument is that, had Mr. Otake argued

for the application of the clear and convincing standard, only
the losses associated with Counts 11 and 17 would have been
considered in determining the total amount of loss.

However,

based on the legal principles set forth above, the clear and
convincing standard would not have applied to the conduct that
was the basis for the dismissed counts.

Thus, the crux of

Kealakekua’s argument is that the clear and convincing standard
applied to the losses from the other conduct deemed relevant
conduct for purposes of the amount of loss.

15

Mr. Otake did in fact argue that the $924,787.76 from
the mortgage fraud scheme and the $116,468.00 from the Seattle
loan fraud scheme should not be considered in the amount of loss
as relevant conduct.

Mr. Otake argued that Kealakekua should

only be held responsible for a total loss of $172,476.05.
[Objections to Proposed Presentence Investigation Report, filed
1/14/16 (dkt. no. 62), at 24-29.4]
In light of the lack of clarity in the case law
regarding the clear and convincing standard of proof at
sentencing, and the fact that Mr. Otake made an argument that, if
it had been accepted, would have had the same effect as the
argument Kealakekua now contends Mr. Otake should have made,
Mr. Otake’s failure to expressly argue that the clear and
convincing standard applied did not fall “outside the wide range
of professionally competent assistance.”

See Strickland 466 U.S.

at 690.
Because Kealakekua has failed to establish the first
prong of the Strickland test, this Court does not need to address
the issue of whether Kealakekua’s sentence would have been
different if Mr. Otake had expressly argued that the clear and
convincing standard applied.

Kealakekua has failed to establish

4

Mr. Otake also made similar arguments in Kealakekua’s
Sentencing Memorandum. [Filed 2/22/16 (dkt. no. 64), at 9-12.]
He also reiterated this position at the sentencing hearing.
[Trans. of 2/29/16 Sentencing Hrg. (“Sentencing Trans.”), filed
4/22/16 (dkt. no. 83), at 32-33.]
16

that Mr. Otake rendered constitutionally ineffective assistance
during the sentencing process regarding the amount of loss.
B.

Criminal History Points
Kealakekua states he repeatedly told Mr. Otake the

facts presented in the PSR regarding his criminal history were
erroneous, resulting in an incorrect score.

Further, Mr. Otake

never provided him with an indication he followed up on
Kealakekua’s concerns and investigated Kealakekua’s criminal
history.

According to Kealakekua, without conducting such

investigation, Mr. Otake could not appropriately object to the
PSR’s determination of the criminal history category.

[Mem. in

Supp. of § 2255 Motion at 4-5.]
According to the PSR, Kealakekua had six prior
convictions, three of which counted toward his criminal history
score.

[PSR at ¶¶ 118-23.]

Those three convictions were: a

September 21, 1989 conviction in Georgia for bank fraud in Case
No. CR89-213-01A; an April 18, 1991 conviction in Georgia for
forgery and other offenses in Case No. 91-B514-5; and a
October 25, 2000 conviction in Georgia for forgery and other
offenses in Case No. 93-1398-5.

Each of the three offenses

resulted in three criminal history points.

[Id. at ¶¶ 121-23.]

An additional two points were added because Kealakekua committed
the offenses in the instant case while he was under the
October 25, 2000 sentence.

Thus, Kealakekua’s total criminal

17

history score was eleven.

[Id. at ¶¶ 125-26.]

Kealakekua argues the three points for Case No. 931398-5 should not have been included because the PSR states he
was released from prison the same day he was sentenced –
October 25, 2000, [Mem. in Supp. of § 2255 Motion at 6 (citing
PSR at ¶ 123),] and there is no evidence he actually served a
term of imprisonment in Case No. 93-1398-5, [id. at 8].
Kealakekua reasons that, if he never served a term of
imprisonment, he could not have served probation following the
term of imprisonment.

Thus, he could not have been on probation

for Case No. 93-1398-5 when he committed the instant offenses,
and the additional two criminal history points should not have
been assessed.

[Id.]

Kealakekua also states he does not

remember serving a term of imprisonment for Case No. 91-B514-5,
and he denies he had his probation revoked in that case on
October 25, 2000 for violation of a warrant.

[Id. at 8-9.]

Further, he contends there is no evidence to support the
Government’s statement at sentencing that, according to the
probation officer, Kealakekua served more than thirteen months
imprisonment for Case. No. 91-B514-5, [id. at 9 (citing
Sentencing Trans. at 42),] and he asserts that his sentence for
that case should not have counted because it was imposed more
than fifteen years before the instant offense, [id. at 10].
According to Kealakekua, without the erroneous inclusion of these

18

prior offenses and the erroneous assessment for commission of the
instant offense while on probation, his criminal history score
would have been four, resulting in a criminal history category of
III.

[Id.]
According to Mr. Otake’s declaration, Kealakekua did

inform Mr. Otake of his concerns that his criminal history score
was too high, but “[h]is explanation as to why it should have
been lower made no sense.”

[Otake Decl. at ¶ 26.]

In spite of

that fact, Mr. Otake “did review in detail the pre-sentence
report sections dealing with his criminal history to check for
errors or misapplication of the guidelines.

[Mr. Otake] found no

such error, and found Mr. Kealakekua’s explanations as to why his
criminal history should be reduced to be unsupported by the
facts.”

[Id.]

Nevertheless, Mr. Otake objected to Kealakekua’s

criminal history category.

[Id. at ¶ 27.]

The Sentencing

Memorandum stated:
the past cases for which Mr. Kealakekua received
criminal history points stem from 1988, 1990, and
1993. These cases are extremely old, and were
non-violent in nature. Mr. Kealakekua objects to
the criminal history calculation in the presentence report, and submits that his criminal
history category should be lower than V. In
particular, paragraph 123 in the pre-sentence
report involves the case from 1993.
Mr. Kealakekua does not recall doing any prison
time for this offense. This is corroborated by
what is indicated in the pre-sentence report. The
presentence report indicates that Mr. Kealakekua
was sentenced to 10 years imprisonment on
10/25/2000, however it also indicates he was
released from prison on 10/25/2000, the same day
19

he was sentenced. This case should not count as 3
criminal history points. This would decrease
Mr. Kealakekua’s criminal history category to IV
at the highest.
[Sentencing Mem. at 16-17.]
at the sentencing hearing.

Mr. Otake reiterated these arguments
[Sentencing Trans. at 41-42.]

Thus,

Mr. Otake did make many of the arguments that Kealakekua bases
his ineffective assistance of counsel claim upon.
As to the fact that Kealakekua was released on the same
day he was sentenced for Case No. 93-1398-5, AUSA Tong stated
that the probation officer “confirmed that the only reason he was
released on the same day is he was given for credit for time
served, which I think was in excess of 12 months.

And under that

scenario it would be a qualifying conviction that triggers three
points towards the criminal history score.”

[Id. at 42.]

This

Court overruled Kealakekua’s objections to his criminal history
score and found that his criminal history “should be category 5,
recognizing that many of those convictions are old, but they
still qualify.”

[Id.]

Because Mr. Otake raised the foregoing

arguments during the sentencing process, Kealakekua has failed to
establish that Mr. Otake’s “representation fell below an
objective standard of reasonableness” as to those issues.

See

Strickland, 466 U.S. at 688.
The only arguments in the § 2255 Motion that Mr. Otake
did not raise in the sentencing proceedings were: Kealakekua did
not serve more than thirteen months’ imprisonment for Case
20

No. 91-B514-5; there is no evidence to support the assignment of
criminal history points for No. 91-B514-5; and Kealakekua was not
on probation for Case No. 93-01398-5 when he committed the
instant offenses.

Even if Mr. Otake had raised these arguments,

they would have been rejected.

First, although a defendant “must

have actually served a period of imprisonment on such sentence”
for the sentence to be considered a “sentence of imprisonment”
for criminal history purposes, “the length of a sentence of
imprisonment is the stated maximum . . . .

That is, criminal

history points are based on the sentence pronounced, not the
length of time actually served.”

U.S.S.G. § 4A1.2 cmt. n.2.

The

PSR stated that the stated maximum terms for the counts in Case
No. 91-B514-5 were ten years for Counts 1 to 3, five years for
Counts 4 to 6, and three years for Counts 7 to 14.
¶ 122.]

[PSR at

Thus, even if Kealakekua were correct that he actually

served less than thirteen months of imprisonment for Case No. 91B514-5, because his stated maximum was more than thirteen months,
three criminal history points were correctly counted for that
sentence.

See U.S.S.G. § 4A1.1(a) (“Add 3 points for each prior

sentence of imprisonment exceeding one year and one month.”).
Kealakekua’s arguments contesting the factual basis for
the inclusion of the sentence in Case No. 91-B514-5 and the
addition of two points because the instant offense was committed
while he was on probation for Case No. 93-01398-5 would also have

21

been rejected.

The United States Probation Office (“Probation

Office”) had sufficient evidence from the records of the two
cases to support those criminal history points.

See Response,

Decl. of Lawrence L. Tong (“Tong Decl.”) at ¶ 2 (stating that,
after he received the § 2255 Motion, he “contacted the United
States Probation Office to obtain the records in its files
concerning defendant’s prior convictions”).

The records of Case

No. 91-B514-5 confirm the sentence for all counts stated in the
PSR.

[Tong Decl., Exh. 2 (records for Case No. 91-B514-5) at 12

(Final Disposition document).5]

Because the sentences were to

run concurrently, the stated maximum for that case was ten years,
and three points were correctly attributed for that sentence.
As to Case No. 93-1398-5, the records the Government
obtained from the Probation Office confirm Kealakekua was
sentenced on October 25, 2000 to ten years of imprisonment, but
was released from custody because he was: given credit for time
served; and allowed to serve the final seven years of the
sentence on probation because he served three years of
imprisonment.

[Tong Decl., Exh. 1 (records for Case No. 93-1398-

5) at 7 (Final Disposition document).]

On August 31, 2004, a

warrant was issued for Kealakekua’s arrest because he had not

5

Exhibits 1 and 2 to the Tong Declaration each consist of
multiple documents that are not consecutively paginated. The
citations to Exhibits 1 and 2 in this order refer to the page
numbers assigned to the exhibits in this district court’s
electronic case filing system.
22

reported to Probation since being released on October 25, 2000
and he changed his residence without obtaining prior permission
from his probation officer.

[Id. at 12.]

A Georgia state court

issued an order on June 28, 2006, stating that the running of
Kealakekua’s term of probation was suspended until Kealakekua
“personally report[ed] to the probation supervisor, is taken into
custody in this state, or is otherwise available to this Court.”
[Id. at 11.]

Thus, two points were correctly added to

Kealakekua’s criminal history score because, at the time of the
instant offenses, he was still subject to the term of probation
for Case No. 93-1398-5.
Moreover, in imposing Kealakekua’s sentence, this Court
departed from the Guidelines sentencing range because it
recognized that his “criminal history may be overrepresented.”
[Sentencing Trans. at 67.]

The Guidelines sentencing range that

would have applied to him with an offense level of 24 and a
criminal history category of V was 92 to 115 months of
imprisonment.

[Id. at 63.]

However, Kealakekua was sentenced to

84 months of imprisonment, which was “squarely in the middle of”
the Guidelines sentencing range for an offense level of 24 and a
criminal history category of IV, which was 77 to 96 months.
at 67.]

[Id.

Thus, even if Mr. Otake had raised the three arguments

Kealakekua alleges he should have raised and this Court accepted
some of those arguments, there is not a reasonable probability

23

that the sentence would have been lower because the actual
sentence imposed already reflected a lower criminal history
category.
Kealakekua has therefore failed to establish that his
sentence would have been different if Mr. Otake had raised the
arguments challenging the points associated with Case No. 91B514-5 and the points attributed because of the commission of the
instant offense while on probation for Case No. 93-1398-5.
Because there was no prejudice as a result of the failure to
present these arguments, it is not necessary to address whether
Mr. Otake’s representation was deficient because he did not raise
these arguments.

See Strickland, 466 U.S. at 697.

Kealakekua

has failed to establish that Mr. Otake rendered constitutionally
ineffective assistance during the sentencing process regarding
Kealakekua’s criminal history score.
Because Kealakekua has failed to prove any of the
alleged instances of ineffective assistance, his § 2255 Motion is
denied.
III. Certificate of Appealability
This district court has stated that:
In dismissing a § 2255 motion, the court must
also address whether [defendant/petitioner] should
be granted a certificate of appealability (“COA”).
See R. 11(a), Rules Governing Section 2255
Proceedings (providing that “[t]he district court
must issue or deny a certificate of appealability
when it enters a final order adverse to the
applicant”). A COA may issue only if the
24

petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).
“The standard for a certificate of
appealability is lenient.” Hayward v. Marshall,
603 F.3d 546, 553 (9th Cir. 2010) (en banc),
overruled on other grounds by Swarthout v. Cooke,
562 U.S. 216 (2011). The petitioner is required
to demonstrate only “that reasonable jurists could
debate the district court’s resolution or that the
issues are adequate to deserve encouragement to
proceed further.” Id. (citation and internal
quotation marks omitted). The standard “requires
something more than the absence of frivolity, but
something less than a merits determination.” Id.
(internal quotation marks omitted).
The court carefully reviewed [the
defendant/petitioner’s] assertions and gave him
every benefit by liberally construing them. Based
on the above analysis the court finds that
reasonable jurists could not find the court’s
rulings debatable.
Leon v. United States, Civ. No. 15-00099 JMS-BMK, 2015 WL
3965895, at *9-10 (some alterations in Leon).

Reasonable jurists

would not find that the rulings in this Order regarding
Kealakekua’s § 2255 Motion are debatable.

A certificate of

appealability therefore will not be issued.
CONCLUSION
On the basis of the foregoing, Kealakekua’s Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody, filed December 5, 2016, is HEREBY
DENIED.

In addition, this Court DENIES a certificate of

appealability.

25

In light of these rulings, Kealakekua’s Motion for
Decision, [filed 8/17/17 (dkt. no. 119),] is HEREBY DENIED AS
MOOT.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 16, 2018.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

UNITED STATES OF AMERICA VS. JULIAN KEALAKEKUA; CR 14-00374 LEK;
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE,
OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND DENYING A
CERTIFICATE OF APPEALABILITY

26