Christie v. USA

Filing 3

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 02/27/2018. (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: Sherryanne L. Christie 99280-022; FDC Honolulu; P.O. BOX 30080; HONOLULU, HI 96820

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

)
)
Plaintiff,
)
)
vs.
)
)
SHERRYANNE L. CHRISTIE, FKA
)
Sherryanne L. St. Cyr,
)
)
Defendant.
)
_____________________________ )

CR 13-00889 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
Sherryanne L. Christie’s (“S. Christie”) Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (“§ 2255 Motion”), filed on April 27, 2017.
[Dkt. no. 78.]

Plaintiff/Respondent the United States of America

(“the Government”) filed its response to the § 2255 Motion
(“Response”) on September 25, 2017, and S. Christie filed her
reply on October 27, 2017.

[Dkt. nos. 121, 123.]

S. Christie’s

§ 2255 Motion is hereby denied, and a certificate of
appealability is also denied, for the reasons set forth below.
BACKGROUND
On June 24, 2010, S. Christie – who was then known as
Sherryanne L. St. Cyr – and thirteen others were indicted in
Criminal Number 10-00384 LEK (“CR 10-384”).

[CR 10-384, dkt.

no. 1.]

The grand jury returned the First Superseding Indictment

(“Superseding Indictment”) on January 17, 2013.
no. 509.]

[Id., dkt.

The Superseding Indictment alleged that Defendant

Roger Cusick Christie (“R. Christie”), with S. Christie’s
assistance, operated the THC Ministry – also known as the Hawaii
Cannabis Ministry – in Hilo, Hawai`i, and the operation illegally
manufactured, distributed, and sold marijuana.

The Superseding

Indictment charged S. Christie with: one count of conspiracy to
manufacture, distribute, and possess with intent to distribute
one hundred or more marijuana plants, as well as harvested
marijuana, processed marijuana and products containing marijuana,
in violation of 21 U.S.C. § 841(a)(1) (“Count 1”); manufacturing
approximately 284 marijuana plants, in violation of § 841(a)(1)
and (b)(1)(B) and 18 U.S.C. § 2 (“Count 2”); possessing with
intent to distribute approximately 284 marijuana plants, in
violation of § 841(a)(1) and (b)(1)(B) and § 2 (“Count 3”); and
maintaining a place for the purpose of manufacturing and
distributing marijuana, manufacturing approximately 284 marijuana
plants, in violation of 21 U.S.C. § 856(a)(1) and (b)
(“Count 13”).

On February 1, 2013, S. Christie pled not guilty

to the charges in the Superseding Indictment.
filed 2/1/13 (dkt. no. 540).]

[Id., Minutes,

During the underlying proceedings

2

in this district court relevant to the § 2255 Motion, S. Christie
was represented by Lynn Panagakos, Esq.1
On April 1, 2013, S. Christie and R. Christie (“the
Christies”) jointly filed a motion seeking a ruling that they
would be allowed to present a defense under the Religious Freedom
Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1.

[Id., Motion in

Limine to Present Religious Freedom Restoration Act Defense
(“RFRA Motion”), filed 4/1/13 (dkt. no. 587).]

The Christies

presented evidence that R. Christie was the founder and leader of
the THC Ministry.

[Id., RFRA Motion, Decl. of Roger Christie

(“R. Christie Decl.”) at ¶ 10.]

S. Christie was an ordained

minister in the THC Ministry, and she managed it when R. Christie
was recovering from a broken ankle.

[Id., RFRA Motion, Decl. of

Sherryanne L. Christie (“S. Christie Decl.”) at ¶¶ 16-17.]
R. Christie stated: “I consume, possess, cultivate and distribute
Cannabis as sanctioned and required by my legitimate religion and
sincere religious beliefs as a member of the THC Ministry.

The

consumption, possession, cultivation and distribution of Cannabis

1

S. Christie was represented by Dana Ishibashi, Esq., and
then by Jeffrey Arakaki, Esq., prior to Ms. Panagakos. The
§ 2255 Motion asserts each of S. Christie’s attorneys rendered
ineffective assistance. See EO: Court Order Granting
Pltf./Resp.’s Motion for an Order Directing Def./Pet. to Identify
which of Her Attorneys She Claims Were Ineffective, filed 6/16/17
(dkt. no. 89). Although work done by Mr. Ishibashi and/or
Mr. Arakaki may have contributed to the case events S. Christie
challenges in the § 2255 Motion, it was Ms. Panagakos who
represented her during the district court proceedings relevant to
the § 2255 Motion.
3

are essential and necessary components of the THC Ministry.”
[Id., R. Christie Decl. at ¶ 44.]
statements.

S. Christie made similar

[Id., S. Christie Decl. at ¶ 21.]

The RFRA Motion

asserted they were entitled to present a RFRA defense at trial
because they made a prima facie showing that the charges against
them substantially burdened their sincere exercise of their
religion, and the Government did not establish the prosecution
was the least restrictive means of furthering a compelling
governmental interest.
On September 11, 2013, an entering order was issued
informing the parties the RFRA Motion was denied (“9/11/13 RFRA
Ruling”).

[Id., dkt. no. 719.]

The 9/11/13 RFRA Ruling was

superseded by subsequent written orders.

Ultimately, this Court

concluded: the Christies established a prima facie case under
RFRA, and the burden shifted to the Government to establish a
compelling interest in enforcing the Controlled Substances Act,
21 U.S.C. § 801, et seq. (“CSA”); and prosecuting the Christies
was the least restrictive means of furthering the compelling
interest.

[Id., First Preliminary Ruling as to Defs.’ Motion in

Limine to Present Religious Freedom Restoration Act Defense,
filed 12/30/13 (dkt. no. 810), at 15-16.]

Ultimately, this Court

concluded the Government met its burden as to both elements and
denied the RFRA Motion.

[Id., Order Denying Defs.’ Motion in

4

Limine to Present Religious Freedom Restoration Act Defense,
filed 12/30/13 (dkt. no. 811) at 24-25, 28.]
While the Christies were litigating the RFRA Motion,
they were also litigating the issue of whether they could raise
an entrapment defense at trial.

[R. Christie’s Notice of Intent

to Rely on Defense of Entrapment by Estoppel at Trial, filed
7/29/13 (dkt. no. 658); Motion in Limine to Prohibit Defendant
Roger Cusick Christie from Presenting Defense of Entrapment by
Estoppel (“Entrapment Motion”), filed 8/6/13 (dkt. no. 663).]

A

hearing on the Entrapment Motion was held on September 19, 2013,
and an outline of this Court’s ruling was issued on September 20,
2013 (“9/20/13 Entrapment Ruling”).

[Minutes, filed 9/19/13

(dkt. no. 730); Minutes (further hearing), filed 9/19/13 (dkt.
no. 732); 9/20/13 Entrapment Ruling (dkt. no. 735).]

The 9/20/13

Entrapment Ruling stated R. Christie had to make a showing of how
statements allegedly made to him by state and county officials
were relevant to his entrapment by estoppel defense before the
testimony would be presented to the jury, and that S. Christie
made a prima facie showing to raise the defense.
Entrapment Ruling at 2.]

[9/20/13

A written order denying the Entrapment

Motion was filed on December 30, 2013.

[Dkt. no. 812.]

After the 9/11/13 RFRA Ruling and the 9/20/13
Entrapment Ruling, pursuant to a plea agreement, S. Christie
entered a conditional plea of guilty to a one-count Information

5

charging her with conspiracy to manufacture, distribute, and
possess with intent to distribute fifty or more marijuana plants,
as well as harvested and processed marijuana and other products
containing marijuana, in violation of § 841(a)(1) and (b)(1)(C).
[Information, filed 9/26/13 (dkt. no. 1); Minutes, filed 9/27/13
(dkt. no. 5) (arraignment and plea to the Information); Mem. of
Plea Agreement (“Plea Agreement”), filed 9/27/13 (dkt. no. 8).]
In the Plea Agreement, S. Christie reserved the right to appeal
certain pretrial rulings in CR 10-384, including the denial of
the RFRA Motion.

The Plea Agreement provided that S. Christie

could withdraw her guilty plea if any of those pretrial rulings
were reversed on appeal.

The Plea Agreement expressly stated

that the reservation of S. Christie’s right to appeal those
rulings did not authorize her to challenge those rulings in
collateral proceedings, including through a § 2255 motion.
Agreement at ¶¶ 4, 5B-5D.]

[Plea

S. Christie waived her right to bring

a collateral attack against her sentence, or the manner in which
it was determined, except for challenges based on the ineffective
assistance of counsel of if her sentence was greater than the
applicable range under the United States Sentencing Guidelines
(“U.S.S.G.” or “the Guidelines”).2

2

[Id. at ¶¶ 14.a-b.]

The Government apparently does not seek to enforce this
waiver.
6

S. Christie’s guilty plea was accepted and she was
adjudicated guilty on October 22, 2013.

[Dkt. no. 13.]

S. Christie’s sentencing hearing was held on April 28, 2014.
[Minutes, filed 4/28/14 (dkt. no. 23) (“Sentencing Minutes”).]
The Plea Agreement was accepted, and S. Christie was sentenced to
twenty seven months of imprisonment and three years of supervised
release.3

[Id. at 1-2.]

The Government’s oral motion to dismiss

the charges against S. Christie in CR 10-384 was granted.4
at 3.]

[Id.

The Amended Judgment in a Criminal Case was filed on

May 1, 2014.

[Dkt. no. 28.]

S. Christie filed her Notice of Appeal on May 8, 2014.
[Dkt. no. 29.]

On June 24, 2015, the Ninth Circuit granted

Ms. Panagakos’s motion to withdraw as counsel, and Georgia
McMillen, Esq., was appointed, effective June 25, 2015.
nos. 46, 48.]

[Dkt.

The Christies filed a joint opening brief prior to

Ms. Panagakos’s withdrawal.

Ms. McMillen filed a joinder in

R. Christie’s reply brief and appeared at the oral argument.
The Ninth Circuit affirmed both the judgment against
S. Christie in this case and the and the judgment against
R. Christie in CR 10-384 in an opinion filed on June 14, 2016.

3

S. Christie was allowed to surrender to serve her sentence
forty five days after the Ninth Circuit’s mandate was issued in
the appeal. [Sentencing Minutes at 3.]
4

An order dismissing the Superseding Indictment as to
S. Christie was filed on April 30, 2014. [CR 10-384, dkt. no.
934.]
7

United States v. Christie, 825 F.3d 1048 (9th Cir. 2016).

The

Ninth Circuit held, inter alia: the Government had a compelling
interest in preventing the diversion of cannabis used by the THC
Ministry and enforcing the CSA against the Christies meaningfully
advanced that interest; id. at 1060; the Government could not
achieve its compelling interest through any less restrictive
means; and therefore prosecuting the charges against the
Christies did not violate RFRA, id. at 1063-64.

It also held

that: authorizing wiretaps of two telephone numbers associated
with R. Christie and R. Christie’s cellular phone was not an
abuse of discretion; and the Christies were not entitled to an
evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978).

Christie, 825 F.3d at 1066, 1069.
The § 2255 Motion followed.

It alleges the following

grounds: 1) S. Christie’s guilty plea was not knowingly and
voluntarily made because her attorney advised her that she had no
other choice but to plead guilty after the denial of the RFRA
Motion (“Ground One”); 2) the Government intentionally suppressed
material exculpatory and impeachment evidence, and S. Christie
would not have pleaded guilty if she had known about the evidence
(“Ground Two”); 3) trial counsel was ineffective because of the
failure to fully investigate the facts of the case and to file
appropriate motions, and appellate counsel was ineffective
because of the failure to raise trial counsel’s effective

8

assistance (“Ground Three”); 4) denying S. Christie the ability
to present her RFRA defense was such a fundamental denial of her
rights that it was per se unconstitutional (“Ground Four”); and
5) she is entitled to § 2255 relief because of the Government’s
overreaching in the underlying proceedings (“Ground Five”).
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
9

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).
The issues raised in S. Christie’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
I.

Procedural Bar
At the outset, it must be noted that many of the

grounds in S. Christie’s § 2255 Motion may be procedurally
barred.

“Where a defendant has procedurally defaulted a claim by

failing to raise it on direct review, the claim may be raised in
habeas only if the defendant can first demonstrate either cause
and actual prejudice, or that he is actually innocent.”

Bousley

v. United States, 523 U.S. 614, 622 (1998) (citations and
internal quotation marks omitted).
Generally, to demonstrate “cause” for procedural
default, an appellant must show that “some
objective factor external to the defense” impeded
his adherence to the procedural rule. Murray v.
Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 91 L.

10

Ed. 2d 397 (1986).[5] However, if the record
shows that an appellate counsel’s performance fell
below the standard of competency of counsel set
forth in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), or that
he was denied representation by counsel on appeal
altogether, he has demonstrated cause for his
procedural default. See Murray, 477 U.S. at 488,
106 S. Ct. 2639 (“Ineffective assistance of
counsel, then, is cause for a procedural
default.”); Allen v. Risley, 817 F.2d 68, 69 (9th
Cir. 1987) (“‘Attorney error short of ineffective
assistance of counsel does not constitute cause
for a procedural default.’”) (quoting Murray, 477
U.S. at 492, 106 S. Ct. 2639). . . .
United States v. Skurdal, 341 F.3d 921, 925-26 (9th Cir. 2003)
(some citations omitted).

This district court has recognized

that § 2255 motions alleging ineffective assistance of counsel
claims should not be procedurally barred “because the record may
not be properly developed to raise ineffective assistance of
counsel claims on direct appeal.”

Gowadia v. United States,

CRIM. NO. 05-00486 SOM, 2015 WL 5838471, at *3 (D. Hawai`i Oct.
5, 2015) (citing United States v. Frady, 456 U.S. 152, 167-68
(1982)).
Although S. Christie alleges violations of her
constitutional rights in the course of the proceedings and that
her guilty plea was not knowingly and voluntarily made, she does
not deny she committed the conduct which forms the basis of the

5

Murray was superseded on other grounds by the
Antiterrorism and Effective Death Penalty Act. See, e.g., United
States v. Gonzalez-Largo, No. 2:07–cr–0014 JCM (RJJ), 2012 WL
3245522, at *2 (D. Nev. Aug. 7, 2012).
11

charge that she pled guilty to.

She must therefore establish

cause and prejudice to overcome any procedural bar.
S. Christie’s alleged cause is that she was denied
constitutionally effective assistance of counsel.

Although it

could be argued that Ms. McMillen – who ultimately represented
S. Christie on appeal – could have argued on appeal that her
predecessors rendered ineffective assistance, it was
Ms. Panagakos who filed the opening brief on S. Christie’s behalf
and framed the issues on appeal.

Thus, to the extent S. Christie

alleges Ms. Panagakos made errors in this district court and on
appeal, the record may not have been fully developed to raise
ineffective assistance even after she withdrew as S. Christie’s
counsel.

Moreover, even if Ms. McMillen arguably had the

opportunity in the appeal to raise any alleged errors by prior
counsel, S. Christie also alleges Ms. McMillen rendered
ineffective assistance, and the record may not have been fully
developed.

If S. Christie establishes ineffective assistance of

counsel, it would establish cause for purposes of the procedural
bar analysis.
II.

Ground One - Was the Guilty Plea Knowing and Voluntary
Ground One alleges S. Christie’s guilty plea was not

knowingly and voluntarily made because her counsel advised her
she had no choice but to plead guilty because of the denial of
the RFRA Motion.

Ms. Panagakos denies making such statements to

12

Ms. Christie.

[Response, Exh. 2 (Decl. of Lynn E. Panagakos

(“Panagakos Decl.”)) at ¶ 7.]

Shortly after Ms. Panagakos was

appointed as S. Christie’s counsel, she sent a detailed letter,
dated April 16, 2012, to S. Christie explaining the option of
either accepting the Government’s offered terms of a plea
agreement or going to trial (“4/6/12 Letter”).
Exh. 1 at 8-14 (4/16/12 Letter).6]

[Id. at ¶ 3,

In the 4/16/12 Letter “and on

numerous subsequent occasions, [Ms. Panagakos] informed
Ms. Christie that whatever she decided, [Ms. Panagakos] would
vigorously represent her.”

[Panagakos Decl. at ¶ 3.]

After

learning that S. Christie was unable to read the 4/16/12 Letter,
Ms. Panagakos met with her and read the 4/16/12 Letter to her
aloud and discussed the contents of the letter with her.
Ms. Panagakos also had another attorney attend the meeting to
ensure S. Christie understood what was discussed.

[Id. at ¶ 4.]

“During this meeting, and at other times, [Ms. Panagakos] made it
clear to Ms. Christie that the decision whether to enter a guilty
plea or to proceed to trial was her decision to make.”
S. Christie rejected the plea offer.

[Id.]

Ms. Panagakos

received an email from S. Christie, dated May 30, 2012 and which
appeared to be written to THC Ministry members, explaining her

6

The Panagakos Declaration and the exhibits thereto appear
on the district court’s electronic filing system as a single
document that is not consecutively paginated. All citations to
the Panagokos Declaration’s exhibits refer to the page numbers
assigned by the electronic filing system.
13

decision not to enter into a plea agreement (“5/30/12 Email”).
[Id. at ¶ 5, Exh. 2 at 38-46 (5/30/12 Email).]

S. Christie

states a plea bargain was offered multiple times, and the
Christies refused.

[Panagakos Decl., Exh. 2 at 46.]

Ms. Panagakos asserts the 5/30/12 Email “makes clear that
Ms. Christie was well aware that it was her choice whether to
accept or reject a plea offer, and that she relied not on her
attorneys but on her husband, Roger Christie.”
at ¶ 5.]

[Panagakos Decl.

S. Christie “relied extensively” on R. Christie

“[t]hroughout this litigation.”

[Id. at ¶ 11.]

Ms. Panagakos

received an email from S. Christie dated September 7, 2013
(“9/7/13 Email”) stating the Christies learned many of their codefendants entered guilty pleas, and the Christies acknowledged
all of them “have free-will and each person needs to make-up
[sic] their own mind based on their unique circumstances.”

[Id.

at ¶ 6, Exh. 3 at 55.]
On September 19, 2013, the Assistant United States
Attorney on the case informed Ms. Panagakos that he would seek
approval for a global plea agreement for the Christies, and
Ms. Panagakos conveyed the offer to S. Christie.
Decl. at ¶ 10.]

[Panagakos

On the same date, Ms. Panagakos and S. Christie

had a joint defense conference with R. Christie and his counsel
to discuss the plea offer, the entrapment by estoppel defense,
the 9/11/13 RFRA Ruling, and other factors relevant to the

14

Christies’ decision whether to enter into plea agreements.
at ¶ 11.]

[Id.

“During this joint defense conference, as at all other

times, it was made clear to the defendants that they were free to
choose either alternative, and that it was their decision to
make.”

[Id.]

Ms. Panagakos had three meetings and at least two

telephone conferences with S. Christie from September 20 to 27,
2013 to discuss the plea offer and the 9/20/13 Entrapment Ruling.
[Id. at ¶ 12.]

“During these meetings and telephone conferences,

it was clear to Ms. Christie that it was her choice whether to
accept the government’s plea offer or to reject the plea offer
and proceed to trial.”

[Id. at ¶ 13.]

On September 25, 2013, Ms. Panagakos received a mass
email from S. Christie with the subject “Why we took the plea
bargain” (“9/25/13 Email”).

[Panagakos Decl. at ¶ 14, Exh. 4.]

The 9/25/13 Email transmitted an article about the Christies’
case that was posted by the Star Advertiser on that date,
followed by a message from S. Christie and another by
R. Christie.
the last say.

S. Christie stated, “I love my husband and he had
I still wanted to go to court, but I see the

larger picture of us plea-bargaining.”
at 60.]

[Panagakos Decl., Exh. 4

R. Christie stated: “Now that all the important issues

have been removed from trial, what’s the point of a trial?

The

imortance of keeping all the above issues [including the RFRA
defense] ALIVE and growing towards an appeal in San Francisco is

15

what’s primary.

We can appeal from prison or from home.

choice was EASY.”

The

[Id. (emphases in original).]

At her change of plea hearing, S. Christie stated that
she was satisfied with Ms. Panagakos’s representation.

[Trans.

of 9/27/13 arraignment and plea hrg. (“9/27/13 Plea Trans.”),
filed 6/23/15 (dkt. no. 44), at 3-4.]

When the magistrate judge

asked S. Christie: “Has anyone attempted in any way to force you
to plead guilty here this morning?”
“Zero.”

[Id. at 6.]

S. Christie responded:

When the magistrate judge asked

S. Christie: “Are you pleading guilty of your own free will,
because you are in fact guilty?”
“Yes. . . .

S. Christie responded:

I am guilty of the possession of marijuana with

intent to distribute it; however, I reserve the right to argue on
the appeal that my actions were legal pursuant to the Religious
Freedom Restoration Act.”

[Id. at 7.]

Even without considering whether S. Christie’s
statements in the § 2255 Motion are more credible than the
statements in the Panagakos Declaration,7 S. Christie’s own
statements in her emails and at the plea hearing show that she
knowingly and voluntarily entered her guilty plea.

7

S. Christie

An evidentiary hearing is required when credibility
determinations are necessary to weigh conflicting declarations in
a § 2255 proceeding. See Esparza v. United States, Civ.
No. 07–00375 SOM/LEK, 2008 WL 314243, at *6 (D. Hawai`i Feb. 5,
2008) (citing United States v. Chacon-Palomares, 208 F.3d 1157,
1159 (9th Cir. 2000)).
16

does not deny either that she sent the emails attached to the
Panagakos Declaration or that the statements in the emails
attributed to her were her own statements.

Instead, she argues

her guilty plea was not knowingly and voluntarily made because of
the Government’s intentional withholding of evidence and defense
counsel’s failure to fully investigate the facts of the case.
[Reply at 7.]

However, those arguments are not the basis of

Ground One, and they are addressed in other portions of the
§ 2255 Motion.8

The argument in Ground One – S. Christie’s

guilty plea was not knowingly and voluntarily made because her
counsel advised her she had no other choice – fails on the
merits, based on S. Christie’s statements discussed above.
Because the argument is without merit, neither Ms. Panagakos nor
Ms. McMillen rendered ineffective assistance by failing to raise
the argument during her respective periods of representation.
The § 2255 Motion is therefore denied as to Ground One.
III. Ground Two - Alleged Withholding of Evidence
Ground Two alleges the Government intentionally
withheld material exculpatory and impeachment evidence.
S. Christie asserts United States Drug Enforcement Agency (“DEA”)
Agent Clement Sze’s affidavits about the Hawai`i County Police

8

S. Christie’s argument that the Government withheld
evidence is addressed in Ground Two, and her argument that her
counsel in the district court proceedings rendered ineffective
assistance by failing to investigate the facts is addressed in
Ground Three.
17

Department’s (“HCPD”) use of a confidential source (“CS”) were
withheld from the defense and improperly sealed by this Court.
She alleges the use of the CS, who had a criminal record and was
being paid by HCPD, violated her constitutional and statutory
rights because the CS “infiltrate[d] defendants’ home, and
‘private areas’ of defendants’ Ministry, and secretly record[ed]
private conversations, without consent of defendants, or consent
of any other person entitled to the privacy therein,” and
“obtain[ed] photographs and videos, from as early as 2004.”
[§ 2255 Motion at 6.]

S. Christie contends that, if this

information had not been withheld from the defense, she would not
have pled guilty and would have proceeded to trial.
S. Christie’s claim that Agent Sze’s affidavits were
withheld from the defense is belied by the record.

Co-defendant

John DeBaptist Bouey, III filed a Motion to Suppress Evidence
seeking to suppress wiretapped conversations from two telephone
numbers and all derivative evidence (“Motion to Suppress”).
[CR 10-384, filed 12/10/12 (dkt. no. 476).]

Agent Sze’s ninety-

page affidavit, dated April 8, 2009, in support of the wiretap
application was filed as Exhibit A to the Motion to Suppress.
[Id., filed 12/14/12 (dkt. no. 491).]

R. Christie filed a

substantive joinder in the Motion to Suppress, also seeking to
suppress conversations and derivative evidence from the wiretap
of another telephone number (“R. Christie Suppression Joinder”).

18

[Id., filed 12/10/12 (dkt. no. 481).]

Exhibit B to the

R. Christie Suppression Joinder is Agent Sze’s 135-page
affidavit, dated June 5, 2009, in support of the wiretap
application.

The April 8, 2009 affidavit discloses the CS’s

criminal record, as well as the fact that the CS was compensated
for cooperating in the investigation.
Exh. A at ¶¶ 23-24.]
the investigation.

[Id., Motion to Suppress,

Both affidavits discuss the CS’s role in

See, e.g., id., R. Christie Suppression

Joinder, Exh. B at ¶¶ 179-86.

Further, “[r]eports of interviews

and recordings made by the CS were also disclosed in discovery.”
[Panagakos Decl. at ¶ 17.]
S. Christie filed a joinder in both the Motion to
Suppress and the R. Christie Suppression Joinder.
filed 3/1/13 (dkt. no. 567).]

The Motion to Suppress and the

Christies’ joinders were ultimately denied.
4/10/14 (dkt. no. 916).]

[CR 10-384,

[Id., Order, filed

The Christies challenged the ruling on

appeal, and the Ninth Circuit affirmed the denial of the Motion
to Suppress and the joinders.

Christie, 825 F.3d at 1066, 1069.

The proceedings in the underlying case show that
Agent Sze’s affidavits were available to S. Christie, and the
Government did not intentionally suppress or withhold them from
the defense.

S. Christie does not identify any other evidence

the Government allegedly suppressed or withheld from her.
argument in Ground Two that the Government intentionally

19

The

suppressed and withheld material exculpatory and impeachment
evidence in Agent Sze’s affidavits is without merit.

S. Christie

also argues the use of Agent Sze’s affidavits in this case was
improper because the DEA and Federal Bureau of Investigation
relied on “par[a]llel construction[] to conceal that the evidence
had been obtained unlawfully.”

[§ 2255 Motion at 6]

This

argument also fails because the evidence discussed in Agent Sze’s
affidavits and the evidence obtained using the affidavits were
not illegally obtained.
Because the arguments in Ground Two are without merit,
neither Ms. Panagakos nor Ms. McMillen rendered ineffective
assistance by failing to raise these arguments during her
respective periods of representation.

The § 2255 Motion is

therefore denied as to Ground Two.
IV.

Ground Four - Presentation of RFRA Defense9
Ground Four alleges that denying S. Christie the

opportunity to present her RFRA defense was a fundamental
violation of the adversarial process which constitutes a per se
violation of her constitutional rights.

The Christies challenged

the denial of the RFRA Motion on appeal, and the Ninth Circuit
affirmed the ruling, holding that the prosecution of the charges

9

Because Ground Three seeks § 2255 relief based on
ineffective assistance of counsel and ineffective assistance of
counsel is discussed in all of the other grounds as part of the
procedural bar analysis, Ground Three will be discussed last.
20

against the Christies did not violate RFRA.
at 1063-64.

Christie, 825 F.3d

Because the argument that the Christies should have

been allowed to raise their RFRA defense at trial was fully
litigated before the Ninth Circuit in their direct appeal,
S. Christie is procedurally barred from relitigating it in her
§ 2255 Motion.

See, e.g., United States v. Williams, Crim. No.

11–00937 SOM, 2015 WL 4758403, at *5 (D. Hawai`i Aug. 12, 2015)
(“Because Williams’s incompetency and poisoning arguments were
before the Ninth Circuit when it ruled on his direct appeal, he
is procedurally barred from raising those rejected arguments in
this § 2255 motion.” (citing United States v. Currie, 589 F.2d
993, 995 (9th Cir. 1979); Olney v. United States, 433 F.2d 161,
162 (9th Cir. 1970))).
Thus, S. Christie’s argument that denying the
opportunity to present her RFRA defense violated her
constitutional rights is without merit.

Because the argument is

without merit, neither Ms. Panagakos nor Ms. McMillen rendered
ineffective assistance by failing to raise the argument during
her respective periods of representation.

The § 2255 Motion is

therefore denied as to Ground Four.
V.

Ground Five - Government Overreaching
Ground Five alleges “[g]ross and unconscionable

overreaching of the government.”

[§ 2255 Motion at 9(a).]

“Governmental misconduct or overreaching may be, in an extreme

21

case, of such an overbearing character as to threaten the ability
of the district judge to remove its taint even by the most
straightforward talk and the most searching inquiry.”

Martinez

v. United States, 411 F. Supp. 1352, 1361-62 (D.N.J. 1976),
aff’d, 547 F.2d 1162 (3d Cir. 1977).

S. Christie’s § 2255 Motion

does not allege the type of extreme circumstances necessary to
establish governmental overreaching.
In support of her overreaching argument, S. Christie
cites a separate criminal case against R. Christie and Aaron
Anderson (“Anderson”) in which S. Christie alleges the
prosecution attempted to extort R. Christie and Anderson to stop
advocating for the legalization of hemp and cannabis.
R. Christie and Anderson brought a civil rights action against
the County of Hawai`i, which resulted in a $75,000 settlement.
S. Christie also cites R. Christie’s advocacy against low-flying
helicopters and the County of Hawaii’s participation in a federal
“Green Harvest program.”

[§ 2255 Motion at 9(a).]

However,

S. Christie has not shown how these prior events constituted
governmental overreaching in the prosecution of the claims
against her in CR 10-384 and in the instant case.

The only

conducted related to CR 10-384 and this case which S. Christie
alleges constitutes government overreaching is related to the
wiretaps and the use of the CS.

S. Christie’s argument that the

wiretaps were improper is procedurally barred because it was

22

raised and rejected on appeal.
is not improper.”

Further, “the use of informants

See United States v. Carpenter, No.

CR 09-312-VBF, 2010 WL 11545073, at *4 (C.D. Cal. Jan. 13, 2010)
(some citations omitted) (citing United States v. Dennis, 183
F.2d 201, 224 (2d. Cir. 1950) (“Courts have countenanced the use
of informers from time immemorial.”); Ninth Circuit Model
Criminal Jury Instruction 4.13 (2003) (“Law enforcement officials
are not precluded from engaging in stealth and deception, such as
the use of informants and undercover agents, in order to
apprehend persons engaged in criminal activities.”); United
States v. Rivera, 527 F.3d 891, 899 (9th Cir. 2008) (discussing
why confidential informants were not sufficient and therefore
wire tap was necessary); United States v. Gonzalez, Inc., 412
F.3d 1102, 1114 (9th Cir. 2005) (finding that government failed
to show that it used traditional investigative tools – such as
use of confidential informants – prior to using wiretap, and
suppressing wiretap as a result)).
Thus, S. Christie has failed to establish there was
government overreaching in the charges brought and prosecuted
against her.

Because the government overreaching argument is

without merit, neither Ms. Panagakos nor Ms. McMillen rendered
ineffective assistance by failing to raise it during her
respective periods of representation.
therefore denied as to Ground Five.

23

The § 2255 Motion is

VI.

Ground Three - Ineffective Assistance
Finally, this Court turns to S. Christie’s claim that

her counsel rendered constitutionally ineffective assistance.
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.

S. Christie

bears the burden of proof as to both prongs of the Strickland
analysis.
1997).

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

The Strickland standard also applies to claims that

24

counsel rendered ineffective assistance on appeal.

Smith v.

Robbins, 528 U.S. 259, 285-86 (2000).
This Court has already rejected S. Christie’s claim
that Ms. Panagakos and Ms. McMillen rendered ineffective
assistance by failing to raise the arguments S. Christie now
asserts in Grounds One, Two, Four, and Five of the § 2255 Motion.
In addition, S. Christie alleges Ms. Panagakos rendered
ineffective assistance because she failed to conduct a full
investigation of the facts of the case and failed to “file
motions under 18 USC 3504; 18 USC 2511(2)(d); HRS § 7111111(2007); HRS § 803-42(b)(3) and 18 USC 2515.”

[§ 2255 Motion

at 7.]
A.

Failure to Investigate
This district court has recognized that:
In guilty plea cases, where counsel’s alleged
ineffective assistance is a failure to
investigate, “the determination of whether the
error ‘prejudiced’ the defendant by causing him
[or her] to plead guilty rather than go to trial
will depend on the likelihood that discovery of
the evidence would have led counsel to change
[the] recommendation as to the plea.”

Chaves, 2016 WL 5660327, at *9 (alterations in Chaves) (quoting
Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

S. Christie

ultimately pled guilty after consultation with Ms. Panagakos.
Thus, the issue is whether the additional evidence S. Christie
alleges would have been discovered if Ms. Panagakos had conducted
further investigation would have led Ms. Panagakos to change her
25

recommendation as to the plea.

The only evidence S. Christie

identifies is the allegedly improper wiretaps and use of the CS.
However, as discussed above, information about these issues was
available to S. Christie’s counsel during the underlying
proceedings.

S. Christie does not identify any additional

evidence about the wiretaps or the CS that her counsel did not
have during the underlying proceedings.

Ms. Panagakos states she

“thoroughly reviewed all pertinent discovery, as well as
voluminous materials received from Ms. Christie.”
Decl. at ¶ 16.]

[Panagakos

S. Christie does not identify any specific

evidence or materials Ms. Panagakos failed to review or failed to
obtain during her investigation of S. Christie’s defense.
S. Christie has failed to establish: 1) there is any
additional evidence that Ms. Panagakos would have obtained or
reviewed if Ms. Panagakos had conducted further investigation;
and 2) even if such evidence exists, it would have led
Ms. Panagakos to change her recommendation as S. Christie’s plea.
S. Christie has established neither that Ms. Panagakos’s
investigation was deficient nor that S. Christie was prejudiced.
S. Christie’s argument that her counsel rendered constitutionally
ineffective assistance by failing to conduct an adequate
investigation is therefore rejected.

26

B.

Failure to File Motions Listed in the § 2255 Motion
Under Strickland, S. Christie is required to show that

her counsel’s failure to file the listed motions constituted
deficient representation and, had the motions been filed, there
is a reasonable probability the outcome of the case would have
been different.

See 466 U.S. at 687-88.

However, “‘[c]onclusory

allegations which are not supported by a statement of specific
facts do not warrant habeas relief.’”

United States v. Holler,

No. EDCR 10-00288 VAP, 2011 WL 2682142, at *5 (C.D. Cal. July 6,
2011) (alteration and emphasis in Holler) (some citations and
quotation marks omitted) (citing Jones v. Gomez, 66 F.3d 199, 205
(9th Cir. 1995)).10

Although S. Christie alleges her counsel

rendered ineffective assistance by failing to file motions
pursuant to 18 U.S.C. §§ 2511(2)(d), 2515, 3504 and Haw. Rev.
Stat. §§ 711-1111, 803-42(b)(3), she does not allege specific
facts in support of her position.
Whether counsel should have filed a § 3504 motion or a
§ 2511(2)(d) motion and whether there is a reasonable probability
that those motions would have changed the outcome of the case are
fact-intensive inquiries.11

Ms. Panagakos states, based on her

10

In Holler, the district court rejected the movant’s that
he was entitled to § 2255 relief because his prior counsel
rendered ineffective assistance by failing to file motions to
compel. 2011 WL 2682142, at *4-5.
11

Section 3504 states, in pertinent part:
(continued...)
27

review of the discovery produced by the Government, she “saw no
legal or factual basis to file a motion under 18 U.S.C. 3504 or
2511(2)(d), or to file any motions to suppress other than the
ones in which Ms. Christie joined.”

[Panagakos Decl. at ¶ 16.]

S. Christie’s failure to present any specific facts to contradict
Ms. Panagakos’s statement and to support Ground Three’s claim

11

(...continued)
(a) In any trial, hearing, or other proceeding in
or before any court, grand jury, department,
officer, agency, regulatory body, or other
authority of the United States–
(1) upon a claim by a party aggrieved that
evidence is inadmissible because it is the
primary product of an unlawful act or because
it was obtained by the exploitation of an
unlawful act, the opponent of the claim shall
affirm or deny the occurrence of the alleged
unlawful act[.]
. . . .
(b) As used in this section “unlawful act” means
any act the use of any electronic, mechanical, or
other device (as defined in section 2510(5) of
this title) in violation of the Constitution or
laws of the United States or any regulation or
standard promulgated pursuant thereto.

Section 2511(2)(d) states:
It shall not be unlawful under this chapter for a
person not acting under color of law to intercept
a wire, oral, or electronic communication where
such person is a party to the communication or
where one of the parties to the communication has
given prior consent to such interception unless
such communication is intercepted for the purpose
of committing any criminal or tortious act in
violation of the Constitution or laws of the
United States or of any State.
28

that a § 3504 motion or a § 2511(2)(d) motion would likely have
changed the outcome of the case is fatal to this portion of her
ineffective assistance of counsel claim.12
Section 711-1111 defines, under Hawai`i law, the
criminal offense of violation of privacy in the second degree.
Section 803-42 is titled “Interception, access, and disclosure of
wire, oral, or electronic communications, use of pen register,
trap and trace device, and mobile tracking device prohibited, and
§ 803-42(a) defines certain acts as a class C felony under
Hawai`i law.

If the wiretaps were illegal, these sections could

have arguably supported criminal charges against the responsible
parties.

However, because the wiretaps in this case were not

illegal, motions brought pursuant to these sections would not
provided any support for S. Christie’s defense.

S. Christie has

failed to establish either that the failure to file motions
pursuant to the statutes listed in the § 2255 Motion constituted
deficient representation or that the failure to file such motions
was prejudicial to her.

Even assuming that Ms. McMillen had the

opportunity in an ineffective assistance of counsel claim on
appeal to raise prior counsel’s failure to file such motions, her

12

Although Ground Three also cites § 2515, that section
would have been an independent source of authority for a motion
in the underlying case. It merely prohibits the use of evidence
obtained in violation of Title 18, Chapter 119, which includes
§ 2511.
29

failure to do did not constitute ineffective assistance because
the claim would have been meritless.
All of S. Christie’s claims of alleged ineffective
assistance of counsel fail, and the § 2255 Motion is therefore
denied as to Ground Three.

Because all of the grounds

S. Christie raised have been denied, her § 2255 Motion is also
denied.
VII. 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
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
30

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 (D. Hawai`i June 29, 2015) (some alterations in
Leon).

Reasonable jurists would not find that the rulings in

this Order regarding S. Christie’s § 2255 Motion are debatable.
A certificate of appealability therefore will not be issued.
CONCLUSION
On the basis of the foregoing, Sherryanne L. Christie’s
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody, filed April 27, 2017, is
HEREBY DENIED.

In addition, this Court DENIES a certificate of

appealability.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 27, 2018.

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

USA VS. SHERRYANNE CHRISTIE; CR 13-00889 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

31