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 05/15/2018. Roger Cusick Christie's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed May 2, 2017, is HEREBY DENIED. In addition, this Court DENIES a certificate of appealability.IT IS SO ORDERED (eps, )

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

)
)
Plaintiff,
)
)
vs.
)
)
ROGER CUSICK CRISTIE,
)
)
)
Defendant.
_____________________________ )

CR. NO. 10-00384(01) 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
Roger Cusick Christie’s (“R. Christie” 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 May 2,
2017.

[Dkt. nos. 1105 (§ 2255 Motion), 1111 (mem. in supp.).]

Plaintiff/Respondent the United States of America (“the
Government”) filed its response to the § 2255 Motion (“Response”)
on October 13, 2017, and R. Christie filed his reply on
November 7, 2017.

[Dkt. nos. 1162 (Response), 1173 (reply), 1174

(aff. in supp. of reply).]

R. Christie’s § 2255 Motion is hereby

denied, and a certificate of appealability is also denied, for
the reasons set forth below.

BACKGROUND
The grand jury returned an Indictment against
R. Christie and thirteen others on June 24, 2010.

[Dkt. no. 1.]

The grand jury returned the First Superseding Indictment
(“Superseding Indictment”) on January 17, 2013.

[Dkt. no. 509.]

The Superseding Indictment alleged that R. Christie, with the
assistance of Defendant Sherryanne L. St. Cyr – who is now known
as Sherryanne L. Christie (“S. Christie”), 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

R. 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 and 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”); 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”); distributing
quantities of marijuana on or about May 21, 2008, June 24, 2008,

2

and August 13, 2008, in violation of § 841(a)(1) and (b)(1)(D)
(“Count 14,” “Count 15,” “Count 16”); and failing to file a
federal income tax return for the calendar years 2008 and 2009,
in violation of 26 U.S.C. § 7203 (“Count 17” and “Count 18”).

On

February 1, 2013, R. Christie pled not guilty to the charges in
the Superseding Indictment.
no. 540).]

[Minutes, filed 2/1/13 (dkt.

At all times relevant to his § 2255 Motion,

R. Christie was represented by Thomas Otake, Esq., during the
proceedings in this district court.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.

[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.

[RFRA Motion, Decl. of Roger Christie

(“R. Christie Decl.”) at ¶ 10.]

R. Christie stated: “I consume,

possess, cultivate and distribute Cannabis as sanctioned and
required by my legitimate religion and sincere religious beliefs

1

R. Christie was initially represented by Federal Public
Defender Matthew Winter. On April 19, 2011, First Assistant
Federal Public Defender Alexander Silvert took over as
R. Christie’s counsel. [Dkt. no. 247.] On March 19, 2012,
Mr. Silvert filed a motion to withdraw, and the motion was
granted on March 23, 2012. Mr. Otake was appointed as counsel.
[Dkt. nos. 370 (motion to withdraw), 374 (minutes of hearing).]
3

as a member of the THC Ministry.

The consumption, possession,

cultivation and distribution of Cannabis are essential and
necessary components of the THC Ministry.”

[Id. at ¶ 44.]

The

RFRA Motion asserted R. Christie was entitled to present a RFRA
defense at trial because he made a prima facie showing that the
charges against him substantially burdened his sincere exercise
of his 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”).

[Dkt. no. 719.]

The 9/11/13 RFRA Ruling was

superseded by subsequent written orders.

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.
[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.

[Order Denying Defs.’ Motion in Limine to Present

4

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 S. Christie made a
prima facie showing to raise the defense.
Ruling at 2.]

[9/20/13 Entrapment

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, R. Christie
entered a conditional plea of guilty to Counts 1, 17, and 18.

5

[Mem. of Plea Agreement (“Plea Agreement”), filed 9/27/13 (dkt.
no. 742); Minutes, filed 9/27/13 (dkt. no. 743) (change of plea
hearing).]

In the Plea Agreement, R. Christie reserved the right

to appeal certain pretrial rulings, including the denial of the
RFRA Motion.

The Plea Agreement stated R. Christie could

withdraw his guilty plea to Count 1 if any of those pretrial
rulings were reversed on appeal, and he could withdraw his guilty
plea to Counts 17 and 18 if the rulings on the motion to suppress
were reversed.

The Plea Agreement expressly stated the

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

[Plea Agreement

R. Christie waived his right to bring a

collateral attack against his sentence, or the manner in which it
was determined, except for challenges based on the ineffective
assistance of counsel.

[Id. at ¶ 14.a.]

R. Christie’s guilty plea was accepted and he was
adjudicated guilty on October 22, 2013.

[Dkt. no. 766.]

R. Christie’s sentencing hearing was held on April 28, 2014.
[Minutes, filed 4/28/14 (dkt. no. 926) (“Sentencing Minutes”).]
The Plea Agreement was accepted, and R. Christie was sentenced
to: sixty months of imprisonment as to Count 1 and twelve months
each as to Counts 17 and 18, all to be served concurrently; four
years of supervised release as to Count 1 and one year each as to

6

Counts 17 and 18, all to be served concurrently; and $13,944.00
in restitution.

[Id. at 1-2.]

The Government’s oral motion to

dismiss the remaining charges against him was granted.
4.]

[Id. at

The Judgment in a Criminal Case was filed on April 29,

2014.2

[Dkt. no. 929.]
R. Christie filed his Notice of Appeal on May 8, 2014.

[Dkt. no. 939.]

The Ninth Circuit affirmed both the judgment

against R. Christie in this case and the judgment against
S. Christie in CR 13-889 in an opinion filed on June 14, 2016.
United States v. Christie, 825 F.3d 1048 (9th Cir. 2016).
The § 2255 Motion followed.

It alleges the following

grounds: 1) R. Christie’s guilty plea was not knowingly and
voluntarily made because his attorney advised him that he 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 R. Christie
would not have pled guilty if he had known about the evidence
(“Ground Two”); 3) counsel rendered ineffective assistance in
this district court because counsel failed to fully investigate
the facts of the case and to file appropriate motions and on

2

The charges against S. Christie in this case were
dismissed, and she entered a conditional guilty plea to a
one-count Information in Criminal Number 13-00889 LEK
(“CR 13-889”). [Order for Dismissal of First Superseding
Indictment, filed 4/30/14 (dkt. no. 934); CR 13-889, Information,
filed 9/26/13 (dkt. no. 1); id., Amended Judgment in a Criminal
Case, filed 5/1/14 (dkt. no. 28).]
7

appeal because counsel failed to raise the ineffective assistance
in the district court as grounds for appeal (“Ground Three”);
4) denying R. Christie the ability to present his RFRA defense
was such a fundamental denial of his rights that it was per se
unconstitutional (“Ground Four”); and 5) R. Christie is entitled
to § 2255 relief because of the Government’s overreaching in the
underlying proceedings (“Ground Five”).

[§ 2255 Motion at 5-

9(a).]
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,
8

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).
The issues raised in R. 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 R. 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).

9

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.
Ed. 2d 397 (1986).[3] 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 R. Christie alleges violations of his
constitutional rights in the course of the proceedings and that

3

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).
10

his guilty plea was not knowingly and voluntarily made, he does
not deny he committed the conduct which forms the basis of the
charges that he pled guilty to.

He must therefore establish

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

Mr. Otake

represented R. Christie through most of the proceedings in this
district court, as well as on appeal.

Thus, to the extent

R. Christie alleges Mr. Otake made errors in this district court
and on appeal, the record may not have been fully developed to
raise ineffective assistance.

If R. 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 R. Christie’s guilty plea was not

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

Mr. Otake denies making such statements to

R. Christie or otherwise forcing R. Christie to plead guilty.
[Response, Exh. 2 (Decl. of Thomas M. Otake (“Otake Decl.”)) at
¶¶ 6, 17.]

Mr. Otake states that, at “countless meetings” with

R. Christie, they discussed R. Christie’s options and Mr. Otake
“emphasized to Mr. Christie that the decision to either proceed
to trial or plead guilty was his and his alone” and, “if he

11

decided to proceed to trial, [Mr. Otake] would do [his] best to
represent him and fight for him in court.”

[Id. at ¶¶ 7-9.]

According to Mr. Otake, R. Christie “was obsessed with making new
case-law that would help in his fight to legalize marijuana,” and
“very concerned with helping his wife, co-defendant Share
Christie, avoid a mandatory minimum sentence.”

[Id. at ¶ 10.]

After the pre-trial motion rulings, R. Christie “became
interested in a conditional plea agreement that would allow him
to appeal the Court’s rulings, and allow Ms. Christie to plead to
a non-mandatory minimum offense.”

[Id. at ¶ 11.]

Mr. Otake and

the Assistant United States Attorney (“AUSA”) on the case
discussed the possibility of a conditional plea agreement, and
Mr. Otake “kept Mr. Christie informed at every step of the
process.”

[Id. at ¶ 12.]

The AUSA proposed what Mr. Otake

believed was a reasonable plea agreement, and Mr. Otake discussed
it with R. Christie “for hours . . . and had multiple meetings
with him to help him make a decision.”

[Id. at ¶ 14.]

Mr. Otake

told R. Christie he could reject the plea agreement and proceed
to trial.

[Id. at ¶ 15.]
On September 19, 2013, Mr. Otake and R. Christie had a

joint meeting with S. Christie and her counsel, Lynn Panagakos,
Esq.

The Christies were informed of their options regarding the

proposed plea agreement, including the option to reject the
proposal and proceed to trial.

[Id. at ¶ 16.]

12

Mr. Otake’s

declaration is consistent with the declaration by Ms. Panagakos
that the Government submitted in response to S. Christie’s motion
for 28 U.S.C. § 2255 relief.

[CR 13-889, United States’ Response

to Def.’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (“S. Christie
§ 2255 Motion”), filed 9/25/17 (dkt. no. 121), Exh. 2 (Decl. of
Lynn E. Panagakos) at ¶ 11.]

According to Mr. Otake, R. Christie

understood he could proceed to trial and R. Christie made the
decision to accept the proposed plea agreement.

[Otake Decl. at

¶ 17.]
Prior to the change of plea hearing, Mr. Otake met with
R. Christie and again reviewed the language of the plea agreement
and R. Christie’s options.

“Mr. Christie assured [Mr. Otake]

that accepting the plea agreement was the path that he settled
on.”

[Id. at ¶ 18.]

At the change of plea hearing, R. Christie

stated he was satisfied with Mr. Otake’s representation.

[Trans.

of 9/27/13 change of plea hrg. (“9/27/13 Plea Trans.”), filed
6/20/17 (dkt. no. 1121), at 3.]

When the magistrate judge asked

R. Christie: “Has anyone attempted in any way to force you to
plead guilty here this morning?”
at all.”

[Id. at 5.]

R. Christie responded: “No, not

When the magistrate judge asked

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

R. Christie responded: “Yes.

I’m guilty of possessing marijuana with the intent to distribute

13

it.

However, I reserve the right to argue on appeal that my

actions were permissible pursuant to the Religious Freedom
Restoration Act.”

[Id.]

Even without considering whether R. Christie’s
statements in the § 2255 Motion and his reply are more credible
than the statements in the Otake Declaration,4 R. Christie’s own
statements in the plea hearing show that he knowingly and
voluntarily entered his guilty plea and that he did not plead
guilty because his counsel advised him he had no other choice.
Ground One therefore fails on the merits, based on R. Christie’s
statements discussed above.

Because the argument is without

merit, Mr. Otake did not render ineffective assistance by failing
to raise the argument on appeal.

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.
R. Christie asserts United States Drug Enforcement Agency (“DEA”)
Agent Clement Sze’s affidavits about the Hawai`i County Police
Department’s (“HCPD”) use of a confidential source (“CS”) were

4

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)).
14

withheld from the defense and improperly sealed by this Court.
He alleges the use of the CS, who had a criminal record and was
being paid by HCPD, violated his 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.]

R. Christie contends that, if this

information had not been withheld from the defense, he would not
have pled guilty and would have proceeded to trial.
This is the same argument S. Christie made in ground
two of her § 2255 Motion.
at 6.]

[CR 13-889, S. Christie § 2255 Motion

This Court rejected the argument in denying the

S. Christie § 2255 Motion.

[Id., 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 (“Order Denying S. Christie § 2255 Motion”), filed
2/27/18 (dkt. no. 125), at 17-20.5]

R. Christie does not present

any argument or evidence that warrants a different result.

For

the same reasons set forth in the Order Denying S. Christie
§ 2255 Motion, the arguments in R. Christie’s Groung Two are

5

The Order Denying S. Christie § 2255 Motion is also
available at 2018 WL 1073128.
15

without merit, and therefore Mr. Otake did not render ineffective
assistance by failing to raise these arguments during his
representation of R. Christie.

R. Christie’s § 2255 Motion is

therefore denied as to Ground Two.
IV.

Ground Four - Presentation of RFRA Defense6
Ground Four alleges the denial of R. Christie’s right

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

This is ths same argument raised in

ground four of the S. Christie § 2255 Motion, and this Court
denied her motion as to that ground.

See CR 13-889, S. Christie

§ 2255 Motion at 9; Order Denying S. Christie § 2255 Motion, 2018
WL 1073128, at *7.

R. Christie does not present any argument or

evidence that warrants a different result.

For the same reasons

set forth in the Order Denying S. Christie § 2255 Motion, the
arguments in R. Christie’s Groung Four are without merit, and
therefore Mr. Otake did not render ineffective assistance by
failing to raise these arguments during his representation of
R. Christie.

R. Christie’s § 2255 Motion is denied as to Ground

Four.

6

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.
16

V.

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

overreaching of the government.”

[§ 2255 Motion at 9(a).]

This

is ths same argument raised in ground five of the S. Christie
§ 2255 Motion, and this Court denied her motion as to that
ground.

See CR 13-889, S. Christie § 2255 Motion at 9(a); Order

Denying S. Christie § 2255 Motion, 2018 WL 1073128, at *8.
R. Christie does not present any argument or evidence that
warrants a different result.

For the same reasons set forth in

the Order Denying S. Christie § 2255 Motion, the arguments in
R. Christie’s Groung Five are without merit, and therefore
Mr. Otake did not render ineffective assistance by failing to
raise these arguments during his representation of R. Christie.
R. Christie’s § 2255 Motion is therefore denied as to Ground
Five.
VI.

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

his counsel rendered constitutionally ineffective assistance.
This Court has already rejected R. Christie’s claim that
Mr. Otake rendered ineffective assistance by failing to raise the
arguments R. Christie now asserts in Grounds One, Two, Four, and
Five of the § 2255 Motion.

In addition, R. Christie alleges

Mr. Otake rendered ineffective assistance because he failed to
conduct a full investigation of the facts of the case and failed
17

to “file motions under 18 USC 3504; 18 USC 2511(2)(d); HRS
[]§ 711-1111 (2007); HRS § 803-42(b)(3) and 18 USC 2515.”
[§ 2255 Motion at 7.]

This is ths same argument raised in ground

three of the S. Christie § 2255 Motion, and this Court denied her
motion as to that ground.

See CR 13-889, S. Christie § 2255

Motion at 7; Order Denying S. Christie § 2255 Motion, 2018 WL
1073128, at *8-11.

R. Christie does not present any argument or

evidence that warrants a different result.

For the same reasons

set forth in the Order Denying S. Christie § 2255 Motion, all of
R. 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 R. Christie raised have been
denied, his § 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,
18

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
R. Christie’s § 2255 Motion are debatable.

A certificate of

appealability therefore will not be issued.
CONCLUSION
On the basis of the foregoing, Roger Cusick Christie’s
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody, filed May 2, 2017, is
HEREBY DENIED.

In addition, this Court DENIES a certificate of

appealability.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, May 15, 2018.

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

USA VS. ROGER CUSICK CHRISTIE; CR 10-00384(01) 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

20