Galu v. USA

Filing 3

ORDER Denying Defendant Sugalu Galu's Motion Under 28 U.S.C. § 2255 As Untimely; Order Declining To Issue A Certificate of Appealability. "Because Galu has failed to demonstrate that his claims were timely asserted, that the lim itations period should be equitably tolled, or that the limitations period does not apply at all, the court denies Galu's untimely § 2255 motion. Additionally, the court dismisses the action Civil No. 17-00409 SOM/RLP. The court also declin es to issue Galu a certificate of appealability." Signed by JUDGE SUSAN OKI MOLLWAY on 12/4/17. (cib, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

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

)
)
Plaintiff,
)
)
vs.
)
)
)
SUGALU GALU (02);
)
)
Defendant.
)
_____________________________ )

Cr. No. 13-00514 SOM/RLP
Civ. No. 17-00409 SOM/RLP
ORDER DENYING DEFENDANT SUGALU
GALU’S MOTION UNDER 28 U.S.C.
§ 2255 AS UNTIMELY; ORDER
DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

ORDER DENYING DEFENDANT SUGALU GALU’S
MOTION UNDER 28 U.S.C. § 2255 AS UNTIMELY;
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
I.

INTRODUCTION.
On May 23, 2013, the grand jury indicted Defendant

Sugalu Galu and others for drug-related crimes.

See ECF No. 17.

On July 8, 2014, Galu pled guilty to Count 1 of the Indictment
pursuant to a memorandum of plea agreement.

See ECF Nos. 92-93.

On May 7, 2015, Galu was sentenced to 240 months of imprisonment,
10 years of supervised release, and a $100 special assessment.
See ECF No. 141.
2015.

Judgment was entered the following day, May 8,

See ECF No. 142.

Galu did not appeal.

See ECF No. 265,

PageID # 1663 (28 U.S.C. § 2255 motion indicating Galu did not
appeal).
Galu is seeking relief from his judgment and sentence
under 28 U.S.C. § 2255, which provides for a motion by an
incarcerated federal defendant to vacate, set aside, or correct a

sentence on 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.”

On August

14, 2017, the court issued an order to show cause why Galu’s
§ 2255 motion was not untimely.

See ECF No. 265.

The court now

denies Galu’s § 2255 motion.
II.

THE COURT DENIES GALU’S § 2255 MOTION.
A motion under § 2255 must be filed within one year of

the latest of
(1) the date on which the judgment of
conviction becomes final;
(2) the date on which the impediment to
making a motion created by governmental
action in violation of the Constitution or
laws of the United States is removed, if the
movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was
initially recognized by the Supreme Court, if
that right has been newly recognized by the
Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting
the claim or claims presented could have been
discovered through the exercise of due
diligence.
28 U.S.C. § 2255(f).
Because Galu does argue that there was an impediment to
filing it, that the Supreme Court has recently recognized a
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right, or that the facts supporting it were recently discovered,
the limitation period runs from the date on which Galu’s judgment
became final.

28 U.S.C. § 2255(f)(1).

For purposes of

§ 2255(f)(1), when a defendant appeals a judgment, the judgment
becomes final when the Supreme Court rules on the merits, when
the Supreme Court denies a petition for writ of certiorari, or
when the time for filing a certiorari petitions expires.
States v. Buckles, 647 F.3d 883, 887 (9th Cir. 2011).

United

However,

when a defendant does not appeal a judgment, the judgment
generally becomes final 14 days after the entry of judgment.

See

United States v. Colvin, 204 F.3d 1221, 1226 (9th Cir. 2000)
(noting that a judgment becomes final when the time has passed
for appealing it); Fed. R. Crim. P. 14(b)(1)(A).
Because there is a one-year limitation period for
motions under 28 U.S.C. § 2255, and because Galu did not file the
present motion until August 14, 2017, more than two years after
judgment was entered on May 8, 2015, the motion is untimely.
See ECF No. 277, PageID 1750 (conceding that the motion was not
timely filed).

Accordingly, the § 2255 motion must be denied

unless Galu demonstrates that the limitation period should be
equitably tolled.

See United States v. Castro-Verdugo, 750 F.3d

1065, 1071 (9th Cir. 2014) (“after the one-year statute of
limitations has passed, we may consider a § 2255 motion to
vacate, set aside, or correct a sentence only if the petitioner
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establishes eligibility for equitable tolling by showing (1) that
he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.” (quotation marks and citations omitted)); United States
v. Aguirre-Ganceda, 592 F.3d 1043, 1046 (9th Cir. 2010) (“Even
though Aguirre’s section 2255 motion was untimely, we may toll
the one-year limitation period if (1) the petitioner has
diligently pursued his rights, and (2) extraordinary
circumstances exist.”).

Galu, however, is not asking for the

limitation period to be equitably tolled.

See ECF No. 277,

PageID 1750.
Instead, Galu argues that this court lacked
jurisdiction to impose his sentence because the Government had
failed to comply with the prerequisites of the sentencing
enhancement under 21 U.S.C. § 851.

Galu then argues that,

because the Government failed to comply with those requirements,
he is actually innocent.

See ECF No. 277, PageID 1750.

There

are multiple things wrong with these arguments.
The Ninth Circuit has held that § “851 is a procedural
statute; the facts and the law either exist to enhance
defendant’s sentence or they don’t.”

United States v. Severino,

316 F.3d 939, 943 (9th Cir. 2003) (en banc).

This court enhanced

Galu’s sentence pursuant to §§ 841 and 851 because the
requirements for the enhancements had been met.
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This court had

subject matter jurisdiction to so enhance Galu’s sentence, as a
federal statute provided for the enhancement.

Whether the

requirements were met goes to whether the proper procedure was
followed.
On December 12, 2013, before Galu pled guilty on
July 8, 2014, the Government filed a Special Information as to
Prior Drug Conviction of Defendant Pursuant to Title 21, United
States Code, Section 851.

See ECF Nos. 68, 92.

To the extent

Galu may be complaining that he was not properly served with this
Special Information, the Notice of Electronic Filing on this
court CM/ECF system indicates that it was electronically mailed
to Galu’s counsel, Brandon K. Flores, on December 12, 2013.
ECF No. 68.

See

This filing of the Special Information and service

on Galu’s counsel complied with the requirements of 21 U.S.C.
§ 851(a)(1) (“No person who stands convicted of an offense under
this part shall be sentenced to increased punishment by reason of
one or more prior convictions, unless before trial, or before
entry of a plea of guilty, the United States attorney files an
information with the court (and serves a copy of such information
on the person or counsel for the person) stating in writing the
previous convictions to be relied upon.”)).
The Special Information provided Galu and the court
with notice that the Government was seeking to enhance Galu’s
sentence pursuant to 21 U.S.C. §§ 841 and 851 for his drug
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conviction in United States v. Galu, Crim. No. 03-00555 HG.

Id.

In paragraph 10 of his Memorandum of Plea Agreement dated July 8,
2014, ECF No. 93, the parties stipulated that Galu had been
convicted of the felony drug conviction charged in Crim. No. 0300555 and that the conviction in that case was final at the time
of the plea agreement and at the time Galu had committed the
offenses charged in this case.

Id., PageID # 257.

Based on the amount of drugs involved, Galu’s base
level offense was 32.

Galu had his offense level decreased by

two for accepting responsibility and by one for assisting
authorities in the investigation or prosecution of his own
misconduct by timely notifying authorities of his intention to
plead guilty.

This gave him a total offense level of 29.

Galu

had 5 criminal history points, giving him a criminal history
category of III.

Absent any statute requiring a different

sentence, Galu’s sentencing guideline range would have been 108
to 135 months of imprisonment.

Given the required statutory

minimum sentence of 20 years, Galu’s guideline term of
imprisonment ended up being 240 months.

See 21 U.S.C. § 841(b)

(“If any person commits such a violation after a prior conviction
for a felony drug offense has become final, such person shall be
sentenced to a term of imprisonment which may not be less than 20
years and not more than life imprisonment. . . .”).

Galu was

sentenced to 240 months imprisonment, along with a ten-year term
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of supervised release and a $100 special assessment.

See

Judgment, ECF No. 142.
In paragraph 18 of his Memorandum of Plea Agreement,
ECF No. 93, Galu “waive[d] his right to challenge his conviction
or sentence or the manner in which it was determined in any
collateral attack, including, but not limited to, a motion
brought under Title 28, United States Code, Section 2255,” with
the exceptions of arguing ineffective assistance of counsel and
when this court imposes a sentence greater than the specified
guideline range.

This waiver is enforceable under the

circumstances presented here.

See United States v. Reves, 774

F.3d 562, 566 (9th Cir. 2014).
Even if the waiver is not enforceable, Galu
misunderstands the actual innocence exception.

In McQuiggin v.

Perkins, 569 U.S. 383, 133 S. Ct. 1924, 1931 (2013), the Supreme
Court noted:
a credible showing of actual innocence may
allow a prisoner to pursue his constitutional
claims (here, ineffective assistance of
counsel) on the merits notwithstanding the
existence of a procedural bar to relief.
This rule, or fundamental miscarriage of
justice exception, is grounded in the
equitable discretion of habeas courts to see
that federal constitutional errors do not
result in the incarceration of innocent
persons.
Id. (quotation marks and citation omitted).

Accordingly, the

Supreme Court held that the AEDPA’s limitation period did not
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preclude a court from entertaining an untimely habeas petition
raising a convincing claim of actual innocence.
at 1933-35.
here.

Id., 133 S. Ct.

This actual innocence exception is inapplicable

Galu is not arguing that he was innocent of the drug crime

charged.

Instead, he is arguing that he is innocent of the

sentencing enhancement because the Government supposedly failed
to comply with the requirements of the enhancement.

Galu is not

arguing that an innocent person is being incarcerated and
McQuiggin is inapplicable.

See United States v. Jones, 758 F.3d

579, 586 (4th Cir. 2014) (“we conclude that McQuiggin does not
extend to cases in which a movant asserts actual innocence of his
sentence, rather than of his crime of conviction)”).
Galu’s § 2255 motion is therefore denied as untimely.
III.

THE COURT DECLINES TO ISSUE GALU A CERTIFICATE OF
APPEALABILITY.
The court declines to grant Galu a certificate of

appealability.

An appeal may not be taken to the court of

appeals from a final order in a § 2255 proceeding “[u]nless a
circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1)(B).

The court shall issue a certificate

of appealability “only if the applicant has made a substantial
showing of the denial of a constitutional right.”
§ 2253(c)(2).

28 U.S.C.

When a district court denies a § 2255 petition on

the merits, a petitioner, to satisfy the requirements of section

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2253(c)(2), “must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims
debatable or wrong.”
(2000).

Slack v. McDaniel, 529 U.S. 473, 484

When, however, a
district court denies a habeas petition on
procedural grounds without reaching the
prisoner’s underlying constitutional claim, a
[certificate of appealability] should issue
when the prisoner shows . . . that jurists of
reason would find it debatable whether the
petition states a valid claim of the denial
of a constitutional right and that jurists of
reason would find it debatable whether the
district court was correct in its procedural
ruling.

Id.
Because no reasonable jurist would find this court’s
determination that Galu’s motion is untimely to be debatable, the
court declines to issue Galu a certificate of appealability.
IV.

CONCLUSION.
Because Galu has failed to demonstrate that his claims

were timely asserted, that the limitations period should be
equitably tolled, or that the limitations period does not apply
at all, the court denies Galu’s untimely § 2255 motion.
Additionally, the court dismisses the action in Civil No. 1700409 SOM/RLP.

The Clerk of Court is directed to enter judgment

in favor of the United States in Civil No. 17-00409 SOM/RLP.
The court also declines to issue Galu a certificate of
appealability.
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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 4, 2017.

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

United States of America v. Galu, Crim. No. 13-00514 SOM/RLP and Civ. No. 17-00409
SOM/RLP; ORDER DENYING DEFENDANT SUGALU GALU'S MOTION UNDER 28 U.S.C. § 2255 AS
UNTIMELY; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

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