Warner v. USA

Filing 3

ORDER PETITIONER'S MOTION TO RECONSIDER HIS MOTION FOR APPOINTMENT OF COUNSEL AND MOTION FOR MEDICAL EVALUATION (ECF No. 98) and DENYING PETITIONER'S MOTION TO STAY THE ORDER WAIVING ATTORNEY-CLIENT PRIVILEGE (ECF No. 98) and VACATING AND R EENTERING JUDGMENT PURSUANT TO PETITIONER LUKE WARNER'S 28 U.S.C. § 2255 PETITION (ECF NO. 83) re 1 - Signed by JUDGE HELEN GILLMOR on 4/18/2018. (CR 14-00688 HG; CV 18-00054 HG-KJM) "Pe titioner's Motion for Reconsideration and Motion to Stay Order Waiving Attorney-Client Privilege (ECF No. 98) is DENIED. Petitioner Warner's Section 2255 Petition (ECF No. 83) is GRANTED. The Court's Judgment impos ed on March 12, 2015 (ECF No. 31) is VACATED and is REENTERED. The Sentence and Conditions of the Judgment are unchanged. For the purposes of Fed. R. App. P. 4(b)(1)(A), the Judgment shall be deemed to be reentered as of the date this Order is filed. The Clerk of Court shall enter Judgment accordingly and terminate Civil No. 18-00054 HG-KJM." (emt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
LUKE WARNER
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Criminal No. 14-00688 HG-01
Civil No. 18-00054 HG-KJM

ORDER DENYING PETITIONER’S MOTION TO RECONSIDER HIS MOTION FOR
APPOINTMENT OF COUNSEL AND MOTION FOR MEDICAL EVALUATION (ECF No.
98)
and
DENYING PETITIONER’S MOTION TO STAY THE ORDER WAIVING ATTORNEYCLIENT PRIVILEGE (ECF No. 98)
and
VACATING AND REENTERING JUDGMENT PURSUANT TO PETITIONER LUKE
WARNER’S 28 U.S.C. § 2255 PETITION (ECF NO. 83)
On February 1, 2018, Petitioner Luke Warner filed a Motion
to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. §
2255 (“Section 2255 Petition”).

Petitioner challenged his

sentence, stating his attorney provided ineffective assistance of
counsel by failing to file a notice of appeal.
In the Court’s March 28, 2018 Order, the Court asked the
Government to decide whether it either (1) sought an evidentiary
hearing, or (2) declined to seek an evidentiary hearing and did

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not oppose Petitioner Warner’s Section 2255 Petition on the basis
of ineffective assistance of counsel for failure to file an
appeal.
On April 6, 2018, the Government indicated it did not seek
an evidentiary hearing on Petitioner’s claim that his attorneys
failed to appeal.
On April 10, 2018, Petitioner filed a Response.

Petitioner

seeks reconsideration of the Court’s orders denying his request
for appointment of counsel and request for a medical evaluation.
Petitioner also requests a stay of the Court’s order finding a
waiver of attorney-client privilege based on the ineffective
assistance of counsel claim presented in his Section 2255
Petition.
Petitioner’s requests for reconsideration and his request
for a stay are DENIED.
Pursuant to the Ninth Circuit Court of Appeals’s decision in
United States v. Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir.
2005), the Court assumes, without deciding, that Petitioner
timely requested an appeal that was not made, and therefore
vacates and reenters the Judgment, allowing Petitioner to file a
Notice of Appeal, if he so chooses.
Petitioner Warner’s Section 2255 Motion (ECF No. 83) is
GRANTED.

The Court’s Judgment imposed on March 12, 2015 (ECF No.

31) is VACATED and is REENTERED as of the date of this Order.

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The Sentence and Conditions of the Judgment are unchanged.
PROCEDURAL HISTORY
On July 17, 2014, the Government filed an Information,
charging Petitioner Luke Warner with one count of conspiracy to
possess with intent to distribute 500 grams or more of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A).

(ECF No. 1).

On July 24, 2017, Petitioner Warner waived Indictment (ECF
No. 10) and Consented to a Rule 11 Plea in a Felony Case Before a
United States Magistrate Judge.

(ECF No. 11).

Petitioner pled

guilty to the one count in the Information pursuant to a
Memorandum of Plea Agreement.

(ECF Nos. 8, 12).

On August 11, 2014, the District Court issued an ACCEPTANCE
OF PLEA OF GUILTY, ADJUDICATION OF GUILT AND NOTICE OF
SENTENCING.

(ECF No. 17).

On March 12, 2015, the Court held a sentencing hearing.
Petitioner was sentenced to 120 months imprisonment and ten years
of supervised release.
May 26, 2015.

(ECF No. 27).

Mittimus was stayed until

(Id. at p. 3; Judgment at p. 2, ECF No. 31).

On March 23, 2015, the Magistrate Judge issued an Order To
Allow Defendant To Travel. (ECF No. 30).
On April 3, 2015, Judgment was entered.

(ECF No. 31).

On April 16, 2015, the Magistrate Judge issued an Amended

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Stipulation and Order Allowing Defendant To Travel.

(ECF No.

34).
On April 24, 2015, a Petition For Action and a No Bail
Warrant were issued.

(ECF Nos. 35, 36).

On May 26, 2015, Petitioner Warner failed to report to the
Bureau of Prisons to begin serving his sentence.
Nearly a year later, on April 17, 2016, Petitioner was
arrested in the Southern District of Florida pursuant to the No
Bail Warrant.

(ECF Nos. 39, 47).

On June 14, 2016, an Order To Show Cause Why Pretrial
Release Should Not Be Revoked hearing was held.

(ECF No. 48).

Defendant was found to have violated the terms of pretrial
release and to have failed to report on May 26, 2015 to begin
serving his sentence of 120 months.

Defendant was remanded to

the custody of the U.S. Marshal Service.

(Id.)

On December 27, 2016 and January 19, 2017, Petitioner filed
various Motions although he was represented by counsel.

(ECF

Nos. 52, 55, 56).
On February 16, 2017, the Magistrate Judge issued a Findings
and Recommendation to deny Petitioner’s Motions.

(ECF No. 60).

On March 7, 2017, the Findings and Recommendation was
adopted as the final decision by the District Court.

(ECF No.

61).
On March 13, 2017, April 10, 2017, and May 12, 2017,

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Petitioner Warner again filed various Motions and documents while
he was represented by counsel.

The Motions were stricken.

(ECF

Nos. 62, 63, 64, 66, 71, 72, 73, 77, 78, 79).
On February 1, 2018, Petitioner, no longer represented by
counsel, filed a MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET
ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY.
No. 83).

(ECF

He also filed a Motion for Medical Evaluation (ECF No.

83-5) and a Supplemental Addendum (ECF No. 89).
Also on February 1, 2018, Petitioner filed an Application to
Proceed In Forma Pauperis (ECF No. 84) and a Motion for
Appointment of Counsel (ECF No. 85).
On February 7, 2018, the Magistrate Judge issued an ORDER
(1) DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS BY A
PRISONER AND (2) DENYING MOTION FOR APPOINTMENT OF COUNSEL (ECF
No. 87).
On March 20, 2018, Petitioner filed MOTION TO REINSTATE
DEFENDANT PETITIONER’S JANUARY 20, 2018, MOTION TO APPOINT
COUNSEL AND REQUEST FOR LEAVE FOR NEW COUNSEL TO PREPARE A REVIEW
AND SUPPLEMENT FOR PETITIONER’S POST CONVICTION REMEDIES, OR
MOTION FOR A CERTIFICATE OF APPEALABILITY FOR SAID MOTION WHICH
THIS COURT DENIED WITHOUT PREJUDICE ON FEBRUARY 7, 2018, OR THIS
AS A NEW SAME SAID MOTION.

(ECF No. 90).

On March 28, 2018, the Court issued a Minute Order denying
Petitioner’s Motion (ECF No. 90) and Motion for Medical

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Evaluation (ECF Nos. 83-5, 89).

(Minute Order, ECF No. 91).

Also on March 28, 2018, the Court issued an ORDER DIRECTING
THE GOVERNMENT TO INFORM THE COURT BY MONDAY, APRIL 30, 2018, IF
IT SEEKS AN EVIDENTIARY HEARING OR ELECTS NOT TO OPPOSE
PETITIONER LUKE WARNER’S MOTION TO VACATE, SET ASIDE OR CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255.

(ECF No. 92).

On March 29, 2018, the Government filed a Request for Order
Finding Attorney-Client Privilege Waiver as to Former Attorneys
Marcus B. Sierra, Birney B. Bervar, and Myles S. Breiner.

(ECF

No. 93).
On the same date, the Court issued an ORDER FINDING
ATTORNEY-CLIENT PRIVILEGE WAIVER AS TO FORMER ATTORNEYS MARCUS B.
SIERRA, BIRNEY B. BERVAR AND MYLES S. BREINER.

(ECF No. 94).

On April 6, 2018, the Government filed UNITED STATES’
POSITION ON DEFENDANT’S CLAIM IN HIS MOTION TO VACATE, SET ASIDE
OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 THAT HIS
ATTORNEYS FAILED TO APPEAL.

(ECF No. 97).

On April 10, 2018, Petitioner filed PETITIONER’S RESPONSE,
CLARIFICATION, INTENT FOR § 2255, COURT’S ECF 91 & 92,
GOVERNMENT’S ECF 93, RE-MOTION APPOINT COUNSEL AND MEDICAL
EVALUATION, HEARING, AFFIDAVIT.

(ECF No. 98).

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ANALYSIS
I.

Petitioner’s Motion For Reconsideration (ECF No. 98) Is
Denied
Petitioner’s April 10, 2018 filing requests the Court to

reconsider its decisions denying his Motion to Appoint Counsel
and his Motion for Medical Evaluation.
Pursuant to District of Hawaii Local Rule 60.1, motions for
reconsideration of interlocutory orders may be brought only upon
the following grounds:
(1)

discovery of new material facts not previously
available;

(2)

intervening change in law; or,

(3)

manifest error of law or fact.

Local Rules of Practice for the United States District Court
for the District of Hawaii 60.1
Here, Petitioner has not set forth any basis to reconsider
the Court’s rulings denying Plaintiff’s Motion to Appoint Counsel
and his Motion for Medical Evaluation.

Plaintiff has not

provided any new, previously unavailable evidence and he has not
cited an intervening change in law.
There is no manifest error of law or fact present in denying
Petitioner’s requests for appointment of counsel and for a Courtordered medical evaluation.

The right to counsel guaranteed by

the Sixth Amendment to the United States Constitution does not
apply in federal prisoners’ habeas corpus actions.
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McCleskey v.

Zant, 499 U.S. 467, 495 (1991).

Plaintiff is not entitled to a

Court-ordered and Court-paid medical evaluation in order to
support his Section 2255 Petition.

Plaintiff has not

demonstrated that such assistance is necessary in order for
Petitioner to proceed.
Plaintiff’s Motion for Reconsideration (ECF No. 98) is
DENIED.

II.

Petitioner’s Motion To Stay The Order Waiving AttorneyClient Privilege (ECF No. 98) Is Denied

Petitioner also requests the Court stay the Order granting
the Government’s request for a finding of attorney-client
privilege waiver.
The Ninth Circuit Court of Appeals held in Bittaker v.
Woodford, 331 F.3d 715, 716 (9th Cir. 2003) that “where a habeas
petitioner raises a claim of ineffective assistance of counsel,
he waives the attorney-client privilege as to all communications
with his allegedly ineffective lawyer.”
Petitioner waived the attorney-client privilege that might
otherwise apply to the communications he made with his attorneys
as to the issues raised in his Section 2255 Petition.
Petitioner’s Motion to Stay the Order Waiving AttorneyClient Privilege (ECF No. 98) is DENIED.

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III. Petitioner’s Section 2255 Petition (ECF No. 83) Is Granted
On February 1, 2018, Petitioner Luke Warner filed a Motion
to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. §
2255.

Petitioner challenged his sentence, stating his attorneys

provided ineffective assistance of counsel by failing to file a
notice of appeal.
The Government elected not to pursue an evidentiary hearing
on the issue of whether Petitioner’s former attorneys failed to
file a notice of appeal.
Pursuant to the Ninth Circuit Court of Appeals’s decision
in United States v. Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir.
2005), the Court assumes, without deciding, that Petitioner
requested an appeal that was not made, and therefore vacates and
reenters the Judgment, allowing Petitioner to file a Notice of
Appeal if he so chooses.
CONCLUSION
Petitioner’s Motion for Reconsideration and Motion to Stay
Order Waiving Attorney-Client Privilege (ECF No. 98) is DENIED.
Petitioner Warner’s Section 2255 Petition (ECF No. 83) is
GRANTED.

The Court’s Judgment imposed on March 12, 2015 (ECF No.

31) is VACATED and is REENTERED.
the Judgment are unchanged.

The Sentence and Conditions of

For the purposes of Fed. R. App. P.

4(b)(1)(A), the Judgment shall be deemed to be reentered as of
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the date this Order is filed.
The Clerk of Court shall enter Judgment accordingly and
terminate Civil No. 18-00054 HG-KJM.
IT IS SO ORDERED.
DATED: April 18, 2018, Honolulu, Hawaii.

Luke Warner v. United States of America; Cr. No. 14-00688 HG-01;
Civ. No. 18-00054 HG-KJM; ORDER DENYING PETITIONER’S MOTION TO
RECONSIDER HIS MOTION FOR APPOINTMENT OF COUNSEL AND MOTION FOR
MEDICAL EVALUATION (ECF No. 98) and DENYING PETITIONER’S MOTION
TO STAY THE ORDER WAIVING ATTORNEY-CLIENT PRIVILEGE (ECF No. 98)
and VACATING AND REENTERING JUDGMENT PURSUANT TO PETITIONER LUKE
WARNER’S 28 U.S.C. § 2255 PETITION (ECF NO. 83)
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