Gordon v. USA

Filing 6

ORDER (1) DENYING DEFENDANT'S REMANDED MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY; AND (2) DENYING A CERTIFICATE OF APPEALABILITY - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 3/27/2020. (CR 11-00479(01) JMS; CV 18-00198 JMS-KSC) (jo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

UNITED STATES OF AMERICA,

CR. NO. 11-00479(01) JMS
CIV. NO. 18-00198 JMS

Plaintiff/Respondent,
ORDER (1) DENYING
DEFENDANT’S REMANDED
MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A
PERSON IN FEDERAL
CUSTODY; AND (2) DENYING A
CERTIFICATE OF
APPEALABILITY

vs.
KENNETH SCOTT GORDON,
Defendant/Petitioner.

ORDER (1) DENYING DEFENDANT’S REMANDED MOTION UNDER 28
U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY; AND (2) DENYING A CERTIFICATE
OF APPEALABILITY
I. INTRODUCTION
On October 29, 2018, this court denied Petitioner Kenneth Scott
Gordon’s (“Gordon”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (the “§ 2255 petition”). See ECF
No. 284 (Cr. No. 11-00479(01) JMS);1 United States v. Gordon, 2018 WL
5499532 (D. Haw. Oct. 29, 2018) (“Gordon III” or “the October 29, 2018 Order”).

1

For administrative purposes, the § 2255 petition was filed both in the underlying
criminal matter, Cr. No. 11-00479 JMS, and in a separate civil matter, Civ. No. 18-00198 JMS.
This order refers to filings in the docket from the criminal matter.
1

Gordon’s § 2255 petition raised two grounds for post-conviction relief: (1) error in
denying his motion to suppress evidence from a duffel bag and wallet, and
(2) constitutionally ineffective assistance of appellate counsel. See ECF No. 272.
The October 29, 2018 Order denied the § 2255 petition (1) with prejudice as to the
motion to suppress because the issues had been raised (and rejected) on direct
appeal, and (2) without prejudice, for lack of jurisdiction, as to ineffective
assistance of appellate counsel because the court concluded that only the Ninth
Circuit could offer Gordon the specific relief he sought (vacating his conviction,
exclusion of evidence, and/or release on bond) where such relief depended upon
whether appellate errors would have affected the Ninth Circuit’s decision on his
direct appeal. See ECF No. 284 at PageID #2556.
Nevertheless, on December 13, 2019, the Ninth Circuit vacated the
October 29, 2018 Order and remanded the claim of ineffective assistance of
appellate counsel for this court to consider its merits in the first instance,
explaining that “[s]hould Gordon’s claim have merit, the district court can grant
relief by vacating Gordon’s judgment of conviction.” ECF No. 296 at PageID
#2633; United States v. Gordon, 787 F. App’x 476, 477 (9th Cir. Dec. 13, 2019)
(mem.) (“Gordon IV”). 3 After the Ninth Circuit issued its mandate, ECF No. 297,

3

It appears odd that a district court judge would have the power to vacate a conviction
based on the specific claims of ineffective assistance of appellate counsel brought here—waiving
(continued . . .)
2

the parties agreed at a February 13, 2020 status conference that this court should
decide the remanded claim without an evidentiary hearing, without further
briefing, and based on the existing record. See ECF No. 299.
Accordingly, the court has further reviewed the arguments of the
parties and the existing record—including the Declaration of Georgia K. McMillen
(counsel on direct appeal) and associated exhibits, ECF Nos. 277-1 to 277-3—and
DENIES the § 2255 petition. Gordon has not met his burden to demonstrate that
he was deprived of constitutionally effective assistance of appellate counsel.4
II. BACKGROUND
The underlying facts of Gordon’s criminal conviction and sentence
are adequately set forth in (1) the court’s September 10, 2012 Order denying his
motion to suppress (see ECF No. 105, United States v. Gordon, 895 F. Supp. 2d
1011 (D. Haw. 2012) (“Gordon I”)); (2) the Ninth Circuit’s memorandum
disposition affirming his conviction on direct appeal, including affirming the
court’s denial of his motion to suppress (see ECF No. 267, United States v.
Gordon, 694 F. App’x 556 (9th Cir. July 24, 2017) (“Gordon II”), cert. denied, 138
S. Ct. 434 (Nov. 6, 2017)); and (3) the court’s October 29, 2018 Order denying his

oral argument before the appellate panel, deciding not to file an optional brief before the panel,
and failing to seek en banc review or certiorari—rather than, for instance, permitting a new
appeal for a meritorious claim.
4

The court’s October 29, 2018 Order denying relief as to the motion to suppress was not
certified for appeal and remains valid. See Gordon III, 2018 WL 5499532 at *2-3.
3

§ 2255 petition, Gordon III. The court does not repeat that factual background
here.
During Gordon’s direct appeal, his appointed appellate counsel—after
filing a 59-page opening brief—declined to submit an optional reply brief. ECF
No. 277-1 at PageID #2461-62. Appellate counsel attests that her opening brief
raised all the pertinent Fourth Amendment arguments and relied on the leading
case law; she explains that it would have been redundant to argue the same issues
concerning suppression in a reply brief. See id. at PageID #2463-64.
Appellate counsel also filed an unopposed motion to decide the appeal
on the briefs. See id. at PageID #2462. She explains that this motion was a matter
of strategy, attesting that, after reviewing the opening and answering briefs,
“[b]ecause the record could be construed against [Gordon], as set out in the
answering brief, I saw little benefit to oral argument [because] it likely would have
exposed the weaknesses in our arguments.” Id. at PageID #2465. On June 1,
2017, the Ninth Circuit issued an order specifically finding that “[t]he court is of
the unanimous opinion that the facts and legal arguments are adequately presented
in the briefs and record, and the decisional process would not be significantly aided
by oral argument.” ECF No. 266 at PageID #2311. And on June 14, 2017 the
matter was submitted without oral argument. Id.

4

On July 24, 2017, a panel of the Ninth Circuit affirmed Gordon’s
conviction and sentence on direct appeal. See Gordon II, 694 F. App’x at 558.
Among other issues, the panel upheld the denial of the motion to suppress evidence
from the duffel bag and wallet. See id. at 557. In this regard, Judge Paez
concurred with the result but indicated he would have reversed the denial of the
motion to suppress if not for the holding in United States v. Cook, 808 F.3d 1195
(9th Cir. 2015), to which, he recognized, he was bound. See Gordon II, 694 F.
App’x at 558 (Paez, J., concurring). Appellate counsel did not seek rehearing or
rehearing en banc. See ECF No. 277-1 at PageID #2466-67. She also did not file a
petition for certiorari to the Supreme Court, although Gordon filed a petition on a
pro se basis, ECF No. 270, which the Supreme Court denied on November 6, 2017.
See Gordon v. United States, 138 S. Ct. 434 (2017) (mem.). Gordon then filed his
§ 2255 Petition on May 22, 2018. See ECF No. 272.
III. STANDARD OF REVIEW
The court’s review is governed by 28 U.S.C. § 2255(a), which
provides:
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
5

imposed the sentence to vacate, set aside or correct the
sentence.
A court should hold an evidentiary hearing on a § 2255 motion
“unless the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). “In determining whether a hearing and
findings of fact and conclusions of law are required, ‘[t]he standard essentially is
whether the movant has made specific factual allegations that, if true, state a claim
on which relief could be granted.’” United States v. Withers, 638 F.3d 1055, 1062
(9th Cir. 2011) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.
1984)). “Thus, the district court’s decision that [the petitioner’s] ineffective
assistance claim did not warrant an evidentiary hearing [is] correct if his
allegations, ‘when viewed against the record, do not state a claim for relief or are
so palpably incredible or patently frivolous as to warrant summary dismissal.’”
United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (quoting Schaflander,
743 F.2d at 717). 5 Conclusory statements in a § 2255 motion are insufficient to
require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
///
///
///

5

As set forth above, both parties concur that an evidentiary hearing is not necessary, and
the court should decide the matter on the existing record. ECF No. 299. The court agrees.
6

IV. DISCUSSION
A.

Ineffective Assistance of Appellate Counsel
The court reviews a claim of ineffective assistance of appellate

counsel by applying Strickland v. Washington, 466 U.S. 668 (1984). See, e.g.,
Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001) (citations omitted). Under
Strickland, “the petitioner must establish that: (1) counsel’s performance fell below
an objective standard of reasonableness, and (2) a reasonable probability exists
‘that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.’” Id. (quoting Strickland, 466 U.S. at 688). A court need not
determine whether counsel’s performance was deficient before examining whether
the petitioner suffered prejudice as a result of the alleged deficiencies. See
Strickland, 466 U.S. at 697. In other words, any deficiency that does not result in
prejudice necessarily fails.
“In applying Strickland to a claim of ineffective assistance of
appellate counsel, [the Ninth Circuit has stated] that
[Strickland’s] two prongs partially overlap when
evaluating the performance of appellate counsel. In
many instances, appellate counsel will fail to raise an
issue because she foresees little or no likelihood of
success on that issue; indeed, the weeding out of weaker
issues is widely recognized as one of the hallmarks of
effective appellate advocacy. . . . Appellate counsel will
therefore frequently remain above an objective standard
of competence (prong one) and have caused her client no
7

prejudice (prong two) for the same reason—because she
declined to raise a weak issue.”
Bailey, 263 F.3d at 1028-29 (quoting Miller v. Keeney, 882 F.2d 1428, 1434 (9th
Cir. 1989) (internal citations and footnotes omitted)).
Gordon claims his appellate counsel was constitutionally ineffective
in four ways: (1) filing the motion to submit the appeal without oral argument,
(2) failing to file an optional reply brief, (3) failing to seek rehearing en banc, and
(4) failing to file petition for certiorari.6 All are without merit.
First, Gordon has not demonstrated a reasonable probability that oral
argument would have resulted in a different outcome. Indeed, the Ninth Circuit
panel specifically determined that it was “of the unanimous opinion that the facts
and legal argument are adequately presented in the briefs and record, and the
decisional process would not be significantly aided by oral argument.” ECF No.
266. He has identified no meritorious argument that could have made a difference
if made orally, and thus this district court is in no position to find—even
objectively—that oral argument would have led to a different result before the
Ninth Circuit. See also United States v. Birtle, 792 F.2d 846, 848 (9th Cir. 1986)

6

It is somewhat unclear whether Gordon raises the failure to file a cert petition as a basis
for his claim. His memorandum of law did not specifically argue the issue, but his affidavit
states that “I would have asked counsel to seek both panel rehearing en banc rehearing before
seeking relief from the U.S Supreme Court.” ECF No. 272-2 at PageID #2394. Nevertheless,
construing the § 2255 petition liberally, the court briefly addresses this issue as well.
8

(upholding denial of motion to vacate sentence based on alleged ineffective
assistance of appellate counsel, where counsel failed to appear at oral argument,
reasoning in part that “[o]ral argument on appeal is not required by the
Constitution in all cases; nor is it necessarily essential to a fair hearing”) (citation
omitted).
Second, Birtle also stated that “[a] reply brief also generally is not
essential for appellate review.” Id. Just as Gordon’s appellate counsel has
attested, Birtle reasoned that “parties often decide not to file a reply brief as a
matter of appellate strategy or because they perceive no need to do so.” Id. And
just as with oral argument, Gordon has not identified a meritorious written
argument that could have been made in a reply brief that might have resulted in a
different outcome—especially given the “‘general rule . . . that appellants cannot
raise a new issue for the first time in their reply briefs.’” Id. (quoting Thompson v.
Comm’r, 631 F.2d 642, 649 (9th Cir. 1980) (other citation omitted)). He has thus
“failed to demonstrate that he was denied effective assistance of counsel on
appeal,” id. at 849, for counsel’s decision not to file a reply.
Third, as to the failure to seek rehearing en banc, based on other
circuits’ case law, it appears that a defendant has no constitutional right to counsel
at that stage. See, e.g., Jackson v. Johnson, 217 F.3d 360, 365 (5th Cir. 2000)
(denying habeas petition, holding that “a criminal defendant has no constitutional
9

right to counsel on matters related to filing a motion for rehearing following the
disposition of his case on direct appeal”); United States v. Chandler, 291 F. Supp.
2d 1204, 1213 (D. Kan. 2003) (rejecting claim under § 2255 that counsel was
ineffective for failing to seek en banc review before the Tenth Circuit, citing
McNeal v. United States, 54 F.3d 776 (6th Cir. 1995) (table case) for its holding
that “there is no constitutional right to counsel in seeking rehearing en banc”—and
where there is no constitutional right to counsel, the client’s “constitutional rights
cannot be violated by the allegedly defective performance of his attorney”).
But even if Gordon has such a constitutional right, he has not
demonstrated that counsel’s failure to file a motion seeking en banc review would
have been successful, much less that an en banc panel likely would have vacated
the panel’s disposition. En banc review is “not favored and ordinarily will not be
ordered unless: (1) en banc consideration is necessary to secure or maintain
uniformity of the court’s decisions; or (2) the proceeding involves a question of
exceptional importance.” Fed. R. App. P. 35(a). Neither of these circumstances
exist here. 8

8

Judge Paez’s concurrence on direct appeal suggests that he disagreed with Ninth Circuit
precedent that required affirming the denial of the motion to suppress. See Gordon II, 694 F.
App’x at 558. At best, however, this means only that there might have been some basis to seek
review, and certainly does not mean a petition would have been granted and then been successful
before an en banc court. And Judge Paez could have sought en banc review sua sponte if he
considered the issue worthy enough. See Ninth Cir. Gen. Order 5.4(c)(1) & (3). Moreover, the
case he referred to—United States v. Cook, 808 F.3d 1195 (9th Cir. 2015)— remains valid
precedent to this day.
10

Finally, the failure to file a petition for certiorari necessarily cannot
constitute ineffective assistance—no such right exists. See, e.g., Miller, 882 F.2d
at 1432 (“Because Miller had no constitutional right to counsel in connection with
the filing of a certiorari petition, he had no constitutional right to the effective
assistance of counsel for that purpose.”).
B.

Certificate of Appealability
In denying a § 2255 Motion, the court must also address whether

Gordon should be granted a certificate of appealability (“COA”). See R. 11(a)
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 court carefully reviewed all of Gordon’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 to be debatable. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that a certificate of
appealability should issue only if a prisoner shows, among other things, “that
jurists of reason would find it debatable whether the district court was correct in its
procedural ruling”). Accordingly, the court DENIES issuing a COA.

11

V. CONCLUSION
For the foregoing reasons, the court DENIES Gordon’s § 2255
Motion and DENIES a COA. The Clerk of Court is directed to close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 27, 2020.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

United States v. Gordon, Cr. No. 11-00479(01) JMS; Civ. No. 18-00198JMS, Order
(1) Denying Defendant’s Remanded Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody; and (2) Denying a Certificate of Appealability

12