United States District Court, D. Hawaii
ORDER REFERRING TO THE NINTH CIRCUIT
DEFENDANT’S SECOND MOTION UNDER 28 U.S.C. § 2255;
Oki Mollway United States District Judge
court previously denied an earlier § 2255 motion filed
by Defendant John Gouviea, Jr. That motion included the
argument that relief was warranted because Jose Perez, an
individual who had refused to testify in the trial, had
become willing to testify. The court did not rely on that
circumstance because Perez ultimately indicated that he would
not provide any testimony in any new proceeding. Gouveia now
moves under Rule 60(b) of the Federal Rules of Civil
Procedure for reconsideration of this court’s earlier
ruling in light of what Gouveia says is Perez’s renewed
willingness to testify. See Exhibit A, attached to
this order. Perez appears to fluctuate, but most recently his
counsel has reported that Perez is unwilling to testify. This
court does not now reach the merits of the motion. Instead,
because the Rule 60(b) motion is a “second or
successive” § 2255 motion, the court refers the
matter to the Ninth Circuit Court of Appeals pursuant to
Ninth Circuit Rule 22-3(a) for certification under 28 U.S.C.
August 18, 2010, a jury convicted Gouveia of three drug
charges. See Verdict Form, Aug. 18, 2010, ECF No.
174. Gouveia’s crimes included: 1) one count of
conspiring to distribute and possess with intent to
distribute more than 500 grams of a mixture or substance
containing a detectable amount of methamphetamine, its salts,
isomers, and salts of its isomers; and 2) two counts of
possession with intent to distribute the same. Id.
February 4, 2011, the court sentenced Gouveia to 292 months
in prison as to each count, with all terms to run
concurrently. See Judgment, ECF No. 231. The court
also sentenced him to 10 years of supervised release for each
of the counts, with all terms to run concurrently, as well as
a $300 special assessment. Id.
February 9, 2011, Gouveia appealed. See ECF No. 232.
The Ninth Circuit affirmed the judgment in a Memorandum
Decision filed on February 23, 2012. See ECF No.
484-1. Gouveia petitioned for certiorari, but that was denied
by the Supreme Court on October 1, 2012. See 133
S.Ct. 188 (Oct. 1, 2012).
September 23, 2013, Gouveia filed his first Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody. See ECF No. 471. In
relevant part, Gouveia claimed that, in March 2013, he had
communicated with Perez. According to Gouveia, Perez said he
would testify that, at the time Perez had placed monitored
calls to co-Defendant Ramiro Hernandez, Perez had not known
that Government agents were recording the calls. This was in
conflict with trial testimony by law enforcement agents.
Perez had refused to testify at trial, and this court held
him in civil contempt while trial was proceeding and then,
post-trial, imposed a criminal contempt sentence.
Gouveia’s 2013 motion was based on communications
occurring long after Perez had completed his criminal
contempt sentence. Gouveia also claimed that Perez was
willing to testify that Gouveia was innocent of the charges
and played no role in the importing and distributing of the
methamphetamine at issue in this case. See
Declaration of John Gouveia, Jr., ECF No. 472-5, PageID #s
declaration dated July 11, 2014, however, Jose Perez stated,
contrary to Gouveia’s contention, that Perez would not
be a witness for either side or sign a declaration for either
side. He said, “I do not wish to have any further
involvement in this case.” Declaration of Jose Perez,
ECF No. 516-1, PageID # 7419. This position was consistent
with Perez’s earlier refusals to testify at trial.
28, 2014, the court denied Gouveia’s first § 2255
motion and declined to issue a certificate of appealability.
Given Perez’s continued refusal to testify, the court
ruled that Gouveia had failed to establish the factual
predicate for any claim based on Perez’s testimony.
See ECF No. 519. Gouveia appealed. See ECF
No. 522. On October 20, 2014, the Ninth Circuit also denied
Gouveia a certificate of appealability. See ECF No.
August 17, 2015, proceeding pro se, Gouveia filed a
motion under Rule 60(b) of the Federal Rules of Civil
Procedure, asking this court to vacate its judgment of August
25, 2015, and to reopen his § 2255 motion. In support of
his Rule 60(b) motion, Gouveia attached a new letter
purporting to be from Perez to Gouveia that stated:
Hey John[.] [H]ow are you doing? [H]ope your [sic] ok.
I’m Sorry I Refused to testify at the evidentiary
hearing. I was Just kind of Scared, but I gave it a lot of
thought, and [am] ready to make things right. I’m
willing to testify at a evidentiary hearing to tell the
truth, I hope that its [sic] not to [sic] late.
P.S. Sorry I couldn’t do it ...