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United States v. Gouveia

United States District Court, D. Hawaii

May 27, 2016

JOHN GOUVEIA, JR. 02, Defendant. Crim. No. 08-00739 (02) SOM


          Susan Oki Mollway United States District Judge


         This 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. § 2255(h).


         On 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.

         On 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.

         On 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).

         On 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 5953-54.

         In a 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.

         On July 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. 541.

         On 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.
Jose Perez
P.S. Sorry I couldn’t do it ...

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