United States District Court, D. Hawaii
ORDER: (1) DENYING IN PART DEFENDANT/PETITIONER'S
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON
IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C. § 2255, DOC.
NO. 143; AND (2) DENYING A CERTIFICATE OF APPEALABILITY AS TO
Michael Seabright, Chief United States District
September 12, 2014, Defendant/Petitioner Natalie Chaves
(“Chaves”) pled guilty to one count of conspiracy
to distribute and possess with intent to distribute 500 grams
or more of methamphetamine, in violation of 21 U.S.C.
§§ 846, 841(a)(1) & 841(b)(1)(A). On March 6,
2015, the court sentenced Chaves to a term of 120 months
imprisonment, five years of supervised release, and a special
assessment of $100. Currently before the court is Chaves'
Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside
or Correct Sentence By a Person in Federal Custody
(“§ 2255 Motion”). Doc. No.
§ 2255 Motion challenges her conviction and sentence
based on ineffective assistance of counsel. Chaves claims
that counsel: (1) grossly misrepresented Chaves'
sentencing exposure; (2) failed to explain the elements of
the charge against her; (3) failed to investigate and
therefore appreciate that Chaves was actually innocent and
that the Government's evidence did not support the
charged crime; (4) failed to explain the nature and
ramifications of the waiver of her right to appeal; and (5)
failed to file an appeal.
reasons discussed below, the § 2255 Motion is DENIED as
to grounds one through four. As to the fifth ground, the
court directs the United States to inform the court by
October 10, 2016 if (1) it seeks an evidentiary hearing, or
(2) it elects not to oppose the § 2255 Motion and
instead permit an appeal. See United States v. Sandoval
Lopez, 409 F.3d 1193, 1198 (9th Cir. 2005).
was arrested on May 27, 2014, along with four others
following a controlled-delivery operation by the Drug
Enforcement Administration (“DEA”) and the Hawaii
County Police Department (“HCPD”). Doc. No. 1,
Compl. at 3-5. On May 29, 2014, attorney Marcus Sierra
(“Sierra”) was appointed to represent Chaves.
Doc. No. 15. On June 5, 2014, Chaves was indicted on one
count of conspiracy to distribute and possess with intent to
distribute 500 grams or more of methamphetamine (Count 1),
and one count of attempted possession with intent to
distribute 500 grams or more of methamphetamine (Count 2).
Doc. No. 17, Indictment at 1-3. On August 26, 2014, the
Government filed a special information as to a prior drug
conviction of Chaves, pursuant to 21 U.S.C. § 851. Doc.
No. 60 at 2 (referencing a 2007 Hawaii state-court conviction
for promotion of a dangerous drug in the third degree).
Sierra withdrew from representing Chaves on September 3,
2014, and attorney Lynn Panagakos (“Panagakos”)
was then appointed as Chaves' counsel. Doc. Nos. 68, 73.
September 12, 2014, Chaves consented to enter a guilty plea
before Magistrate Judge Kevin S.C. Chang. Pursuant to a
Memorandum of Plea Agreement (“Plea Agreement”),
she pled guilty to Count 1 of the Indictment. See
Doc. No. 82, Consent; see also Doc. No. 83, Plea
Agreement; Doc. No. 84, Report and Recommendation
(“R&R”). Magistrate Judge Chang found that
fully competent and capable of entering an informed plea,
that the guilty plea was intelligently, knowingly and
voluntarily made, and that the offense charged is supported
by an independent basis in fact establishing each of the
essential elements of such offense. [Magistrate Judge Chang]
further determined that [Chaves] intelligently, knowingly and
voluntarily waived the right to appeal or collaterally attack
the sentence except as provided in the plea agreement.
Doc. No. 84, R&R at 1-2. This court accepted Chaves'
guilty plea on September 30, 2014. Doc. No. 85.
admitted to the following facts as set forth in the Plea
(1) on May 27, 2014, the DEA and HCPD performed a controlled
delivery of a parcel containing methamphetamine that was
mailed from Las Vegas, NV, to the Hawaii residence of
co-defendant Saul Furstenwerth (“Furstenwerth”),
Doc. No. 83, Plea Agreement ¶¶ 8(A), (B);
(2) Chaves was present when the parcel was opened and knew
that it contained methamphetamine, id. ¶¶
(3) co-defendants Ken Rio-Keahu King (“King”) and
Jacob Umemoto (“Umemoto”) had traveled to Las
Vegas in mid-late May 2014 to acquire methamphetamine,
id. ¶ 8(D);
(4) a portion of the methamphetamine was intended for Chaves,
as she had given King purchase money for
methamphetamine prior to his departure for Las Vegas,
(5) Chaves knew that King had planned to mail the
methamphetamine from Las Vegas to Furstenwerth in Hawaii,
id. ¶ 8(E);
(6) Chaves and her co-defendants were present on May 27,
2014, to open the parcel and retrieve the methamphetamine,
(7) Chaves knew that the methamphetamine was intended for
distribution to others in Hawaii, id.
addition, Chaves stipulated that the total weight of the
methamphetamine seized from the parcel was 1794.74 grams.
Id. ¶10(a). Chaves confirmed that she
“fully understands the nature and elements of the
crimes and allegations with which she has been
charged.” Id. ¶ 3. Chaves further
admitted that “she is in fact guilty of the crime
charged against her in Count 1.” Id. ¶ 6.
Plea Agreement referenced two felony drug convictions not
included in the Government's special information, but
that Chaves agreed could be used to calculate her criminal
history under the United States Sentencing Commission
Guidelines. Id. ¶ 1(C). Chaves acknowledged
that because of the special information, the statutory
penalties for Count 1 included “an imprisonment term of
at least twenty (20) years and up to life, a fine of up to
$20, 000, 000, or both, and a term of supervised release of
at least ten (10) years and up to life.” Id.
¶ 7. Chaves waived her right to appeal or collaterally
attack the conviction and sentence except (1) if the sentence
imposed exceeds the sentencing guideline range, or (2) based
on a claim of ineffective assistance of counsel. Id.
¶ 13. And Chaves agreed to cooperate with the
Government, with the understanding that the Government was
under no obligation to seek a downward departure from the
Guidelines for substantial assistance. Id.
¶¶ 21, 23.
the September 12, 2014 change of plea hearing, Chaves
confirmed under oath that she
(1) understood the terms of the Plea Agreement, after
reviewing and discussing it with counsel, and that her guilty
plea was voluntary and not the result of force, threats,
pressure, or promises (other than the specific terms of the
Plea Agreement), Doc. No. 149, Tr. at 6-7;
(2) understood the Government's summary of the elements
of the charged offense, and that the Government would have to
prove each of those elements, id. at 5, 14-15;
(3) understood what her sentencing exposure would be if she
pled guilty, including a mandatory minimum of 20 years
imprisonment, id. at 10, 16; and
(4) admitted facts establishing the elements of Count 1,
id. at 15-22.
the March 6, 2015 sentencing hearing, the court granted the
Government's motion for downward departure pursuant to 18
U.S.C. § 3553(e), and sentenced Chaves to a term of 120
months imprisonment, five years of supervised release, and a
special assessment of $100. Doc. No. 137.
filed the instant § 2255 Motion on March 1,
2016. On March 22, 2016, the court set briefing
deadlines of June 3, 2016, for the Government's Response
and June 24, 2016, for Chaves' optional Reply. Doc. No.
147, Order at 5. The Government filed its Opposition on June
3, 2016. Doc. No. 150. On July 29, 2016, the court granted an
extension of time until August 19, 2016, for Chaves to file a
Reply, and warned that should Chaves fail to meet this
deadline, the court would assume that she does not intend to
reply and will issue a ruling. Doc. No. 151. Chaves neither
filed nor sought an additional extension of time to file a
STANDARD OF REVIEW
court's review of Chaves' § 2255 Motion is
governed by 28 U.S.C. § 2255(a):
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 imposed the sentence to vacate, set aside or correct
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. 2010) (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).
Conclusory statements in a § 2255 motion are
insufficient to require a hearing. United States v.
Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
an evidentiary hearing is normally required when a
petitioner's allegations are based on facts outside of
the record, no hearing is required when the petitioner's
credibility can be “conclusively decided on the basis
of documentary testimony and evidence in the record.”
Watts v. United States, 841 F.2d 275, 277 (9th Cir.
1988); see also Frazer v. United States, 18 F.3d
778, 781 (9th Cir. 1994).
raises five grounds for ineffective assistance of counsel:
(1) counsel (Sierra and Panagakos) grossly misrepresented
Chaves' sentencing exposure; (2) counsel (Sierra and
Panagakos) failed to explain the elements of the conspiracy
charge to her; (3) counsel (Sierra and Panagakos) failed to
investigate and therefore appreciate that Chaves was actually
innocent and that the Government's evidence did not
support the charged crime; (4) counsel (Panagakos) failed to
explain the nature and ramifications of the waiver of her
right to appeal; and (5) counsel (Panagakos) failed to file
an appeal, after Chaves “informed her . . . that
[Chaves] wished to appeal.” Doc. No. 143, Mot. at 5-7.
Legal Standards for Ineffective Assistance of Counsel
prevail on an ineffective assistance claim, a petitioner must
show that (1) counsel's representation fell below an
objective standard of reasonableness, and (2) there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. Strickland v. Washington, 466
U.S. 668, 687-88 (1984). That is, the petitioner must also
show that the deficiency was prejudicial. Id. at
“is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. at
690. But, a court need not determine whether counsel's
performance was deficient before examining the prejudice
suffered by the petitioner as a result of the alleged
deficiencies. See id. at 697. In other words, any
deficiency that does not result in prejudice necessarily
Guilty Pleas and Plea Bargaining
“[a] voluntary and intelligent plea of guilty made by
an accused person, who has been advised by competent counsel,
may not be collaterally attacked.” Mabry v.
Johnson, 467 U.S. 504, 508 (1984), overruled in
part on other grounds by Puckett v. United States,
556 U.S. 129 (2009).
When a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is
charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea. He may only
attack the voluntary and intelligent character of the guilty
plea by showing that the advice he received from counsel was
Tollett v. Henderson, 411 U.S. 258, 267 (1973).
“[T]he negotiation of a plea bargain is a critical
phase of litigation for purposes of the Sixth Amendment right
to effective assistance of counsel.” Missouri v.
Frye, 132 S.Ct. 1399, 1406 (2012) (quoting Padilla
v. Kentucky, 559 U.S. 356, 373 (2010)). “During
plea negotiations defendants are entitled to the effective
assistance of competent counsel.” Lafler v.
Cooper, 132 S.Ct. 1376, 1384 (2012) (internal citation
omitted). Thus, “the Strickland test applies
to challenges to guilty pleas based on ineffective assistance
of counsel.” Cabinatan v. United States, 2011
WL 255691, at *3 (D. Haw. Jan. 26, 2011) (citing Hill v.
Lockhart, 474 U.S. 52, 58 (1985)).
petitioner has pled guilty and is asserting ineffective
assistance of counsel, the second Strickland
requirement (prejudice) focuses on whether counsel's
constitutionally ineffective performance affected the outcome
of the plea process. “In cases where a defendant
complains that ineffective assistance led him [or her] to
accept a plea offer as opposed to proceeding to trial, the
defendant will have to show ‘a reasonable probability
that, but for counsel's errors, he [or she] would not
have pled guilty and would have insisted on going to
trial.'” Frye, 132 S.Ct. at 1409 (quoting
Hill, 474 U.S. at 59).
determining whether a plea was voluntarily and knowingly
made, “[a] defendant's plea colloquy is given great
weight.” Sam v. United States, 2015 WL
9897779, at *6 (D. Ariz. Dec. 2, 2015) (citing United
States v. Boniface, 601 F.2d 390, 393 (9th Cir. 1979)).
See also Blackledge, 431 U.S. at 65 (“Solemn
declarations in open court carry a strong presumption of
verity. The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as
are contentions that in the face of the record are wholly
incredible.”); United States v. Ross, 511 F.3d
1233, 1236 (9th Cir. 2008) (“Statements made by a
defendant during a guilty plea hearing carry a strong
presumption of veracity in subsequent proceedings attacking
the plea.”). A collateral challenge based on
allegations that contradict a defendant's sworn
statements lacks merit. See Muth v. Fondren, 676
F.3d 815, 821-22 (9th Cir. 2012) (collecting cases and
rejecting a defendant's challenge to his guilty plea that
was contradicted by his sworn statements during the change of
Application to Chaves' Claims of Ineffective Assistance
Misrepresentation of Sentencing Exposure
alleges that Sierra “grossly misrepresented [her]
sentencing exposure and that once [Chaves'] husband was
arrested, her conviction would be (con't)”
(sentence left unfinished). Doc. No. 143, Mot. at 5. Chaves
also alleges that Panagakos “represented that [Chaves]
would receive a lower sentence, in order to induce her to
accept the plea agreement.” Id. Chaves further
alleges that Panagakos “acknowledged [Chaves']
innocence . . . and the guilt of [Chaves'] spouse . . .
[and] represented . . . that, ‘when they arrest your
husband, you'll do less time.'” Id. at
6. Chaves contends that “Panagakos advised [her] to
accept the plea agreement, knowing [Panagakos'] client
was innocent and with the promise of release upon her
husband's arrest, a statement [Panagakos] knew to be
false when she used [it] to induce [Chaves] into a plea
response, Sierra attests:
During my representation of Ms. Chavez, I did not and could
not have been able to represent that she would receive a
particular sentence because her sentence would depend on how
much credit the prosecution was willing to give her, if any,
for substantial assistance. However, I did advise Ms. Chavez
that based on the quantity of Methamphetamine and her prior
convictions, she would be subject to a statutory mandatory
minimum of life in prison if she were convicted of the
offense charged. I informed Ms. Chavez that the Assistant
U.S. Attorney indicated a willingness to file for a lesser
mandatory minimum of 20 years if she changed her plea
pursuant to a plea agreement and continued to cooperate with
the government. I also advised Ms. Chavez that if the
Assistant U.S. Attorney felt that she had provided
substantial assistance, ...