United States District Court, D. Hawaii
ORDER (1) DENYING DEFENDANT-PETITIONER'S 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
Michael Seabright Chief United States District Judge
11, 2016, pro se Defendant-Petitioner Uiki Teaupa
(“Teaupa”) filed a timely motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (“§ 2255 Motion”).
Def.'s Mot., ECF No. 145. Teaupa argues that he was
provided constitutionally ineffective assistance when his
attorney, Harlan Kimura (“Kimura”), failed: (1)
to move pretrial to dismiss the Superseding Indictment; (2)
to object to the amount of methamphetamine attributed to
Teaupa at sentencing; (3) to seek a two-level reduction for
acceptance of responsibility at sentencing; and (4) to appeal
the government's failure to file a motion for a downward
departure based on substantial assistance at sentencing. For
the following reasons, the court DENIES Teaupa's §
October 20, 2009, Teaupa was arrested in Kona, Hawaii, on an
outstanding bench warrant stemming from an unrelated case.
Presentence Investigation Report (“PSR”) ¶
10, ECF No. 116. At the police station, Teaupa asked to speak
with Officer Edwin Buyten (“Buyten”), with whom
he was acquainted. Id. Teaupa informed Buyten that
he had flown from the mainland the day before with S.F. and
that they had transported drug proceeds from Hawaii to
Id. Teaupa also told Buyten that S.F. was scheduled
to fly back to California with approximately $100, 000.
February 23, 2011, Teaupa contacted Buyten and arranged a
meeting with him, along with FBI Special Agent Michael Rotti
(“Rotti”). Tr. (Mar. 12, 2013) at 21, 24-26, ECF
No. 128; PSR ¶ 15. Teaupa told Buyten and Rotti that
Samuela Veatupu (“Veatupu”) was the leader of a
Big Island methamphetamine distribution organization. ECF No.
128 at 27; PSR ¶ 15. Teaupa also told Buyten and Rotti
that he (Teaupa) was a “drug mule, ” and that he
had “body carried” one pound of methamphetamine
the week before, and described further drug transactions to
which he had been a party. ECF No. 128 at 27-28; PSR ¶
16. Teaupa continued to contact Buyten and provide him with
information about his own and Veatupu's drug distribution
activities. See Tr. (Mar. 13, 2013) at 15-16, 141,
ECF No. 129.
November 2, 2012, Buyten and Rotti arrested Teaupa pursuant
to a post-indictment warrant. Id. at 32; PSR ¶
22. After waiving his Miranda rights, Teaupa
discussed various methamphetamine transactions and his role
as a drug courier or “mule” for Veatupu. ECF No.
129 at 33-34; PSR ¶ 22.
to trial, Teaupa filed, pursuant to Federal Rule of Criminal
Procedure 12.3, a Notice of Public Authority Defense. ECF No.
15. And at trial, he admitted to engaging in various drug
trafficking activities, but insisted he did so on behalf of
law enforcement. PSR ¶¶ 31-35. Teaupa testified at
trial to transporting a total of twenty-two pounds of
methamphetamine for Veatupu as follows:
PSR ¶ 33; see also ECF No. 130, 77-97.
Course of Proceedings
was charged in the Superseding Indictment on February 6,
2013, with conspiracy to distribute and possess with intent
to distribute 500 grams or more of a mixture and substance
containing a detectable amount of methamphetamine (Count 1)
and possession with intent to distribute 500 grams or more of
a mixture and substance containing a detectable amount of
methamphetamine (Count 2). ECF No. 40. The conspiracy charged
in Count 1 covered a three-year period, spanning from
February 2009 through February 2012. Id.
trial, the jury rejected Teaupa's public authority
defense and found him guilty of both counts. See ECF
Nos. 104 (Jury Instruction No. 19 covering the public
authority defense) and 107 (Verdict Form). The court
sentenced Teaupa on July 8, 2013, to a total of 300 months of
incarceration,  to be followed by five years of supervised
release. Am. J. at 3-4, ECF No. 118. The Ninth Circuit
affirmed Teaupa's conviction and sentence on June 18,
2015. See United States v. Teaupa, 617 F. App'x
699 (9th Cir. 2015) (memorandum disposition). On August 6,
2015, the court reduced Teaupa's sentence to 292 months,
pursuant to Guideline Amendment 782. ECF No. 143.
was also prosecuted in the District of Hawaii. On June 21,
2012, an Indictment charged Veatupu with four counts of
distribution of five grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B).
See Cr. No. 12-00647 SOM, at ECF No. 1. The basis
for Veatupu's conviction was a series of controlled
purchases of methamphetamine between Veatupu and a
confidential source. ECF No. 132 at 14. Teaupa did not
cooperate in Veatupu's prosecution. ECF Nos. 129 at 56;
132 at 14. On October 18, 2012, Veatupu pled guilty to all
four counts. ECF No. 17.
Susan Oki Mollway granted the government's motion for a
downward departure, based on Veatupu's substantial
assistance, and sentenced Veatupu to a total of twenty-four
months of incarceration, to be followed by five years of
supervised release. Cr. No. 12-000647 SOM, ECF No. 37.
STANDARD OF REVIEW
28 U.S.C. § 2255(a) 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 imposed the sentence to vacate, set aside or correct
may dismiss a § 2255 motion if “it plainly appears
from the motion, any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to
relief.” R. 4(b), Rules Governing Section 2255
Proceedings. A court need not hold an evidentiary hearing if
the allegations are “palpably incredible [or] patently
frivolous, ” Blackledge v. Allison, 431 U.S.
63, 76 (1977), or if the issues can be conclusively decided
on the basis of the evidence in the record. See United
States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998)
(noting that a “district court has discretion to deny
an evidentiary hearing on a § 2255 claim where the files
and records conclusively show that the movant is not entitled
to relief”). Conclusory statements in a § 2255
motion are insufficient to require a hearing. United
States v. Johnson, 988 ...