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Bonilla-Galeas v. United States

United States District Court, D. Hawaii

January 24, 2017

RAMON BONILLA-GALEAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 13-00765 HG-2

          ORDER DENYING PETITIONER RAMON BONILLA-GALEAS'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE, PURSUANT TO 28 U.S.C. § 2255 (ECF No. 137)

          HELEN GILLMOR UNITED STATES DISTRICT JUDGE

         On August 8, 2016, Petitioner Ramon Bonilla-Galeas filed a Motion to Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C. § 2255. (ECF No. 137). Petitioner argues that his attorneys provided ineffective assistance of counsel during the change of plea, sentencing, and appellate phases of the case. Petitioner also challenges the duration of his sentence.

         Petitioner's Motion to Vacate, Set Aside or Correct Sentence, pursuant to Title 28 U.S.C. § 2255 (ECF No. 137), is DENIED.

         Petitioner is not entitled to an evidentiary hearing because his claims do not provide grounds for relief.

         Petitioner is not entitled to a certificate of appealability because he has not made a substantial showing of the denial of a constitutional right.

         BACKGROUND

         The United States' Indictment

         On August 1, 2013, the United States filed a four-count Indictment as to Petitioner Ramon Bonilla-Galeas (“Petitioner”) and a co-defendant. Petitioner was charged as follows:

Count 1 - conspiracy to distribute and possess with intent to distribute fifty grams or more of methamphetamine, its salts, isomers, and salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 21 U.S.C. § 846.
Count 4 - possession with intent to distribute fifty grams or more of methamphetamine, its salts, isomers, and salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2.
Counts 2 and 3 of the Indictment did not name Petitioner. (ECF No. 10).

         Attorney Mario Rodriguez' Representation of Petitioner

         On March 18, 2014, Petitioner's court-appointed attorney filed a Motion to Withdraw as Counsel. (ECF No. 47). On the same date, the Magistrate Judge held a hearing concerning the motion to withdraw. At the hearing, Petitioner indicated that he wished to hire a private attorney of his choosing. The Magistrate Judge granted the court-appointed attorney's motion to withdraw and instructed Petitioner to retain new counsel. (ECF No. 49).

         On May 1, 2014, Attorney Mario Rodriguez (“Attorney Rodriguez”) appeared pro hac vice on behalf of Petitioner. Alan Okamoto appeared as local counsel. (ECF No. 61).

         Petitioner's Guilty Plea

         On September 29, 2014, Petitioner entered into a plea agreement with the United States. (Agmt., ECF No. 72). The plea agreement contained an appeal waiver, as well as a collateral attack waiver. (Id. at pp. 7-8). The collateral attack waiver precludes Petitioner from challenging his sentence or the manner in which it was determined, unless the Court imposed a sentence greater than specified in the applicable sentencing guidelines or Petitioner alleges ineffective assistance of counsel. (Id.)

         On the same date, September 29, 2014, Petitioner appeared before the Magistrate Judge and pled guilty as to Count 1 of the Indictment, concerning conspiracy to distribute and possess with intent to distribute fifty grams or more of methamphetamine. At the hearing, the Government indicated that Count 4 was to be dismissed at sentencing. (ECF No. 70).

         Attorney Hironaka's Appointment to Represent Petitioner

         On April 8, 2015, the Court held a sentencing hearing as to Petitioner. At the hearing, Attorney Rodriguez requested to withdraw as counsel for Petitioner. The Court granted the request and continued the sentencing hearing. (ECF No. 113).

         On April 9, 2015, Attorney Randall K. Hironaka (“Attorney Hironaka”) was appointed to represent Petitioner. (ECF No. 89).

         Petitioner's Sentencing

         On June 26, 2015, Attorney Hironaka filed an amended sentencing statement on behalf of Petitioner. (ECF No. 92). The sentencing statement argued, in part, that Petitioner qualified for a below-mandatory-minimum sentence pursuant to the “safety valve” provision of 18 U.S.C § 3553(f). (Sentencing Statement at pp. 5-7).

         On July 2, 2015, the Court held the final sentencing hearing as to Petitioner. At the hearing, Attorney Hironaka argued that Petitioner qualified for the safety valve provision. (Sentencing Hearing Transcript at pp. 3-6, ECF No. 126). The Court found Petitioner to be ineligible for application of the safety valve provision. (Id. at p. 8). The Court granted the Government's motion to dismiss Count 4 of the Indictment. Petitioner was sentenced to the mandatory minimum sentence of ten years imprisonment and five years supervised release. (ECF No. 93).

         Attorney Verna Wefald's Representation of Petitioner

         On July 9, 2015, Judgment was entered as to Petitioner. (ECF No. 98). On the same date, Attorney Hironaka filed a motion to withdraw as counsel. (ECF No. 94). Attorney Hironaka requested that the Court appoint appellate counsel for Petitioner, who wished to file a notice of appeal. (Atty. Hironaka Decl. at p. 2, ECF No. 94-1).

         On July 17, 2015, Attorney Verna Wefald (“Attorney Wefald”) was appointed to represent Petitioner in appellate proceedings. (ECF No. 109).

         On July 19, 2015, Attorney Wefald filed a notice of appeal on behalf of Petitioner. (ECF no. 105).

         On December 18, 2015, Attorney Wefald filed a motion, in which she requested to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). (9th Cir. Dkt. No. 6). Attorney Wedfald stated that she was unable to discover any meritorious, non-frivolous issues on appeal. (Id.)

         On January 29, 2016, the Ninth Circuit Court of Appeals filed an order permitting Petitioner to file a pro se supplemental opening brief that raises any issues in his case. (9th Cir. Dkt. No. 12). Petitioner did not file a supplemental opening brief.

         On July 12, 2016, the Ninth Circuit Court of Appeals affirmed Petitioner's conviction and sentence in an unpublished opinion. The appellate court remanded the case to the district court to correct the Judgment to reflect that counts 2, 3, and 4 of the Indictment were dismissed as to Petitioner. (ECF No. 135).

         Petitioner's Habeas Corpus Motion

         On August 8, 2016, Petitioner timely filed a MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (“2255 Motion”). (ECF No. 137).

         On August 11, 2016, the United States requested additional time to respond to Petitioner's 2255 Motion. (ECF No. 138). On the same date, the United States filed a request for the Court to find that Petitioner waived his attorney-client privilege as to Attorneys Rodriguez, Hironaka, and Wefald. (ECF No. 139).

         On August 11, 2016, the Court filed an Amended Judgment pursuant to the Ninth Circuit Court of Appeals's July 12, 2016 order. (ECF No. 140).

         On August 12, 2016, the Court found that Petitioner waived his attorney-client privilege as to Attorneys Rodriguez, Hironaka, and Wefald. (ECF No. 142). The Court also granted the United States' request for additional time, and ordered that its Opposition to Petitioner's 2255 Motion be filed by November 14, 2016. (ECF No. 143).

         On November 14, 2016, the United States filed RESPONSE OF THE UNITED STATES TO DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY. (ECF No. 146).

         Petitioner did not file a Reply.

         STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2255, provides federal prisoners with a right of action to challenge a sentence if it was imposed in violation of the Constitution or laws of the United States, the court was without jurisdiction to impose such a sentence, the sentence was in excess of the maximum authorized by law, or the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A prisoner may file a motion ("2255 Motion") to vacate, set aside, or correct a sentence. 28 U.S.C. § 2255.

         The scope of collateral attack of a sentence is limited, and does not encompass all claimed errors in conviction and sentencing.

         Courts do not hold pro se petitioner submissions to the same standard as filings submitted by counsel. Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002), as amended on denial of reh'g (Feb. 8, 2002). Pro se submissions are liberally construed “to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985)) (internal quotations omitted).

         ANALYSIS

         Petitioner Ramon Bonilla-Galeas' (“Petitioner”) Motion to Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C. § 2255 (“2255 Motion”) challenges his sentence. (ECF No. 137). Petitioner asserts that Attorneys Mario Rodriguez (“Attorney Rodriguez”), Randall K. Hironaka (“Attorney Hironaka”), and Verna Wefald (“Attorney Wefald”) provided ineffective assistance of counsel. Attorney Rodriguez represented Petitioner when he pled guilty as to the Indictment. Attorney Hironaka served as counsel for Petitioner when Petitioner was sentenced. Attorney Wefald served as appellate counsel for Petitioner.

         I. PETITIONER'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

         A. Petitioner's Claims Against Attorney Rodriguez

         Petitioner appears to bring three allegations of ineffective assistance of counsel against Attorney Rodriguez. According to Petitioner, Attorney Rodriguez allegedly (1) refused to meet him to discuss the case and the contents of the plea agreement Petitioner subsequently signed; (2) made the decision for Petitioner to plead guilty without protecting him from deportation or reviewing the evidence; and (3) precluded Petitioner from meeting with a probation officer during the preparation of the Presentence Investigation Report.

         Ineffective assistance of counsel claims are analyzed under the two-part framework set forth in Strickland v. Washington, 466 U.S. 668 (1984). A petitioner asserting an ineffective assistance allegation must demonstrate that (1) his attorney's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Counsel are presumed to have “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.

         The conjunctive nature of the Strickland framework permits the Court to address the second factor first, especially if the petitioner suffered no prejudice as a result of the alleged performance deficiency. Id. at 697. Where, as here, the petitioner is challenging the performance of his counsel during the change of plea phase of the case, the Ninth Circuit Court of Appeals has stated that the prejudice prong of the Strickland framework requires the petitioner to show that but for the attorney's errors, he would have insisted on proceeding to trial instead of pleading guilty. Doe v. Woodford, 508 F.3d 563, 568 (9th Cir. 2007) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

         1. Petitioner Met with Attorney Rodriguez on Multiple Occasions to Discuss the Case

         Petitioner claims Attorney Rodriguez failed to meet and confer with him to ...


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