United States District Court, D. Hawaii
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)
GILLMOR UNITED STATES DISTRICT JUDGE
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
Motion to Vacate, Set Aside or Correct Sentence, pursuant to
Title 28 U.S.C. § 2255 (ECF No. 137), is DENIED.
is not entitled to an evidentiary hearing because his claims
do not provide grounds for relief.
is not entitled to a certificate of appealability because he
has not made a substantial showing of the denial of a
United States' Indictment
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. §
Counts 2 and 3 of the Indictment did not name Petitioner.
(ECF No. 10).
Mario Rodriguez' Representation of Petitioner
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).
1, 2014, Attorney Mario Rodriguez (“Attorney
Rodriguez”) appeared pro hac vice on behalf of
Petitioner. Alan Okamoto appeared as local counsel. (ECF No.
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.)
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).
Hironaka's Appointment to Represent Petitioner
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).
April 9, 2015, Attorney Randall K. Hironaka (“Attorney
Hironaka”) was appointed to represent Petitioner. (ECF
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).
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).
Verna Wefald's Representation of Petitioner
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).
17, 2015, Attorney Verna Wefald (“Attorney
Wefald”) was appointed to represent Petitioner in
appellate proceedings. (ECF No. 109).
19, 2015, Attorney Wefald filed a notice of appeal on behalf
of Petitioner. (ECF no. 105).
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.
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.
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).
Habeas Corpus Motion
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).
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).
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).
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).
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).
did not file a Reply.
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. §
scope of collateral attack of a sentence is limited, and does
not encompass all claimed errors in conviction and
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).
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'S INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner's Claims Against Attorney Rodriguez
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
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.
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)).
Petitioner Met with Attorney Rodriguez on Multiple Occasions
to Discuss the Case
claims Attorney Rodriguez failed to meet and confer with him