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United States v. Kealakekua

United States District Court, D. Hawaii

January 16, 2018



          Leslie E. Kobayashi United States District Judge

         Before the Court is pro se Defendant/Petitioner Julian Kealakekua's (“Kealakekua” or “Defendant”) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”), filed on December 5, 2016. [Dkt. no. 96.] Plaintiff/Respondent the United States of America (“the Government”) filed its response to the § 2255 Motion (“Response”) on April 3, 2017, and Kealakekua filed his reply on May 1, 2017. [Dkt. nos. 113, 114.] Kealakekua's § 2255 Motion is hereby denied, and a certificate of appealability is also denied, for the reasons set forth below.


         On April 2, 2014, Kealakekua was indicted for nineteen counts of bank fraud, in violation of 18 U.S.C. § 1344 and 18 U.S.C. § 2.[1] [Dkt. no. 1.] The Indictment alleged Kealakekua created and operated various companies and created websites which made it appear the companies were established and profitable. He recruited individuals to be investors or employees and induced them to apply for bank loans. The proceeds were to be turned over to him for business operations, but Kealakekua used the proceeds for his personal purposes. [Id. at ¶¶ 2-3.]

         Kealakekua initially entered a plea of not guilty, [Minutes, filed 7/10/14 (dkt. no. 10), at 1, ] but, on September 30, 2015, he withdrew his plea and entered a plea of guilty to Counts 11 and 17, pursuant to a plea agreement. [Dkt. nos. 55 (Minutes), 56 (Memorandum of Plea Agreement (“Plea Agreement”)).] In the Plea Agreement, Kealakekua acknowledged that, by pleading guilty, he was waiving certain rights and his attorney had explained those rights and the consequences of the waiver to him. [Plea Agreement at ¶¶ 16-17.] At all times relevant to the § 2255 Motion, Thomas Otake, Esq., represented Kealakekua.[2] [C]A 20 form, filed 5/4/15 (dkt. no. 41).]

         Kealakekua's sentencing hearing was held on February 29, 2016. [Minutes, filed 2/29/16 (dkt. no. 67).] The Plea Agreement was accepted and the factual findings in the presentence report were adopted. [“Presentence Investigation Report (2)” (“PSR”), filed 2/17/16 (dkt. no. 63).] The PSR found that Kealakekua's base offense level was seven, with: a sixteen-level increase because Kealakekua was responsible for total loss of $1, 531, 430.81; a two-level increase because the offense involved ten or more victims; and another two-level increase because the offense involved sophisticated means, conducted or caused by Kealakekua. His adjusted offense level was therefore twenty-seven. [Id. at ¶¶ 104-27.] After a total decrease of three levels for acceptance of responsibility, Kealakekua's total offense level was twenty-four. [Id. at ¶¶ 113-15.] His criminal history category was V. [Id. at ¶ 126.] His imprisonment range under the United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”) was therefore 92 to 115 months, and his range for supervised release was 2 to 5 years. [Id. at ¶¶ 162, 166.] The PSR noted that a total of $291, 615.31 in restitution was due to six individual victims and four banks. [Id. at ¶ 174.]

         Kealakekua was sentenced to 84 months of imprisonment, and 5 years of supervised release, and he was ordered to pay $291, 615.31 in restitution, and $200 in special assessments. This Court granted the Government's oral motion to dismiss Counts 1-10, 12-16, 18, and 19. [Minutes, filed 2/29/16 (dkt. no. 67).] The Judgment in a Criminal Case was filed on March 1, 2016. [Dkt. no. 68.]

         Kealakekua filed his Notice of Appeal on March 4, 2016. [Dkt. no. 70.] Lars Isaacson, Esq., represented Kealakekua on appeal. [Dkt. nos. 73 (order granting Mr. Otake's motion to withdraw); 74 (order appointing Mr. Isaacson).] According to the § 2255 Motion, Kealakekua argued on appeal that his criminal history score was improperly calculated. [§ 2255 Motion at 3.] On July 20, 2016, the Ninth Circuit granted the Government's motion to dismiss the appeal in light of the valid appeal waiver. [Dkt. no. 93.] The Ninth Circuit's Mandate was issued on October 21, 2016. [Dkt. no. 95.]

         In the § 2255 Motion, Kealakekua argues that Mr. Otake rendered ineffective assistance by: 1) failing to argue that the clear and convincing evidence standard applied at sentencing to the losses that were not the subject of the charged offenses; 2) failing to investigate the accuracy of the criminal history section of the PSR; and 3) failing to provide Kealakekua with a copy of the Plea Agreement and failing to advise him regarding the agreement. The Government responds that the § 2255 Motion fails to establish ineffective assistance because Mr. Otake: presented a vigorous challenge to the amount of loss, and the clear and convincing standard was met; challenged Kealakekua's criminal history score; and carefully explained the Plea Agreement to Kealakekua.


         Section 2255(a) states:

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 the sentence.

         This district court has described the standards applicable to § 2255 motions as follows:

A court 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) (internal quotation marks and citation omitted), 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 F.2d 941, 945 (9th Cir. 1993). A petitioner must “allege specific facts which, if true, would entitle him to relief.” United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (internal quotation marks and citation omitted).

United States v. Sherman, Cr. No. 16-00169 JMS, 2017 WL 4560150, at *1 (D. Hawai`i Oct. 12, 2017) (alteration in Sherman).

         The issues raised in Kealakekua's § 2255 Motion are legal issues that “can be conclusively decided on the basis of the evidence in the record, ” including the record of the underlying proceedings. See Mejia-Mesa, 153 F.3d at 929. An evidentiary hearing is therefore unnecessary in this case.


         This district court has stated:

To 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 692.
Counsel “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 fails.

United States v. Chaves, Cr. No. 14-00579 JMS (03), 2016 WL 5660327, at *4 (D. Hawai`i Sept. 28, 2016). As to the reasonableness of representation prong, a court must “determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. Kealakekua bears the burden of proof as to both prongs of the Strickland analysis. See Turk v. White, 116 F.3d 1264, 1265 (9th Cir. 1997).

         I. Representation Regarding the Plea Agreement

         This Court turns first to Kealakekua's argument that Mr. Otake rendered ineffective assistance during the period prior to the entry of the guilty plea. The Strickland analysis is applicable to those claims. See Hedlund v. Ryan, 854 F.3d 577, 576 (9th Cir. 2017) (quoting Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). Kealakekua “must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” See Hill, 474 U.S. at 59. Further, in the plea context, the Strickland analysis “is based on ‘counsel's judgment and perspective when the plea was negotiated, offered and entered, ' not on a post-adjudication assessment of the ...

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