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United States v. Christie

United States District Court, D. Hawaii

February 27, 2018

SHERRYANNE L. CHRISTIE, FKA Sherryanne L. St. Cyr, Defendant


          Leslie E. Kobayashi United States District Judge

         Before the Court is pro se Defendant/Petitioner Sherryanne L. Christie's (“S. Christie”) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”), filed on April 27, 2017. [Dkt. no. 78.] Plaintiff/Respondent the United States of America (“the Government”) filed its response to the § 2255 Motion (“Response”) on September 25, 2017, and S. Christie filed her reply on October 27, 2017. [Dkt. nos. 121, 123.] S. Christie's § 2255 Motion is hereby denied, and a certificate of appealability is also denied, for the reasons set forth below.


         On June 24, 2010, S. Christie - who was then known as Sherryanne L. St. Cyr - and thirteen others were indicted in Criminal Number 10-00384 LEK (“CR 10-384”). [CR 10-384, dkt. no. 1.] The grand jury returned the First Superseding Indictment (“Superseding Indictment”) on January 17, 2013. [Id., dkt. no. 509.] The Superseding Indictment alleged that Defendant Roger Cusick Christie (“R. Christie”), with S. Christie's assistance, operated the THC Ministry - also known as the Hawaii Cannabis Ministry - in Hilo, Hawai`i, and the operation illegally manufactured, distributed, and sold marijuana. The Superseding Indictment charged S. Christie with: one count of conspiracy to manufacture, distribute, and possess with intent to distribute one hundred or more marijuana plants, as well as harvested marijuana, processed marijuana and products containing marijuana, in violation of 21 U.S.C. § 841(a)(1) (“Count 1”); manufacturing approximately 284 marijuana plants, in violation of § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2 (“Count 2”); possessing with intent to distribute approximately 284 marijuana plants, in violation of § 841(a)(1) and (b)(1)(B) and § 2 (“Count 3”); and maintaining a place for the purpose of manufacturing and distributing marijuana, manufacturing approximately 284 marijuana plants, in violation of 21 U.S.C. § 856(a)(1) and (b) (“Count 13”). On February 1, 2013, S. Christie pled not guilty to the charges in the Superseding Indictment. [Id., Minutes, filed 2/1/13 (dkt. no. 540).] During the underlying proceedings in this district court relevant to the § 2255 Motion, S. Christie was represented by Lynn Panagakos, Esq.[1]

         On April 1, 2013, S. Christie and R. Christie (“the Christies”) jointly filed a motion seeking a ruling that they would be allowed to present a defense under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1. [Id., Motion in Limine to Present Religious Freedom Restoration Act Defense (“RFRA Motion”), filed 4/1/13 (dkt. no. 587).] The Christies presented evidence that R. Christie was the founder and leader of the THC Ministry. [Id., RFRA Motion, Decl. of Roger Christie (“R. Christie Decl.”) at ¶ 10.] S. Christie was an ordained minister in the THC Ministry, and she managed it when R. Christie was recovering from a broken ankle. [Id., RFRA Motion, Decl. of Sherryanne L. Christie (“S. Christie Decl.”) at ¶¶ 16-17.] R. Christie stated: “I consume, possess, cultivate and distribute Cannabis as sanctioned and required by my legitimate religion and sincere religious beliefs as a member of the THC Ministry. The consumption, possession, cultivation and distribution of Cannabis are essential and necessary components of the THC Ministry.” [Id., R. Christie Decl. at ¶ 44.] S. Christie made similar statements. [Id., S. Christie Decl. at ¶ 21.] The RFRA Motion asserted they were entitled to present a RFRA defense at trial because they made a prima facie showing that the charges against them substantially burdened their sincere exercise of their religion, and the Government did not establish the prosecution was the least restrictive means of furthering a compelling governmental interest.

         On September 11, 2013, an entering order was issued informing the parties the RFRA Motion was denied (“9/11/13 RFRA Ruling”). [Id., dkt. no. 719.] The 9/11/13 RFRA Ruling was superseded by subsequent written orders. Ultimately, this Court concluded: the Christies established a prima facie case under RFRA, and the burden shifted to the Government to establish a compelling interest in enforcing the Controlled Substances Act, 21 U.S.C. § 801, et seq. (“CSA”); and prosecuting the Christies was the least restrictive means of furthering the compelling interest. [Id., First Preliminary Ruling as to Defs.' Motion in Limine to Present Religious Freedom Restoration Act Defense, filed 12/30/13 (dkt. no. 810), at 15-16.] Ultimately, this Court concluded the Government met its burden as to both elements and denied the RFRA Motion. [Id., Order Denying Defs.' Motion in Limine to Present Religious Freedom Restoration Act Defense, filed 12/30/13 (dkt. no. 811) at 24-25, 28.]

         While the Christies were litigating the RFRA Motion, they were also litigating the issue of whether they could raise an entrapment defense at trial. [R. Christie's Notice of Intent to Rely on Defense of Entrapment by Estoppel at Trial, filed 7/29/13 (dkt. no. 658); Motion in Limine to Prohibit Defendant Roger Cusick Christie from Presenting Defense of Entrapment by Estoppel (“Entrapment Motion”), filed 8/6/13 (dkt. no. 663).] A hearing on the Entrapment Motion was held on September 19, 2013, and an outline of this Court's ruling was issued on September 20, 2013 (“9/20/13 Entrapment Ruling”). [Minutes, filed 9/19/13 (dkt. no. 730); Minutes (further hearing), filed 9/19/13 (dkt. no. 732); 9/20/13 Entrapment Ruling (dkt. no. 735).] The 9/20/13 Entrapment Ruling stated R. Christie had to make a showing of how statements allegedly made to him by state and county officials were relevant to his entrapment by estoppel defense before the testimony would be presented to the jury, and that S. Christie made a prima facie showing to raise the defense. [9/20/13 Entrapment Ruling at 2.] A written order denying the Entrapment Motion was filed on December 30, 2013. [Dkt. no. 812.]

         After the 9/11/13 RFRA Ruling and the 9/20/13 Entrapment Ruling, pursuant to a plea agreement, S. Christie entered a conditional plea of guilty to a one-count Information charging her with conspiracy to manufacture, distribute, and possess with intent to distribute fifty or more marijuana plants, as well as harvested and processed marijuana and other products containing marijuana, in violation of § 841(a)(1) and (b)(1)(C). [Information, filed 9/26/13 (dkt. no. 1); Minutes, filed 9/27/13 (dkt. no. 5) (arraignment and plea to the Information); Mem. of Plea Agreement (“Plea Agreement”), filed 9/27/13 (dkt. no. 8).] In the Plea Agreement, S. Christie reserved the right to appeal certain pretrial rulings in CR 10-384, including the denial of the RFRA Motion. The Plea Agreement provided that S. Christie could withdraw her guilty plea if any of those pretrial rulings were reversed on appeal. The Plea Agreement expressly stated that the reservation of S. Christie's right to appeal those rulings did not authorize her to challenge those rulings in collateral proceedings, including through a § 2255 motion. [Plea Agreement at ¶¶ 4, 5B-5D.] S. Christie waived her right to bring a collateral attack against her sentence, or the manner in which it was determined, except for challenges based on the ineffective assistance of counsel of if her sentence was greater than the applicable range under the United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”).[2] [Id. at ¶¶ 14.a-b.]

         S. Christie's guilty plea was accepted and she was adjudicated guilty on October 22, 2013. [Dkt. no. 13.] S. Christie's sentencing hearing was held on April 28, 2014. [Minutes, filed 4/28/14 (dkt. no. 23) (“Sentencing Minutes”).] The Plea Agreement was accepted, and S. Christie was sentenced to twenty seven months of imprisonment and three years of supervised release.[3] [Id. at 1-2.] The Government's oral motion to dismiss the charges against S. Christie in CR 10-384 was granted.[4] [Id. at 3.] The Amended Judgment in a Criminal Case was filed on May 1, 2014. [Dkt. no. 28.]

         S. Christie filed her Notice of Appeal on May 8, 2014. [Dkt. no. 29.] On June 24, 2015, the Ninth Circuit granted Ms. Panagakos's motion to withdraw as counsel, and Georgia McMillen, Esq., was appointed, effective June 25, 2015. [Dkt. nos. 46, 48.] The Christies filed a joint opening brief prior to Ms. Panagakos's withdrawal. Ms. McMillen filed a joinder in R. Christie's reply brief and appeared at the oral argument.

         The Ninth Circuit affirmed both the judgment against S. Christie in this case and the and the judgment against R. Christie in CR 10-384 in an opinion filed on June 14, 2016. United States v. Christie, 825 F.3d 1048 (9th Cir. 2016). The Ninth Circuit held, inter alia: the Government had a compelling interest in preventing the diversion of cannabis used by the THC Ministry and enforcing the CSA against the Christies meaningfully advanced that interest; id. at 1060; the Government could not achieve its compelling interest through any less restrictive means; and therefore prosecuting the charges against the Christies did not violate RFRA, id. at 1063-64. It also held that: authorizing wiretaps of two telephone numbers associated with R. Christie and R. Christie's cellular phone was not an abuse of discretion; and the Christies were not entitled to an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). Christie, 825 F.3d at 1066, 1069.

         The § 2255 Motion followed. It alleges the following grounds: 1) S. Christie's guilty plea was not knowingly and voluntarily made because her attorney advised her that she had no other choice but to plead guilty after the denial of the RFRA Motion (“Ground One”); 2) the Government intentionally suppressed material exculpatory and impeachment evidence, and S. Christie would not have pleaded guilty if she had known about the evidence (“Ground Two”); 3) trial counsel was ineffective because of the failure to fully investigate the facts of the case and to file appropriate motions, and appellate counsel was ineffective because of the failure to raise trial counsel's effective assistance (“Ground Three”); 4) denying S. Christie the ability to present her RFRA defense was such a fundamental denial of her rights that it was per se unconstitutional (“Ground Four”); and 5) she is entitled to § 2255 relief because of the Government's overreaching in the underlying proceedings (“Ground Five”).


         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 S. Christie'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.


         I. Procedural Bar

         At the outset, it must be noted that many of the grounds in S. Christie's § 2255 Motion may be procedurally barred. “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998) (citations and internal quotation marks omitted).

Generally, to demonstrate “cause” for procedural default, an appellant must show that “some objective factor external to the defense” impeded his adherence to the procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).[5] However, if the record shows that an appellate counsel's performance fell below the standard of competency of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), or that he was denied representation by counsel on appeal altogether, he has demonstrated cause for his procedural default. See Murray, 477 U.S. at 488, 106 S.Ct. 2639 (“Ineffective assistance of counsel, then, is cause for a procedural default.”); Allen v. Risley, 817 F.2d 68, 69 (9th Cir. 1987) (“‘Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default.'”) (quoting Murray, 477 U.S. at 492, 106 S.Ct. 2639). . . .

United States v. Skurdal, 341 F.3d 921, 925-26 (9th Cir. 2003) (some citations omitted). This district court has recognized that § 2255 motions alleging ineffective assistance of counsel claims should not be procedurally barred “because the record may not be properly developed to raise ineffective assistance of counsel claims on direct appeal.” Gowadia v. United States, CRIM. NO. 05-00486 SOM, 2015 WL 5838471, at *3 (D. Hawai`i Oct. 5, 2015) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)).

         Although S. Christie alleges violations of her constitutional rights in the course of the proceedings and that her guilty plea was not knowingly and voluntarily made, she does not deny she committed the conduct which forms the basis of the charge that she pled guilty to. She must therefore establish cause and prejudice to overcome any procedural bar. S. Christie's alleged cause is that she was denied constitutionally effective assistance of counsel. Although it could be argued that Ms. McMillen - who ultimately represented S. Christie on appeal - could have argued on appeal that her predecessors rendered ineffective assistance, it was Ms. Panagakos who filed the opening brief on S. Christie's behalf and framed the issues on appeal. Thus, to the extent S. Christie alleges Ms. Panagakos made errors in this district court and on appeal, the record may not have been fully developed to raise ineffective assistance even after she withdrew as S. Christie's counsel. Moreover, even if Ms. McMillen arguably had the opportunity in the appeal to raise any alleged errors by prior counsel, S. Christie also alleges Ms. McMillen rendered ineffective assistance, and the record may not have been fully developed. If S. Christie establishes ineffective assistance of counsel, it would establish cause for purposes of the procedural bar analysis.

         II. Ground One - Was the Guilty Plea Knowing and Voluntary

         Ground One alleges S. Christie's guilty plea was not knowingly and voluntarily made because her counsel advised her she had no choice but to plead guilty because of the denial of the RFRA Motion. Ms. Panagakos denies making such statements to Ms. Christie. [Response, Exh. 2 (Decl. of Lynn E. Panagakos (“Panagakos Decl.”)) at ¶ 7.] Shortly after Ms. Panagakos was appointed as S. Christie's counsel, she sent a detailed letter, dated April 16, 2012, to S. Christie explaining the option of either accepting the Government's offered terms of a plea agreement or going to trial (“4/6/12 Letter”). [Id. at ¶ 3, Exh. 1 at 8-14 (4/16/12 Letter).[6] In the 4/16/12 Letter “and on numerous subsequent occasions, [Ms. Panagakos] informed Ms. Christie that whatever she decided, [Ms. Panagakos] would vigorously represent her.” [Panagakos Decl. at ¶ 3.] After learning that S. Christie was unable to read the 4/16/12 Letter, Ms. Panagakos met with her and read the 4/16/12 Letter to her aloud and discussed the contents of the letter with her. Ms. Panagakos also had another attorney ...

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