United States District Court, D. Hawaii
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY AND DENYING A CERTIFICATE OF APPEALABILITY
E. Kobayashi United States District Judge
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.
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,
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.
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.]
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.]
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”). [Id. at ¶¶ 14.a-b.]
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. [Id. at
1-2.] The Government's oral motion to dismiss the charges
against S. Christie in CR 10-384 was granted. [Id. at
3.] The Amended Judgment in a Criminal Case was filed on May
1, 2014. [Dkt. no. 28.]
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
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,
§ 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”).
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
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
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.
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
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). 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)).
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
Ground One - Was the Guilty Plea Knowing and
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). 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 ...