United States District Court, D. Hawaii
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
A SENTENCE BY A PERSON IN FEDERAL CUSTODY UNDER 28 U.S.C.
§ 2255; ORDER GRANTING CERTIFICATE OF
Oki Mollway United States District Judge.
John Penitani was convicted of drug-related crimes in two
cases and sentenced to a total of 168 months of imprisonment,
5 years of supervised release, and a $200 special assessment.
Penitani unsuccessfully appealed and then timely moved for
relief under 28 U.S.C. § 2255 in his two cases. Penitani
then submitted numerous handwritten letters. The court issues
a single ruling applicable to all his motions.
Penitani initially raised numerous claims in support of his
motions, he ultimately restricts himself to arguing that his
former counsel, Myles S. Breiner, had a conflict of interest
based on Breiner's representation of both Charles Foster
and Penitani, and that the Assistant United States Attorney
(“AUSA”) should have informed the court about
that alleged conflict of interest. The court denies the
THE ISSUES BEFORE THIS COURT HAVE BEEN SIGNIFICANTLY
filing his § 2255 motions, Penitani himself mailed
numerous letters to this court. This court appointed counsel
for Penitani and asked counsel to clarify what issues
Penitani wanted the court to consider. The court told
Penitani that any issue not identified in the requested
response would be deemed waived. See ECF No. 249,
7, 2017, Penitani identified as issues for the court to
adjudicate alleged ineffective assistance of counsel by Myles
S. Breiner based on (1) Breiner's alleged conflicts of
interest relating to his representation of Charles Foster,
Subrina Toomey, and Penitani; (2) Breiner's failure to
challenge the presentence investigation report; (3)
Breiner's failure to insist that certain alleged plea
agreement terms be in writing; and (4) Breiner's
bargaining away of Penitani's appellate rights. Penitani
additionally identified alleged prosecutorial misconduct by
AUSA Chris Thomas based on (1) Thomas's failure to move
to disqualify Breiner because of Breiner's conflicts of
interest; (2) Thomas's alleged misrepresentations as to
the whether Penitani would receive a sentence of less than 10
years; and (3) Thomas's alleged use of information in
violation of a proffer agreement. Finally, Penitani
identified a breach of an alleged agreement that a sentence
of less than 10 years be sought, judicial misconduct,
ineffective assistance by appellate counsel Pamela
O'Leary Tower. See ECF No. 255.
multiple hearings and live testimony with respect to
Penitani's motions, the court asked for supplemental
closing argument briefs, telling the parties that any issue
not raised in the supplemental brief would be deemed waived:
[Y]ou are limited in your closing argument briefs to issues
that were raised in your list of issues, but you are not
required to rely on all issues raised in your list of
issues[. I]f you do not in your closing argument briefs
mention an issue that was on your list, I will deem that
Mr. Penitani, do you understand what I'm saying? I'm
kind of trying to figure out what really do I need to
address. And there may--there's already been a narrowing
because I made your lawyer give me a list. If it's not on
the list, it's not an issue. He gets to write briefs now.
If it's not in the brief, even if it's in your list,
I'm not going to consider it to be something I need to
decide. Do you understand?
THE DEFENDANT: Yeah, most of it.
THE COURT: What don't you understand?
THE DEFENDANT: I mean I understand.
THE COURT: . . . in any event, whatever's in the brief[,
] that's all that I'm going to consider. Do you
THE DEFENDANT: Yes.
of Proceedings (Dec. 19, 2017) at 38-39, ECF No. 297, PageID
closing argument of February 9, 2018, ECF No. 300, Penitani
limited his discussion to whether Breiner had a conflict of
interest based on his representation of both Penitani and
Charles Foster, and whether AUSA Thomas should have brought
that conflict of interest to the court's attention. This
court deems all other issues raised by Penitani in support of
his § 2255 motions to have been waived.
November 28, 2017, Drug Enforcement Administration Special
Agents Clement B. Sze and Lauren A. Carney, Federal Bureau of
Investigation Special Agent Grant Knorr, Breiner, and Lani
Nakamura, Esq., testified. See ECF No. 291. On
November 29, 2017, Breiner and Thomas testified. See
ECF No. 292. On December 1, 2017, Penitani testified.
See ECF No. 293. Most of the testimony was unrelated
to the issues now remaining before this court. Unless
specifically noted in the present order, each witness
testified credibly, although witnesses' memories
sometimes had faded.
began representing Charles Foster in February 2013, when
Foster was in state court on drug charges. When charges
related to the same drugs were brought in federal court,
Breiner continued to represent Foster with respect to his
federal drug charges. See Crim. No. 13-00219, ECF
No. 7; see also Declaration of Attorney Myles S.
Breiner ¶ 2, ECF No. 278, PageID # 1771 (“I
represented Charles Foster in the case of United States
vs. Charles Foster, Cr. No. 13-00219 DKW . . . from
February 2013 through August 7, 2013.”); Transcript of
Proceedings (Nov. 28, 2017) at 92, ECF No. 305, PageID #
2015. A federal court indictment of Foster was filed on March
6, 2013. See Crim. No. 13-00219, ECF No. 24. It
charged that, on or about February 14, 2013, Foster, John
Garcia IV, and Chrystyan Burke possessed methamphetamine with
intent to distribute (Count 1); and possessed cocaine with
intent to distribute (Count 2). It also charged Foster and
Garcia with carrying a firearm during and in relation to the
drug trafficking crimes (Count 3). Id. That case,
assigned to Senior District Judge Helen Gillmor, was the
first of three federal criminal cases relevant to the present
says that, “[a]t no time during my representation of
Foster was the name of John Penitani ever brought up,
disclosed by Foster or discussed in any way.”
See Breiner Decl. ¶ 4, ECF No. 278, PageID #
1772; accord Transcript of Proceedings (Nov. 29,
2017) at 107, ECF No. 306, PageID # 2198 (“During the
representation of Charles Foster by Myles Breiner, from
February until the time that he was discharged as an
attorney, or terminated his representation of Mr. Penitani,
Mr. Penitani's name was not raised a single time.”)
testified that, after Penitani's arrest, Penitani gave
statements to the Government on May 14 and 15, 2013, without
legal representation. Transcript of Proceedings (Nov. 28,
2017) at 94, ECF No. 305, PageID # 2017. On May 23, 2013,
Penitani was indicted along with Hien Nguyen and Sugalu Galu
and charged with drug-related crimes, including possession of
and conspiracy to possess with intent to distribute more than
50 grams 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). See Crim. No. 13-00514 SOM, ECF
No. 17. The May 2013 indictment, filed in the second federal
criminal case relevant here, did not mention Foster. Breiner
first appeared on behalf of Penitani at his detention hearing
of May 21, 2013. See Crim. No. 13-00514 SOM, ECF No.
month later, on June 20, 2013, in the third federal criminal
case relevant here, Penitani faced another indictment with
drug charges, this one naming him along with Siaosi Mafileo,
Mukusi Penitani, Salvador Maciel, Michael Coleman, Jacob Del
Mundo Faagai, Michael Nguyeun, Julius Mitchell, Keschan
Taylor, Robert Akolo, and Donald Seals. See Crim.
No. 13-00653 SOM, ECF No. 1. This indictment charged Penitani
with possession of and conspiracy to distribute and possess
with intent to distribute more than 50 grams 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 included two counts referring to 5 grams or
more of the drug. Id. Breiner appeared on behalf of
Penitani at his initial appearance in this case on June 27,
2013. See Crim. No. 13-00653 SOM, ECF No. 36. A
Superseding Indictment charging the same defendants with
similar drug crimes was filed on August 22, 2013.
See Crim. No. 13-00653 SOM, ECF No. 88.
Thomas prosecuted all three cases. See Transcript of
Proceedings (Nov. 29, 2017) at 24, ECF No. 306, PageID #
conceded that there was some overlap in time with respect to
his representation of Foster and Penitani. Transcript of
Proceedings (Nov. 28, 2017) at 106, ECF No. 305, PageID #
2029. That is, Breiner was representing Foster when he began
representing Penitani in May 2013. Breiner did not move to
withdraw as Foster's counsel until July 26, 2013.
See Crim. No. 13-00219, ECF No. 54. On August 5,
2013, a hearing was held in Foster's federal case on the
motion to withdraw as counsel. The court orally granted the
motion. Id., ECF No. 56. A written order granting
the withdrawal was filed on August 7, 2013. Id., ECF
testified that, after Penitani was arrested, Penitani made
inculpatory statements to the Government before he was
represented by an attorney. Most of the co-defendants in the
later federal case naming him cooperated against him.
Penitani's focus was on reducing his sentence, not
asserting his innocence. See Transcript of
Proceedings (Nov. 28, 2017) at 95-98, ECF No. 305, PageID #s
2018-21; Transcript of Proceedings (Nov. 29, 2017) at 15, 23,
28, ECF No. 306, PageID # 2106, 2114, 2119.
end, Penitani participated in a number of meetings, or
“debriefings, ” with Government agents to provide
them with information concerning his drug distribution
activities. AUSA Thomas says that Penitani had seven
debriefings with Government agents at which he was
represented by Breiner or his associate, Lani Nakamura, plus
two meetings before Breiner began representing him. Special
Agent Sze put the total number of debriefings at eight, with
Breiner or Nakamura being present at six of the eight.
Penitani testified that there were more than five meetings
and possibly more than ten meetings. Breiner testified that
there were eleven or twelve debriefings. Transcript of
Proceedings (Nov. 29, 2017) at 9, ECF No. 306, PageID # 2100.
Breiner and AUSA Thomas at first told the court that Penitani
began discussing Foster in a debriefing in May 2014, they
both corrected themselves, testifying that Penitani began
discussing Foster on October 1, 2013. Transcript of
Proceedings (Nov. 29, 2017) at 24, 96, ECF No. 306, PageID #s
2115, 2187; see also ECF No. 279, PageID # 1801
(Report of Investigation prepared by Special Agent Clement B.
Sze on October 2, 2013, memorializing that Penitani told
Government agents on October 1, 2013, that Penitani had
supplied Foster with both methamphetamine and cocaine);
see also Transcript of Proceedings (Nov. 28, 2017)
at 16-17, ECF No. 305, PageID #s 1939-40 (Special Agent Sze
testifying about the first time Penitani discussed Foster).
Breiner and Nakamura were present at the debriefing on
October 1, 2013. Transcript of Proceedings (Nov. 28, 2017) at
20, ECF No. 305, PageID # 1943.
October 1, 2013, Penitani was shown pictures of various
people and identified Foster as a person to whom he had been
selling drugs. Breiner said he was “surprised” by
that connection. Transcript of Proceedings (Nov. 29, 2017) at
18-19, ECF No. 306, PageID #s 2109-10; ECF No. 279, PageID #
1801. Breiner believed that he did not have a conflict of
interest at that time because the drugs Penitani was talking
about were not the drugs involved in the charges against
Foster. Transcript of Proceedings (Nov. 29, 2017) at 25, ECF
No. 306, PageID # 2116.
testified that, in a debriefing on May 16, 2014, Penitani
further discussed having supplied Foster with drugs.
Id. at 21-22, PageID #s 2112-13. Penitani testified
about Foster to a grand jury. Transcript of Proceedings (Nov.
29, 2017) at 27, ECF No. 306, PageID # 2118. On May 22, 2014,
a Superseding Indictment was filed in Foster's case.
See Id. at 26, PageID # 26; see also Crim.
No. 13-00219 DKW, ECF No. 99, PageID # 239 (charging Foster,
Garcia, and Nguyen with conspiring to commit drug crimes with
Sheldon Koyanagi and Penitani).
May 2014, Breiner still believed that he had no conflict of
interest, reasoning that he no longer represented Foster and
that Penitani was describing drug deals unrelated to the
charges Breiner had represented Foster on. Transcript of