United States District Court, D. Hawaii
ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY AND GRANTING A CERTIFICATE OF
OKI MOLLWAY, UNITED STATES DISTRICT JUDGE.
1999, Sean Matsunaga and three other men robbed a bank in
Oahu. They stole more than $100, 000, shot at the police, and
injured innocent bystanders. A jury found Matsunaga guilty of
conspiracy, bank robbery, and two counts of carrying a
firearm in furtherance of that conspiracy. After two
unsuccessful appeals and one unsuccessful § 2255
petition, Matsunaga brings a second petition under 28 U.S.C.
§ 2255, arguing that his bank robbery conviction is not
a “crime of violence” for purposes of his
conviction on Count 3, which charged Matsunaga with knowingly
carrying a firearm during and in relation to a crime of
violence. This court denies the petition and grants a
certificate of appealability.
STANDARD OF REVIEW.
§ 2255, a court may grant relief to a federal prisoner
who challenges the imposition or length of his or her
incarceration on four grounds: (1) that the sentence was
imposed in violation of the Constitution or laws of the
United States; (2) that the court was without jurisdiction to
impose such sentence; (3) that the sentence was in excess of
the maximum authorized by law; or (4) that the sentence is
otherwise subject to collateral attack. 28 U.S.C. §
§ 2255 petition cannot be based on a claim that has
already been disposed of by the underlying criminal judgment
and ensuing appeal. As the Ninth Circuit stated in Olney
v. United States, 433 F.2d 161, 162 (9th Cir.
1970), “Having raised this point unsuccessfully on
direct appeal, appellant cannot now seek to relitigate it as
part of a petition under § 2255.”
when a § 2255 petitioner has not raised an alleged error
at trial or on direct appeal, the petitioner is procedurally
barred from raising an issue in a § 2255 petition if it
could have been raised earlier, unless the petitioner can
demonstrate both “cause” for the delay and
“prejudice” resulting from the alleged error. As
the Court said in United States v. Frady, 456 U.S.
152, 167-68 (1982), “[T]o obtain collateral relief
based on trial errors to which no contemporaneous objection
was made, a convicted defendant must show both (1)
‘cause' excusing his double procedural default, and
‘actual prejudice' resulting from the errors of
which he complains.” Id.; accord Davis v.
United States, 411 U.S. 233, 242 (1973).
may dismiss a § 2255 petition 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.” Rule 4(b), Section 2255 Rules.
need not hold an evidentiary hearing if the allegations are
“palpably incredible or patently frivolous” or if
the issues can be conclusively decided on the basis of the
evidence in the record. See Blackledge v. Allison,
431 U.S. 63, 76 (1977); see also 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”); United States v. Christie, 2018
WL 1073128, *3 (D. Haw. Feb. 27, 2018) (“A court need
not hold an evidentiary hearing if the allegations are
palpably incredible or patently frivolous, or if the issues
can be conclusively decided on the basis of the evidence in
the record.” (quotation marks, citations, and
alterations omitted)). This court determines that
Matsunaga's present § 2255 motion raises purely
legal issues. No. evidentiary hearing has been requested, and
none is necessary.
Matsunaga's second § 2255 petition. The court set
forth the background in its earlier order denying his first
§ 2255 petition:
On July 7, 1999, Matsunaga, Albert Batalona, Jacob Hayme, and
Roger Dailey robbed the American Savings Bank located in
Kahala on Oahu. Wearing ski masks and armed with weapons,
they entered the bank and ordered everyone to lie on the
floor. Transcript of Proceedings (“Transcript”)
Volume 3 at 11-13, 167 (bank employee describing events)
(Sept. 26, 2002). Some bank employees were pushed to the
floor and hit with a rifle. Id. at 13, 27. The men
took more than $100, 000 from the teller cash dispenser that
contained bait bills and dye packs. Id. at 88-91,
110. The dye packs exploded when they were taken from the
bank. Id. at 20, 54.
Because a bank employee had pushed a silent alarm that
alerted the police that there was a problem, police were
waiting outside the bank. Id. at 23. Batalona shot
at the police. Id. at 34, 96, 136-38. Matsunaga,
Hayme, and Dailey escaped together, while Batalona, still
armed and wearing a face mask, stopped a bakery delivery van
and escaped in that van.
Shortly thereafter, the four men were arrested.
Subsequently, a Superseding Indictment issued charging
Matsunaga and Hayme with five counts. Count 1 charged
Matsunaga and Hayme with conspiring with others to rob a bank
in violation of 18 U.S.C. § 2113(a). Count 2 charged
Matsunaga and Hayme with bank robbery in violation of 18
U.S.C. § 2113(a). Counts 3 and 4 charged Matsunaga and
Hayme with knowingly carrying semiautomatic assault weapons
during the robbery in violation of 18 U.S.C. §§
921(a)(30), 924(c)(1)(A), and 2. Specifically, Count 3
charged Matsunaga and Hayme with being responsible for the
carrying of a Norinco .223 semi-automatic assault weapon
(Hayme's alleged weapon), while Count 4 charged Matsunaga
and Hayme with being responsible for the carrying of a AR-15
.223 semi-automatic assault weapon (Matsunaga's alleged
weapon). Count 5 charged Matsunaga and Hayme with being
responsible for the carrying of a machine gun (Batalona's
alleged weapon). Id. Matsunaga was thus charged with
carrying three weapons during the bank robbery: two firearms
carried by his co-conspirators, and his AR-15 semiautomatic
weapon, which was never recovered.
. . . .
On October 8, 2002, the jury found Matsunaga guilty on Counts
1 through 4 of the Superseding Indictment, but not guilty on
Count 5. This court ordered judgment of acquittal as to Count
Order Denying Motion to Vacate, Set Aside, or Correct a
Sentence by a Person in Federal Custody under 28 U.S.C.
§ 2255 at 2-7, ECF No. 323, PageID #s 727-30 (Aug. 26,
was ultimately sentenced to 60 months of imprisonment on the
conspiracy charge alleged in Count 1, 151 months of
imprisonment on the bank robbery charge alleged in Count 2
(running concurrently with Count 1), and 10 years of
imprisonment on the § 924(c) charge alleged in Count 3
(running consecutively to the sentence on Count 2), for a
total of 271 months imprisonment. See Fourth Amended
Judgment, ECF No. 274, PageID # 133 (May 11, 2006).
appealed. On July 2, 2008, the Ninth Circuit Court of Appeals
affirmed in a memorandum decision. See ECF No. 292.
Matsunaga did not seek certiorari from the United States
October 8, 2009, Matsunaga filed his first petition under
§ 2255. See ECF No. 308. That petition was
denied in an amended order of August 26, 2010. See
ECF No. 323.
26, 2016, Matsunaga filed the present (his second) petition
under § 2255, after receiving permission from the Ninth
Circuit to do so. See ECF Nos. 330-31.