United States District Court, D. Hawaii
DENYING PETITIONER'S MOTION TO RECONSIDER HIS MOTION FOR
APPOINTMENT OF COUNSEL AND MOTION FOR MEDICAL EVALUATION (ECF
NO. 98) AND DENYING PETITIONER'S MOTION
TO STAY THE ORDER WAIVING ATTORNEY-CLIENT PRIVILEGE (ECF NO.
98) AND VACATING AND REENTERING JUDGMENT
PURSUANT TO PETITIONER LUKE WARNER'S 28 U.S.C. §
2255 PETITION (ECF NO. 83)
February 1, 2018, Petitioner Luke Warner filed a Motion to
Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C.
§ 2255 (“Section 2255 Petition”). Petitioner
challenged his sentence, stating his attorney provided
ineffective assistance of counsel by failing to file a notice
Court's March 28, 2018 Order, the Court asked the
Government to decide whether it either (1) sought an
evidentiary hearing, or (2) declined to seek an evidentiary
hearing and did not oppose Petitioner Warner's Section
2255 Petition on the basis of ineffective assistance of
counsel for failure to file an appeal.
April 6, 2018, the Government indicated it did not seek an
evidentiary hearing on Petitioner's claim that his
attorneys failed to appeal.
April 10, 2018, Petitioner filed a Response. Petitioner seeks
reconsideration of the Court's orders denying his request
for appointment of counsel and request for a medical
evaluation. Petitioner also requests a stay of the
Court's order finding a waiver of attorney-client
privilege based on the ineffective assistance of counsel
claim presented in his Section 2255 Petition.
requests for reconsideration and his request for a stay are
to the Ninth Circuit Court of Appeals's decision in
United States v. Sandoval-Lopez, 409 F.3d 1193, 1198
(9th Cir. 2005), the Court assumes, without deciding, that
Petitioner timely requested an appeal that was not made, and
therefore vacates and reenters the Judgment, allowing
Petitioner to file a Notice of Appeal, if he so chooses.
Warner's Section 2255 Motion (ECF No. 83) is
GRANTED. The Court's Judgment imposed on
March 12, 2015 (ECF No. 31) is VACATED and
is REENTERED as of the date of this Order.
Sentence and Conditions of the Judgment are unchanged.
17, 2014, the Government filed an Information, charging
Petitioner Luke Warner with one count of conspiracy to
possess with intent to distribute 500 grams or more of
methamphetamine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A). (ECF No. 1).
24, 2017, Petitioner Warner waived Indictment (ECF No. 10)
and Consented to a Rule 11 Plea in a Felony Case Before a
United States Magistrate Judge. (ECF No. 11). Petitioner pled
guilty to the one count in the Information pursuant to a
Memorandum of Plea Agreement. (ECF Nos. 8, 12).
August 11, 2014, the District Court issued an ACCEPTANCE OF
PLEA OF GUILTY, ADJUDICATION OF GUILT AND NOTICE OF
SENTENCING. (ECF No. 17).
March 12, 2015, the Court held a sentencing hearing.
Petitioner was sentenced to 120 months imprisonment and ten
years of supervised release. (ECF No. 27). Mittimus was
stayed until May 26, 2015. (Id. at p. 3; Judgment at
p. 2, ECF No. 31).
March 23, 2015, the Magistrate Judge issued an Order To Allow