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 Roger Cusick
Christie's (“R. Christie” or
“Defendant”) Motion under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (“§ 2255 Motion”), filed on
May 2, 2017. [Dkt. nos. 1105 (§ 2255 Motion), 1111 (mem.
in supp.).] Plaintiff/Respondent the United States of America
(“the Government”) filed its response to the
§ 2255 Motion (“Response”) on October 13,
2017, and R. Christie filed his reply on November 7, 2017.
[Dkt. nos. 1162 (Response), 1173 (reply), 1174 (aff. in supp.
of reply).] R. Christie's § 2255 Motion is hereby
denied, and a certificate of appealability is also denied,
for the reasons set forth below.
grand jury returned an Indictment against R. Christie and
thirteen others on June 24, 2010. [Dkt. no. 1.] The grand
jury returned the First Superseding Indictment
(“Superseding Indictment”) on January 17, 2013.
[Dkt. no. 509.] The Superseding Indictment alleged that R.
Christie, with the assistance of Defendant Sherryanne L. St.
Cyr - who is now known as Sherryanne L. Christie (“S.
Christie”), 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 R. 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 and 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”); 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”);
distributing quantities of marijuana on or about May 21,
2008, June 24, 2008, and August 13, 2008, in violation of
§ 841(a)(1) and (b)(1)(D) (“Count 14, ”
“Count 15, ” “Count 16”); and failing
to file a federal income tax return for the calendar years
2008 and 2009, in violation of 26 U.S.C. § 7203
(“Count 17” and “Count 18”). On
February 1, 2013, R. Christie pled not guilty to the charges
in the Superseding Indictment. [Minutes, filed 2/1/13 (dkt.
no. 540).] At all times relevant to his § 2255 Motion,
R. Christie was represented by Thomas Otake, Esq., during the
proceedings in this district court.
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. [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. [RFRA Motion, Decl. of Roger
Christie (“R. Christie Decl.”) at ¶ 10.] 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. at
¶ 44.] The RFRA Motion asserted R. Christie was entitled
to present a RFRA defense at trial because he made a prima
facie showing that the charges against him substantially
burdened his sincere exercise of his religion, and the
Government did not establish the prosecution was the least
restrictive means of furthering a compelling governmental
September 11, 2013, an entering order was issued informing
the parties the RFRA Motion was denied (“9/11/13 RFRA
Ruling”). [Dkt. no. 719.] The 9/11/13 RFRA Ruling was
superseded by subsequent written orders. 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. [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. [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 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, R. Christie entered a
conditional plea of guilty to Counts 1, 17, and 18. [Mem. of
Plea Agreement (“Plea Agreement”), filed 9/27/13
(dkt. no. 742); Minutes, filed 9/27/13 (dkt. no. 743) (change
of plea hearing).] In the Plea Agreement, R. Christie
reserved the right to appeal certain pretrial rulings,
including the denial of the RFRA Motion. The Plea Agreement
stated R. Christie could withdraw his guilty plea to Count 1
if any of those pretrial rulings were reversed on appeal, and
he could withdraw his guilty plea to Counts 17 and 18 if the
rulings on the motion to suppress were reversed. The Plea
Agreement expressly stated the reservation of R.
Christie's right to appeal those rulings did not
authorize him to challenge those rulings in collateral
proceedings, including through a § 2255 motion. [Plea
Agreement at ¶¶ 4, 5B-5D.] R. Christie waived his
right to bring a collateral attack against his sentence, or
the manner in which it was determined, except for challenges
based on the ineffective assistance of counsel. [Id.
at ¶ 14.a.]
Christie's guilty plea was accepted and he was
adjudicated guilty on October 22, 2013. [Dkt. no. 766.] R.
Christie's sentencing hearing was held on April 28, 2014.
[Minutes, filed 4/28/14 (dkt. no. 926) (“Sentencing
Minutes”).] The Plea Agreement was accepted, and R.
Christie was sentenced to: sixty months of imprisonment as to
Count 1 and twelve months each as to Counts 17 and 18, all to
be served concurrently; four years of supervised release as
to Count 1 and one year each as to Counts 17 and 18, all to
be served concurrently; and $13, 944.00 in restitution.
[Id. at 1-2.] The Government's oral motion to
dismiss the remaining charges against him was granted.
[Id. at 4.] The Judgment in a Criminal Case was
filed on April 29, 2014. [Dkt. no. 929.]
Christie filed his Notice of Appeal on May 8, 2014. [Dkt. no.
939.] The Ninth Circuit affirmed both the judgment against R.
Christie in this case and the judgment against S. Christie in
CR 13-889 in an opinion filed on June 14, 2016. United
States v. Christie, 825 F.3d 1048 (9th Cir. 2016).
§ 2255 Motion followed. It alleges the following
grounds: 1) R. Christie's guilty plea was not knowingly
and voluntarily made because his attorney advised him that he
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 R. Christie would not have pled guilty if he
had known about the evidence (“Ground Two”); 3)
counsel rendered ineffective assistance in this district
court because counsel failed to fully investigate the facts
of the case and to file appropriate motions and on appeal
because counsel failed to raise the ineffective assistance in
the district court as grounds for appeal (“Ground
Three”); 4) denying R. Christie the ability to present
his RFRA defense was such a fundamental denial of his rights
that it was per se unconstitutional (“Ground
Four”); and 5) R. Christie is entitled to § 2255
relief because of the Government's overreaching in the
underlying proceedings (“Ground Five”). [§
2255 Motion at 5-9(a).]
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 ...