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United States v. Christie

United States District Court, D. Hawaii

May 15, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROGER CUSICK CRISTIE, Defendant.

          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

          Leslie E. Kobayashi United States District Judge.

         Before 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.

         BACKGROUND

         The 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.[1]

         On 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 interest.

         On 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.]

         While 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.]

         After 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.]

         R. 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.[2] [Dkt. no. 929.]

         R. 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).

         The § 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).]

         STANDARD

         Section 2255(a) states:

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 the sentence.

         This 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 ...


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