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United States v. Gordon

United States District Court, D. Hawaii

October 29, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
KENNETH SCOTT GORDON, Defendant/Petitioner.

          ORDER (1) DENYING MOTION UNDER § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE, ECF NO. 272; AND (2) GRANTING IN PART AND DENYING IN PART CERTIFICATE OF APPEALABILITY

          J. Michael Seabright, Chief United States District Judge

         I. INTRODUCTION

         Before the court is Defendant/Petitioner Kenneth Scott Gordon's (“Gordon”) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. ECF No. 272. Gordon challenges his conviction and sentence alleging that: (1) his motion to suppress evidence was improperly denied; and (2) he was provided ineffective assistance of counsel on appeal.

         For the reasons discussed below, the court DENIES Gordon's § 2255 Motion (1) with prejudice as to Ground One (motion to suppress), and (2) without prejudice as to Ground Two (ineffective assistance of appellate counsel).

         II. BACKGROUND

         On May 18, 2011, Gordon was indicted with two co-defendants for conspiracy to distribute methamphetamine, and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). ECF No. 6. Arguing that a warrantless search violates the Fourth Amendment, on May 11, 2012, Gordon moved to suppress evidence seized from a bag he was carrying when arrested and from a wallet and cellphone found on him when arrested. ECF Nos. 74, 75. After a hearing, the court denied the motions to suppress on September 10, 2012. ECF No. 105; United States v. Gordon, 895 F.Supp.2d 1011 (D. Haw. 2012). After a jury trial, Gordon was found guilty as charged on October 17, 2012, ECF No. 161, and later sentenced to 164 months of imprisonment with five years of supervised release, ECF No. 227.[1] Gordon filed a “Motion for a New Trial for Sentencing, ” ECF No. 230, which was denied, ECF No. 233.

         Gordon appealed. ECF No. 234. The Ninth Circuit affirmed, concluding, among other things, that this court did not err in denying Gordon's motion to suppress the evidence from the bag and wallet. United States v. Gordon, 694 Fed.Appx. 556 (9th Cir. 2017), cert. denied, 138 S.Ct. 434 (2017).

         On May 22, 2018, Gordon filed the instant Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “Motion”). ECF No. 272. The Government filed its Response on July 23, 2018, ECF No. 277, and Gordon filed his Reply on August 27, 2018, ECF No. 278. On September 6, 2018, the court requested both parties to provide additional briefing on whether the court has jurisdiction over Ground Two of the Motion (ineffective assistance of appellate counsel). ECF No. 279. On October 3, 2018, the Government filed a Supplement to its Response. ECF No. 280. On October 4, 2018, Gordon filed his Memoranda[2] as to the District Court's Jurisdiction. ECF No. 281, 282. On October 18, 2018, Gordon filed a Motion to Strike unresponsive portions of Government's Supplement. ECF No. 283.

         III. STANDARD OF REVIEW

         Title 28 U.S.C. § 2255(a) provides:

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.

         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.” Rule Governing Section 2255 Proceedings 4(b). 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), 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).

         III. DISCUSSION

         A. Ground One: ...


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