United States District Court, D. Hawaii
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
Michael Seabright, Chief United States District Judge
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.
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).
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.
Gordon filed a “Motion for a New Trial for Sentencing,
” ECF No. 230, which was denied, ECF No. 233.
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).
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 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.
STANDARD OF REVIEW
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
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).
Ground One: ...