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Malivao v. United States

United States District Court, D. Hawaii

December 28, 2018

PETER MALIVAO Petitioner, Pro Se


          Leslie E. Kobayashi United States District Judge

         Before the Court is Defendant/Petitioner Peter Malivao's (“Malivao”) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”). [Dkt. no. 152.] On August 14, 2017, Malivao filed a supplemental declaration in support of the § 2255 Motion. [Dkt. no. 158.] Plaintiff/Respondent the United States of America (“the Government”) filed its response to the § 2255 Motion on March 9, 2018, and Malivao filed his reply on April 9, 2018. [Dkt. nos. 172, 174.] Malivao's § 2255 Motion is hereby denied, and a certificate of appealability is also denied, for the reasons set forth below.


         On September 26, 2013, Malivao and Defendants Vitorio Vili (“Vili”), James McKinnon (“McKinnon”), and Andrew Lilo (“Lilo”) were indicted for: conspiracy to distribute, and to possess with intent to distribute, five hundred grams or more of methamphetamine, its salts, isomers, and salts or its isomers - specifically 4, 730 grams - in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846 (“Count 1”); and attempt to possess with intent to distribute five hundred grams or more of methamphetamine, its salts, isomers, and salts or its isomers - specifically 4, 730 grams - in violation of § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2 (“Count 2”). [Dkt. no. 22.] At his arraignment on October 3, 2013, Malivao pled not guilty. [Minutes, filed 10/3/13 (dkt. no. 32).]

         On September 5, 2014, Malivao changed his plea as to Count 1 to guilty, pursuant to a plea agreement. [Minutes, filed 9/5/14 (dkt. no. 99); Mem. of Plea Agreement (“Plea Agreement”), filed 9/5/14 (dkt. no. 100).] Malivao admitted to an outline of the facts, which supported the offense alleged in Count 1. On September 14, 2013, federal agents - acting pursuant a valid search warrant - seized a package that was found to contain approximately nine pounds of methamphetamine. On September 16, 2013, agents replaced most of the contents with pseudo-methamphetamine, placed a tracking device and beeper inside the package, and allowed it to be picked up at the intended mailbox service. A female picked up the package and took it to Malivao, Vili, and McKinnon, who were sitting in a vehicle outside. Malivao knew there was methamphetamine in the package and that McKinnon and Vili planned to break the methamphetamine into smaller quantities to sell to others. He knowingly and willingly joined and participated in the conspiracy, even though he knew it was illegal to possess and distribute methamphetamine, and intended to make a profit through his participation. [Plea Agreement at ¶¶ 8.a-c.]

         Malivao purchased a safe to store the methamphetamine and the proceeds from the sale. Malivao, McKinnon, and Vili then drove to Lilo's residence. Malivao opened the package in Lilo's residence, but Malivao left because he saw wiring inside the package. McKinnon and Vili were arrested in the area, and federal agents recovered the package from Lilo's residence.[1][Id. at ¶ 8.d.] Malivao agreed that he was responsible for the approximately 4, 730 grams of methamphetamine that was inside the package. [Id. at ¶ 8.e.] Malivao waived his right to appeal or collaterally attack his conviction and sentence, except: to assert a claim of ineffective assistance of counsel; or to challenge any upward departure from the proposed range under the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). [Id. at ¶ 12.]

         The Presentence Investigation Report (“PSR”) prepared by the United States Probation Office found that, based on the amount of methamphetamine Malivao was responsible for, his base offense level was thirty six. His offense level was increased by two because of his role in the offense and decreased by three for acceptance of responsibility, for a total offense level of thirty five. [PSR at ¶¶ 28-37.] Malivao's criminal history category was I. [Id. at ¶ 44.] There was a minimum term of imprisonment of 120 months, and the Guidelines sentencing range was 168 to 210. [Id. at ¶¶ 66-67.] On June 29, 2015, Malivao filed a Motion for Downward Departure and/or Variance from the Sentencing Guidelines (“6/29/15 Motion”), which argued that, based upon several mitigating factors: 1) he should receive a term of imprisonment that was below the mandatory minimum sentence; or 2) even if this Court followed the mandatory minimum sentence, it should impose a term of imprisonment that was substantially less than the Guidelines sentencing range. [Dkt. no. 123.]

         At the August 29, 2015 sentencing, this Court accepted the Plea Agreement and adopted the factual findings in the PSR. [Minutes, filed 8/26/15 (dkt. no. 127), at 1.] The 6/29/15 Motion was granted in part and denied in part, and Defendant was sentenced to 156 months of imprisonment, 5 years of supervised release, and a $100.00 special assessment. [Id. at 1-2.] This Court also granted the Government's oral motion to dismiss Count 2. [Id. at 3.] Malivao's Judgment in a Criminal Case was filed on August 28, 2015. [Dkt. no. 132.]

         Malivao filed a Notice of Appeal on September 8, 2015. [Dkt. no. 134.] The Ninth Circuit dismissed his appeal on January 23, 2017. [Memorandum, filed 1/23/17 (dkt. no. 148).[2] The Ninth Circuit rejected Malivao's argument that this Court “failed to resolve his factual objections to the presentence report, in violation of Federal Rule of Criminal Procedure 32” because of the appellate waiver in the Plea Agreement, which the Ninth Circuit held was supported by adequate consideration. [Id. at 2.] Further, the Ninth Circuit declined to address Malivao's ineffective assistance of counsel claim, [3] on the ground that the record was “not sufficiently developed to evaluate” the claim. [Id.] The Ninth Circuit's Mandate was issued on February 14, 2017. [Dkt. no. 149.]

         Malivao timely filed the instant § 2255 Motion, which alleges: this Court violated Rule 32 because there were disputed facts regarding Malivao's role in the offense and this Court did not make express findings resolving the disputes before imposing the enhancement (“Ground One”); Malivao's counsel rendered constitutionally ineffective assistance by failing to object to the imposition of the aggravated role enhancement (“Ground Two”); and Malivao's counsel rendered constitutionally ineffective assistance by failing to argue that Malivao qualified for a safety valve adjustment (“Ground Three”).


         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 in Sherman).

         The issues raised in Malivao's § 2255 Motion are legal issues that “can be conclusively decided on the basis of the evidence in the record, ” including the record of the underlying proceedings. See Mejia-Mesa, 153 F.3d at 929. This Court need not resolve factual disputes in order to rule on the legal issues presented in the § 2255 Motion. Compare Mem. in Supp. of § 2255 Motion at ¶ 4 (“[C]ounsel should have advised Malivao to provide trughful [sic] information regarding his offense to the government before sentencing. Counsel's performance was deficient because he prevented Malivao from qualifying for the fifth safety valve facotr [sic].” (citations omitted)), [4] with Response, Decl. of Randall N. Harakal at ¶ 3 (describing discussions between Mr. Harakal and Malivao). An evidentiary hearing is therefore unnecessary in this case.


         I. Ground One - Alleged Rule 32 Violation

         At the outset, the Government argues that this Court cannot consider Malivao's arguments in Ground One because Malivao waived his right to bring such challenges on appeal and on collateral review. In the Plea Agreement, Malivao agreed:

12. The Defendant is aware that he has the right to appeal his conviction and the sentence imposed. Defendant knowingly waives the right to appeal, except as indicated in subparagraph “b” below, his conviction and any sentence within the maximum provided in the statutes of conviction or the manner in which that sentence was determined, on any ground whatever, in exchange for the concessions made by the prosecution in this plea agreement.
a. The Defendant also waives his right to challenge his conviction or sentence or the manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, United States Code, Section 2255, except that Defendant may make such a challenge (1) as indicated in subparagraph “b” below, or (2) based on a claim of ineffective assistance of counsel.
b. If the Court imposes a sentence greater than specified in the guideline range determined by the Court to be applicable to the Defendant, the Defendant retains the right to appeal the portion of his sentence greater than specified in that guideline range and the manner in which that portion was determined under Section 3742 and to challenge that portion of his sentence in a collateral attack.

[Plea Agreement at 9-10.]

         The Ninth Circuit has already held that Malivao's waiver of his right to appeal his conviction and sentence was supported by adequate consideration and precluded the Ninth Circuit from addressing the argument regarding Rule 32 violations. [Memorandum Disposition at 2.] The Ninth Circuit's ruling “is the law of the case, ” and this Court must follow it in considering Malivao's § 2255 Motion. See United States v. Jingles, 702 F.3d 494, 498 (9th Cir. 2012) (citing In re Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir. 1996) (“[T]he decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case”); Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972) (“The law in this circuit is clear that when a matter has been decided adversely on appeal from a conviction, it cannot be litigated again on a 2255 motion”) (alteration in Jingles) (some citations omitted)). This Court therefore denies Malivao's § 2255 Motion as to Ground One.

         II. Grounds Two and Three - Ineffective Assistance of Counsel

         Malivao's ineffective assistance of counsel claims fall within one of the exceptions to the waiver of his appellate and collateral review rights, and the Ninth Circuit did not address ...

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