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United States v. Hernandez

United States District Court, D. Hawaii

December 31, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RAMIRO HERNANDEZ (01), Defendant.

          ORDER DENYING PETITION UNDER 28 U.S.C. § 2255; ORDER DENYING REQUEST FOR AN EVIDENTIARY HEARING; ORDER DENYING CERTIFICATE OF APPEALABILITY

          SUSAN OKI MOLLWAY CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION.

         On February 1, 2012, a jury convicted Defendant Ramiro Hernandez of three drug crimes. See Verdict, Feb. 1, 2012, ECF No. 397. Hernandez's crimes included: 1) conspiring to distribute or possess with intent to distribute more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, and salts of its isomers; and 2) two counts of possession with intent to distribute the same. Id.

         On September 18, 2014, the court sentenced Hernandez to 300 months of imprisonment as to each count, with all terms to run concurrently. The court also sentenced him to 5 years of supervised release for each count, with all terms to run concurrently, as well as a $300 special assessment. See ECF No. 533 (Minutes of Sentencing Proceeding). Judgment was entered on October 1, 2014. ECF No. 535.

         Hernandez appealed, and the Ninth Circuit affirmed in a Memorandum Decision filed on October 23, 2017. See ECF Nos. 532 and 611. The Mandate issued on November 28, 2017. See ECF No. 613. Hernandez did not file a petition for certiorari in the United States Supreme Court. See ECF No. 614, PageID # 10642.

         Before the court is Hernandez's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, timely filed on July 26, 2018. See ECF No. 614. The court denies this motion and declines to issue a certificate of appealability.

         The court also denies Hernandez's request for an evidentiary hearing. See ECF No. 616.

         II. BACKGROUND FACTS.

         In July 2006, DEA Special Agent Richard Jones of Honolulu received a phone call from the Riverside County Sheriff's Department in California that informed him that drugs were in a car being shipped to Hawaii from California by Howard Peterson. Pursuant to a search warrant, Jones and other agents searched the car and found drugs in its driveshaft. Agents packed the driveshaft with fake drugs, reinstalled the driveshaft, and took the car back to the shipping company.

         The shipping company informed the agents that it had received a fax from Peterson authorizing Matthew Hernandez to pick up the car in Honolulu. Agents discovered that Matthew Hernandez was traveling to Honolulu with Jose Perez. When someone picked the car up from the shipping company, agents, using a GPS device, followed the car until it was parked on the top level of the Pearlridge Shopping Center with its back tires on the cement block designed as a backstop for parked cars. Agents arrested Perez and John Gouveia, Jr., as they appeared to be attempting to remove the driveshaft from the car.

         Perez made a voluntary post-arrest statement in which he said his half-brother, Ramiro Hernandez, had arranged for 14 pounds of “ice” to be shipped to Hawaii in the driveshaft of the car. Perez told the agents that Ramiro Hernandez and others had previously shipped 14 pounds of “ice” in the driveshaft of a different car.

         On July 27, 2006, Agent Jones directed Perez to place recorded calls to Ramiro Hernandez about the drugs.

         On August 9, 2006, Perez, Gouveia, and Matthew Hernandez were indicted for having conspired to distribute or possess with intent to distribute 500 grams or more of methamphetamine. The charge against Gouveia and Matthew Hernandez was dismissed, while Perez pled guilty. See Crim. No. 06-00420 SOM (02), ECF No. 65.

         On December 18, 2007, Ramiro Hernandez was arrested in Riverside, California, for state offenses. An arrest warrant for federal drug offenses was lodged as a detainer. Ramiro Hernandez was transferred to the District of Hawaii approximately one-year later to face the drug charges in this case. Gouveia was named as a co-Defendant in this case.

         On January 9, 2009, Ramiro Hernandez pled not guilty with respect to the charges in this case. See ECF No. 25. He was ordered detained pending trial. See ECF No. 31.

         Clifford Hunt was appointed as Ramiro Hernandez's attorney pursuant to the Criminal Justice Act. See Decl. of Ramiro Hernandez ¶ 16, ECF No. 614-3, PageID # 10885 (“Affidavit of Truth of Ramiro Hernandez” lacking notarization). Hernandez says he told Hunt that he wanted to plead guilty. According to Hernandez, Hunt spoke with the Government and was told that there would be no offer unless both Hernandez and Gouveia agreed to plead guilty. Id. Hernandez says Hunt told him that, if he did plead guilty, he would be subject to the same sentence as if convicted at trial. Id.

         On August 3, 2010, this court began the first of two jury trials involving Ramiro Hernandez. Gouveia was also in the first trial. On August 18, 2010, the jury convicted Gouveia but was unable to come to a unanimous verdict with respect to Hernandez. See ECF No. 174.

         A mistrial was declared with respect to Hernandez. Hernandez says he then again asked Hunt to attempt to negotiate a plea deal. See Hernandez Decl. ¶ 19, ECF No. 614-3, PageID # 10885.

         On October 8, 2010, this court granted Hunt's motion to withdraw as Hernandez's attorney. See ECF No. 198. A written order to that effect was filed on October 18, 2010. See ECF No. 202. The day the court orally granted Hunt's motion, Hunt wrote to Hernandez, telling him that the Government had rejected Hernandez's offer to serve a stipulated sentence of ten or fifteen years. See ECF No. 614-5, PageID # 10911. Hunt said that the attorney for the Government, Assistant United States Attorney Jonathan Loo, had responded that the Government was willing to allow Hernandez to plead guilty to the conspiracy charge contained in Count 1 in exchange for dismissal of the possession charges in Counts 2 and 3. Hunt told Hernandez:

In terms of sentencing, pleading guilty to the conspiracy would subject you to the same amount of imprisonment that we discussed if you were convicted for both shipments of methamphetamine charged in counts 2 and 3. I suggest you discuss this further with your new counsel if you are still interested in the United States' offer.

Id. Possibly it is this letter that Hernandez is referring to when he states that Hunt told him that, if did plead guilty, he would receive the same sentence as if convicted at trial. See ECF No. 614-3 ¶ 16, PageID # 10885.

         Hernandez then retained Philip A. DeMassa as his attorney. DeMassa reviewed Hunt's letter and agreed that Hernandez would get the same sentence if he pled to one or all three counts. Hernandez says DeMassa then said that he would get him a “4 year telephone count deal.” Hernandez Decl. ¶ 28, ECF No. 614-3, PageID # 10887.

         Hernandez says that, in January 2011, he asked DeMassa whether DeMassa knew anyone related to Hernandez's case. Hernandez says that DeMassa told him, “No, I would have to disclose that to you.” Hernandez Decl. ¶ 26, ECF No. 614-3, PageID # 10886.

         In or about May 2011, the Government informed Hernandez that the Government had retained an expert, Ryan Johnson, who had opined that he was about 80% sure that the voice on the calls Agent Jones had directed Perez to make to Hernandez was not Hernandez's. DeMassa responded in letters of May 11 and 13, 2011, asking the Government to move to dismiss the charges and to release Hernandez on bail while considering DeMassa's dismissal request. See ECF No. 614-9, PageID #s 10919-20. Hernandez says that AUSA Loo told DeMassa that the Government was proceeding with the case, not dismissing it. Hernandez Decl. ¶ 34, ECF No. 614-3, PageID # 10887. DeMassa expressed optimism that Hernandez would win at trial given the Government's expert's view that the voice on the tapes did not belong to Hernandez, which DeMassa indicated would give rise to reasonable doubt about Hernandez's guilt. Id. ¶ 35, ECF No. 614-3, PageID # 10888. DeMassa therefore counseled Hernandez not to seek a plea deal. Id. ¶ 39, ECF No. 614-3, PageID # 10888.

         Hernandez's second jury trial began on January 4, 2012, with DeMassa representing Hernandez. See ECF Nos. 361, 614-6. On February 1, 2012, the jury convicted Hernandez of all three drug counts. See ECF No. 397.

         Hernandez says the Speedy Trial Act ran before his second trial started. However, time was excluded through many ...


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