United States District Court, D. Hawaii
ORDER DENYING PETITION UNDER 28 U.S.C. § 2255;
ORDER DENYING REQUEST FOR AN EVIDENTIARY HEARING; ORDER
DENYING CERTIFICATE OF APPEALABILITY
OKI MOLLWAY CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
court also denies Hernandez's request for an evidentiary
hearing. See ECF No. 616.
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.
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.
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.
27, 2006, Agent Jones directed Perez to place recorded calls
to Ramiro Hernandez about the drugs.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
says the Speedy Trial Act ran before his second trial
started. However, time was excluded through many