United States District Court, D. Hawaii
ORDER DENYING DEFENDANT MALIA ARCIERO'S MOTION
UNDER 28 U.S.C. § 2255 AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY ORDER DENYING DEFENDANT MALIA
ARCIERO'S MOTION UNDER 28 U.S.C. § 2255 AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Oki Mollway, Chief United States District Judge
motion brought under 28 U.S.C. § 2255 springs from the
unfortunate pairing of (1) a defendant who decided to
manufacture allegations that a federal agent had sexually
assaulted her with (2) a defense attorney predisposed to
believe her assertions of government misconduct. Defendant
Malia Arciero now says that her trial attorney, Gary Dubin,
provided ineffective assistance of counsel. Whatever
deficiencies might be identified in Dubin's performance,
they had their underpinnings in his acceptance of his
client's lies. While couching her argument in the
language of ineffective assistance, Arciero is essentially
faulting her attorney for having believed her lies. That is
not a sound basis for an ineffective assistance claim.
Arciero moreover fails to show that she was prejudiced by
Dubin's performance. Her motion is therefore denied. The
court also declines to issue her a certificate of
January 8, 2015, after a six-day jury trial during which
Arciero was represented by Dubin, Arciero was convicted of
four drug-related crimes. See Verdict, ECF No. 249.
Arciero discharged Dubin and retained new counsel. In
September 2015, the court sentenced Arciero to 172 months of
imprisonment and 5 years of supervised release for each
crime, with the terms running concurrently, and a $400
special assessment. See Judgment, ECF No. 281.
appealed. See Notice of Appeal, ECF No. 284. On
March 3, 2017, the Ninth Circuit affirmed in a memorandum
decision. See ECF No. 307.
March 12, 2018, Arciero timely filed the present motion under
§ 2255. See ECF No. 309.
claims that her trial counsel, Dubin, was ineffective in a
number of ways. First, Arciero asserts that Dubin was
ineffective in failing to advise her not to testify at a
pretrial bail revocation hearing. She argues that competent
counsel would have emphasized the obstruction of justice
sentencing consequences of doing so in the event the court
found her testimony lacked credibility, which it did.
Arciero asserts that Dubin was ineffective in filing motions
supported by Arciero's declarations. She says that Dubin
failed to advise her about the merits of the motions, the low
likelihood of success, and the potential sentencing
Arciero asserts that Dubin was ineffective in providing
deficient advice with respect to going to trial and asserting
an entrapment defense.
Arciero asserts that Dubin was ineffective in failing to
correctly advise her about the benefits of cooperation. She
says that competent counsel would have had her cooperate with
the Government and plead guilty.
court held an evidentiary hearing over two days. On the first
day, Dubin testified. See Transcript of Proceeding,
ECF No. 338 (“Dubin Test. Day 1”). At a continued
evidentiary hearing, both Arciero and Dubin testified.
See ECF No. 349. This court does not have a
transcript of the continued hearing, but refers to testimony
on that day based on its notes and memory, citing to
Dubin's testimony at the continued hearing as
“Dubin Test. Day 2.” Government Exhibits 1
through 10 and Arciero Exhibits 1 through 4 were received in
evidence for purposes of this motion. While the documents
were admitted as exhibits, this court also refers to their
electronic filing identifiers for ease of reference.
trial, Joleen Wood testified that Arciero was supplying her
with drugs. Specifically, Wood testified that, on April 30,
2013, Arciero sent Wood a message that stated, “Hey
girl. . . Gotta talk, 2 u ASAP ok. . . Remember that thing we
talked about. . . . Can 4 19.” See Ex. 405;
Jolene Wood Test. at 2-52 (Dec. 12, 2014), ECF No. 297,
PageID # 2877. Wood said that this was Arciero's response
to Wood's inquiry about a multi-pound methamphetamine
sale; the message meant that Arciero could supply Wood with 4
pounds of methamphetamine at a price of $19, 000 per pound.
See Wood Test. at 2-53 and 2-67, PageID #s 2878 and
2892. Wood responded that she wanted only a pound of
methamphetamine at that time. See Jolene Wood Test.
at 3-38 (Dec. 16, 2014), ECF No. 298, PageID # 2997.
was ultimately arrested and agreed to cooperate with law
enforcement. An agent posing as Wood (or Wood at the
direction of the agent) sent Arciero a message asking about
the deal, “So what's up? How long more? Da guy not
going wait dat long. He going split.” Wood Test. at
3-97, PageID # 3056. Arciero agreed to deliver the
methamphetamine to Wood's apartment. Id. at
eventually sent Wood a message asking who was at Wood's
apartment. The response was that only Wood was there. Arciero
then sent a message stating, “I going come up alone but
KK going stay down the road with the dog.” Ryan
Faulkner Test. at 4-37 (Dec. 17, 2014), ECF No. 299, PageID #
3167. Arciero and her sister Keala, aka KK, were arrested
when they drove into the parking lot of Wood's apartment.
Methamphetamine was found in the car. Amy Garon Test. at
4-113 to -14 (Dec. 17, 2014, ECF No. 299, PageID #s 3243-44.
her arrest, Arciero initially cooperated with law
enforcement. See Decl. of Malia Arciero, ECF No.
320-2, PageID # 4310. Believing that the Government had
substantial evidence against her, she hoped that by
cooperating she would get a lenient sentence. See
Malia Arciero Test. (Dec. 4, 2018). As part of her
cooperation, she took Government agents to where she had
gotten the drugs at issue and told them about all her drug
trafficking activity. Id.
2013, Arciero hired Michael J. Green to represent her.
See Decl. of Malia Arciero, ECF No. 320-2, PageID #
4309. Arciero says that Green did not explain anything to
her; she reports having been confused with respect to his
recommendation that she plead guilty. Id., PageID #
4311. Arciero says Green advised her to continue cooperating
with the Government. See Arciero Test.
represented by Green, Arciero was offered a plea deal by the
Government under which she could have avoided a potential
10-year mandatory minimum sentence. See Arciero
Test. While Arciero thought the deal was for two years of
imprisonment, there is no evidence other than Arciero's
testimony that a two-year prison term was offered by the
Government. See Dubin Test. Day 1 at 11, ECF No.
338, PageID # 4361. Arciero refused the plea deal and
discharged Green because he was encouraging her to plead
guilty. Dubin understood that Arciero wanted an attorney who
would go to trial. See Id. at 13, 66, ECF No. 338,
PageID #s 4363, 4416.
childhood friend of Arciero's gave Dubin's contact
information to Arciero. See Decl. of Malia Arciero,
ECF No. 320-2, PageID # 4309; Dubin Test. Day 1 at 65, ECF
No. 338, PageID # 4415. On November 25, 2013, Green withdrew
as Arciero's attorney and Dubin substituted in as her
counsel. See Stipulation and Order Re: Withdrawal
and Substitution of Counsel for Defendant Malia Arciero, ECF
told Dubin that she was innocent, that she was dissatisfied
with Green, and that she wanted to go to trial. See
Dubin Test. Day 2. She told Dubin she was actually the victim
of a sexual assault by the case agent. See Dubin
Test. Day 1 at 54, 65-66, ECF No. 338, PageID #s 4404,
4415-16. Arciero described the agent's penis in
considerable detail. Dubin believed the allegations, which
Arciero repeated numerous times during the course of
Dubin's representation of her. Id. at 54, 68,
PageID #s 4404, 4418.
Dubin, Arciero had an attorney who had a low opinion of many
aspects of the criminal justice system. Dubin's views may
have sprung from his observations of how his clients were
treated, but possibly, Dubin's views were influenced by
what he says was his wrongful conviction of tax crimes that
he describes the IRS as belatedly recognizing that he should
not have been charged with. See Dubin Test. Day 1 at
46-47, ECF No. 338, PageID # 4396-97.
says that while Green had wanted her to plead guilty, Dubin
was confident that he could get the charges dropped.
See Decl. of Malia Arciero, ECF No. 320-2, PageID #
4311; Declaration of Gary Victor Dubin, ECF No. 319-4, PageID
# 4124. For his part, Dubin says that he fully explained to
Arciero the risks of not pleading guilty and of going to
trial. Dubin says Arciero was adamant about not pleading
guilty. See Dubin Decl., ECF No. 319-4, PageID #
4124; Dubin Test. Day 1 at 11, ECF No. 338, PageID #s
4358-61. Dubin's declaration is consistent with an email
Dubin sent to William Shipley, the attorney for Arciero's
sister. Dubin emailed:
I talked with Malia this evening, explaining to her
everything that Mike [Green] and you told me today, and
especially the many risks involved in each of her present
. . . .
Malia refuses to agree to the Information and to enter a
guilty plea. Her decision she says is final.
She intends to fight the charges all the way and my law firm
intends to do the same for her.
Govt. Ex. 3, ECF No. 319-4, PageID # 4134.
October 30, 2013, Arciero was released from custody on an
unsecured bond of $25, 000. See ECF No. 12. One of
the conditions of her pretrial release was that she refrain
from using illicit drugs and that she submit to random drug
tests. Id., see also Order Setting
Conditions of Release, ECF No. 15.
February 20, 2014, Alison G.K. Thom, Senior U.S. Pretrial
Services Officer, informed the court that Arciero had
violated the terms and conditions of her pretrial release by
submitting a urine specimen on January 27, 2014, that tested
positive for methamphetamine. See ECF No. 49. Thom
asked that the court issue an order to show cause why
Arciero's pretrial release should not be revoked.
Id.; Arciero Decl., PageID # 4312 (indicating that
Arciero had failed a drug test in January 2014).
March 28 and 31, 2014, and April 1, 2014, the magistrate
judge held hearings with respect to the order to show cause
why Arciero's pretrial release should not be revoked.
See ECF Nos. 61-63. On March 31, 2014, Arciero,
represented by Dubin, testified about the allegation that she
had had a urine test on January 27, 2014, that tested
positive for methamphetamine. Arciero now says that Dubin
neglected to tell her why she was being called to testify.
See Arciero Decl., PageID # 4312. She denied having
used methamphetamine in January 2014. See ECF No.
83, PageID # 132. She claimed to have tested positive for
methamphetamine only because she and her sister had been
cleaning her mother's house when she cut her hand on a
methamphetamine pipe with drug residue in it. Id.,
PageID #s 150-152. Arciero had told this to Dubin in advance
of the hearing. See Govt. Ex. 10.
April 1, 2014, the magistrate judge determined that Arciero
had used methamphetamine prior to the drug test on January
27, 2014, finding that Arciero's “explanation of
how she was exposed to methamphetamine while house cleaning
is not believable.” ECF No. 84, PageID # 169. The
magistrate judge nevertheless held the bail violation in
also testified before the magistrate judge that she was
concerned about being “set up” with a false drug
test. She described having been forced to perform oral sex on
the case agent. See Arciero test., ECF No. 83,
PageID # 141 (describing giving him fellatio in the storage
closet at the ICE headquarters). She said she viewed the
agent as controlling her release status. Id., PageID
on May 23, 2014, the magistrate judge revoked Arciero's
pretrial release after finding an additional violation of her
release conditions. See ECF No. 87.
August 18, 2014, Dubin filed three motions on behalf of
Arciero. See Motion to Dismiss Based on Outrageous
Government Conduct and/or Entrapment, ECF No. 105; Motion to
Suppress Items Seized, ECF No. 106; and Motion to Suppress
Coerced Involuntary Typed Confession, ECF No. 107. Each
motion was supported by the same Declaration of Malia Arciero
accusing the case agent of having sexually assaulted her. The
declaration stated that the agent had become obsessed with
Arciero when she was a stripper at a local club in 1998. ECF
No. 105-1, PageID # 274. The declaration accused the agent of
being in a drug-dealing partnership with someone and of
arresting rival drug dealers. Id., PageID # 274-75.
Arciero says that she started an online escort service in
2001, and that the agent repeatedly called the escort service
in 2005. Id., PageID # 275.
to Arciero, the agent routinely set people up. For example,
Arciero said that Jessie Samuels had a drug dealer debt, and
the case agent got Samuels busted. The agent's supposed
drug partner allegedly told Arciero that the agent could get
Samuels out if Arciero brought the drug partner two hand
grenades, which Arciero said she did. Id., PageID #
says that, after she was arrested for the drugs in this case,
the case agent told her that he had entrapped her because he
knew she was an escort who would be able to give him lots of
information. Id., PageID # 279. According to
Arciero, the agent told her that she would not have to go to
the Federal Detention Center if she did what he wanted.
Id., PageID # 280. She said that the agent then
typed up ...