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United States v. Hernandez

United States District Court, D. Hawaii

January 30, 2019

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

          FIRST SUPPLEMENT TO ORDER DENYING PETITION UNDER 28 U.S.C. § 2255, DENYING REQUEST FOR AN EVIDENTIARY HEARING, AND DENYING CERTIFICATE OF APPEALABILITY

          SUSAN OKI MOLLWAY UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION.

         On December 31, 2018, this court denied Defendant Ramiro Hernandez's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, denied his request for an evidentiary hearing, and declined to issue a certificate of appealability. The court invited Hernandez to identify any ground for relief raised in his § 2255 motion that he thought this court had failed to address in its order, informing him that any issue not so identified would be deemed automatically waived. See ECF No. 630.

         On January 11, 2019, Hernandez said that this court had failed to adjudicate three issues: 1) whether appellate counsel Deanna Dotson had rendered ineffective assistance of counsel by failing to raise a California wiretap issue on appeal; 2) whether this court had erred in sentencing Hernandez to 300 months; and 3) whether appellate counsel Pamela Tower had rendered ineffective assistance of counsel by failing to obtain a forensic analysis of a tape recording to determine whether it had been altered. With the exception of these three issues and any issue discussed in this court's earlier order, Hernandez has waived all other issues that he may have asserted in his § 2255 motion. See ECF No. 630.

         The court denies the § 2255 motion to the extent it is based on the second and third identified issues. However, as detailed below, the court requests additional limited briefing on the first issue. The court continues to deny Hernandez's request for an evidentiary hearing, although if supplemental briefing on the first issue raises issues that warrant an evidentiary hearing, the court will revisit the issue of a hearing. Finally, the court at this point continues to decline to issue a certificate of appealability. In all other respects, the court's order of December 31, 2018, is incorporated into this order by reference and continues to have full effect.

         II. ANALYSIS.

         A. The Court Requests Supplemental Briefing With Respect to What Prejudice Hernandez Suffered When Appellate Counsel Failed to Raise the Wiretap Issue on Appeal.

         Hernandez claims that his second appellate counsel, DeAnna S. Dotson, was ineffective in failing to raise a state wiretap issue on appeal. See Hurles v. Ryan, 752 F.3d 768, 785 (9th Cir. 2014) (“A criminal defendant enjoys the right to the effective assistance of counsel on appeal.”). In its earlier order of December 31, 2018, this court rejected the assertion that Pamela O'Leary Tower, Hernandez's first appellate counsel, had been ineffective in failing to raise the California wiretap issue. This court noted that Hernandez had sought suppression of the wiretap evidence before this court, which this court had denied. See ECF Nos. 246, 323, 325. This court ruled that Hernandez had failed to demonstrate that Tower was objectively unreasonable in choosing not to raise the issue again on appeal during the time she represented Hernandez. The court additionally notes that Tower no longer represented Hernandez when he filed his opening brief on appeal.

         Hernandez now says this court failed to rule on whether subsequent appellate counsel, Dotson, was ineffective in failing to raise the wiretap issue in light of United States v. Perez-Valencia, 727 F.3d 852 (9th Cir. 2013), a Ninth Circuit decision rendered after Hernandez was convicted but before he was sentenced. In Perez-Valencia, the Ninth Circuit ruled that, under California Penal Code § 629.50, only the district attorney or the person designated to act as the district attorney in all respects in the district attorney's absence, could apply for a wiretap. Id. at 855 (“We hold . . . that ‘the' attorney designated to act in the district attorney's absence--as § 629.50 specifies--must be acting in the district attorney's absence not just as an assistant district attorney designated with the limited authority to apply for a wiretap order, but as an assistant district attorney duly designated to act for all purposes as the district attorney of the political subdivision in question.”).

         The record in this case does not conclusively establish that the person who applied for the California wiretap at issue was designated to act as the district attorney for all purposes when he or she was unavailable. See ECF No. 312-5 (listing four assistant district attorneys authorized to apply for wiretaps when the district attorney was unavailable). This court therefore requests supplemental briefing with respect to the prejudice Hernandez may have suffered because Dotson failed to raise the wiretap issue on appeal.

         Of course, the court is not here ruling that Dotson's failure to raise the issue on appeal fell below an objective standard of reasonableness under prevailing professional norms. See Strickland v. Washington, 466 U.S. 668, 688 (1984). Dotson might have been justified in choosing not to raise the issue on appeal on the ground that the issue would not succeed. See Jones v. Smith, 231 F.3d 1227, 1239 n.8 (9th Cir. 2000) (stating that appellate counsel was not ineffective for failing to raise an issue that was not grounds for reversal).

         The court notes that the California wiretap evidence does not appear to have been introduced as evidence in Hernandez's second trial. See Opposition to § 2255 Motion at 24-25, ECF No. 622, PageID #s 11116-17 (“It was reasonable for Hernandez's counsel not to raise this claim on direct appeal, particularly given that the Government did not even make use of the challenged state wiretaps during his second trial.”); Hernandez's Memorandum in Support of § 2255 Motion at 85, ECF No. 614-2, PageID #s 10846 (“The government . . . shocked the entire proceedings when it cited that, ‘it was not going to introduce any of the intercepted calls from the wire tap'”).

         No later than February 27, 2019, Hernandez may file a supplemental memorandum that details how the wiretap evidence at issue affected the second trial even though the intercepted calls were not introduced. He may also describe any alleged prejudice that he suffered as a result of Dotson's failure to raise the wiretap issue on appeal.

         This supplemental memorandum must be no longer than 5 pages and must not raise or discuss any other issue. The Government may respond to Hernandez's supplemental memorandum no later than ...


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