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Rosa v. United States

United States District Court, D. Hawaii

April 10, 2019

LATHAN ROSA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING PETITIONER LATHAN ROSA'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (ECF NO. 130) AND DENYING A CERTIFICATE OF APPEALABILITY

          Helen Gillmor United States District Judge

         On June 8, 2018, Petitioner Lathan Rosa filed a Motion to Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C. § 2255.

         Petitioner challenges his May 30, 2017 conviction pursuant to a guilty plea for conspiracy to distribute methamphetamine. He claims that his attorney provided ineffective assistance of counsel at two different stages in the proceedings.

         First, Petitioner claims he received ineffective assistance concerning his guilty plea before the Magistrate Judge.

         Second, Petitioner claims he received ineffective assistance of counsel regarding his right to file an appeal following sentencing.

         Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 130) is DENIED.

         A Certificate of Appealability is DENIED.

         BACKGROUND

         The Indictment

         On August 3, 2016, the grand jury returned a three-count Indictment charging Petitioner Lathan Rosa and two co-defendants with crimes related to the distribution and possession with intent to distribute methamphetamine. (ECF No. 10).

         Petitioner was charged as follows:

Count 1: Conspiracy to Distribute Methamphetamine - From in or around July 1, 2016, to and including July 27, 2016, Lathan Rosa, did willfully and unlawfully conspire to distribute and possess with intent to distribute fifty grams or more of methamphetamine, its salts, isomers, and salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 21 U.S.C. § 846.
Count 2: Possession With Intent To Distribute Methamphetamine - On or about July 22, 2016, Lathan Rosa did knowingly and intentionally attempt to posses with intent to distribute fifty grams or more of methamphetamine, its salts, isomers, and salts of its isomers in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 21 U.S.C. § 846.

(Indictment, ECF No. 10).

         Attorney Rustam A. Barbee's Representation of Petitioner

         On July 25, 2016, the Office of the Federal Public Defender for the District of Hawaii was appointed as counsel for Petitioner Rosa. (ECF No. 4).

         On December 15, 2016, Assistant Federal Defender Melinda Yamaga filed a Motion for Withdrawal and Substitution of Counsel. (ECF No. 45).

         The Magistrate Judge granted Attorney Yamaga's motion and appointed CJA counsel Rustam A. Barbee (“Attorney Barbee”) as Petitioner's counsel on December 22, 2016. (ECF No. 51).

         Petitioner's Guilty Plea

         Attorney Barbee met with Petitioner Rosa multiple times between December 22, 2016 and January 27, 2017. (Decl. Of Rustam Barbee at ¶ 4, ECF No. 137-1). Attorney Barbee explained to Petitioner the risks of going to trial. (Id. at ¶¶ 8-9). Attorney Barbee reviewed the discovery with Petitioner. (Id. at ¶ 9). The discovery revealed that on July 22, 2016, law enforcement intercepted a parcel containing 1, 773 grams of 99% pure methamphetamine. (Id. at ¶ 5). Law enforcement made a controlled delivery of the parcel to Petitioner's workplace and Petitioner Rosa was arrested. (Id.) Petitioner made a post-arrest confession. (Id.) Petitioner confessed that he knew the parcel contained “ice” and that he asked his co-conspirator to receive the parcel on Petitioner's behalf. (Id.) Petitioner also admitted that he sent $20, 000 to Las Vegas as partial payment for the drugs. (Id.) Petitioner confessed that a second parcel containing more drugs was being shipped to him from Las Vegas. (Id.)

         In his Declaration, Attorney Barbee stated that during his meetings with Petitioner, he “always found him to be intelligent, alert and aware of the legal aspects of his case, including the options between fighting his case at trial, pleading guilty and pleading guilty while continuing his cooperation with government in an effort to merit a sentence reduction for providing substantial assistance to law enforcement.” (Id. at ¶ 9).

         Attorney Barbee stated he explained to Petitioner that he believed Petitioner was facing a sentencing exceeding 27 years imprisonment (324 to life) if he lost a jury trial; that he would be facing a sentence of perhaps 20-33 years if he simply pled guilty; and would be facing a sentence likely to be below 20 years imprisonment if he were to plead guilty, enter into a written plea agreement, and agree to continue his cooperation with law enforcement. (Id.)

         In his Declaration, Attorney Barbee stated, “I never told Mr. Rosa that he would receive a sentence of 10 years.” (Id.) At the evidentiary hearing, Attorney Barbee explained that he never told Petitioner “you're looking at 10 years, ” but rather he told him that he had a ten year mandatory minimum. (Evidentiary Hearing Transcript at p. 82, ECF No. 148).

         Attorney Barbee negotiated a plea agreement with the Government on Petitioner's behalf. Attorney Barbee reviewed the Plea Agreement in detail with Petitioner. Attorney Barbee stated that, “[a]fter reviewing copies of his discovery including reports detailing his own confession, accessing the strength of the government's case against him, discussing his options with me, knowing the projected sentence outcomes and reviewing the written memorandum of plea agreement (“MOPA”) including a detailed review and discussion of paragraph 12 of the written plea agreement, wherein Mr. Rosa waived almost all of his appellate rights, Mr. Rosa agreed to enter into the written agreement.” (Id. at ¶ 10).

         On January 27, 2017, Petitioner Rosa pleaded guilty before the Magistrate Judge to Count 1 of the Indictment pursuant to a Memorandum of Plea Agreement. (ECF No. 77).

         Petitioner Rosa admitted to the following facts in his Plea Agreement:

In July of 2016, Defendant, received from his co-defendant Codi Alcon residing in Henderson, Nevada, two (2) U.S. Postal Service Priority Mail parcels. The two parcels were intercepted in Hawaii on July 22, 2016. Contained in one parcel was 1, 870 grams of crystal methamphetamine and in the other parcel 455 grams of crystal methamphetamine. Defendant previously sent to co-defendant Alcon $20, 000.00 in U.S. currency as partial payment for the crystal methamphetamine. After receiving the two parcels containing the methamphetamine, Defendant was expected to pay co-defendant Alcon the amount of $30, 000.00, the remaining balance of their agreed upon purchase price.
The suspected methamphetamine seized from the two parcels received by Defendant were submitted to the HPD Scientific Investigative Section (SIS) for analysis, which revealed the following: 1) Exhibit 1 was found to be methamphetamine HCl with a weight of actual pure substance of 1, 755 grams; and 2) Exhibit 2 was found to be methamphetamine HCl with a weight of actual pure substance of 439 grams.

(Mem. of Plea Agreement at ¶ 8, ECF No. 80).

         The Plea Agreement contained a waiver of Petitioner Rosa's right to appeal and collaterally attack his conviction subject to certain exceptions. (Mem. of Plea Agreement, at ¶ 12, ECF No. 80).

         The Court entered an order accepting Petitioner's guilty plea and adjudged him guilty as to Count 1 of the Indictment. (ECF No. 87).

         Petitioner's Final Presentence Investigation Report

         On May 2, 2017, the probation officer filed Petitioner's Final Presentence Investigation Report. (ECF No. 99).

         The probation officer concluded that Petitioner was responsible for 2.217 kilograms of “ice” which placed his base offense level at level 36. (Id. at ¶ 31).

         The probation officer found that Petitioner's base offense level should be increased by two points for being the organizer or leader of the charged activity. (Id. at ¶ 34).

         Petitioner received a two-point reduction for acceptance of responsibility. (Id. at ¶ 38).

         Petitioner received a one-point reduction for timely notifying authorities of his intention to plead guilty. (Id. at ¶ 39).

         The Final Presentence Investigation Report calculated Petitioner's Sentencing Guidelines to be a total offense level of 35 with a criminal history category of VI for a recommended sentence of 292 to 365 months imprisonment. (PSR at ¶ 83, ECF No. 99).

         Petitioner's Sentencing Proceeding

         On May 25, 2017, the sentencing hearing was held before the District Court Judge. (ECF No. 111). Petitioner Rosa was represented by Attorney Barbee at the hearing. Attorney Barbee objected to the upward adjustment in the sentencing guidelines based on Petitioner Rosa's role in the offense as a leader or organizer.

         The District Judge denied Attorney Barbee's objections and adopted the factual statements contained in the PSR. The District Judge adopted the Presentence Investigation Report's findings of a total offense level of 35 and criminal history category VI for a recommended sentencing range of 292 to 365 months imprisonment.

         The District Judge sentenced Petitioner Rosa to a sentence of 188 months imprisonment, more than 100 months below the guideline range.

         The District Judge advised Petitioner Rosa about his right to appeal, as follows:

Now, in your plea agreement you have waived some of your rights to appeal; but if you feel that you have just reason to appeal, you can present that argument to the appellate court. Your right to appeal is within 14 days of judgment being entered in your case, and it is a waiver of your right to appeal if you do not file within that period of time.

         (Transcript of Sentence at p. 21, ECF No. 126).

         The Court granted the Government's oral motion to dismiss Count 2 of the Indictment.

         The Judgment was filed on May 30, 2017. (ECF No. 115).

         Petitioner did not file a direct appeal.

         Petitioner's Section 2255 Motion

         A year later, on June 8, 2018, Petitioner Rosa filed a MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE, pursuant to 28 U.S.C. § 2255. (ECF No. 130).

         Petitioner Rosa challenges his conviction on the basis that Attorney Barbee provided ineffective assistance of counsel.

         On June 14, 2018, the Government filed a Request for Order Finding Waiver of Attorney-Client Privilege with Respect to Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 132).

         On the same date, the Court issued an ORDER FINDING WAIVER OF ATTORNEY-CLIENT PRIVILEGE WITH RESPECT TO PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY. (ECF No. 133).

         On July 11, 2018, the Government requested additional time to respond to Petitioner's Section 2255 Motion. (ECF No. 134).

         On July 12, 2018, the Court granted the Government's request for additional time. (ECF No. 135).

         On September 10, 2018, the Government filed its RESPONSE TO MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY. (ECF No. 137).

         On September 26, 2018, Petitioner filed his REPLY TO THE GOVERNMENT'S RESPONSE TO MOTION UNDER 28 U.S.C. § 2255. (ECF No. 138).

         The Court elected to hold an evidentiary hearing. (ECF No. 139).

         On February 13, 2019, the Court held an evidentiary ...


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