United States District Court, D. Hawaii
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
GILLMOR UNITED STATES DISTRICT JUDGE.
8, 2018, Petitioner Lathan Rosa filed a Motion to Vacate, Set
Aside or Correct Sentence, pursuant to 28 U.S.C. § 2255.
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.
Petitioner claims he received ineffective assistance
concerning his guilty plea before the Magistrate Judge.
Petitioner claims he received ineffective assistance of
counsel regarding his right to file an appeal following
Motion to Vacate, Set Aside or Correct Sentence pursuant to
28 U.S.C. § 2255 (ECF No. 130) is
Certificate of Appealability is DENIED.
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
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. §
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. §
(Indictment, ECF No. 10).
Rustam A. Barbee's Representation of Petitioner
25, 2016, the Office of the Federal Public Defender for the
District of Hawaii was appointed as counsel for Petitioner
Rosa. (ECF No. 4).
December 15, 2016, Assistant Federal Defender Melinda Yamaga
filed a Motion for Withdrawal and Substitution of Counsel.
(ECF No. 45).
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).
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.)
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).
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.)
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).
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).
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).
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 HC1
with a weight of actual pure substance of 1, 755 grams; and
2) Exhibit 2 was found to be methamphetamine HC1 with a
weight of actual pure substance of 439 grams.
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).
Court entered an order accepting Petitioner's guilty plea
and adjudged him guilty as to Count 1 of the Indictment. (ECF
Final Presentence Investigation Report
2, 2017, the probation officer filed Petitioner's Final
Presentence Investigation Report. (ECF No. 99).
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).
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
received a two-point reduction for acceptance of
responsibility. (Id. at ¶ 38).
received a one-point reduction for timely notifying
authorities of his intention to plead guilty. (Id.
at ¶ 39).
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).
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
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.
District Judge sentenced Petitioner Rosa to a sentence of 188
months imprisonment, more than 100 months below the guideline
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).
Court granted the Government's oral motion to dismiss
Count 2 of the Indictment.
Judgment was filed on May 30, 2017. (ECF No. 115).
did not file a direct appeal.
Section 2255 Motion
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).
Rosa challenges his conviction on the basis that Attorney
Barbee provided ineffective assistance of counsel.
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).
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.
11, 2018, the Government requested additional time to respond
to Petitioner's Section 2255 Motion. (ECF No. 134).
12, 2018, the Court granted the Government's request for
additional time. (ECF No. 135).
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.
September 26, 2018, Petitioner filed his REPLY TO THE
GOVERNMENT'S RESPONSE TO MOTION UNDER 28 U.S.C. §
2255. (ECF No. 138).
Court elected to hold an evidentiary hearing. (ECF No. 139).
February 13, 2019, the Court held an evidentiary ...