United States District Court, D. Hawaii
SECOND SUPPLEMENT TO ORDER DENYING PETITION UNDER 28
U.S.C. § 2255, DENYING REQUEST FOR AN EVIDENTIARY
HEARING, AND DENYING CERTIFICATE OF APPEALABILITY
OKI MOLLWAY UNITED STATES DISTRICT JUDGE.
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. Because of
the volume of issues Hernandez raised in his § 2255
motion, the court invited Hernandez to identify any ground
for relief raised in his 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.
January 11, 2019, Hernandez indicated 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.
court already denied the § 2255 motion to the extent it
was based on the second and third identified issues.
See ECF No. 634. With respect to the first issue,
the court requested supplemental briefing. Id.
Having received and considered that briefing, the court
continues to deny the § 2255 motion and the accompanying
request for an evidentiary hearing, and continues to decline
to issue a certificate of appealability.
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.
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.”).
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). Even if the court assumes that Dotson's
failure to raise the issue fell below an objective standard
of reasonableness under prevailing professional norms, a
determination that this court expressly declines to make,
Hernandez shows no prejudice arising out of Dotson's
failure to raise the wiretap issue on appeal.
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'”). Nor
does Hernandez clearly articulate what evidence he thinks was
obtained as a result of the allegedly improper wiretap.
appears that Hernandez is instead arguing that he was
prejudiced because, but for the state wiretap evidence, he
would not have been imprisoned for the state crimes and,
without that imprisonment, he would not have made any phone
calls that could have formed the basis of identification of
his voice by either Rene Zendejas or Officer Richardo Cerna.
This argument is not persuasive. While the record is not
clear as to whether Hernandez might have been incarcerated or
have made those phone calls even if the wiretaps had not
occurred, Hernandez fails to show that either Zendejas or
Cerna would have been unable to identify Hernandez's
voice on a different recording without having listened to the
prison's recorded calls.
knew Hernandez well. Even if Zendejas had not heard
Hernandez's voice in prison phone conversations, Zendejas
may well have been able to identify Hernandez's voice.
Zendejas testified, for example, that he had known Hernandez
since they were 13 or 14 years old. See Transcript
of Proceeding (Jan. 10, 2012) at 3, ECF No. 371, PageID #
4640. According to Zendejas, they saw each other two or three
times a week growing up and their relationship continued into
adulthood. Id. at 13, PageID # 4650. Zendejas also
testified that Hernandez taught Zendejas how to put drugs in
the drive shaft of a car that was to be driven from Mexico to
the United States. Id. at 22, PageID # 4659.
Zendejas described how, for several years, he and Hernandez
were partners in a methamphetamine distribution scheme.
Id. at 26-27, PageID # 4663-64. When Zendejas
testified that he heard Hernandez's voice on recordings,
he also noted that it was the same voice that he had heard
“when I used to talk to him before over the
phone.” Partial Transcript of Proceedings (Jan. 10,
2012) at 65, ECF No. 466, PageID # 5851. Given Zendejas's
lengthy relationship with Hernandez, Zendejas could likely
have identified Hernandez's voice without having heard
the phone calls recorded in prison.
is also unpersuasive in arguing that, but for the prison
phone calls, Cerna would have been unable to identify his
voice. Cerna originally arrested Hernandez for public
intoxication. ECF No. 551 at 2-45, PageID # 8524. Cerna
testified that Hernandez spoke with a “distinct
tone.” Id. at 2-50, PageID # 8529;
id. at 2-71, PageID # 8550. Cerna explained that the
distinctive tone Hernandez used when speaking to Cerna during
their initial contact left a lasting association in
Cerna's mind of that tone with Hernandez. ECF No. 551 at
2-38, PageID # 8517. The reason the sound of Hernandez's
voice was so memorable was that Hernandez told Cerna at the
time of the arrest that Hernandez was part of the Mexican
Mafia. Id. at 2-42, PageID # 8521. Hernandez also
used the words, “guey” and “ey” a lot
while speaking, although those terms are common. Id.
at 2-47, PageID # 8526. Cerna also recalled that Hernandez
mumbled when he spoke. Id. at 2-72, PageID # 8551.
While Hernandez may have been “stuttering” and
“disoriented” during Cerna's initial contact
with Hernandez, id. at 2-46, PageID # 8525, that
goes only to the weight of Cerna's identification. Given
Cerna's recollection about Hernandez's tone and
mannerisms, Cerna probably could have identified
Hernandez's voice even had the prison tapes been
Hernandez fails to show any prejudice arising out of
Dotson's allegedly ineffective conduct, Hernandez fails
to establish entitlement to relief. see Strickland,
466 U.S. at 687 (ineffective assistance of counsel requires