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United States v. Foster

United States District Court, D. Hawaii

June 10, 2019

CHARLES H. FOSTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER (1) DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE; AND (2) DENYING CERTIFICATE OF APPEALABILITY

          DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE

          On February 19, 2015, a jury found Petitioner Charles H. Foster guilty of drug and conspiracy offenses. Foster appealed, challenging certain evidentiary rulings and a colloquy between the Court and a witness at trial. The Ninth Circuit Court of Appeals affirmed in all respects. Nearly two years after the Ninth Circuit's affirmance, Foster now moves for habeas relief, making numerous arguments as to why his judgment of conviction and sentence should be vacated. For the reasons discussed below, to the extent Foster's arguments are not time-barred, the Court rejects the same because Foster has failed to show an entitlement to relief.

         BACKGROUND

         I. Superseding Indictment, Jury Trial, and Sentencing

         On May 22, 2014, a grand jury returned a Superseding Indictment in this case. Dkt. No. 99. Therein, Foster was charged with (1) possessing with intent to distribute 50 grams or more of methamphetamine (Count One), (2) possessing with intent to distribute a mixture or substance containing cocaine (Count Two), (3) using and carrying a firearm in furtherance of, and during and in relation to, a drug trafficking crime (Count Three), and (4) conspiring to possess with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine (Count Four).

         After a five-day trial, a jury found Foster guilty of Counts One, Two, and Four, and not guilty of Count Three. Dkt. No. 192. Prior to the close of evidence, Foster chose not to exercise his right to testify in his own defense, prompting the Court to conduct a colloquy with him. During the colloquy, Foster stated that he understood his testimonial rights, had spoken to counsel about those rights, and chose not to testify. 2/19/15 Transcript of Jury Trial at 101:11-102:8, Dkt. No. 230.

         Prior to sentencing, the U.S. Probation Office prepared a Presentence Investigation Report (PSR). Therein, the Probation Officer recommended applying a four-level increase to Foster's base offense level for being an organizer or leader of a criminal activity involving five or more participants or that was otherwise extensive, pursuant to Section 3B1.1(a) of the U.S. Sentencing Guidelines. At sentencing, the Court adopted the recommendation, resulting in a total offense level of 40 and a guideline imprisonment range of 292 to 365 months imprisonment. On July 21, 2015, the Court sentenced Foster to 304 months' imprisonment on each of Counts One and Four, and 240 months' imprisonment on Count Two, all terms to run concurrently.

         II. Appeal

         Shortly thereafter, Foster appealed. On November 3, 2016, the Ninth Circuit affirmed Foster's convictions. In doing so, the Ninth Circuit rejected Foster's contention that admission of evidence relating to a prior drug conviction and two drug transactions in which he was involved constituted an abuse of discretion. The Ninth Circuit also rejected Foster's argument that the testimony of the government's expert chemist, Amanda Pontius, lacked foundation. Finally, the Ninth Circuit concluded that this Court did not commit plain error in participating in a colloquy with a witness. The mandate from the Ninth Circuit issued on November 28, 2016.

         III. Section 2255 Proceeding

         Nothing further took place in Foster's criminal case until the docketing of the instant motion to vacate, set aside, or correct his sentence (“the Section 2255 Motion”) in October 2018.[1] Liberally construing the Section 2255 Motion, Foster makes the following arguments for vacating his conviction and sentence: (1) he received ineffective assistance of counsel at sentencing when counsel failed to properly object to the application of Section 3B1.1(a); (2) he received ineffective assistance of counsel at trial when counsel failed to timely object to the testimony of the government's expert chemist; (3) an attorney who represented him prior to trial had a conflict of interest during such representation because the attorney, Myles Breiner, also represented another individual, John Penitani, who was later a witness at Foster's trial; (4) his due process rights were violated and he received ineffective assistance of counsel when Breiner continued to represent Penitani without obtaining Foster's consent; (5) his due process rights were violated when his trial occurred and he was sentenced while he suffered from mental illness and was incompetent, and he received ineffective assistance of counsel when counsel withheld his prior history of mental illness; (6) he received ineffective assistance of trial and appellate counsel when counsel failed to argue that the Court did not give him a meaningful opportunity to challenge the quantity of drugs for which he was held responsible; (7) he is not guilty of the conspiracy charged in Count Four in light of a letter he says he recently received from a government witness, Penitani, and he received ineffective assistance of trial counsel when counsel failed to make a proper motion for judgment of acquittal with respect to Count Four; and (8) he received ineffective assistance of trial counsel when counsel failed to challenge the admission into evidence of certain drugs.

         In the Section 2255 Motion, Foster acknowledges that his arguments are untimely, conceding that the Section 2255 Motion is approximately eight months late. Foster argues, however, that the time limitation for filing his Section 2255 Motion should be equitably tolled because he is “unable rationally to personally understand the need to timely file” due to alleged mental health illnesses. Dkt. No. 274 at 36-37.[2]

         The government has filed a response to the Section 2255 Motion, Dkt. No. 283, and Foster has filed a reply, Dkt. No. 284.

         STANDARD OF REVIEW

         Under Section 2255 of Title 28 of the United States Code (Section 2255), “[a] prisoner in custody under sentence of a court established by Act of Congress . . . may move the court which imposed the sentence to vacate, set aside, or correct the sentence.” 28 U.S.C. § 2255(a). The statute authorizes the sentencing court to grant relief if it concludes “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” Id.

         DISCUSSION

         I. Timeliness

         A preliminary issue in this case, as Foster acknowledges in the Section 2255 Motion and the government argues in its response, is whether Foster has timely moved for the habeas relief he now seeks. In analyzing that matter, the Court first sets forth applicable legal standards before turning to the relevant arguments.

         Pursuant to Section 2255(f), a one-year limitation period applies to motions filed under the section. The one-year period begins to run from, among other things, “the date on which the judgment of conviction becomes final….”[3] When a defendant does not file a petition for certiorari with the Supreme Court, as Foster did not here, “a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmance of the conviction.” Clay v. United States, 537 U.S. 522, 525 (2003). Pursuant to Rule 13 of the Rules for the United States Supreme Court, a petition for certiorari must be filed within 90 days of the entry of the judgment sought to be reviewed, rather than from the issuance date of the mandate.

         Here, the Ninth Circuit entered judgment affirming Foster's convictions on November 3, 2016. Dkt. No. 262. Ninety days from November 3, 2016 is February 1, 2017.[4] See Fed.R.Crim.P. 45(a)(1) (providing that, in calculating a period stated in days, the day of the triggering event is excluded, every day including Saturdays, Sundays, and legal holidays is counted, and the last day of the period should be included unless it is a Saturday, Sunday, or legal holiday). Foster, therefore, had until February 1, 2018 to file a timely habeas motion under Section 2255(f)(1).[5] As discussed, the Section 2255 Motion was filed, at the earliest, on October 17, 2018. Therefore, under Section 2255(f)(1), the Section 2255 Motion was filed more than eight months too late.

         That is, absent some principle of tolling. As discussed, here, Foster relies on the principle of equitable tolling to argue that all of his claims should be considered timely. “A § 2255 movant is entitled to equitable tolling ‘only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.'” United States v. Buckles, 647 F.3d 883, 889 (9th Cir. 2011) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)) (internal quotation omitted).

         Here, the “extraordinary circumstance” upon which Foster relies is mental health illness from which he allegedly suffers. The Ninth Circuit has “long recognized equitable tolling in the context of a petitioner's mental illness.” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010). In order for a petitioner to be eligible for equitable tolling due to mental impairment, he must meet the following two-part test:

(1) First, a petitioner must show his mental impairment was an ‘extraordinary circumstance' beyond his control by demonstrating the impairment was so severe that either
(a) petitioner was unable rationally or factually to personally understand the need to timely file, or
(b) petitioner's mental state rendered him unable personally to prepare a habeas petition and effectuate its filing.
(2) Second, the petitioner must show diligence in pursuing the claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance.

Id. at 1099-1100 (citations and notation omitted).

         In the Section 2255 Motion, Foster dedicates his assertions to the first part of Bills' two-part test: whether his mental impairments were severe enough to constitute an extraordinary circumstance.[6] Putting aside whether Foster “has made a non-frivolous showing that he had a severe mental impairment during the filing period that would entitle him to an evidentiary hearing, ” see id. at 1100, [7] at no point in the Section 2255 Motion or in the reply does Foster even mention the second part of the Bills test: diligence in pursuing his claims.[8] While this Court liberally construes the assertions Foster does make, with respect to Bills' second part, there are simply no assertions to construe, liberally or otherwise.

         “With respect to the necessary diligence, the petitioner must diligently seek assistance and exploit whatever assistance is reasonably available.” Id. at 1101. This may include inmates who assist prisoners with legal filings, if any. Id. In the Section 2255 Motion, Foster asserts that he, “with legal aide from an elderly prisoner, ” is alleging that his mental illness has impaired his ability to file a timely habeas motion. Dkt. No. 274 at 37-38. Notably, in this regard however, Foster fails to assert basic information related to the diligence inquiry, such as when he first attempted to seek assistance from a fellow prisoner. As mentioned, the Section 2255 Motion was filed more than 20 months after the one-year limitations period began. At no point in the Section 2255 Motion, though, does Foster attempt to paint even a broad picture of his diligence during this time period. Further, it is not this Court's role to simply paint-in such a picture with brush strokes of its own imagination.

         As a result, because Foster does not even assert, let alone make any form of showing, that he acted with diligence in pursuing his claims, the Court cannot find that he is eligible for equitable tolling under the two-part Bills test.

         II. Foster's Substantive Claims

         To complete the record, the Court will also address the substantive merit of Foster's eight claims in the event that any one of those claims may be considered timely brought.

         Most, if not all, of Foster's claims involve an assertion that he received ineffective assistance from one or more of the counsel who represented him before trial, at trial, or on appeal. In that light, the Court first sets forth the applicable legal principles for a claim of ineffective assistance of counsel, and then addresses Foster's claims.

         A. Relevant Legal Principles

         To prevail on an ineffective assistance of counsel claim, a petitioner must establish two distinct elements. First, he must show that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, he must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In other words, a petitioner must show both that counsel's performance was deficient and that the deficiency was prejudicial. Id. at 692.

         Counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has ...


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