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Sittman v. United States

United States District Court, D. Hawaii

January 8, 2020

DENNIS J. SITTMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING PETITIONER'S WRIT OF ERROR CORAM NOBIS AND/OR AUDITA QUERELA

          ALAN C. KAY, UNITED STATES DISTRICT JUDGE.

         This case stems from a 1992 conviction in Criminal No. 91-00927-ACK, for which Petitioner Dennis J. Sittman (“Sittman”) was sentenced to and served 210 months of imprisonment, followed by five years of supervised release. After losing his direct appeal, Sittman filed a series of collateral attacks on his conviction and sentence. The most recent challenge at issue now is styled as a Petition for Writ of Error Coram Nobis and/or Audita Querela. See ECF No. 200 (the “Petition”).

         The Court finds that no hearing is warranted in this matter because, as discussed below, the motions, files, and records of the case conclusively show that Sittman is not entitled to coram nobis or audita querela relief. See United States v. Taylor, 648 F.2d 565, 573 (9th Cir. 1981); see also D. Haw. Local Rule 7.1(c) (“Unless specifically required, the court, in its discretion, may decide all matters, including motions, petitions, and appeals, without a hearing.”).

         BACKGROUND

         This case has a long and complex procedural history dating back almost thirty years, which the Court has detailed in prior orders. See, e.g., Sittman v. United States, Civ. No. 14-00349 ACK-RLP, Cr. No. 91-00921 ACK, 2014 WL 5361324, at *1-3 (D. Haw. Oct. 20, 2014); see also Govt's Resp. Br., ECF No. 208, at 2-7. The Court incorporates by reference that prior procedural history and provides here an overview of only the pertinent events.

         I. 1992 Conviction and Sentencing

         On May 9, 1991, Dennis Sittman was indicted in Cr. No. 91-00921 ACK for the offenses of Felon in Possession of Firearm, in violation of 18 U.S.C. § 922(g)(1) (Counts 1 and 4); Felon in Possession of Ammunition, in violation of 18 U.S.C. § 922(g)(1) (Counts 2 and 5); and Possession of an Unregistered Firearm, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (Count 3). Govt's Resp. Br., Ex. 1. After a jury trial, Sittman was convicted on all five counts (the “1992 Conviction”). See id., Ex. 4. Sittman was sentenced to 210 months of imprisonment followed by five years of supervised release. Id. The Court applied the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), to enhance Sittman's sentence based on four prior Wisconsin convictions for burglary. See id., Ex. 2 at pp. 10-12 of 23.

         II. Direct Appeal of & Collateral Attacks on 1992 Conviction

         Sittman appealed his 1992 Conviction and 210-month sentence to the Ninth Circuit in 1993. Sittman argued that the Court erred by enhancing his sentence under the ACCA because three of his Wisconsin burglary convictions arose out of a single criminal episode and were committed fifteen years before his firearms offenses. See United States v. Sittman, 996 F.2d 1229 (9th Cir. 1993) (unpublished).[1]

         The Ninth Circuit rejected Sittman's arguments and affirmed his conviction and sentence. See id. Over the next several years, Sittman filed a series of collateral attacks on the 1992 Conviction and sentence under 28 U.S.C. § 2255. See Govt's Resp. Br. at 3-6; see also Sittman, 2014 WL 5361324 at *1-3 (laying out procedural history of various § 2255 motions). Sittman's § 2255 motions were denied, and those denials were upheld by the Ninth Circuit. Sittman, 2014 WL 5361324 at *1-3.

         Sittman began serving his term of supervised release related to the 1992 Conviction on August 1, 2006, and he completed his term on October 23, 2013. Sittman, 2014 WL 5361324 at *2.

         In August 2014, after he had completed his sentence and supervised release, Sittman filed a petition for writ of error coram nobis arguing that the Court should vacate his 1992 Conviction and sentence because “his civil rights were restored pursuant to a discharge certificate allegedly issued to him by the Wisconsin Department of Corrections . . . in 1984.” Id. He also alleged that he had received ineffective assistance of counsel based on his attorney's failure to investigate the discharge policy. Id. This Court held that Sittman was not entitled to coram nobis relief because (1) he was “attempting to re-litigate issues he ha[d] previously raised before this Court and the Ninth Circuit, ” and (2) in any event, he was precluded from obtaining coram nobis relief because he “failed to meet his burden of establishing that valid reasons exist[ed] for not challenging his conviction or sentence earlier.” Id. at *5-6.

         Almost five years later, in June 2019, Sittman filed another § 2255 motion seeking to vacate, set aside, or correct his conviction and sentence. ECF No. 196. This time, he based his motion on “new law”-United States Supreme Court case Johnson v. United States, 135 S.Ct. 2551 (2015). Because it was successive to two prior § 2255 motions, this Court referred the motion to the Ninth Circuit, ECF No. 198, which then denied the motion because Sittman was no longer “in custody” for the 1992 Conviction, see No. 19-71541 (9th Cir.).

         III. 2012 Conviction and Sentencing

         Meanwhile, in 2012 while still on supervised release for the 1992 Conviction, Sittman pled guilty in the Southern District of California to entirely separate charges for drugs and money-laundering (the “2012 Case”). See United States v. Hodges, et al., Cr. No. 12-01111-5 (S.D. Cal.). He was placed in a Criminal History Category III based on five criminal points: three points based on his 1992 Conviction and two points based on his having committed the offense in the 2012 Case while he was on supervised release related to the 1992 Conviction. See Govt's Resp. Br., Ex. 7 ¶¶ 42-44. Accordingly, Sittman was sentenced to 51 months of imprisonment as to each of the two counts, to be served concurrently followed by three years of supervised release. Govt's Resp. Br. at 8 (citing Hodges, Cr. No. 12-01111-5, Dkt. No. 288).

         After Sittman commenced his first term of supervised release, jurisdiction of the case was transferred to the District of Hawai`i and assigned to Judge Kobayashi, Cr. No. 16-00471. See id. Sittman's supervised release in the 2012 Case was revoked for several drug-related violations and he was sentenced to nine months imprisonment followed by twelve months of supervised release. Id.

         On July 16, 2018, Sittman's second term of supervised release stemming from the 2012 Case commenced and, nine months later, his supervised release was again revoked based on seven admitted violations, primarily drug-related. Id. at 8-9; see also Govt's Resp. Br., Ex. 8 (transcript of hearing). Judge Kobayashi sentenced Sittman to eleven months as to each count, to be served consecutively, with no supervised release to follow. Gov't Resp. Br. at 9; see also id., Ex. 6. Sittman is currently incarcerated serving this sentence based on his violation of supervised release imposed in the underlying 2012 Case. Id.; see also Petition at 1 of 3.

         IV. The Present Petition

         On August 14, 2019, Sittman filed the instant Petition for Writ of Error Coram Nobis and/or Audita Querela pursuant to the All Writs Act, 28 U.S.C. § 1651. ECF No. 200. Sittman argues that the Court should vacate his conviction and sentence enhancement on the 1992 Conviction-for which Sittman has already completed his sentence-because subsequent Supreme Court case law invalidates his prior designation as an Armed Career Criminal under ACCA. Petition at p. 1 of 3. Sittman argues that his 1992 sentence under ACCA was an aggravating factor in his revocation sentence in the later 2012 Case before Judge Kobayashi, Cr. No. 16-00471 LEK. See id. at p. 3 of 3. Sittman asserts that, in the “interest of justice, ” he is entitled to resentencing for the 1992 Conviction and that the “bank time” he would accrue from that resentencing requires that he be immediately released on his current probation violation related to the separate 2012 Case.

         After Sittman filed his Petition, the Court directed the Government to file a response. ECF No. 203. The Government sought an extension to file its brief on December 6, 2019, ECF No. 204, which the Court granted for good cause, ECF No. 205. Two weeks later, Sittman filed what he labels a “petition for immediate relief and objection to request for extension of time, ” ECF No. 206, as well as an addendum to his coram nobis Petition, ECF No. 207. The ...


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