United States District Court, D. Hawaii
DENNIS J. SITTMAN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING PETITIONER'S WRIT OF ERROR CORAM
NOBIS AND/OR AUDITA QUERELA
C. KAY, UNITED STATES DISTRICT JUDGE.
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”).
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.”).
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.
1992 Conviction and Sentencing
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.
Direct Appeal of & Collateral Attacks on 1992
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).
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.
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.
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.
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.).
2012 Conviction and Sentencing
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).
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.
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.
The Present Petition
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.
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 ...