HELEN GILLMOR, District Judge.
On June 8, 2015, Petitioner Francis S.K. Ogata, Sr. filed a Motion to Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C. § 2255. (ECF No. 125). Petitioner challenges his conviction and sentence. First, Petitioner Ogata argues his enhanced sentence violated the Due Process and Equal Protection clauses of the Fifth Amendment of the United States Constitution. Second, Petitioner claims his attorney provided ineffective assistance of counsel when he allegedly (1) failed to have evidence tested for Petitioner's DNA; (2) failed to call Amanda Ishikawa as a witness at Petitioner's trial; (3) failed to submit a Motion for a Judgment of Acquittal; and (4) failed to effectuate a plea agreement.
Petitioner's Motion to Vacate, Set Aside or Correct Sentence, pursuant to Title 28 U.S.C. § 2255 (ECF No. 125), is
The Court finds that Petitioner is not entitled to an evidentiary hearing because his claims do not provide grounds for relief.
Petitioner is not entitled to a certificate of appealability because he has not made a substantial showing of the denial of a constitutional right.
On January 11, 2013, after a jury trial, Petitioner Francis S.K. Ogata, Sr. ("Petitioner" or "Petitioner Ogata") was convicted of attempted possession with intent to distribute 50 grams or more of methamphetamine. (ECF No. 102).
On July 1, 2013, the Court entered judgment against Petitioner Ogata. (ECF No. 102).
On July 8, 2013, Petitioner filed a Notice of Appeal. (ECF No. 100).
On June 20, 2014, the Ninth Circuit Court of Appeals affirmed Petitioner's judgment. The ruling included a finding that no enforceable plea agreement existed. (ECF No. 120).
On June 8, 2015, Petitioner timely filed a Motion to Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C. § 2255 ("2255 Motion"), (ECF No. 125), and an accompanying Memorandum of Law in Support of his 2255 Motion. (ECF No. 126).
On July 1, 2015, the United States requested additional time to respond to Petitioner Ogata's 2255 Motion. (ECF No. 130).
On July 2, 2015, the Court found that Petitioner waived his attorney-client privilege as to Attorney John Schum ("Attorney Schum"). (ECF No. 131). The Court also granted the United States' request for additional time, and ordered that its Opposition to Petitioner's 2255 Motion be filed by August 31, 2015. (ECF No. 132).
On August 31, 2015, the United States filed its Opposition to Petitioner's 2255 Motion and Attorney John Schum's Declaration of Counsel. (ECF No. 133).
On September 29, 2015, Petitioner filed his Reply to the United States' Opposition. (ECF No. 134).
On February 16, 2012, the United States filed a one-count Indictment against Francis S.K. Ogata, Sr. ("Petitioner" or "Petitioner Ogata"). (ECF No. 10). The Indictment charged Petitioner with attempt to possess with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (
On August 28, 2012, Petitioner's defense counsel, Attorney John Schum ("Attorney Schum") and the United States discussed the possibility of Petitioner entering a guilty plea. No written plea offer or binding plea agreement resulted from the parties' discussions. (Order Denying Def.'s Motion for Specific Performance of Plea Agreement at p. 2, ECF No. 101).
On August 29, 2012, the United States filed a written Information, pursuant to 21 U.S.C. § 851. (ECF No. 31). The Information indicated that the United States intended to rely on Petitioner Ogata's prior drug-related felony conviction to support its claim that a conviction resulting from Petitioner's current case would warrant an enhanced sentence under 21 U.S.C. § 841(b)(1)(A).
From January 7, 2013 to January 11, 2013, a jury trial was held on the charge of attempt to possess with intent to distribute 50 grams or more of methamphetamine. (ECF Nos. 65-81). The United States presented the testimony of 14 witnesses and introduced 31 exhibits. (ECF Nos. 68; 70; 72; 82). Petitioner did not call any witnesses or introduce any exhibits. (
At Petitioner's trial, United States Postal Service Postal Inspector Ronald Corley ("Postal Inspector Corley") testified that in early 2012, a suspicious package mailed from Las Vegas, Nevada to Hilo, Hawaii was intercepted. (Second Day of Trial Tr. at pp. 5-9, ECF No. 112). A search warrant was requested, and a subsequent search of the package discovered 145.1 grams of methamphetamine. (
After methamphetamine was found in the package, a warrant was obtained to place a tracking beeper inside the intercepted package. (Second Day of Trial Tr. at pp. 12-14, ECF No. 112). A tracking beeper notifies law enforcement when a particular package has been opened, and is used for controlled deliveries. (
In addition to the placing of the tracking beeper, Postal Inspector Corley also prepared a small marked bag containing methamphetamine retrieved from the intercepted package. (Second Day of Trial Tr. at at pp. 18-20, ECF No. 112). Postal Inspector Corley initialed and dated the small marked bag. (
A task force comprised of United States Postal Inspectors and Hawaii County Police Officers prepared to conduct a controlled delivery of the intercepted package at the Hilo post office. (
United States Postal Service Postal Inspector Sylvia Torres ("Postal Inspector Torres") testified that she saw Petitioner pick up the intercepted package from the post office. (Second Day of Trial Tr. at pp. 56-57, ECF No. 112). Hawaii County Police Officers James Correa and Greg Ikeda (collectively, "Officers Correa and Ikeda") also testified that they saw Petitioner leave the post office carrying the intercepted package. (
After seeing Petitioner Ogata pick up the intercepted package, Postal Inspector Torres saw him enter a gray Jeep and drive away. (Second Day of Trial Tr. at pp. 56-64, ECF No. 112). He was the sole occupant of the Jeep. (
Hawaii County Police Officer Robert Stewart testified that the law enforcement officers charged with following the sound of the beeper heard it indicate that the intercepted package had been opened. (Second Day of Trial Tr. at p. 100, ECF No. 112). The beeper was later found in a damaged condition in an open green area near a school.
The car containing Officers Correa and Ikeda spotted Petitioner Ogata driving the Jeep toward his residence. (Second Day of Trial Tr. at pp. 149-151; 162-163, ECF No. 112). Upon arrival at Petitioner's residence, law enforcement officers saw the Jeep parked near the residence. (
The law enforcement officers arrested Petitioner at his residence. (Second Day of Trial Tr. at p. 187, ECF No. 112). In addition to Petitioner Ogata, his girlfriend Amanda Ishikawa ("Ishikawa"), was also arrested on a separate state charge. (Second Day of Trial Tr. at pp. 184-187, ECF No. 112). After her arrest, Ishikawa provided a statement to law enforcement officials. (Fourth Day of Trial Tr. at pp. 18-19, ECF No. 114).
On January 11, 2013, the trial concluded. (ECF No. 79). On the same date, the jury returned a verdict of guilty. (ECF Nos. 79; 80).
On July 1, 2013, the Court sentenced Petitioner Ogata to 240 months, or 20 years, imprisonment, 10 years supervised release, and levied a special assessment of 100 dollars. (ECF No. 102).
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2255, provides federal prisoners with a right of action to challenge a sentence if it was imposed in violation of the Constitution or laws of the United States, the court was without jurisdiction to impose such a sentence, the sentence was in excess of the maximum authorized by law, or the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A prisoner may file a motion ("2255 Motion") to vacate, set aside, or correct a sentence. 28 U.S.C. § 2255. The scope of collateral attack of a sentence is limited, and does not encompass all claimed errors in conviction and sentencing.
Courts do not hold pro se petitioner submissions to the same standard as filings submitted by counsel.
Petitioner Francis S.K. Ogata, Sr.'s ("Petitioner" or "Petitioner Ogata") Motion to Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C. § 2255 ("2255 Motion") challenges his conviction and sentence. (ECF No. 125). First, Petitioner Ogata argues his enhanced sentence violated the Due Process and Equal Protection clauses of the Fifth Amendment of the United States Constitution. Second, Petitioner claims his attorney provided ineffective assistance of counsel when he allegedly (1) failed to have evidence tested for Petitioner's DNA under the Innocence Protection Act; (2) failed to call Amanda Ishikawa at Petitioner's trial; (3) failed to submit a Motion for a Judgment of Acquittal; and (4) failed to effectuate a plea agreement.
Petitioner's 2255 Motion alleges that his enhanced sentence violated his Fifth Amendment Due Process and Equal Protection Rights. (2255 Motion at p. 7, ECF No. 125; Memo. of Law in Support at pp. 4-5, ECF No. 126). Petitioner Ogata concedes that previous court rulings have upheld the constitutionality of sentence enhancements. (Memo. of Law in Support at p. 6) (citing to
A criminal defendant who has a prior conviction for a felony drug offense faces a 20-year mandatory minimum sentence if he is found guilty of violating 21 U.S.C. § 841 (a). 21 U.S.C. § 841(b)(1)(A)(viii). This enhanced sentence can only be imposed if the United States files a written Information that details the prior conviction to be relied upon. 21 U.S.C. § 851(a)(1). Once the United States files the Information, the sentencing court is required to impose the enhanced sentence "[i]f the [defendant] files no response to the information, or if the court determines, after hearing, that the person is subject to increased punishment by reason of prior convictions." 21 U.S.C. § 851(d)(1).
In support of his claim that his enhanced sentence violates the Due Process and Equal Protection clauses of the Fifth Amendment, Petitioner Ogata refers to a 2013 DOJ announcement that he alleges ended the DOJ's practice of seeking enhanced sentences. (2255 Motion at p. 7, ECF No. 125; Memo. of Law in Support at pp. 4-5, ECF No. 126).
Petitioner does not accurately characterize the memorandum released on August 12, 2013, by the United States Attorney General, entitled "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases" (the "Attorney General's Memorandum"). The Attorney General's Memorandum clarified the circumstances in which federal prosecutors should pursue enhanced sentences. The Attorney General's Memorandum did not, however, state or imply that the United States would no longer seek enhanced sentences. Even if the Attorney General's Memorandum had ordered federal prosecutors to cease seeking enhanced sentences, an agency directive does not bestow added constitutional protections.
The Ninth Circuit Court of Appeals has consistently held that enhanced sentences comport with the Due Process Clause of the Fifth Amendment.
An enhanced sentence pursuant to 21 U.S.C. § 841(b) does not violate the Equal Protection Clause of the Fifth Amendment because it is "based on a broad and legitimate basis."
Petitioner Ogata's 2255 Motion claims his attorney, John Schum ("Attorney Schum"), provided ineffective assistance of counsel when he allegedly (1) failed to have evidence tested for Petitioner's DNA under the Innocence Protection Act; (2) failed to call Amanda Ishikawa at Petitioner's trial; (3) failed to submit a Motion for a Judgment of Acquittal; and (4) failed to effectuate a plea agreement.
A defendant who alleges ineffective assistance of counsel must satisfy the
Petitioner Ogata claims Attorney Schum was unconstitutionally ineffective for failing to have his DNA tested pursuant to the Innocence Protection Act (the "Innocence Protection Act" or the "Act"), 18 U.S.C. § 3600. (2255 Motion at p. 4, ECF No. 125; Memo. of Law in Support at pp. 1-2, ECF No. 126). Petitioner alleges that had his DNA been tested, the result would have convinced the jury that he never handled the intercepted package that contained the planted beeper device and the small marked bag of methamphetamine. (Memo. of Law in Support at pp. 1-2).
Attorney Schum disputes Petitioner's claim and states that any DNA test would have likely been fruitless in light of (1) Petitioner's private admission that he picked up the intercepted package; (2) the overwhelming evidence that indicated Petitioner picked up the package; and (3) the significant risk that DNA testing would incriminate, rather than exonerate, Petitioner. (Atty. Schum Decl. at ¶¶ 11-12, ECF No. 133-5).
The Innocence Protection Act allows, under limited circumstances, federal prisoners to challenge their convictions through DNA testing. 18 U.S.C. § 3600(a). Congress intended the Act to exonerate wrongfully convicted individuals whose DNA was left at crime scenes.
Even if the Court assumes, without finding, that Petitioner Ogata is claiming Attorney Schum should have had Petitioner's DNA tested post-conviction, Petitioner does not satisfy the Act's threshold requirements. 18 U.S.C. § 3600(a). One key prerequisite of the Act is that a court must find that new DNA results "raise a reasonable probability that the applicant did not commit the offense." 18 U.S.C. § 3600(a)(8)(B). No such reasonable probability can be found in Petitioner's case, however, as the evidence presented at trial unequivocally pointed to him as the individual who received the intercepted package.
At Petitioner's trial, the testimony of multiple witnesses established that he picked up the intercepted package. (
The car containing Officers Correa and Ikeda spotted Petitioner driving the Jeep toward his residence. (Second Day of Trial Tr. at at pp. 149-151; 162-163, ECF No. 112).
Once law enforcement officers arrived at Petitioner's residence, they searched the Jeep and found the small marked bag of methamphetamine that had been placed in the intercepted package. (Second Day of Trial Tr. at pp. 103-107, ECF No. 112). They also found a wallet holding Petitioner's driver's license, (
The cumulative weight of the evidence presented at trial forecloses Petitioner's argument that any DNA test would "raise a reasonable probability" that he did not handle the intercepted package. 18 U.S.C. § 3600(a)(8)(B). Petitioner argues that a DNA test result would show a lack of DNA on the intercepted package and its contents. (Memo. of Law in Support at pp. 1-2, ECF No. 126). This scenario, however, does not negate the fact that multiple individuals saw him receive the intercepted package and the car he had been driving contained the small marked bag of methamphetamine that had been placed in the intercepted package.
Petitioner Ogata's 2255 Motion alleges that Attorney Schum was unconstitutionally ineffective when he failed to call Petitioner's girlfriend, Amanda Ishikawa ("Ishikawa"), as a witness at his trial. (2255 Motion at p. 5, ECF No. 125; Memo. of Law in Support at pp. 2-5, ECF No. 126).
On February 3, 2012, the same date as Petitioner's arrest, Ishikawa made a statement that incriminated Petitioner. (January 10, 2013, Fourth Day of Trial Tr. at pp. 18-19, ECF No. 114). Ishikawa's statement indicated that Petitioner Ogata was expecting to receive a methamphetamine package that day. (Atty. Schum Decl. at ¶ 14, ECF No. 133-5). In a video taped interview with law enforcement, she outlined details of a series of actions by Petitioner dealing with methamphetamine packages. (
In May 2012, Attorney Schum spoke with Ishikawa's attorney about Petitioner's case. (Atty. Schum Decl. at ¶¶ 7; 13, ECF No. 133-5). Ishikawa's attorney informed Attorney Schum that Ishikawa would testify that her initial statement, which incriminated Petitioner, was false. (
On November 9, 2012, Attorney Schum met with Ishikawa. (Atty. Schum Decl. at ¶ 14, ECF No. 133-5). During the meeting, Ishikawa offered to testify to whatever Attorney Schum wished for her to say in aid of Petitioner's defense. (
After their November 9 meeting, Attorney Schum met with Ishikawa on four additional occasions in November and December 2012. (Atty. Schum Decl. at ¶ 15, ECF No. 133-5). During these meetings, Ishikawa stated she intended to claim responsibility for picking up the intercepted package. (
On January 10, 2013, the fourth day of trial, Ishikawa received a grant of immunity from the United States. (ECF No. 75; Fourth Day of Trial Tr. at pp. 17-19, ECF No. 114). Ishikawa retracted her initial statement and informed both parties and the Court that she planned to testify that she picked up the intercepted package from the post office. (Fourth Day of Trial Tr. at pp. 18-19; 42-43; Atty. Schum Decl. at ¶¶ 11-16, ECF No. 133-5).
The United States decided against calling Ishikawa as a witness at the trial. (Fifth Day of Trial Tr. at p. 3, ECF No. 115). Attorney Schum investigated the viability of Ishikawa's new narrative, but ultimately declined to call her after concluding her testimony would be false and a strategic liability. (Fourth Day of Trial Tr. at p. 30, ECF No. 114; Atty. Schum Decl. at ¶¶ 11-16, ECF No. 133-5).
Petitioner argues that Attorney Schum should have called Ishikawa as a witness because she would have testified that she, and not Petitioner, picked up the intercepted package. (Memo. of Law in Support at pp. 2-5, ECF No. 126). Petitioner claims that Ishikawa's testimony would have provided the jury with reasonable doubt. (
In response, Attorney Schum states that Ishikawa planned to present false testimony to protect Petitioner. (Atty. Schum Decl. at ¶¶ 13-15, ECF No. 133-5). Attorney Schum decided not to call Ishikawa as a witness after (1) analyzing her proposed testimony, which he believed to be false; (2) reviewing her prior statement, which incriminated Petitioner; (3) discussing Petitioner's case with her, during which she stated her intention to say whatever Attorney Schum wished for her to say in court; (4) determining that the jury would see her as biased, given the fact that she is Petitioner's girlfriend; and (5) considering the risk that her testimony would damage Petitioner's case. (
An attorney's decision to call or not to call an individual as a witness is a strategic decision.
It is reasonable for an attorney to decide against calling a particular witness if the witness' testimony would be fruitless or even detrimental to the defense.
Attorney Schum's strategic decision not to call Ishikawa as a witness was reasonable.
Petitioner Ogata's 2255 Motion alleges that Attorney Schum was unconstitutionally ineffective when he failed to submit a Motion for a Judgment of Acquittal. (2255 Motion at p. 8, ECF No. 125; Memo. of Law in Support at pp. 6-7, ECF No. 126). Petitioner claims that Attorney Schum should have moved the Court for a Judgment of Acquittal because the United States did not bear its burden of proof at trial. (
In response, Attorney Schum states that he decided against submitting a Motion for a Judgment of Acquittal because he concluded that the strength of the United States' evidence was more than sufficient to present the case to the jury. (Atty. Schum Decl. at ¶ 17, ECF No. 133-5).
A Motion for a Judgment of Acquittal is a procedural mechanism that allows the trial court to determine whether sufficient evidence exists to sustain a conviction. Fed. R. Crim. P. 29(a). If the trial court finds that "no rational trier of fact could have found the defendant guilty beyond a reasonable doubt," it must grant the defendant's Motion for a Judgment of Acquittal.
At his trial, Petitioner faced considerable evidence that proved he held the requisite knowledge and intent to be convicted under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The testimony of multiple witnesses established that he picked up the intercepted package, had possession of the small marked bag of actual methamphetamine, and drove to his residence with it.
During Petitioner's trial, Officers Correa and Ikeda testified that they saw Petitioner leave the post office carrying the intercepted package. (Second Day of Trial Tr. at pp. 141-142; 156-158, ECF No. 112). Postal Inspector Torres also saw Petitioner pick up the intercepted package from the post office, enter a gray Jeep, and drive away. (
The car containing Officers Correa and Ikeda spotted Petitioner driving the Jeep toward his residence. (Second Day of Trial Tr. at at pp. 149-151; 162-163, ECF No. 112).
Once law enforcement officers arrived at Petitioner's residence, they searched the Jeep and found the small marked bag of methamphetamine that had been placed in the intercepted package. (Second Day of Trial Tr. at pp. 103-107, ECF No. 112). They also found a wallet holding Petitioner's driver's license, (
A jury could, and did, find that the United States met all the elements of the charged offense.
Petitioner Ogata alleges that Attorney Schum was unconstitutionally ineffective when he failed to conclude a plea agreement with the United States. (Memo. of Law in Support at pp. 8-10, ECF No. 126). Petitioner states that the government and Attorney Schum were in the process of negotiating a favorable plea bargain on August 28, 2012. Petitioner states the United States filed a written Information, pursuant to 21 U.S.C. § 851, with the Court before formalizing an agreement. (
At no point between August 28, 2012 and the January 7, 2013 trial did Petitioner indicate to the Court that a plea agreement existed. After trial, sentencing was scheduled for April 25, 2013. In Petitioner's sentencing statement filed on March 29, 2013, Petitioner for the first time claimed that the August 28, 2012 discussion between the attorneys resulted in an enforceable plea agreement. (ECF Nos. 87; 89). The Court required Petitioner to file a memorandum containing the legal basis for his claim of a plea agreement and continued the sentencing date. Petitioner's Motion for Specific Performance of Plea Agreement was filed on May 22, 2013. (ECF No. 94). The government filed it's opposition on June 4, 2013. (ECF No. 96). A hearing was held, at which the parties spoke to the Motion on July 1, 2013. The Motion was denied and sentence was entered. (ECF No. 117). On July 15, 2013, the Court entered a written order outlining the reasons for denying Petitioner's Motion. (ECF No. 101). On June 20, 2014 the Ninth Circuit Court of Appeals affirmed this Court's July 15, 2013 order. (ECF No. 120);
Petitioner's argument that an enforceable plea agreement existed between himself and the United States is foreclosed by
There is no constitutional right to a plea agreement.
Throughout the course of Petitioner's case, the United States has consistently maintained that it never offered a plea agreement to Petitioner. (ECF No. 96; Memo. in Opp. at pp. 33-34, ECF No. 133). On August 28, 2012, Attorney Schum and the United States discussed the possibility of Petitioner entering a guilty plea. (Order Denying Def.'s Motion for Specific Performance of Plea Agreement at p. 2, ECF No. 101). No written plea offer or binding plea agreement resulted from the parties' discussions. (
Attorney Schum was not deficient for failing to conclude a plea agreement where no offer existed.
An evidentiary hearing in a Section 2255 action is required "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). The underlying standard for an evidentiary hearing asks whether the prisoner "has made specific factual allegations that, if true, state a claim on which relief could be granted."
An evidentiary hearing is not required if a prisoner's allegations, "when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal."
No evidentiary hearing is required in this case. Petitioner's allegations are contrary to the record and therefore are not accepted as true.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that a Certificate of Appealability may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right", 28 U.S.C. § 2253(c)(2). A "substantial" showing requires a prisoner to show that "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further."
Petitioner's 2255 Motion has not made a substantial showing that he was deprived of a constitutional right. Petitioner's arguments are not supported by the record and applicable law. Reasonable jurists would not debate the Court's conclusion, and there is no reason to encourage further proceedings.
Petitioner is not entitled to a Certificate of Appealability.
Petitioner Francis S.K. Ogata, Sr.'s Motion to Vacate, Set Aside or Correct Sentence, pursuant to Title 28 U.S.C. § 2255, (ECF No. 125), is
Petitioner is not entitled to an evidentiary hearing.
Petitioner is not entitled to a certificate of appealability.
This case is now
IT IS SO ORDERED.
