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Kamahele v. United States

United States District Court, D. Utah, Central Division

August 9, 2017




         A jury convicted Eric Kamahele, Kepa Maumau, and Sitamipa Toki (collectively, Petitioners) of crimes arising out of their membership in the Tongan Crip Gang (TCG). They appealed their convictions to the Tenth Circuit Court of Appeals and lost. See United States v. Kamahele, 748 F.3d 984 (10th Cir. 984). Petitioners have now filed motions under 28 U.S.C. § 2255. Mr. Kamahele and Mr. Maumau initially filed pro se § 2255 motions claiming ineffective assistance of counsel. After receiving permission from the court, Mr. Kamahele and Mr. Maumau, with the assistance of counsel, filed amended § 2255 motions. Mr. Toki did not file a pro se motion, but has now, with counsel, filed a § 2255 motion.

         Other than the claims raised by Mr. Kamahele and Mr. Maumau in their pro se motions, the petitioners make essentially the same arguments in support of their motions:

(1) That the Supreme Court's recent decision in United States v. Johnson invalidates the risk-of-force clause in 18 U.S.C. § 924(c)(3)(B) and, consequently, their § 924(c) convictions cannot stand; and
(2) That they are actually innocent of their convictions for committing violent crimes in aid of racketeering (VICAR) and their gun charges, 18 U.S.C. § 924(c), because their underlying crimes do not qualify as crimes of violence.

         The court denies Petitioners' motions:

(1) The ineffective-assistance-of-counsel claims asserted by Mr. Kamahele and Mr. Maumau are without merit;
(2) Petitioners' claims that Johnson invalidated their 924(c) convictions are time-barred;
(3) Petitioners' claims do not qualify for the actual-innocence exception and, consequently, they are also barred.


         To succeed on their claims of ineffective assistance of counsel, Mr. Kamahele and Mr. Maumau must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under the first prong, the petitioner must show that his attorney's representation fell below an objective standard of reasonableness. Id. at 688. “Judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. As part of that deferential standard, the United States Supreme Court has established “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (emphasis added) (citation and internal quotation marks omitted).

         Second, the petitioner must establish that he was prejudiced by the allegedly deficient representation. Id. at 687, 693 (the petitioner must “affirmatively prove prejudice”). “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693 (emphasis added). Instead, when a petitioner challenges a conviction, he “must show that there is a reasonable probability that, but for counsel's professional errors, . . . the factfinder would have had a reasonable doubt respecting guilt.” Id. at 694-95. Underlying this standard is the requirement that the court “consider the totality of the evidence before the judge or jury.” Id. at 695.

         The court may reverse the order in which it considers the factors, or it may focus solely on one of the factors if the petitioner cannot establish that particular factor.

[T]here is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.

Id. at 697.

         As discussed below, the court finds that neither Mr. Kamahele nor Mr. Maumau has met his burden under Strickland.

         I. Eric Kamahele

         Mr. Kamahele brings five claims in his Original Petition.[1] Claim One and Claim Two concern his motion to withdraw his guilty plea. Claims Three, Four, and Five relate to two events that occurred at trial which he contends should have triggered a motion for mistrial.

         a. Withdrawal of Guilty Plea (Claims One and Two)

         Eric Kamahele was indicted on five counts (conspiracy under RICO, assault with a dangerous weapon in aid of racketeering, Hobbs Act robbery, and two counts of brandishing a firearm during a crime of violence). He faced a potential sentence of life in prison, including a set of minimum-mandatory sentences.

At the arraignment on the second superseding indictment on May 12, 2010, Kamahele was advised of his rights and of the possible penalties he faced if convicted. (Doc. 142.) There, both he and his counsel were put on notice that he was facing a minimum-mandatory 32 years in prison if convicted.

(United States' Response in Opp'n to Pet.'s Mot. to Vacate Under 28 U.S.C. § 2255 6 n.1, ECF No. 5 in 2:15-cv-506.)

         A 30-day trial was scheduled to begin on September 6, 2011. But on August 11, 2011, Mr. Kamahele pleaded guilty to two of the five counts for which he was indicted. According to his plea agreement, he was to serve twelve years in prison. The plea was conditional because it was entered under Federal Rule of Criminal Procedure 11(c)(1)(C), which requires acceptance by the district court before it is final.

         The next day, Mr. Kamahele “had a change of heart” after Co-Defendant Mataika Tuai asked him to “withdraw [his] guilty plea and help [Mr. Mataika] at trial.” (Aff. of Eric Kamahele ¶ 5, ECF No. 1-2 in 2:15-cv-506.) Mr. Kamahele called his counsel's office and told his counsel's assistant that he wanted to withdraw his guilty plea. Six days later, on August 18, 2011, his counsel filed a motion with the court and represented what had occurred:

Mr. Kamahele contacted counsel's office and indicated he needed to withdraw the plea and that he would put the reasons for the motion in writing and send it to counsel's office. To date that letter has not been received and due to the time constraints counsel was unable to verify with Mr. Kamahele what issues he wanted to raise before the Court.

(Def. Kamahele's Mot. to Withdraw His Guilty Plea, ECF No. 778 in 2:08-cr-758.) Counsel emphasized the need for an expedited hearing because the trial was less than a month away. (Id. (“Therefore, despite the lack of articulated facts, counsel seeks a hearing on the Motion in order to determine her client's status as to the trial.”).) The court held a hearing the next day.

         Mr. Kamahele and his counsel met at the courthouse immediately before the hearing. Mr. Kamahele, who was in custody during the pre-trial proceedings, said that he “never spoke to [his] attorney [about the motion] until the day” of the motion hearing. (Kamahele Aff. ¶ 6.) According to Mr. Kamahele, in response to his decision to withdraw his plea, his attorney told him that he “was the dumbest person she had ever met” and that the judge would not grant his request. (Id. ¶ 7.) He now asserts that he “was not provided any advice by [his] attorney at the plea withdrawal” hearing. (Id. ¶ 9.) But he did mention that his attorney had reviewed sentence possibilities with him, no doubt before he entered into his plea agreement. (Id. ¶ 8.) Still, he asserts that he asked his attorney “on multiple occasions to help [him] understand the amount of time [he] was facing, and that each time the number was different and [it] prevented [him] from grasping the concept of federal mandatory minimum sentences.” (Id. ¶ 8.)

         The transcript of the hearing on Mr. Kamahele's motion completes the picture of what occurred between Mr. Kamahele and his counsel. After the court granted the motion, his counsel stated on the record that her client's request “was against legal advice.” (Tr. of Hr'g on Mot. Withdraw Guilty Plea 4, ECF No. 826 in 2:08-cr-758.) She continued her explanation:

Just because of the time he's facing, my concerns about the evidence at trial, that my recommendation is that he let the plea stand, and he still wishes to have it withdrawn. Obviously the court has ruled. But I wanted that [on the record.]
And then I wanted to make sure that he understood. He indicated today that he thought I was mad and that it interfered with my schedule. That isn't the case at all. I was trying to pay attention to what the Government was talking about regarding evidence. My schedule is cleared for September. I did that in preparation of this. There is nothing personal here. I have no personal feelings about the client, what he wants to do, how he wants to proceed, other than to protect his legal rights. So that is why I asked him not to withdraw it. I just wanted that on the record.

(Id. at 4 (emphasis added).) The court told Mr. Kamahele that ultimately the decision was his to make but added that “I don't think [withdrawing the guilty plea is] the wisest thing in the world.” (Id. at 3.)

         Mr. Kamahele went to trial and the jury found him guilty of all five counts. He was sentenced to 32 years in prison.[2] He lost his appeal with the Tenth Circuit. See United States v. Kamahele, 748 F.3d 984 (10th Cir. 2014).[3]

         i. Attorney's Advice Regarding Withdrawal of Guilty Plea (Claim One)

         In Claim One, Mr. Kamahele contends that his attorney provided ineffective assistance of counsel when she failed to provide him with meaningful advice about whether to withdraw his guilty plea. “If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” Lafler v. Cooper, 566 U.S. 156, 168 (2012). The Strickland test “applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985). The same applies to situations where a defendant rejects a plea offer. “Even if the trial is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.” Lafler, 566 U.S. at 166. But to establish prejudice, the defendant must show, among other things, that “but for the ineffective advice of counsel there is a reasonable probability that . . . the defendant would have accepted the plea . . . .” Id. at 164. Mr. Kamahele has not done that.

         Mr. Kamahele initially claims that he “was not provided any advice by [his] attorney at the plea withdrawal.” (Kamahele Aff. ¶ 9.) But other statements in his affidavit contradict that assertion, including the fact that he met with her before the hearing. He says that he “never spoke with [his] attorney about withdrawing [his] plea until the day [he] was in Court on a ‘Motion to Withdraw Plea.'” (Id. ¶ 6.) The time frame for action was so small-the trial was only weeks away-that his attorney cannot be faulted for meeting with him on the hearing date, particularly because he was in custody, which adds a layer of difficulty to scheduling a meeting.

         When Mr. Kamahele met with his counsel, she strongly advised against withdrawing his plea. She made a point of clarifying that on the record.

         As for his most recent statement that he did not grasp “the concept of federal mandatory minimum sentences, ” (Id. ¶ 8), he cannot avoid the representations he made in his August 2011 Statement in Advance of Plea, which included the following: “I hereby acknowledge and certify that I have been advised of and that I understand the following facts and rights, and that I have had the assistance of counsel in reviewing, explaining, and completing this form.” (Statement by Def. in Advance of Plea of Guilty 1, ECF No. 74 in 2:08-cr-758.) The statement listed the maximum sentence he was facing if he was convicted- life in prison. (Id. at 2 ¶ 2.)

         Despite that, Mr. Kamahele chose not to follow his attorney's advice or heed the court's warning that withdrawing his guilty plea was not a wise choice. His decision does not render the assistance he received ineffective. For these reasons, he cannot overcome the strong presumption that his attorney's conduct fell within “the wide range of reasonable professional assistance.” United States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996).

         ii. Due Process Claim Concerning Motion to Withdraw Guilty Plea (Claim Two)

         In Claim Two, Mr. Kamahele asserts that the district court erred when it allowed him to withdraw his guilty plea. This claim fails both for procedural reasons, and even if it were not procedurally barred, on the merits.

         His claim of court error could have been raised on direct appeal but was not. “Section 2255 motions are not available to test the legality of a matter which should have been raised on direct appeal.” United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994). Accordingly, Mr. Kamahele's claim is procedurally barred.

         There are two exceptions to this bar. A court will consider a defaulted claim if the petitioner shows “either [1] cause excusing the procedural default and prejudice resulting from the error or [2] a fundamental miscarriage of justice if the claim is not considered.” United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996). Mr. Kamahele has not explained why he did not, or could not, bring this claim on direct appeal, and nothing in the record hints at a situation prohibiting him from doing so. As for the fundamental-miscarriage-of-justice exception, the court will assume, without deciding, that he meets that exception and is entitled to a review of the merits of his claim. For the reasons set forth below, Mr. Kamahele does not succeed on the merits.

         On August 11, 2011, Mr. Kamahele pleaded guilty under Rule 11(c)(1)(C), which allowed him to withdraw his plea if the court did not accept the sentence agreed upon by the parties. (See Aug. 11, 2011 Minute Entry, ECF No. 742 in 2:08-cr-758; Aug. 11, 2011 Statement in Advance of Plea, ECF No. 744 in 2:08-cr-758.) The very next day, Mr. Kamahele asked his lawyer to assist him in withdrawing his guilty plea. (See Tr. of Aug. 19, 2011 Hr'g on Mot. to Withdraw Guilty Plea, ECF No. 826 in 2:08-cr-758.) He filed his motion one week later.

         The procedure set forth in Federal Rule of Criminal Procedure 11(d)(1) applied because the court had not yet accepted Mr. Kamahele's Rule 11(c)(1)(C) plea. According to that rule, “[a] defendant may withdraw a plea of guilty . . . before the court accepts the plea, for any reason or no reason.” Fed. R. Crim. P. 11(d)(1). In his motion Mr. Kamahele did not provide a reason to the court.[4]During the hearing, the court considered the fact that the guilty plea was an 11(c)(1)(C) plea and that Mr. Kamahele had moved to withdraw his guilty plea only one week after he entered his plea. “That speed is one of the big factors. That means that nobody is prejudiced. The Government hasn't called off witnesses or anything.” (Tr. of Aug. 19, 2011 Hr'g on Mot. Withdraw Guilty Plea 2.) Because his motion satisfied the factors under Rule 11(d)(1), the court gave him permission to withdraw his plea. Ultimately, as the court reminded him, it was his decision. But the court added that withdrawing his plea was not a wise choice. Despite the court's statement, and against the legal advice of his attorney, Mr. Kamahele decided to withdraw his plea and go to trial.

         Given the fact that Mr. Kamahele had the option to withdraw his guilty plea “for any reason or no reason” and the fact that he consulted with his attorney before doing so, the court deferred to Mr. Kamahele. See Fed. R. Crim. P. 11(d)(1). The appropriate procedures were followed. No violation of Mr. Kamahele's due-process rights occurred and he has not established that he is entitled to relief under Claim Two.

         b. Trial (Claims Three, Four, and Five)

         Mr. Kamahele's remaining ineffective-assistance-of-counsel claims concern events that happened during selection of the jury and testimony during trial. In Claim Three, he alleges that his trial attorney was ineffective when she did not move for a mistrial after a few potential jurors briefly saw him shackled and wearing prison clothes. Claim Four is an extension of Claim Three: in Claim Four he contends that his appellate attorney did not raise the mistrial issue on direct appeal. In Claim Five Mr. Kamahele focuses on his counsel's failure to raise a claim of prosecutorial misconduct after a government witness refused, while on the stand, to testify. In that claim, he contends that his counsel was ineffective because failure to raise the issue at trial limited him to the onerous plain-error standard of review on appeal. As explained below, none of these claims pass the Strickland test.

         i. Prison Garb and Shackles (Claims Three and Four)

         During pre-trial proceedings, Mr. Kamahele was in custody. Each day, before the proceedings in the courtroom began, the United States Deputy Marshals transported Mr. Kamahele to the courtroom holding cell where he changed into civilian clothes. The court allowed Mr. Kamahele to change into civilian clothes so the potential jurors, and ultimately the jury panel, did not see evidence that he was in custody. But at all other times, Mr. Kamahele remained shackled and in prison garb.

         Immediately before the voir dire process began, a small group of potential jurors, on their way to the fourth-floor courtroom, inadvertently rode the elevator to the basement. At the same time, Mr. Kamahele and other Co-Defendants, while in the custody of U.S. Deputy Marshals, waited in the basement to catch the same elevator. When the potential jurors' elevator stopped, the doors opened, revealing the shackled Co-Defendants in their prison garb, including Mr. Kamahele. The potential jurors stayed in the elevator, the elevator doors closed, and the Co-Defendants caught the next elevator. Mr. Kamahele's ...

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