United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION DENYING
PETITIONERS' MOTIONS FOR RELIEF UNDER 28 U.S.C. §
CAMPBELL, U.S. DISTRICT COURT JUDGE
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.
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;
(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.
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
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).
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.
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
Id. at 697.
discussed below, the court finds that neither Mr. Kamahele
nor Mr. Maumau has met his burden under Strickland.
Kamahele brings five claims in his Original
Petition. 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.
Withdrawal of Guilty Plea (Claims One and Two)
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
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.
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.
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.)
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.
Kamahele went to trial and the jury found him guilty of all
five counts. He was sentenced to 32 years in
prison. He lost his appeal with the Tenth Circuit.
See United States v. Kamahele, 748 F.3d 984 (10th
Attorney's Advice Regarding Withdrawal of Guilty Plea
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.
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.
Mr. Kamahele met with his counsel, she strongly advised
against withdrawing his plea. She made a point of clarifying
that on the record.
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.)
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.
Due Process Claim Concerning Motion to Withdraw Guilty
Plea (Claim Two)
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.
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.
are two exceptions to this bar. A court will consider a
defaulted claim if the petitioner shows “either 
cause excusing the procedural default and prejudice resulting
from the error or  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
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.
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.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
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.
Trial (Claims Three, Four, and Five)
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.
Prison Garb and Shackles (Claims Three and Four)
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
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 ...