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Kamahele v. United States

United States District Court, D. Utah, Central Division

April 13, 2018

ERIC KAMAHELE, KEPA MAUMAU, and SITAMIPA TOKI, Petitioners,
v.
UNITED STATES OF AMERICA, Respondent.

          AMENDED [1] ORDER AND MEMORANDUM DECISION RE: CERTIFICATE OF APPEALABILITY

          TENA CAMPBELL U.S. DISTRICT COURT JUDGE.

         In 2015 and 2016, Petitioners Eric Kamahele, Kepa Maumau, and Sitamipa Toki filed Motions for Relief Under 28 U.S.C. § 2255 (collectively, Petitions).[2] In 2017, the court denied the § 2255 Motions (“§ 2255 Order”).[3] Because the Petitioners wish to appeal that decision, they have moved for a Certificate of Appealability (COA), which is required by 28 U.S.C. § 2253(c) before proceeding to the Tenth Circuit Court of Appeals.[4]

         For the reasons set forth below, the court (1) DENIES Mr. Maumau's and Mr. Toki's request for a COA; (2) DENIES Mr. Kamahele's request for a COA on two of the three asserted bases for relief (referred to below as his Johnson and “actual innocence” claims) but GRANTS his request for a COA on Claims One and Two concerning withdrawal of his guilty plea.

         I. LEGAL STANDARD

         When a court denies a § 2255 petition, the petitioner does not have an automatic right to appeal that decision. Instead, the petitioner must obtain a certificate of appealability from either the district court or the court of appeals. 28 U.S.C. § 2253(c)(1)(B).

         To obtain a COA, the petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When reviewing a COA motion, the court does not fully consider “‘the factual or legal bases adduced in support of the claims.'” Buck v. Davis, 137 S.Ct. 759, 773 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). Rather, the court conducts a “‘threshold inquiry into the underlying merit'” of those claims. Id. at 774 (quoting Miller-El, 537 U.S. at 327)).

         The court should issue a COA only if “‘jurists of reason could disagree with the district court's resolution'” of the claims raised in the § 2255 petition or “‘could conclude the issues presented are adequate to deserve encouragement to proceed further.'” United States v. Springer, 875 F.3d 968, 972 (10th Cir. 2017) (quoting Buck, 137 S.Ct. at 773). If “reasonable jurists would not find the district court's decision on these issues debatable or wrong, ” the court should deny the COA motion. Jones v. Warrior, 805 F.3d 1213, 1222 (10th Cir. 2015).

         When the court denies a § 2255 petition on procedural grounds (for example, finding that a claim is time-barred), the petitioner has an additional hurdle. He can obtain a COA only if he shows that both the procedural issue and the underlying claim are reasonably debatable. Springer, 857 F.3d at 981.

         II. PROCEDURAL BACKGROUND

         In 2011, after a jury trial, the Petitioners were found guilty of several offenses, including racketeering in violation of RICO, Hobbs Act robberies (18 U.S.C. § 1951), committing violent crimes in aid of racketeering (VICAR, 18 U.S.C. § 1959), and using a firearm in furtherance of those crimes (18 U.S.C. § 924(c)). The convictions were based in part on finding each Petitioner guilty of underlying crimes of violence or, stated another way, predicate acts.

         In 2014, they lost their direct appeal to the Tenth Circuit. See United States v. Kamahele, 478 F.3d 984 (10th Cir. 2014).

         In 2015, Mr. Kamahele and Mr. Maumau filed pro se § 2255 petitions, which were amended, with assistance of appointed counsel, in 2016. (See Kamahele § 2255 Petition, as amended, ECF No. 1 (“Initial § 2255 Petition”) & ECF No. 10 (“Amended § 2255 Petition”) in 2:15-cv-506-TC; Maumau § 2255 Petition, as amended, ECF No. 1 (“Initial § 2255 Petition”) & ECF No. 10 (“Amended § 2255 Petition”) in 2:15-cv-600-TC.) Mr. Toki filed his petition in 2016 (he too was represented by appointed counsel). (See Toki § 2255 Petition, ECF No. 1 in 2:16-cv-730-TC.)

         In their § 2255 Petitions, they asserted claims arising out of three distinct areas of law. First, Mr. Kamahele and Mr. Maumau raised ineffective-assistance-of-counsel claims (the “IAC claims”). Second, all three Petitioners challenged their convictions based on the newly recognized right announced by the United States Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015) (the Johnson claims). Finally, they asserted legal innocence of the charges in the Second Superseding Indictment[5] (the “actual innocence” claims).

         The court, in its § 2255 Order, rejected the IAC claims on their merits, denied the Johnson claims as time-barred, and denied the actual innocence claims on the ground that the Petitioners were not entitled to relief under that narrow doctrine. Now the court denies their Motion for a COA with the exception of Mr. Kamahele's IAC claims, for which the court issues a COA.

         III. PETITIONERS' JOHNSON AND ACTUAL INNOCENCE CLAIMS

         In the § 2255 Order, the court held that the Johnson claims (and, by association, the actual-innocence claims based on Johnson) were procedurally barred-i.e., they were filed after the statute of limitations expired.

         Claims filed under § 2255 are subject to a one-year statute of limitations. 28 U.S.C. § 2255(f). That one-year period begins to run from the latest of four dates, two of which are relevant here: “the date on which the judgment of conviction becomes final, ” or “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Id. § 2255(f)(1), (3). The Petitioners assert that this court's statute-of-limitations ruling was incorrect, and, for purpose of their COA Motion, that the ruling is at least reasonably debatable. The court disagrees for the reasons set forth below.

         A. THE JOHNSON CLAIMS

         Although the Petitioners filed their Johnson claims more than one year after their convictions became final, they did file the claims within one year of the date the United States Supreme Court issued its 2015 decision in Johnson. Accordingly, they relied on the “newly recognized” and “retroactively applicable” rule announced in that decision to argue that their Johnson claims are not procedurally defaulted. But the court, in its § 2255 Order, held that they were not asserting the right recognized in Johnson and so those claims were procedurally defaulted. For the reasons set forth below, the Petitioners have not met their burden to show that reasonable jurists would find that decision wrong, particularly in light of recent Tenth Circuit precedent.

         In Johnson, the Supreme Court held that the language of the “residual clause” in the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Johnson, 135 S.Ct. at 2557. Although the Petitioners' convictions did not involve application of the ACCA, they contended that the Johnson ruling extends to the other statutes under which they were convicted because those statutes contain language that is almost identical to the unconstitutional language in the ACCA.

         The issue addressed by the court in its order denying the § 2255 Motions was “whether Petitioners assert[ed] the same right announced in Johnson, or whether they instead assert a new right that the Supreme Court has yet to recognize.” (§ 2255 Order at 37.) There the court held that the Petitioners were asserting a different right. “Johnson limits itself to the ACCA. . . . And because Johnson does not dictate the right Petitioners assert [under statutes other than the ACCA], they cannot avail themselves of § 2255(f)(3), making their Johnson-based challenges time-barred.” (Id. at 37-38; see also Id. at 34 (quoting § 2253(f), under which the one-year statute of limitations, in relevant circumstances, “begins to run from the ‘date on which the right asserted was initially recognized by the Supreme Court.'”).)

         In their COA Motion, Petitioners assert that “reasonable jurists” could find the court's ruling on this issue debatable or wrong. But their argument is foreclosed by the recent Tenth Circuit decision in United States v. Greer, 881 F.3d 1241 (10th Cir. 2018).

         In Greer, a § 2255 petitioner unsuccessfully attempted to apply Johnson to an identically-worded clause in a mandatory sentencing guideline under which his sentence was enhanced. Because the ACCA also enhances sentences, Mr. Greer argued that Johnson naturally extended to the language in the sentencing guideline. The issue in Greer was whether the petitioner was asserting the same right newly recognized by the Supreme Court in Johnson (an issue essentially the same as that addressed by this court in the § 2255 Order). The Tenth Circuit held that Mr. Greer was not asserting the same right because he “was not sentenced under the ACCA.” Id. at 1247. In other words, he was not asserting a “true Johnson claim.” Id. at 1248. Significantly, the Tenth Circuit said that “the only right recognized by the Supreme Court in Johnson was a defendant's right not to have his sentence increased under the residual clause of the ACCA.” Id. (emphasis added)

         As in Greer, the Petitioners here are not asserting a “true Johnson claim” (i.e., they are not asserting a right to be free from the ACCA's sentence enhancement provision). Accordingly, they may not tie their claims to the date Johnson was issued. Given the clear language in Greer and the undisputed fact that the claims would be time-barred if not tied to the trigger dates in § 2255(f)(3) and Johnson, reasonable jurists would not debate the conclusion that the Petitioners' Johnson claims are time-barred under § 2255(f)(3). For that reason, the court denies their request for a certificate of appealability on those claims.

         B. “ACTUAL INNOCENCE” CLAIMS

         The Petitioners also relied on an alternative avenue of relief called “actual innocence.” The court referred to their alternative requests for relief as “actual innocence” claims. In those claims, they did not ask for relief from a procedural bar, which is the well-settled use of the “actual innocence” exception. Instead, they asserted that they are actually innocent of their convictions because their underlying crimes do not qualify as crimes of violence under the law and facts in place at the time they were convicted. In essence, they seek a reversal of their conviction without further habeas proceedings.

         Case law defining the scope of the “actual innocence” exception does not allow such relief. It is axiomatic that an actual-innocence claim is not a freestanding claim for relief but rather is a gateway allowing a petitioner to bypass a procedural bar to argue the merits of a habeas claim. The Supreme Court has not held otherwise. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”); Herrera v. Collins, 506 U.S. 390, 404-05 (1993) (“[O]ur habeas jurisprudence makes clear that a claim of ‘actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”), cited in McQuiggin, 569 U.S. at 392. Without authority to the contrary, the question is not reasonably debatable.

         Also, as noted in the court's § 2255 Order, production of new exculpatory evidence is a prerequisite to applicability of the actual innocence exception. (See § 2255 Order at 44-45.) Following Bousley v. United States, 523 U.S. 614 (1998), the court wrote that “Petitioners['] arguments are of ‘legal insufficiency, ' not ‘factual innocence, ' and they do not merit the actual-innocence exception.” (Id. at 43 (quoting Bousley, 523 U.S. at 623 (“‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.”)). The Petitioners ...


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