Schulze v. United States, CV. NO. 11-00188 DAE-RLP
| Decision Date | 30 September 2011 |
| Docket Number | CR. NO. 02-00090 DAE,CV. NO. 11-00188 DAE-RLP |
| Parties | MICHAEL F. SCHULZE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Hawaii |
After reviewing Petitioner's Motion and the supporting and opposing memoranda, the Court DENIES Petitioner's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence. (Doc. # 430.) Further, since Petitioner has not made a substantial showing of the denial of a constitutional right, the Court also DENIES Petitioner a Certificate of Appealability.
On December 27, 2002, a Grand Jury returned a Second Superseding Indictment ("SSI") charging Petitioner Michael F. Schulze ("Petitioner") with the following:
Count Four: Criminal forfeiture allegations pursuant to 21 U.S.C. § 853. (Doc. # 111.)
On October 21, 2002, Petitioner moved to suppress tape recorded evidence of his conversations with others, which were made with the help of confidential informant, Steven Olaes. (Doc. # 74.) On that same day, Petitioner also moved to suppress evidence seized from his residence. (Doc. # 75.) Both Motions were denied on November 26, 2002. (Docs. ## 97, 99.) On December 31, 2002, Petitioner filed a Motion for Reconsideration of the Orders denying his Motions to Suppress. (Doc. # 112.) On January 23, 2003, the Court denied Petitioner's Motion for Reconsideration. (Doc. # 128.) The Ninth Circuit affirmed the Court's denial of that Motion. See United States v. Schulze, 156 Fed. Appx. 38 (9th Cir. 2005).
A jury trial began on January 30, 2003. (Doc. # 134.) After eight days of trial, on February 11, 2003, the Jury found Petitioner guilty on Counts One,Two, and Three. (Doc. # 148.) On February 12, 2003, the Jury returned a special verdict finding that the property identified in Count Four either constituted or was derived from proceeds that Petitioner obtained as a result of the conspiracy charged in Count One. (Doc.# 146-47.) After the Court granted the Government's motion to remove two of the items in Court Four, the Jury determined that all the remaining items were subject to forfeiture. (Id.)
On September 2, 2003, Petitioner was sentenced to 360 months imprisonment as to each of Counts One through Three, all counts to run concurrently. (Doc. # 171.) Petitioner was ordered to serve a five-year term of supervised release as to each of Counts One through Three, all terms to run concurrently. (Id.) Petitioner was also ordered to pay a fine of $50,000. (Id.) The sentence was based on a criminal history category level of one and total offense level of 42. (Doc. # 347.) Petitioner received a four-level increase from the base offense level of 38 for being the organizer or leader of the following five subdistributors: Donald Grimm, Earl Yamada, Susan Fukumoto, Anthony Tabion, and Ralph Byrd. (Id.)
On September 4, 2003, Petitioner appealed his conviction and sentence. (Doc. # 172.) Petitioner advanced the following arguments on appeal:
(See Doc. # 457 at 180-212.) On November 28, 2005, the Ninth Circuit affirmed Petitioner's conviction but remanded his sentence in light of the Supreme Court's intervening decision in Booker. Schulze, 156 Fed. Appx. at 39-40. Pursuant to United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir. 2005) (en banc), the Ninth Circuit ordered a limited remand for the purpose of ascertaining whether the sentence imposed by this Court would have been materially different had this Court known that the United States Sentencing Guidelines were advisory. Id. at 40. On remand, this Court determined that it would have imposed the same sentence had it known that the guidelines were advisory and thus affirmed Petitioner's sentence. (Doc. # 347.)
On March 16, 2006, Petitioner filed a Motion for New Trial based on newly discovered evidence. (Doc. # 245.) Petitioner claimed that previouslyundisclosed evidence regarding Olaes' probationary status during part of the FBI's investigation warranted a new trial. (Id.) On October 4, 2006, this Court denied the Motion for New Trial. (Doc. # 282.) The Ninth Circuit affirmed the Court's denial of that Motion. See United States v. Schulze, 346 Fed. Appx. 268, 269 (9th Cir. 2009).
On May 10, 2007, Petitioner, proceeding pro se, filed a Motion to Reverse Conviction and Dismiss Indictment on the ground that the government engaged in various forms of misconduct prior to and during his trial. (Doc. # 328.) On July 25, 2007, this Court denied the motion on the ground that Petitioner had waived his new arguments regarding government misconduct because he could have raised them in his earlier appeal, but did not do so. (Doc. # 362.) The Court's decision was affirmed on appeal. See Schulze, 346 Fed. Appx. at 269.
On March 21, 2011, Petitioner filed the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Motion"). ("Mot.," Doc. # 430.) On April 8, 2011, Petitioner requested leave to supplement his Motion in order to add an additional subclaim that was inadvertently omitted. (Doc. # 438.) The Court granted that request on April 22, 2011. On June 24, 2011, the Government filed a response. ("Resp.," Doc. # 455.)
The Court's review of a petitioner's motion is provided for by statute:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255. The scope of collateral attack of a sentence under § 2255 is limited and does not encompass all claimed errors in conviction and sentencing. United States v. Addonizio, 442 U.S. 178, 185 (1979). Under § 2255, the court shall hold an evidentiary hearing on a petitioner's motion "unless the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). The standard for holding an evidentiary hearing is whether the petitioner has made specific factual allegations that, if true, state a claim on which relief could be granted. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984).
An evidentiary hearing is not required if the petitioner'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." United States.v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003). Mere conclusory statements, without supporting evidence, are not sufficient to require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). Although the moving party is not required to detail his evidence, he must "make factual allegations" to establish his right to a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980). The Court has discretion to ascertain whether a claim is substantial before granting a full evidentiary hearing. Sanders v. United States, 373 U.S. 1, 18 (1963). That discretion is limited, however, when a petitioner claims that he or she instructed his or her attorney to file an appeal and the attorney failed to do so. United States v. Sandoval-Lopez, 409 F.3d 1193, 1197 (9th Cir. 2005). In such situations, evidentiary hearings generally are necessary to determine whether the petitioner, in fact, made such an express instruction. See id.
There are also some general rules regarding what kinds of claims can and cannot be raised in a § 2255 petition. For example, a § 2255 petition cannot be based on a claim that has already been disposed of by the underlying criminal judgment and ensuing appeal. As the Ninth Circuit stated in Olney v. United States, 433 F.2d 161 (9th Cir. 1970), "[h]aving raised this point unsuccessfully on direct appeal, appellant cannot now seek to relitigate it as part of a petition under § 2255." Id. at 162; see also United States v. Berry, 624 F.3d 1031, 1038 (9th Cir.2010) (); United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000) ().
Even when a § 2255 petitioner has not raised an alleged error at trial or on...
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