United States v. Aholelei

Decision Date22 December 2017
Docket NumberCRIM. NO. 12-00693 SOM,CIV. NO. 17-00008 SOM-KSC
PartiesUNITED STATES OF AMERICA, Plaintiff-Respondent, v. NGANATAFAFU AHOLELEI, Defendant-Petitioner.
CourtU.S. District Court — District of Hawaii

In 2013, Petitioner Nganatafafu Aholelei, a citizen of Tonga and a lawful permanent resident of the United States, pled guilty pursuant to a plea agreement to possessing explosives in violation of 18 U.S.C. § 842(i)(1). This court sentenced him to three years in prison and three years of supervised release. After Aholelei had served his prison term, an immigration judge ordered him removed to Tonga because his § 842(i) conviction was an aggravated felony subjecting him to automatic deportation. This order was affirmed by the Board of Immigration Appeals. Aholelei has an appeal from the removal order pending in the Ninth Circuit, which has denied his motion for a stay of removal pending review. See Order, Aholelei v. Sessions, No. 17-70809 (9th Cir. Nov. 14, 2017).

Before this court is Aholelei's Petition for a Writ of Error Coram Nobis, which seeks the withdrawal of his guilty plea and vacatur of the conviction underlying the removal order. For reasons explained below, the court construes this filing as a motion under 28 U.S.C. § 2255. The § 2255 Motion seeks relief under Padilla v. United States, 559 U.S. 356 (2010), arguing that Aholelei's former defense attorney failed to warn him that a § 842(i) conviction would result in his automatic deportation. Had he known he would be automatically deported, Aholelei says, he would not have pled guilty.

The court denies Aholelei's § 2255 Motion as untimely. Aholelei knew of the facts supporting his Padilla claim by late 2013, but he did not file his § 2255 Motion until January 2017--well beyond the one-year statute of limitations. The court also denies Aholelei's Motion for a Temporary Stay of Removal.


Aholelei is a citizen of Tonga who lives in Hawaii as a lawful permanent resident. ECF 62, PageID # 196. He came to Hawaii with his family when he was five years old. ECF 61, PageID #s 172-73; ECF 107-1, PageID # 625. His mother, daughter, and three of his siblings continue to live in Hawaii. ECF 61, PageID #s 172-73. He lived for years with his (now former) girlfriend, their daughter, and his girlfriend's children from prior relationships. Id. at PageID # 173. He remains close to all of the children.

In 2003, Aholelei was convicted in state court in Hawaii of two counts of Terroristic Threatening in the First Degree. See Haw. Rev. Stat. § 707-715 (2003); ECF 61, PageID #s 168-69. He was sentenced to concurrent five-year prison terms. ECF 61, PageID #s 168-69. Aholelei was paroled in 2005, but his state felony record was pivotal to his indictment in federal court in 2012 for Possession of Explosives by a Prohibited Person in violation of 18 U.S.C. § 842(i)(1) (Count 1).

Section 842(i) provides:

It shall be unlawful for any person . . . who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport any explosive in or affecting interstate or foreign commerce or to receive or possess any explosive which has been shipped or transported in or affecting interstate or foreign commerce.

Id.; see ECF 62-3, PageID #s 211-12. In Count 1 of the Indictment, Aholelei, having been previously convicted of First Degree Terroristic Threatening, was charged with having "knowingly received and possessed explosive materials, i.e., forty-eight (48) 3, 4, and 5 inch aerial display fireworks." ECF 62-3 at PageID # 211. The fireworks were allegedly "shipped [to the United States] . . . from the People's Republic of China." Id.

Count 2 of the Indictment charged Aholelei with Distribution of Explosives by a Non-Licensee in violation of 18 U.S.C. § 842(a)(3)(B) (Count 2), which provides: "It shall be unlawful for any person . . . other than a licensee or permittee knowingly . . . to distribute explosive materials to any person other than a licensee or permittee." Id.; see ECF 62-3, PageID # 212. The Indictment alleged that Aholelei had "knowingly distributed explosive materials"--i.e., the same forty-eight fireworks--"to a person who was not a licensee or permittee." ECF 62-3 at PageID # 212.

A conviction under Count 1 for being a felon in possession of explosives carried carry serious immigration consequences. Possessing explosives in violation of § 842(i) is an "aggravated felony," 8 U.S.C. § 1101(a)(43)(E)(i), which makes a noncitizen "conclusively presumed to be deportable from the United States," 8 U.S.C. § 1128(c). An alien convicted of an aggravated felony is also statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229(a) (explaining that the "Attorney General may [only] cancel removal in the case of an alien who . . . has not been convicted of any aggravated felony"). By contrast, a Count 2 conviction for distribution of explosives to an unlicensed person did not have such dire immigration consequences. The offense charged in Count 2 was not an aggravated felony and so did not portend automatic deportation. See 8 U.S.C. § 1101(a)(43); ECF 62, PageID # 197.

Around April 16, 2012, Aholelei retained an attorney, Victor Bakke, to defend him against the federal charges. ECF 76-1, PageID # 307. Bakke represented Aholelei through sentencing. Id. The parties dispute whether, in the course of his representation, Bakke told Aholelei that he would, as opposed to could, be removed following a Count 1 conviction. The court discusses this dispute in detail later in this Order. What is clear is that, on May 22, 2013, Aholelei pled guilty before a magistrate judge to Count 1 pursuant to a plea agreement in which the United States agreed to move to dismiss Count 2. ECF 48.

The plea agreement contained the following language related to possible immigration consequences for Aholelei:

Defendant recognizes that pleading guilty may have consequences with respect to his immigration status if he is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense to which defendant is pleading guilty. Removal and other immigration consequences are the subject of a separate proceeding, however, and defendant understands that no one, including his attorney or the district court, can predict to a certainty the effect of his conviction on his immigration status. Defendant nevertheless affirms that he wants to plead guilty regardless of any immigration consequences that his plea may entail, even if the consequence is his automatic removal from the United States.

ECF 76-2, PageID #s 312-13 (emphasis added). Although the plea agreement mentioned "automatic removal" as a possible contingency for Aholelei, neither it, nor any other document filed in the criminal case, stated outright that Count 1 was an aggravated felony subjecting Aholelei to automatic removal or contained any equivalent statement.

During the guilty plea colloquy, the magistrate judge established that Aholelei was satisfied with Bakke's legal representation and understood the rights he was waiving by entering a guilty plea. See ECF 76-3, PageID # 324. Aholelei confirmed that he consented to enter his guilty plea before the magistrate judge. See id. Aholelei also stated that he had read over the plea agreement, discussed its terms with Bakke, and understood all the terms contained within the plea agreement. See id. at PageID # 326. The magistrate judge also discussed Aholelei's immigration status with him:

THE COURT: Very well. I gather you are a U.S. citizen; is that correct?
THE DEFENDANT: That's not correct.
THE COURT: Oh, you're not. Okay. So what is your status?
THE DEFENDANT: I'm a legal alien.
THE COURT: Okay. So I don't -- legal?
MR. BAKKE: Resident.
THE DEFENDANT: Yeah, resident alien.
THE COURT: So would a conviction have any implications in this case for Mr. Aholelei?
MR. SHIPLEY: Yes, Your Honor, and it is covered in the plea agreement. The Defendant is -- my understanding is he is a citizen of Tonga --
MR. SHIPLEY: -- and would be possibly subject to deportation based on a decision of an Immigration Court following his release from custody.
THE COURT: Okay. Mr. Aholelei, do you understand that that is a possibility in this case?

Id. at PageID #s 329-30.

The magistrate judge recommended that the district judge accept Aholelei's guilty plea, and the district judge did accept it. ECF 40, PageID # 124; ECF 76-3, PageID #s 337-38. On September 9, 2013, this court sentenced Aholelei to three years in prison and three years of supervised release. ECF 59. Judgement was entered on September 11, 2013. ECF 60. Aholelei did not appeal or otherwise contest his conviction or sentence. Aholelei did retain an immigration attorney, Emmanuel Guerrero, in September 2013.

There is no dispute that, in late 2013, Guerrero told Aholelei that he had been convicted of an aggravated felony and was subject to automatic removal. Aholelei expressed shock. Back in 2003, in connection with an earlier conviction, he had managed to escape immigration consequences with Guerrero's assistance, but that earlier conviction had not involved an aggravated felony.

Aholelei completed his prison term on February 19, 2016, but he remained in federal custody pursuant to an immigration detainer. See 8 C.F.R. § 287.7; ECF 99, PageID # 579; ECF 101, PageID # 590; ECF 107-1, PageID # 626. On that very day, the Department of Homeland Security's Immigration and Customs Enforcement ("ICE") authority issued a Notice to Appear that indicated that Aholelei was subject to removal because he had "been convicted of an aggravated felony," i.e., a violation...

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