United States v. Funtila

• Decision Date: 23 February 2022
• Docket Number: CV. 21-00325 LEK,CR. 17-00515 LEK
• Court: U.S. District Court — District of Hawaii
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. KATHY FUNTILA, Defendant.

UNITED STATES OF AMERICA, Plaintiff, v. KATHY FUNTILA, Defendant.

Nos. CR. 17-00515 LEK, CV. 21-00325 LEK

United States District Court, D. Hawaii

February 23, 2022

ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY AND DENYING A CERTIFICATE OF APPEALABILITY

Leslie E. Kobavashi United States District Judge

On July 26, 2021, pro se Defendant/Petitioner Kathy Funtila, also known as Kathy Retter (“Funtila”), filed her Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”). [Dkt. no. 119.] On August 18, 2021, an Order to Show Cause was issued, directing Plaintiff/Respondent United States of America (“the Government”) to file an answer, pursuant to Rule 5 of the Rules Governing Section 2255 Proceedings for the United States District Courts. [Dkt. no. 120.] The Government filed its response to the § 2255 Motion (“Answer”) on September 17, 2021, and Funtila filed her reply in support of the § 2255 Motion (“Reply”), on November 5, 2021. [Dkt. Nos. 124, 125.] Funtila's § 2255 Motion is hereby denied, and a certificate of appealability is also denied, for the reasons set forth below.

BACKGROUND

On September 13, 2017, Funtila was indicted for five counts of bank fraud, in violation of 18 U.S.C. § 1344. [Indictment, filed 9/17/17 (dkt. no. 1).] At her initial appearance on September 14, 2017, Funtila pled not guilty to all counts. [Minutes, filed 9/14/17 (dkt. no. 8), at PageID #: 22.] Funtila's bail was set at $50, 000, and Funtila posted an unsecured bond. [Minutes, filed 9/18/17 (dkt. no 11), at PageID #: 26; Appearance Bond, filed 9/20/17 (dkt no. 15).] After Funtila violated the terms of her pretrial release, she was allowed to remain on bail, but she was required to post a $100, 000 secured bond. See Minutes, filed 12/15/17 (dkt. no. 23), at PageID #: 50 Appearance Bond, filed 12/21/17 (dkt. no. 28).

Funtila was later indicted for: five counts of bank fraud (“Counts 1-5”); five counts of wire fraud, in violation of 18 U.S.C. § 1343 (“Counts 6-10”); one count of access device fraud, in violation of 18 U.S.C. § 1029(a)(2) (“Count 11”); one count of aggravated identity theft, in violation of 18 U.S.C § 1028A(a)(1) (“Count 12”); and three counts of embezzlement in connection with health care, in violation of 18 U.S.C. § 669 (“Counts 13-15”). [Superseding Indictment, filed 1/31/18 (dkt. no. 39).] At her arraignment on February 12, 2018, Funtila pled not guilty to all counts. [Minutes, filed 2/12/18 (dkt. no. 44).]

On August 16, 2018, Funtila withdrew her not guilty plea as to Counts 1 and 12 and entered guilty pleas, pursuant to a plea agreement. [Minutes, filed 8/16/18 (dkt. no. 59); Memorandum of Plea Agreement, filed 8/16/18 (dkt. no. 60).] The Draft Presentence Investigation Report (“Draft PSR”) was filed on November 27, 2018, and Funtila filed her Sentencing Statement, which included objections to the Draft PSR, on November 30, 2018. [Dkt. nos. 68, 69 (both filed under seal).] The final version of the Presentence Investigation Report (“Final PSR”) was filed on January 8, 2019. [Dkt. no. 75 (filed under seal).] The Final PSR included an addendum that responded to the objections to the Draft PSR. [Id. at 41-44.]

On December 11, 2018, the Government filed a motion to revoke Funtila's bail (“Revocation Motion”). [Dkt. no. 70 (filed under seal).] On December 27, 2018, this Court granted the Revocation Motion and ordered Funtila to self-surrender to the United States Marshal's Office that day. [Minutes, filed 12/27/18 (dkt. no. 73).] On January 23, 2019, the Government filed a motion asking this Court to apply Funtila's bail money to any restitution award (“Restitution Motion”). [Dkt. no. 77.]

At sentencing, this Court accepted the plea agreement and adopted the factual findings in the Final PSR. [Minutes, filed 1/24/19 (dkt. no. 79), at PageID #: 363-64.] Funtila was sentenced to, inter alia: ninety-five months of imprisonment as to Count 1 and twenty-four months as to Count 12, to run consecutively; five years of supervised release as to Count 1 and one year as to Count 12, to run consecutively; and $115, 362.25 in restitution. [Id. at PageID #: 364.] This Court granted the Government's Restitution Motion and granted the Government's oral motion to dismiss Counts 2 through 11 and Counts 13 through 15. [Id. at PageID #: 366-67.]

The Judgment in a Criminal Case (“Judgment”) was filed on January 25, 2019, and Funtila filed her Notice of Appeal on February 6, 2019. [Dkt. nos. 82, 84.] The Ninth Circuit affirmed the Judgment in a July 20, 2020 memorandum disposition, and issued its Mandate on August 11, 2020. [Dkt. nos. 106, ^[1]107.]

In the § 2255 Motion, which was timely filed, Funtila asserts several instances of ineffective assistance of counsel: telling Funtila the Draft PSR “was ‘merely a worksheet'” and failing to file objections to the Draft PSR (“Ground One”); [§ 2255 Motion at 5;] failing to provide Funtila with adequate information about the Government's case and depriving her of the opportunity to make an informed decision about whether and when to change her plea to guilty (“Ground Two”); failing to present mitigation evidence at sentencing (“Ground Three”); and allowing hearsay evidence to be admitted at sentencing and failing to advise Funtila properly about a financial form, resulting in both the revocation of the bond and the imposition of a higher sentence (collectively “Ground Four”).

STANDARD

Section 2255(a) states:

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.

This Court has described the standards applicable to § 2255 motions as follows:

A court may dismiss a § 2255 motion if “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” R. 4(b), Rules Governing Section 2255 Proceedings. A court need not hold an evidentiary hearing if the allegations are “palpably incredible [or] patently frivolous, ” Blackledge v. Allison, 431 U.S. 63, 76 (1977) (internal quotation marks and citation omitted), or if the issues can be conclusively decided on the basis of the evidence in the record. See United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting that a “district court has discretion to deny an evidentiary hearing on a § 2255 claim where the files and records conclusively show that the movant is not entitled to relief”). Conclusory statements in a § 2255 motion are insufficient to require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). A petitioner must “allege specific facts which, if true, would entitle him to relief.” United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (internal quotation marks and citation omitted).

Malivao v. United States, CR 13-00885 LEK, 2018 WL 6834704, at *2 (D. Hawai`i Dec. 28, 2018) (alteration in Malivao) (some citations omitted).

The issues raised in Funtila's § 2255 Motion are legal issues that “can be conclusively decided on the basis of the evidence in the record, ” including the record of the underlying proceedings. See Mejia-Mesa, 153 F.3d at 929. Because there are no factual disputes that must be resolved in order to rule on the legal issues presented in the § 2255 Motion, an evidentiary hearing is unnecessary in this case.

DISCUSSION

I. Ineffective Assistance of Counsel

All of the grounds in Funtila's § 2255 Motion allege she received constitutionally ineffective assistance of counsel. This district court has stated:

To prevail on an ineffective assistance of counsel claim, a petitioner must establish two distinct elements. First, he must show that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, he must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In other words, a petitioner must show both that counsel's performance was deficient and that the deficiency was prejudicial. Id. at 692.

Counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 690-691.

Conclusory allegations of ineffective assistance of counsel made with no factual or legal explanation fall well short of stating a cognizable claim for ineffective assistance of counsel. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“[P]resentation of conclusory allegations unsupported by specifics is subject to summary dismissal.”).

Foster v. United States, CR. NO. 13-00219 DKW, 2019 WL 2428561, at *4 (D. Hawai`i June 10, 2019) (alterations in Foster). As to the reasonableness of representation prong, a court must ...