United States District Court, N.D. California
ORDER DENYING AMENDED MOTION TO VACATE UNDER 28
U.S.C. § 2255 RE: DKT. NO. 1917
SUSAN
ILLSTON UNITED STATES DISTRICT JUDGE
Now before the Court is petitioner Frank Nason’s
amended motion to vacate his judgment and sentence pursuant
to 28 U.S.C. § 2255. For the reasons set forth below,
the Court DENIES the motion and DENIES a certificate of
appealability.
BACKGROUND
I.
The underlying criminal case
On
September 13, 1995, an indictment was returned in the
Northern District of California charging Walter Pierre
Rausini and nine other individuals with drug offenses,
including conspiracy to distribute cocaine and
methamphetamine. Dkt. No. 9. Frank Nason was not charged
until the government filed a second superseding indictment on
October 2, 1997. That indictment alleged, inter
alia, that Rausini arranged the murders of two
co-conspirators, Lance Estes and John Ellenberger, because he
was concerned that they might become informants for law
enforcement. Dkt. No. 326. On February 5, 1998, the
government filed a third superseding indictment charging
Rausini, Nason, and co-defendant Wayne Harrison with,
inter alia, two counts for violations of 21 U.S.C.
§ 848(e)(1)(A) (Killing While Engaged in a Narcotics
Conspiracy), and two counts for violations of 18 U.S.C.
§ 1512(a)(1)(C) and (2) (Tampering with an Informant),
for the murders of Estes and Ellenberger. Dkt. No. 403. At
issue in these proceedings is Nason’s guilty plea to
the Ellenberger murder; Nason does not challenge his
conviction for being an accessory after the fact to
Estes’ murder.
On
January 27, 2000, Rausini pled guilty to two counts of
solicitation to commit murder in violation of 18 U.S.C.
§ 373. Rausini’s plea agreement stated that he
“solicited that Ellenberger be killed. At my direction,
in mid-May, 1995, Nason killed Ellenberger.” Dkt. No.
852 at 3. Pursuant to his plea agreement, on May 19, 2000,
the Court imposed a 40 year sentence on Rausini. Dkt. No.
879. In his allocution, Rausini also admitted the essential
elements of all these crimes. Rausini’s plea agreement
did not require him to cooperate with the government with
regard to his co-defendants.
Nason
was a fugitive until February 1, 2000, when he made his first
appearance in this district. Dkt. No. 853. According to court
minutes filed on July 26, 2000, a status hearing was held on
July 25, 2000 with regard to Nason and Harrison. Dkt. No 905.
Those minutes state that the parties were no longer
discussing the possibility of entering into a plea agreement
and were preparing for trial. Trial was set for February 5,
2001. Dkt. No. 884.
On
October 11, 25 and 26, 2000, then-United States Attorney
Robert Mueller, who was overseeing the criminal case, and FBI
Special Agent Bruce Burroughs met with Rausini at the federal
penitentiary in Leavenworth, Kansas. Agent Burroughs prepared
an FBI 302 report of the information provided by Rausini
during those interviews. Dkt. No. 1924-11. The report
contains a section titled “ELLENBERGER HOMICIDE -
May 18, 1995.” Id. at 20.[1] According to
Agent Burroughs’ report, in May 1995, Rausini had a
conversation with Ellenberger and another individual named
Mark Farchione about “setting up” various other
drug traffickers for arrest. Id. at 20-21.
Subsequently, Ellenberger “talked to Nason about the
discussions they had with Mark [Farchione] and Nason’s
response was that he was totally against setting up his
friends . . . . Rausini stated that Nason started talking to
him about killing Ellenberger.” Id. at 21.
According
to Burroughs’ 302 report, on May 18, 1995, Rausini went
to a nightclub in Costa Mesa, California. Nason arrived at
the same club around midnight. The report states,
Rausini commented that he had been drinking heavily, but
recalled that Nason told him on arriving at the club that he
was going to kill Ellenberger. . . . He recalled that in
discussion with Nason that evening, Nason told him that he
needed an alibi. Rausini further stated that he acquiesced
and told Nason that he would vouch for being with him that
evening.
Id. at 22. According to the report, Rausini stated
that Nason left the club and took a cab to Marina Del Rey,
where Nason and Ellenberger were staying together in an
apartment. Rausini stated that later that same evening,
Rausini went to the Marina Del Rey apartment and Ellenberger
was still alive. Rausini returned to the apartment the
following morning. When he arrived he “found
Ellenberger laying face down on the floor . . . he knew that
he was dead.” Id. In a conversation later that
day, “Nason told him [Rausini] that he
‘choked’ Ellenberger out while Ellenberger was
asleep and also hit him with a tool.” Id. at
23. The report also contains information provided by Rausini
regarding how Rausini, Nason, and other individuals disposed
of Ellenberger’s vehicle and body[2] and cleaned up
the murder scene. Id. at 23-26. The report does not
state that Rausini directed Nason to kill Ellenberger.
In a
letter dated November 8, 2000, Mueller memorialized an
agreement between Rausini and the government. Rausini agreed
to assist the government and “testify truthfully and
completely before any Grand Jury and at any hearing or
trial.” Dkt. No. 1808-2. In exchange for that
assistance and testimony, the government “agree[d] to
file a motion under Rule 35 of the Federal Rules of Criminal
Procedure setting forth the extent and significance of
[Rausini’s] cooperation.”
Id.[3]
On
November 13, 2000, Nason’s attorney, Stuart Hanlon,
wrote a letter to Assistant United States Attorney Sharon
Bunzel memorializing a conversation that Hanlon and Bunzel
had on November 9, 2000. Dkt. No. 1803, Ex. 21. That letter
states, inter alia, “you have informed me that
Mr. Rausini is now a federal witness.” On December 8,
2000, Mueller and Hanlon filed a Joint Request for Voluntary
Settlement Conference before then-Chief Judge Patel of this
District. Dkt. No. 965. On December 12, 2000, the government
sent Hanlon a copy of the FBI 302 report of the interviews of
Rausini conducted on October 11 and 25-26, 2000. In a letter
to Hanlon dated December 12, 2000, Mueller also stated that
he was enclosing a “draft of a settlement conference
statement in the form of a letter to Judge Patel.” Dkt.
No. 1924-12. Mueller’s letter to Judge Patel stated,
inter alia, that Rausini “has recently been
interviewed [and] has indicated a willingness to testify
against Nason and Harrison.” Id.
The
settlement conference was held on December 14,
2000.[4] On December 15, 2000, the Court set a
change of plea hearing for Nason for December 21, 2000. Dkt.
No. 970.
On
December 21, 2000, Nason pleaded guilty to a superseding
information charging him with conspiracy to manufacture
methamphetamine and to distribute methamphetamine and
cocaine, in violation of 21 U.S.C. § 846 (Count One);
committing a murder in furtherance of a continuing criminal
enterprise, in violation of 21 U.S.C. § 848(e)(1)(A)
(Count Two); and accessory after the fact to a murder, in
violation of 18 U.S.C. § 3 (Count Five).[5] In the plea
agreement, Nason swore that he “killed [John]
Ellenberger at the request and direction of [Walter]
Rausini”; that he was present when a codefendant, Wayne
Harrison, shot Lance Estes in the head; that he helped
“clean up the scene” of Estes’s murder; and
that he “assisted Rausini in manufacturing and
distributing crystal methamphetamine and cocaine on numerous
occasions.” Dkt. No. 978. In his allocution, Nason also
admitted the essential elements of all these crimes. This
Court entered judgment on June 6, 2001, and sentenced Nason
pursuant to the terms of the plea agreement to 300 months
imprisonment. Dkt. Nos. 1033, 1036.
Nason
did not appeal, and he is currently an inmate at the federal
prison in Atlanta, Georgia.
II.
Nason's First 28 U.S.C § 2255 motion
On June
28, 2004, Nason filed his first motion to vacate and set
aside his sentence pursuant to 28 U.S.C. § 2255. Dkt.
No. 1313. In that motion, Nason contended that Hanlon
provided ineffective assistance of counsel by misrepresenting
the government’s evidence against him and urging him to
accept the plea bargain. Nason claimed that prior to entering
his plea, he and Hanlon met in December 2000, and that Hanlon
told him that Rausini was planning to testify that Rausini
had solicited Nason to kill Ellenberger. Nason alleged that
although he wanted to plead not guilty, Hanlon urged him to
plead guilty because Hanlon believed Rausini’s
testimony would destroy Nason’s defense, which was that
he killed Ellenberger in a fight and not at Rausini’s
direction. Nason stated that during that December 2000
meeting, Hanlon showed Nason the FBI 302 report of the
interviews with Rausini on October 11 and 25-26, 2000, and
that Nason gave a cursory review of the report and gave it
back to Hanlon. Dkt. No. 1331 at 3.
Nason
claimed that his motion was timely because he did not
discover the facts supporting his claim until June 2004.
Nason claimed that in June 2004, he learned from another
inmate that Rausini was filing a motion in which he was
claiming that he never solicited Ellenberger’s murder.
Dkt. No. 1331 at 5.[6] Nason claimed that after he learned this,
he requested his complete file from Hanlon. Nason received
the files in August and September of 2004, and in those files
Nason discovered the FBI 302 report and two other documents
that allegedly supported his claim (the December 8, 2000
Joint Request for Voluntary Settlement Conference and the
Settlement Conference Statement). Nason claimed that the FBI
302 report supported his ineffective assistance claim because
that report did not contain any statements by Rausini that he
solicited Nason to kill Ellenberger or that Rausini was
intending to testify to this fact at trial. Nason argued that
the FBI 302 report contradicted Hanlon’s statements
about Rausini’s intended testimony and revealed that
Hanlon misrepresented the facts to Nason.
On
August 22, 2005, this Court denied the section 2255 motion on
the ground that it was untimely. Dkt. No. 1366. The Court
found that Nason was required to file his section 2255 motion
on or before June 16, 2002, in order to meet the one-year
statute of limitations. The Court rejected Nason’s
argument that the statute of limitations should be tolled
because of “extraordinary circumstances” because
Nason did not learn of his claims until June 2004. The Court
held that Nason could have read the FBI 302 report during his
December 2000 meeting with Hanlon, noting that
“Rausini’s statements relating to the Ellenberger
homicide were clearly marked off in the report with an
all-capitalized and underlined subheading of
‘ELLENBERGER HOMICIDE - May 18, 1995,
’” and that this section was less than seven
pages long. Id. at 7. The Court further held that
even if Nason had been unable to read the report at that
meeting, he did not then exercise due diligence to obtain the
report. The Court concluded, “Nason has not
demonstrated that extraordinary circumstances prevented him
from reading the report at the December 2000 meeting or from
subsequently obtaining the FBI report, and fails to meet the
‘very high threshold’ required for
tolling.” Id.
The
Court also found that neither the Joint Request for Voluntary
Settlement Conference nor the Settlement Conference Statement
made any specific reference to Rausini or Rausini’s
testimony, and thus neither document supported Nason’s
claim of ineffective assistance.[7]Therefore, Nason’s
alleged inability to obtain these documents until 2004 did
not support equitable tolling of the statute of limitations.
Finally, Nason claimed that Judge Patel had made allegedly
coercive statements to him at the December 2000 settlement
conference, and that Hanlon did not object to the statements.
The Court found that these alleged facts did not support
equitable tolling because “Nason was present at the
settlement conference where the alleged coercion occurred
and, . . . was able to consult his own memory of Judge
Patel’s statements in order to file a timely §
2255 motion.” Id. at 8. This Court and the
Ninth Circuit denied Nason’s requests for a certificate
of appealability. Dkt. Nos. 1395, 1429.
III.
Nason’s subsequent filings
After
the denial of his initial section 2255 motion, Nason
continued to file numerous motions in this case. On November
2, 2006, Nason filed a “motion for disclosure of
exculpatory evidence and for leave to supplement motion for
relief from judgment.” Dkt. No. 1474. On November 16,
2006, Nason filed a motion under Federal Rule of Civil
Procedure 60(b) seeking to set aside the Court’s August
22, 2005 order on the ground that “newly discovered
evidence” showed that the 2004 section 2255 motion was
timely. Dkt. No. 1480. Specifically, Nason relied on the
government’s Rule 35 motion filed in Rausini's case
on March 9, 2006, in which the government stated that Rausini
denied ordering Ellenberger’s murder and that the
murder was Nason’s idea. See Dkt. No. 1413.
On
November 29, 2006, this Court denied the Rule 60(b) motion.
Dkt. No. 1484. The Court held that the Rule 35 motion
“does not contain any new information” or
“exonerate [Nason] in any way.” Id. at
2. The Court noted that when Nason filed his section 2255
motion in June 2004, he “was aware that Rausini would
be filing a motion claiming that Rausini did not solicit
Ellenberger’s murder” and "[t]hus, this
information contained in the Rule 35 motion is not new, and
does not alter the Court’s conclusion that
petitioner’s § 2255 motion was untimely.”
Id. The Court also noted that Nason’s Rule
60(b) motion “raises a number of other contentions . .
. that are actually challenges to his plea and
sentence” and that “many of these contentions
were advanced in the original § 2255 ...