United States v. Nason

          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 ...