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Taulua v. Ponce

United States District Court, C.D. California

April 20, 2017

SIMETA E. TAULUA, JR., Petitioner,
v.
WARDEN PONCE, Respondent.

          ORDER (1) CONSTRUING PETITION AS 28 U.S.C. § 2255 MOTION; AND (2) DISMISSING ACTION WITHOUT PREJUDICE

          HONORABLE BEVERLY REID O'CONNELL UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         On April 3, 2017, petitioner Simeta E. Taulua, Jr., a federal inmate proceeding pro se, who is in the custody in the Central District of California, filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody (28 U.S.C. § 2241) (“Petition”). Petitioner challenges a sentence imposed in the United States District Court for the District of Hawaii (“Hawaii District Court”). (Petition at 2).

         Based on the record (including facts as to which this Court takes judicial notice as detailed below) and the applicable law, this Court construes the Petition to be a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (“Section 2255”) and dismisses the Petition and this action without prejudice because the Court lacks jurisdiction.

         II. BACKGROUND[1]

         On April 6, 2011, a Superseding Indictment was filed in the Hawaii Criminal Case, charging petitioner with conspiracy to distribute and to possess with intent to distribute fifty grams or more of methamphetamine (count 1) and possession with intent to distribute fifty grams or more of methamphetamine (count 2). On June 15, 2011, a Memorandum of Plea Agreement (“Plea Agreement”) signed by petitioner, his counsel, and government counsel, was filed in the Hawaii Criminal Case. Petitioner agreed to plead guilty to count 1, and the government agreed to dismiss count 2. Notwithstanding the foregoing, the Plea Agreement reflects petitioner's agreement and understanding that (1) the conduct forming the basis for count 2 would also be used in calculating petitioner's base offense level under the United States Sentencing Guidelines; and (2) the prosecution would apprise the Court and the United States Probation Office of the nature, scope and extent of petitioner's conduct regarding the charges against him, any related matters, and any matters in aggravation or mitigation relevant to the issues involved in sentencing. On June 15, 2011, petitioner pleaded guilty to count 1 in accordance with the Plea Agreement.

         On May 17, 2012, the Hawaii District Court sentenced petitioner to 235 months imprisonment after determining that his total offense level was 35 (base offense level of 38, plus four for his role in the offense, minus three for his acceptance of responsibility, and minus four for cooperation), he was in criminal history category IV, and his guideline range was 235 to 293 months imprisonment. Judgment was entered accordingly on May 22, 2012 (“Criminal Judgment”). In 2016, petitioner appealed the Criminal Judgment - specifically his sentence - in the First Ninth Circuit Action (No. 16-10248) and the Second Ninth Circuit Action (No. 16-10299). The Ninth Circuit granted petitioner's motion to dismiss the First Ninth Circuit Action and dismissed it on June 23, 2016.[2] The Ninth Circuit dismissed the Second Ninth Circuit Action as untimely on October 19, 2016.[3]

         On April 14, 2015, following Amendment 782 to the United States Sentencing Guidelines, the Hawaii District Court issued an Order Regarding Motion for Sentence Reduction pursuant to 18 U.S.C. § 3582(c)(2), reducing petitioner's sentence to 191 months. Such order was entered on April 15, 2015. Petitioner thereafter appealed such order to the Ninth Circuit in the Third Ninth Circuit Action (No. 16-15390). The Ninth Circuit granted petitioner's motion to dismiss the Third Ninth Circuit Action and dismissed it on August 11, 2016.[4]

         On August 24, 2015, petitioner submitted a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Hawaii 2255 Motion”), challenging the Criminal Judgment, which was filed in both the Hawaii Criminal Case and the Hawaii 2255 Case. Petitioner claimed that his counsel was ineffective at sentencing, that the trial court incorrectly determined his criminal history category, and that his offense level was improperly enhanced based upon his role in the offense. On January 26, 2016, in an order filed in both the Hawaii Criminal Case and the Hawaii 2255 Case, the Hawaii District Court denied the Hawaii 2255 Motion as untimely (“Hawaii 2255 Order”).

         On March 7, 2016, petitioner filed a Motion for Reconsideration in the Hawaii Criminal Case (“First Motion for Reconsideration”), seeking reconsideration of the Hawaii 2255 Order. On May 9, 2016 and again on May 17, 2016, the Hawaii District Court denied the First Motion for Reconsideration.

         On October 11, 2016, petitioner filed a Motion to Correct Sentence in the Hawaii Criminal Case (“First Motion to Correct Sentence”). Petitioner again challenged the Criminal Judgment, repeated many of his prior assertions, and also asserted, among other things, that the government had breached the Plea Agreement in connection with the sentencing. On October 25, 2016, the Hawaii District Court construed the First Motion to Correct Sentence as a “motion for certification of a second or successive § 2255 Motion” and directed that it be transmitted to the Ninth Circuit for consideration (“First Transmittal Order”). The First Transmittal Order effectively initiated the Fourth Ninth Circuit Action (No. 16-73432).

         On January 23, 2017, petitioner filed another Motion for Reconsideration in the Hawaii Criminal Case (“Second Motion for Reconsideration”), seeking, among other things, reconsideration of the First Transmittal Order. On January 31, 2017, the Hawaii District Court denied the Second Motion for Reconsideration.

         On February 27, 2017, petitioner filed another Motion to Correct Sentence in the Hawaii Criminal Case (“Second Motion to Correct Sentence”), essentially reasserting his prior claims - ineffective assistance of counsel at sentencing, trial court error in calculating his criminal history, trial court error in enhancing his sentence based upon his role in the offense, and government breach of the plea agreement in connection with sentencing. On March 2, 2017, the Hawaii District Court denied a portion of the Second Motion to Correct Sentence, construed the remaining portion to be a “motion for certification of a second or successive § 2255 Motion, ” and directed that it be transmitted to the Ninth Circuit for consideration (“Second Transmittal Order”). The Second Transmittal Order effectively initiated the Sixth Ninth Circuit Action (No. 17-70636).

         On March 13, 2017, the Ninth Circuit issued orders denying petitioner leave to file a second or successive Section 2255 motion in ...


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