United States v. Matsunaga

UNITED STATES OF AMERICA, Plaintiff-Respondent, v. SEAN MATSUNAGA, Defendant-Petitioner.

Cr. No. 99-00473 SOM

Civ. No. 16-00679 SOM/RLP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

March 27, 2018

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

I. INTRODUCTION.

In 1999, Sean Matsunaga and three other men robbed a bank in Oahu. They stole more than $100,000, shot at the police, and injured innocent bystanders. A jury found Matsunaga guilty of conspiracy, bank robbery, and two counts of carrying a firearm in furtherance of that conspiracy. After two unsuccessful appeals and one unsuccessful § 2255 petition, Matsunaga brings a second petition under 28 U.S.C. § 2255, arguing that his bank robbery conviction is not a "crime of violence" for purposes of his conviction on Count 3, which charged Matsunaga with knowingly carrying a firearm during and in relation to a crime of violence. This court denies the petition and grants a certificate of appealability.

II. STANDARD OF REVIEW.

Under § 2255, a court may grant relief to a federal prisoner who challenges the imposition or length of his or her incarceration on four grounds: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).

A § 2255 petition cannot be based on a claim that has already been disposed of by the underlying criminal judgment and ensuing appeal. As the Ninth Circuit stated in Olney v. United States, 433 F.2d 161, 162 (9^th Cir. 1970), "Having raised this point unsuccessfully on direct appeal, appellant cannot now seek to relitigate it as part of a petition under § 2255."

Even when a § 2255 petitioner has not raised an alleged error at trial or on direct appeal, the petitioner is procedurally barred from raising an issue in a § 2255 petition if it could have been raised earlier, unless the petitioner can demonstrate both "cause" for the delay and "prejudice" resulting from the alleged error. As the Court said in United States v. Frady, 456 U.S. 152, 167-68 (1982), "[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both(1) 'cause' excusing his double procedural default, and 'actual prejudice' resulting from the errors of which he complains." Id.; accord Davis v. United States, 411 U.S. 233, 242 (1973).

A judge may dismiss a § 2255 petition 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." Rule 4(b), Section 2255 Rules.

A court need not hold an evidentiary hearing if the allegations are "palpably incredible or patently frivolous" or if the issues can be conclusively decided on the basis of the evidence in the record. See Blackledge v. Allison, 431 U.S. 63, 76 (1977); see also United States v. Mejia-Mesa, 153 F.3d 925, 929 (9^th 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"); United States v. Christie, 2018 WL 1073128, *3 (D. Haw. Feb. 27, 2018) ("A court need not hold an evidentiary hearing if the allegations are palpably incredible or patently frivolous, or if the issues can be conclusively decided on the basis of the evidence in the record." (quotation marks, citations, and alterations omitted)). This court determines that Matsunaga's present § 2255 motion raises purely legal issues. No evidentiary hearing has been requested, and none is necessary.

III. BACKGROUND.

This is Matsunaga's second § 2255 petition. The court set forth the background in its earlier order denying his first § 2255 petition:

On July 7, 1999, Matsunaga, Albert Batalona, Jacob Hayme, and Roger Dailey robbed the American Savings Bank located in Kahala on Oahu. Wearing ski masks and armed with weapons,¹ they entered the bank and ordered everyone to lie on the floor. Transcript of Proceedings ("Transcript") Volume 3 at 11-13, 167 (bank employee describing events) (Sept. 26, 2002). Some bank employees were pushed to the floor and hit with a rifle. Id. at 13, 27. The men took more than $100,000 from the teller cash dispenser that contained bait bills and dye packs. Id. at 88-91, 110. The dye packs exploded when they were taken from the bank. Id. at 20, 54.

Because a bank employee had pushed a silent alarm that alerted the police that there was a problem, police were waiting outside the bank. Id. at 23. Batalona shot at the police. Id. at 34, 96, 136-38. Matsunaga, Hayme, and Dailey escaped together, while Batalona, still armed and wearing a face mask, stopped a bakery delivery van and escaped in that van.

Shortly thereafter, the four men were arrested.²

Subsequently, a Superseding Indictment issued charging Matsunaga and Hayme with five counts. Count 1 charged Matsunaga and Hayme with conspiring with others to rob a bank in violation of 18 U.S.C. § 2113(a). Count 2 charged Matsunaga and Hayme with bank robbery in violation of 18 U.S.C. § 2113(a). Counts 3 and 4 charged Matsunaga and Hayme with knowingly carrying semiautomatic assault weapons during the robbery in violation of 18 U.S.C. §§ 921(a)(30), 924(c)(1)(A), and 2. Specifically, Count 3 charged Matsunaga and Hayme with being responsible for the carrying of a Norinco .223 semi-automatic assault weapon (Hayme's alleged weapon), while Count 4 charged Matsunaga and Hayme with being responsible for the carrying of a AR-15 .223 semi-automatic assault weapon (Matsunaga's alleged weapon). Count 5 charged Matsunaga and Hayme with being responsible for the carrying of a machine gun (Batalona's alleged weapon). Id. Matsunaga was thus charged with carrying three weapons during the bank robbery: two firearms carried by his co-conspirators, and his AR-15 semiautomatic weapon, which was never recovered.

. . . .

On October 8, 2002, the jury found Matsunaga guilty on Counts 1 through 4 of the Superseding Indictment, but not guilty on Count 5. This court ordered judgment of acquittal as to Count 5.

Amended Order Denying Motion to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody under 28 U.S.C. § 2255 at 2-7, ECF No. 323, PageID #s 727-30 (Aug. 26, 2010).

Matsunaga was ultimately sentenced to 60 months of imprisonment on the conspiracy charge alleged in Count 1, 151 months of imprisonment on the bank robbery charge alleged in Count 2 (running concurrently with Count 1), and 10 years of imprisonment on the § 924(c) charge alleged in Count 3 (running consecutively to the sentence on Count 2), for a total of 271 months imprisonment. See Fourth Amended Judgment, ECF No. 274, PageID # 133 (May 11, 2006).

Matsunaga appealed. On July 2, 2008, the Ninth Circuit Court of Appeals affirmed in a memorandum decision. See ECF No. 292. Matsunaga did not seek certiorari from the United States Supreme Court.

On October 8, 2009, Matsunaga filed his first petition under § 2255. See ECF No. 308. That petition was denied in an amended order of August 26, 2010. See ECF No. 323.

On May 26, 2016, Matsunaga filed the present (his second) petition under § 2255, after receiving permission from the Ninth Circuit to do so. See ECF Nos. 330-31.

IV. ANALYSIS.

Matsunaga argues that his conviction under § 924(c) should be vacated because it was premised on his bank robberyconviction under § 2113(a), which, according to Matsunaga, did not constitute a "crime of violence."

In relevant part, Count 3 of the Superseding Indictment of September 26, 2001, charged Matsunaga with knowingly carrying a firearm during and in relation to a crime of violence (the July 7, 1999, bank robbery charge alleged in Count 2 of the Superseding Indictment) in violation of 18 U.S.C. § 924(c)(1)(A). See ECF No. 107-2, PageID # 4. The version of 18 U.S.C. § 924(c)(1)(A) in effect from November 13, 1998, to November 1, 2002, is identical in relevant part to the current version:

[A]ny person who, during and in relation to any crime of violence . . . , uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence . . .--

. . . .

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

18 U.S.C. § 924(c)(1)(A). That version of § 924(c) further defined "crime of violence" as:

(3) . . . an offense that is a felony and--

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Id.

The present order refers to § 924(c)(3)(A) as the "force or elements clause," and to § 924(c)(3)(B) as the "residual clause."

Count 2 of the Superseding Indictment charged Matsunaga with federal bank robbery in violation of 18 U.S.C. § 2113(a). The version of that statute in effect from October 11, 1996, to November 1, 2002, which is identical to in relevant part the current version of the statute:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association . . .

. . . .

Shall be fined under this title or imprisoned not more than twenty years, or both.

The issue before this court is whether Matsunaga's § 2113(a) conviction is a "crime of violence"...