USA v. Borges, et al.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DAVID BORGES,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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Criminal No. 23-00024 HG-01
Criminal No. 23-00050 HG-01
Civil No. 25-00533 HG-RT
Civil No. 25-00534 HG-RT
ORDER DENYING PETITIONER DAVID BORGES’S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
(ECF NOS. 130, 303)
and
DENYING A CERTIFICATE OF APPEALABILITY
On December 22, 2025, Petitioner David Borges filed a Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255.
Petitioner seeks to vacate his September 9, 2025 convictions
in two cases that include various drug trafficking, firearms, and
extortion crimes. Petitioner pled guilty to the crimes.
Petitioner now claims that he received ineffective assistance of
counsel from his third court-appointed attorney.
Petitioner did not receive ineffective assistance of
counsel.
Petitioner’s Motion to Vacate, Set Aside, or Correct
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Sentence pursuant to 28 U.S.C. § 2255 (ECF Nos. 130, 303) is
DENIED.
A Certificate of Appealability is DENIED.
BACKGROUND
CRIMINAL NO. 23-00024 HG-01 (Drug Trafficking Case)
Summary of Criminal Conduct in 23-cr-00024 HG-01: Drug
Trafficking and Use Of Firearms In Connection With Drug
Trafficking
On April 26, 2022, Petitioner Borges was arrested on the
island of Kauai after state and federal investigators observed
Petitioner transporting illegal narcotics in his vehicle.
(Presentence Report at ¶ 24, ECF No. 125). Investigators
conducted a search of Petitioner’s vehicle pursuant to a search
warrant and recovered a firearm, ammunition, methamphetamine, and
drug paraphernalia. (Id. at ¶ 26). Petitioner admitted that he
placed the methamphetamine and firearm in his vehicle. (Id.)
Petitioner admitted that he carried the firearm to protect
himself and his assets during his drug trafficking activities.
(Id.)
Petitioner was detained at the Kauai Community Correctional
Center. (Id. at ¶ 28).
While detained on July 16, 2022, Petitioner called his
mother, Denise Kalani, and informed her that he had arranged for
illegal drugs to be shipped to her residence. (Id.) She agreed
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to transport the illegal narcotics for Petitioner. (Id.)
The following day, on July 17, 2022, Kalani delivered the
narcotics to a third party as directed by Petitioner. (Id. at ¶
29).
On July 26, 2022, while still detained, Petitioner called
Kalani again. (Id. at ¶ 30). During the call, Kalani informed
Petitioner that she had communicated with Petitioner’s source of
supply about payment for the narcotics and additional
distributions. (Id. at ¶ 30).
On August 5, 2022, the third party received methamphetamine
and fentanyl from Petitioner’s source of supply in accordance
with both Petitioner and Kalani’s direction. (Id. at ¶ 31).
On January 26, 2023, after he had been released from
custody, Petitioner Borges distributed cocaine and fentanyl to
three people. (Id. at ¶¶ 32, 38). One of the individuals,
identified as T.K., died the following day after having ingested
the narcotics provided by Petitioner Borges. (Id. at ¶ 32).
On February 15, 2023, investigators executed a search
warrant at Kalani’s residence and recovered narcotics, a firearm,
and ammunition. (Id. at ¶ 40).
On February 28, 2023, Kalani was arrested. (Id. at ¶ 42).
Also on February 28, 2023, Petitioner Borges was arrested and was
transferred to federal custody. (Id. at ¶ 41).
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Indictment And Kalani’s Guilty Plea in 23-cr-00024 HG-01
On March 2, 2023, a grand jury returned a 6-count Indictment
against Petitioner David Borges and his mother, co-defendant
Denise Kalani. (ECF No. 12).
On September 20, 2023, Petitioner’s mother, co-defendant
Denise Kalani, pled guilty to Count 1 of the Indictment for
Conspiracy to Possess With Intent to Distribute Methamphetamine
and Fentanyl. (ECF No. 52).
Superseding Indictment in 23-cr-00024 HG-01
On January 25, 2024, a grand jury returned a 7-count
Superseding Indictment as to Petitioner Borges only. (ECF No.
61).
The Superseding Indictment charged Petitioner as follows:
Count 1: Conspiracy to Distribute Methamphetamine and
Fentanyl in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(B)(vi);
Count 2: Attempted Possession of Methamphetamine With
Intent to Distribute in violation of 21
U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A)(viii);
Count 3: Possession of a Firearm in Furtherance of a
Drug Trafficking Crime in violation of 18
U.S.C. § 924(c)(1)(A);
Counts 4-6: Use of Communication Facility to Facilitate a
Felony Drug Trafficking Crime in violation of
21 U.S.C. § 843(b);
Count 7: Distribution of Fentanyl and Cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and
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841(b)(1)(C).
(Superseding Indictment, ECF No. 61).
Petitioner’s Guilty Plea in 23-cr-00024 HG-01
On October 24, 2024, Petitioner pled guilty to Counts 1, 3,
and 7 of the Superseding Indictment. (ECF No. 84). Petitioner
pled guilty pursuant to a Memorandum of Plea Agreement. (ECF No.
85).
In the Memorandum of Plea Agreement, Petitioner agreed that
as to Count 1, he conspired with Kalani to possess and distribute
at least 1,100 grams of actual methamphetamine and a mixture that
contained fentanyl. (MOPA at ¶ 8(a)(ii),(v), ¶8(c), ECF No. 85).
Petitioner agreed to waive his right to appeal except for
the ability to challenge a sentence above the sentencing
guidelines. (Id. at ¶ 13). He was not sentenced above the
sentencing guidelines. Petitioner also waived his ability to
file a collateral attack on his convictions except for a claim of
ineffective assistance of counsel. (Id.)
Presentence Report in 23-cr-00024 HG-01
In the Presentence Report, Petitioner was held responsible
for a total converted drug weight of 22,125 kilograms with
respect to the drug trafficking charges in Counts 1 and 7.
(Presentence Report at ¶ 72, ECF No. 125). The converted drug
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weight was calculated based on the 1,100 grams of actual
methamphetamine and 50.2 grams of fentanyl Petitioner
distributed. (Id.) The amount of drugs resulted in a base
offense level of 34 for Counts 1 and 7. (Id. at ¶ 73).
Petitioner received a 2-level enhancement for being an
organizer, leader, manager, or supervisor of criminal activity,
which resulted in an adjusted offense level of 36 for Counts 1
and 7. (Id. at ¶ 76).
Combined with the charges in the companion case 23-cr-50 HG-
01, Petitioner had an adjusted offense level of 38 for Counts 1
and 7. (Id. at ¶¶ 87-90).
Petitioner received a 2-level reduction for acceptance of
responsibility and a 1-level reduction for a timely plea for a
total offense level of 35. (Id. at ¶ 94).
Petitioner was in criminal history category VI based on a
total criminal history score of 21. (Id. at ¶¶ 99-116).
Petitioner’s guideline imprisonment range for Count 1 was
292 to 365 months. (Id. at ¶ 174).
Petitioner’s guideline imprisonment range for Count 7 was
240 months. (Id.)
Petitioner’s guideline imprisonment range for Count 3 was a
mandatory consecutive term of 60 months. (Id.)
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Sentencing in 23-cr-00024 HG-01
On September 4, 2025, the Court held the sentencing hearing
in both cases. (ECF No. 127). In 23-cv-00024 HG-01, Defendant
was sentenced to:
292 months imprisonment as to Count 1;
240 months imprisonment as to Count 7; and
+60 months as to Count 3, consecutively to Counts 1 and 7;
for a total of 352 months imprisonment, to be served concurrently
with his sentence in 23-cr-00050 HG-01. (Judgment, ECF No. 128).
Counts 2, 4, 5, and 6 as to Petitioner were dismissed. (ECF No.
127).
CRIMINAL NO. 23-00050 HG-01 (Kidnapping and Violent Crimes Case)
Summary of Criminal Conduct in 23-cr-00050 HG-01: Extortion,
Kidnapping, Carjacking, And Use Of A Firearm During A Crime
Of Violence
Victim 1:
On December 26, 2021, Petitioner Borges and Albert Bactad,
as members of the USO gang (“United Samoan Organization”), lured
R.D. to a convenience store parking lot under false pretenses to
collect a drug debt. (Presentence Report at ¶ 45, ECF No. 287).
Petitioner Borges displayed a firearm and threatened to shoot
R.D. if he did not give up his vehicle in satisfaction of the
debt. (Id.) Petitioner struck R.D. with the firearm. (Id.)
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R.D. later reported that he believed he was going to be shot by
Petitioner. (Id.)
R.D. was ordered to ride in Bactad’s truck and he was taken
by Bactad to several locations. (Id.) Petitioner Borges drove
R.D.’s truck and followed behind Bactad and R.D. (Id.) R.D. was
finally taken to his residence where he signed over the title to
his vehicle under duress. (Id.) Petitioner and Bactad also
stole a firearm, narcotics, and cash from R.D. (Id.)
Victim 2:
The next day, on December 27, 2021, Petitioner Borges and
Bactad went to the residence of another person, J.C., as members
of the USO gang in order to collect a debt allegedly owed by J.C.
(Id. at ¶ 46). Petitioner and Bactad held J.C. against his will
in a garage until J.C. paid them $2,500. (Id.)
Petitioner Borges possessed and displayed a firearm to J.C.
while holding him in the garage. (Id.) Both Petitioner Borges
and Bactad repeatedly struck J.C. in his face and head causing
J.C. facial fractures and severe injuries requiring surgery.
(Id.)
Indictments And Guilty Plea in 23-cr-00050 HG-01
On June 29, 2023, a grand jury returned a 3-count Indictment
against Petitioner Borges and co-defendant Albert Bactad. (ECF
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No. 1).
On August 24, 2023, a grand jury returned a 4-count First
Superseding Indictment against Petitioner and co-Defendant Albert
Bactad. (ECF No. 47).
On September 7, 2023, a grand jury returned a 7-count Second
Superseding Indictment, which added new defendants and charges
against Bactad and the new defendants.
The Second Superseding Indictment charged Petitioner, as
follows:
Count 1: Collection of Extensions of Credit by
Extortionate Means in violation of 18 U.S.C.
§ 894;
Count 2: Carjacking in violation of 18 U.S.C. §
2119(1);
Count 3: Carrying and Brandishing a Firearm During and
in Relation to a Crime of Violence in
violation of 18 U.S.C. § 924(c)(1)(A);
Count 4: Kidnapping in violation of 18 U.S.C. §
1201(a)(1).
(Second Superseding Indictment, ECF No. 68).
On October 24, 2024, Petitioner pled guilty to Count 1 of
the Second Superseding Indictment. (ECF No. 227).
Presentence Report in 23-cr-00050 HG-01
Petitioner’s base offense level for Count 1 for extortion
was 20. (Presentence Report at ¶ 79, ECF No. 287). The base
offense was increased by 4 levels for use of a firearm; increased
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by 4 additional levels for causing serious bodily injury; and
increased by 4 more levels for abducting R.D. (Id. at ¶¶ 80-82).
The adjusted offense level was 32. (Id. at ¶ 86).
Combined with the charges in the companion case 23-cr-24 HG-
01, Petitioner had an adjusted offense level of 38 for extortion
in Count 1. (Id. at ¶¶ 87-90).
Petitioner received a 2-level reduction for acceptance of
responsibility and a 1-level reduction for a timely plea for a
total offense level of 35. (Id. at ¶ 94).
Petitioner was in criminal history category VI based on a
total criminal history score of 21. (Id. at ¶¶ 99-116).
Petitioner’s guideline imprisonment range for Count 1 was
240 months imprisonment. (Id. at 174).
Sentencing in 23-cr-00050 HG-01
On September 4, 2025, the Court held the sentencing hearing
in both cases. (ECF No. 288).
In 23-cr-00050 HG-01, Defendant was sentenced to 240 months
imprisonment as to Count 1 to be served concurrently with his
sentence in 23-cr-00024 HG-01. (Judgment, ECF No. 292).
Counts 2, 3, and 4 as to Petitioner were dismissed. (ECF
No. 288).
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SUMMARY OF PETITIONER’S ATTORNEY REPRESENTATION BEFORE THIS
COURT:
Petitioner’s First Two Attorneys
On March 10, 2023, Attorney Mark Zenger was initially
appointed as counsel for Petitioner Borges. (ECF No. 26).1
On June 14, 2023, Attorney Zenger filed a Motion to Withdraw
as Petitioner’s counsel. (ECF No. 32).
On July 5, 2023, the Magistrate Judge granted the Motion to
Withdraw and appointed Attorney Jason Say to represent
Petitioner. (ECF Nos. 36, 39).
Between August 16, 2023 and February 15, 2024, Attorney Say
filed three separate Motions to Withdraw as Counsel, and the
final Motion was granted. (ECF No. 70).
On June 10, 2024, Attorney Harlan Kimura was appointed as
Petitioner’s third attorney. (ECF No. 76).
Attorney Kimura’s Motion To Withdraw As Counsel And Request
To Continue Sentencing
After five months of representation of Petitioner, on
November 12, 2024, Attorney Kimura filed a Motion to Withdraw as
Attorney. (ECF No. 88).
On November 14, 2024, the Court held a hearing on the Motion
and after discussion of the request with Petitioner, the request
The Court cites to the Docket in 23-cr-00024 HG-01 for the	1
remainder of the Order for simplicity.
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was withdrawn. (ECF Nos. 90-92).
On February 20, 2025, the Probation Officer filed the Draft
Presentence Report. (ECF No. 99).
On March 3, 2025, Attorney Kimura filed a Sentencing
Statement on Petitioner’s behalf and filed objections to the
Presentence Report. (ECF No. 103).
On March 5, 2025, Petitioner filed a Motion to Continue
Sentencing. (ECF No. 105).
On March 8, 2025, Petitioner filed his Memorandum in Support
to his request to continue sentencing. (ECF No. 110).
On March 11, 2025, the Court held a second hearing and
granted Petitioner’s Motion to Continue Sentencing. (ECF No.
111).
Attorney Kimura’s Representation Of Petitioner At Sentencing
On April 15, 2025, the Probation Officer filed the Final
Presentence Report. (ECF No. 119).
On May 27, 2025, Petitioner filed his Sentencing Memorandum.
(ECF No. 120).
On May 29, 2025, Petitioner filed his First Supplement to
his Sentencing Memorandum. (ECF No. 121).
On June 1, 2025, Petitioner filed his Second Supplement to
his Sentencing Memorandum. (ECF No. 122).
On June 2, 2025, the Court held the sentencing hearing.
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(ECF No. 123). The Court overruled Attorney Kimura’s objection
to the enhancement for abduction of R.D. and adopted the finding
in the Presentence Report. (Id.) The Court sustained Attorney
Kimura’s objection to paragraphs 19-23 in the Presentence Report
and those paragraphs, with the exception of the last sentence of
paragraph 23, were removed from the Final Presentence Report.
(Id.) The Court continued the hearing to allow the Probation
Officer time to revise the Presentence Report based on the
Court’s ruling. (Id.)
On August 18, 2025, the Probation Officer filed the Final
Amended Presentence Report. (ECF No. 125).
On August 28, 2025, Petitioner filed a First Amended
Sentencing Memorandum. (ECF No. 126). Petitioner’s Memorandum
requested a variance from the sentencing guidelines. (Id.)
On September 4, 2025, the Court held the sentencing hearing.
(ECF No. 127). The Court adopted the Presentence Report and
accepted Petitioner’s plea agreement. (Id.) The Court denied
Petitioner’s request for a variance. (Id.)
On September 9, 2025, Judgment was entered. (ECF No. 128).
Petitioner did not file a Notice of Appeal.
SECTION 2255 PETITION
On December 22, 2025, Petitioner filed his Motion to Vacate,
Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255.
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(ECF No. 130). Petitioner claims he received ineffective
assistance of counsel at sentencing from Attorney Kimura.
On January 6, 2026, the Court issued a briefing schedule.
(ECF No. 132).
On January 13, 2026, the Government filed a Motion for Order
Finding Waiver of Attorney-Client Privilege with Respect to
Petitioner’s 2255 Motion. (ECF No. 133).
On January 14, 2026, the Court issued an ORDER FINDING
LIMITED WAIVER OF ATTORNEY-CLIENT PRIVILEGE WITH RESPECT TO
PETITIONER’S INSTANT MOTION. (ECF No. 134).
On January 15, 2026, Petitioner filed a Motion for
Appointment of Counsel for his Section 2255 Petition. (ECF No.
135).
On January 20, 2026, the Court denied Petitioner’s Motion
for Appointment of Counsel. (ECF No. 137).
On January 28, 2026, Petitioner filed a Second Motion for
Appointment of Counsel for his 2255 Petition. (ECF No. 138).
On February 10, 2026, the Government filed its Opposition to
Petitioner’s Section 2255 Motion. (ECF No. 140).
On February 27, 2026, the Court denied Petitioner’s Second
Motion for Appointment of Counsel. (ECF No. 141).
On March 4, 2026, Petitioner filed his Reply. (ECF No.
142).
The Court elects to decide the matter without a hearing
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pursuant to District of Hawaii Local Rule 7.1(c).
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2255, provides federal prisoners with a
right of action to challenge a sentence if:
(1) the sentence was imposed in violation of the
Constitution or laws of the United States;
(2) the court was without jurisdiction to impose such
a sentence;
(3) the sentence was in excess of the maximum
authorized by law; or
(4) the sentence is otherwise subject to collateral
attack.
28 U.S.C. § 2255(a).
A prisoner may file one motion to vacate, set aside, or
correct a sentence. 28 U.S.C. § 2255. The scope of collateral
attack of a sentence is limited and does not encompass all
claimed errors in conviction and sentencing.
A district court must hold an evidentiary hearing to assess
the worthiness of a Section 2255 Motion unless the motion and the
files and records of the case conclusively show that the prisoner
is entitled to no relief. 28 U.S.C. § 2255(b).
ANALYSIS
As an initial matter, the Court construes Petitioner’s
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Section 2255 Motion liberally because Petitioner Borges is
proceeding pro se. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.
2010); Erickson v. Pardus, 551 U.S. 89, 94 (2007).
I. Petitioner Alleges Ineffective Assistance By The Last Of His
Three Court-Appointed Attorneys
Petitioner Borges’s Section 2255 Motion is premised on
alleged ineffective assistance of counsel.
Petitioner had three court-appointed attorneys throughout
his proceedings in both 23-cr-00024 HG-01 and 23-cr-00050 HG-01.
Petitioner does not challenge his representation by Attorney Mark
Zenger or his representation by Attorney Jason Say. Petitioner’s
ineffective assistance of counsel allegations are limited to
claims against Attorney Harlan Kimura.
Attorney Kimura was Petitioner’s third court-appointed
attorney. Attorney Kimura represented Petitioner in both 23-cr-
00024 HG-01 and 23-cr-00050 HG-01 beginning on June 10, 2024.
Attorney Kimura negotiated a plea agreement on Petitioner’s
behalf which was executed on October 24, 2024. Attorney Kimura
represented Petitioner through sentencing on September 4, 2025.
Petitioner declined to appeal his convictions.
A prisoner who alleges ineffective assistance of counsel in
a Section 2255 Motion must satisfy the two-part test of
ineffective assistance set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).
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First, the petitioner must show that counsel’s performance
was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed by the Sixth Amendment to the United States
Constitution. Id.
Second, the petitioner must show that the counsel’s
deficient performance was prejudicial. This requires showing
that counsel’s errors were so serious as to deprive the prisoner
of a fair trial or fair representation. Id. The petitioner 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.
II. Petitioner’s Allegations Against Attorney Kimura
Petitioner Borges’s claims against his third court-appointed
counsel, Attorney Harlan Kimura, are limited to the proceedings
in 23-cr-00024 HG-01. Petitioner does not allege any ineffective
assistance of counsel with respect to his convictions or sentence
in 23-cr-00050 HG-01.
Petitioner claims that Attorney Kimura was ineffective with
respect to proceedings in 23-cr-00024 HG-01 on three bases:
(1) Illegal Sentence
Petitioner alleges that Attorney Kimura failed to
object to his “illegal sentencing” imposed as to Count
7 in 23-cr-00024 HG-01;
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(2) Argument For Methamphetamine Guideline Disparity
Petitioner alleges that Attorney Kimura “failed to
raise arguments for downward variance based on the
policy disagreement on the meth sentencing guidelines
as requested by defendant” with respect to sentencing
as to Counts 1 and 7 in 23-cr-00024 HG-01;
(3) Separatee Order Issue
Petitioner alleges Attorney Kimura “put defendant in a
position of choosing between filing on direct appeal or
lifting” the separatee order between Petitioner and his
co-defendant mother Denise Kalani.
There is no support in the record for any of Petitioner’s
claims. The record conclusively demonstrates that Petitioner did
not receive ineffective assistance of counsel.
III. Petitioner Did Not Receive Ineffective Assistance Of Counsel
From Attorney Kimura
A. Petitioner’s Section 2255 Motion Is Limited To
Ineffective Assistance Of Counsel Claims In 23-cr-00024
HG-01
As explained above, Petitioner had two separate federal
cases that were on-going at the same time for completely separate
criminal activities:
(1) Drug Trafficking Case: 23-cr-00024 HG-01, which
involved a drug trafficking conspiracy with his mother
and firearms offenses; and
(2) Extortion and Violence Case: 23-cr-00050 HG-01, which
involved extortion and violence conducted as a member
of the USO gang.
Petitioner’s Section 2255 Motion includes both case numbers,
but the substance of his Motion does not contain any challenge to
his proceedings in 23-cr-00050 HG-01.
Petitioner’s 2255 Motion is limited to allegations of
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ineffective assistance of counsel by Attorney Harlan Kimura in
the drug trafficking proceedings in 23-cr-00024 HG-01.
Petitioner pled guilty to the drug trafficking case in 23-
cr-00024 HG-01. Petitioner pled guilty to Counts 1, 3, and 7, as
charged in the Superseding Indictment, as follows:
Count 1: Conspiracy to Distribute Methamphetamine and
Fentanyl in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(B)(vi);
Count 3: Possession of a Firearm in Furtherance of a
Drug Trafficking Crime in violation of 18
U.S.C. § 924(c)(1)(A);
Count 7: Distribution of Fentanyl and Cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C).
(Superseding Indictment, ECF No. 61).
Petitioner pled guilty pursuant to a Memorandum of Plea
Agreement. (MOPA, ECF No. 85). Petitioner’s Memorandum of Plea
Agreement limited his ability to lodge a collateral attack of his
sentence in a Section 2255 Petition. Plaintiff may only raise
claims of ineffective assistance of counsel. (Id. at ¶ 13).
B. Petitioner Claims He Received Ineffective Assistance Of
Counsel in 23-cr-00024 HG-01 With Respect To Counts 1
and 7
Petitioner claims he received ineffective assistance of
counsel from Attorney Harlan Kimura with respect to his drug
trafficking convictions in Counts 1 and 7 of the proceedings in
23-cr-00024 HG-01. Petitioner Borges does not claim he received
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ineffective assistance of counsel with respect to the firearms
charge in Count 3. The inquiry here is limited to the challenges
raised as to Counts 1 and 7 in 23-cr-00024 HG-01.
Petitioner Borges must show that Attorney Kimura was both
deficient and prejudicial in providing assistance to Petitioner
in the proceedings. Strickland, 466 U.S. at 687.
To establish deficient performance, Petitioner Borges must
show that Attorney Kimura’s representation fell below an
objective standard of reasonableness. Id. at 688. Petitioner
must also show that Attorney Kimura’s alleged deficient
performance prejudiced him. Id.
Petitioner’s claims primarily concern Attorney Kimura’s
performance at Petitioner’s September 4, 2025 sentencing hearing.
During the sentencing hearing, the Court conducted a colloquy
with Petitioner, as follows:
THE COURT: So, you have read the Presentence
Report, Mr. Borges?
PETITIONER: Yes.
THE COURT: Have you talked about it with Mr.
Kimura?
PETITIONER: Yes.
THE COURT: Has he answered any question you have
about it?
PETITIONER: Yes.
THE COURT: Okay. So you are prepared to go
forward with respect to the sentencing
this morning?
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PETITIONER: Yes.
(Transcript of September 4, 2025 Sentencing at pp. 4, attached as
Ex. 1 to Gov’t Opp., ECF No. 140-1).
Despite the Court’s inquiry, Petitioner now claims he
received ineffective assistance of counsel by Attorney Kimura.
Grounds One and Three As Stated In Petitioner’s Section 2255
Motion: Alleged Ineffective Assistance of Counsel as to
Sentencing for Count 7 in 23-cr-00024 HG-01
Petitioner was charged in Count 7 of the Superseding
Indictment in 23-cr-00024 HG-01 with Distribution Of Fentanyl and
Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
(Superseding Indictment, ECF No. 61).
Petitioner pled guilty to the charge pursuant to a
Memorandum of Plea Agreement. (MOPA, ECF No. 85). In the MOPA,
Petitioner agreed that on the evening of January 26, 2023, on the
island of Kauai, he knowingly and intentionally distributed
substances he knew to be controlled to Persons 4, 5, and 6, each
of whom snorted the substances in the defendant’s presence. (Id.
at ¶ 8(c), ECF No. 85).
During the change of plea proceedings, Petitioner admitted
that he provided cocaine to others on January 26, 2023, as
charged in Count 7. (Transcript of Change of Plea Proceedings at
pp. 37-38, ECF No. 93). Petitioner claimed he did not know there
was fentanyl mixed in the cocaine, but he admitted that he knew
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he gave others a controlled substance to snort and that the
laboratory tests confirmed the substance he provided contained
both cocaine and fentanyl. (Id. at pp. 38-39).
1. Calculation of Petitioner’s Sentencing Guidelines
as to Count 7
The Presentence Report calculated the sentencing guidelines
in 23-cr-00024 HG-01 with respect to the drug trafficking crimes
in Counts 1 and 7 as a group. Grouping the drug trafficking
counts together in order to calculate the base offense level
sentencing guideline is required by U.S.S.G. § 3D1.2(d).
Section 3D1.2 of the United States Sentencing Guidelines
requires that all counts involving “substantially the same harm”
be grouped together in a single group for calculation of the base
offense level. U.S.S.G. § 3D1.2. Multiple drug trafficking
offenses are grouped together and the quantity of drugs overall
are combined in order to determine the base offense level.
U.S.S.G. § 3D1.2(d).
Here, the Presentence Report clearly explained that “[t]he
drug offenses charged in Counts 1 and 7 under CR 23-24 are
grouped together, pursuant to USSG §3D1.2(d), because the offense
level is determined largely on the basis of the total quantity of
drugs.” (Presentence Report at ¶ 66, ECF No. 125).
Petitioner was properly found responsible for 1,100 grams of
actual methamphetamine and 50.2 grams of fentanyl as provided in
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his Memorandum of Plea Agreement and change of plea hearing.
(Id. at ¶ 72). The Presentence Report converted the drugs to
calculate a combined drug weight of 22,125 kilograms. (Id.) The
overall quantity of drugs resulted in a base offense level of 34
for both Counts 1 and 7. (Id. at ¶ 73) After adjustments,
Petitioner’s total offense level was properly calculated at 35
for both Counts 1 and 7. (Id. at ¶ 94).
Petitioner’s criminal history category of VI resulted in a
sentencing guideline range for Count 7 of 292 to 365 months
imprisonment. Count 7’s range was lowered to 240 months
imprisonment because the statutory maximum for Count 7 was 20
years imprisonment. (Id. at ¶ 174).
The Court sentenced Petitioner to 240 months imprisonment as
to Count 7.
2. Petitioner Did Not Receive Ineffective Assistance
of Counsel Regarding His Sentence as to Count 7
Petitioner claims that his 240-month sentence as to Count 7
was “illegal.” Petitioner argues that Attorney Kimura failed to
object to the illegal sentence and the Presentence Report’s
calculation of 240-months as the guideline range for Count 7.
Petitioner believes the guideline range should have been 30-
37 months rather than 240-months as provided by the Presentence
Report.
Petitioner fundamentally misunderstands the calculation of
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his sentencing guidelines for Count 7. As explained above,
Petitioner’s sentencing guidelines were properly calculated based
on the total overall drug quantity of the drug trafficking
offenses in both Counts 1 and 7. See U.S.S.G. § 3D1.2(d).
Attorney Kimura was not deficient in failing to object to
the sentencing guidelines for Count 7 because the calculation was
correct. Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996)
(explaining that counsel’s failure to make a futile objection can
never result in a deficient performance for purposes of an
ineffective assistance of counsel claim).
Counts 1 and 7 were required to be grouped for purposes of
the calculation as provided in Section 3D1.2 of the United States
Sentencing Guidelines. Petitioner’s sentence as to Count 7 is
not “illegal” as argued by Petitioner. Attorney Kimura was not
deficient for failing to object to the correct sentencing
calculations as to Count 7. Baumann v. United States, 692 F.2d
565, 572 (9th Cir. 1982) (explaining that the failure to raise a
meritless legal argument does not constitute ineffective
assistance of counsel).
Petitioner also cannot establish any prejudice based on
Attorney Kimura’s alleged failure to object where the calculation
of the guidelines was correct. Knowles v. Mirzayance, 556 U.S.
111, 124 (2009) (explaining that Strickland requires a defendant
to establish both deficient performance and prejudice).
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Ground Two: Alleged Ineffective Assistance of Counsel for
Failing to Request a Variance Based on Petitioner’s Policy
Disagreement
Attorney Kimura filed several objections to the Draft
Presentence Report. At sentencing, the Court overruled Attorney
Kimura’s objection to the enhancement in 23-cr-00050 HG-01 for
Petitioner’s abduction of R.D. during the extortion crime.
The Court sustained Attorney Kimura’s objection to the
inclusion of paragraphs 19-23 in the Draft Presentence Report and
those paragraphs, with the exception of the last sentence of
paragraph 23, were removed from the Final Presentence Report.
Attorney Kimura also filed a Motion for Variance, requesting
a downward variance based on Petitioner’s personal history.
(Motion for Variance, ECF No. 126). The Court denied the request
for a downward variance. (Minutes from Sept. 4, 2025, denying
Motion for Variance, ECF No. 127).
Petitioner argues that Attorney Kimura provided him with
ineffective assistance of counsel at sentencing with respect to
23-cr-00024 HG-01. Petitioner claims Attorney Kimura failed to
request a downward variance based on Petitioner’s disagreement
with the methamphetamine sentencing guidelines and the purity of
the drugs.
Attorney Kimura explains that he made a strategic decision
and declined to make the request. In his Affidavit, Attorney
Kimura explained that he “raised several substantive objections”
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to the Draft Presentence Report, which he believed would most
likely impact the calculation of Petitioner’s sentencing
guidelines. (Affidavit of Attorney Harlan Kimura at ¶ 8,
attached as Ex. 2 to Gov’t Opp., ECF No. 140-2). Attorney Kimura
explained that he declined to argue for a downward variance based
on the purity of methamphetamine guidelines based on his
“professional judgment of focusing at sentencing on the grounds
which [he] believed provided Borges with the best opportunity for
a downward variance from the applicable guideline range.” (Id.)
Attorney Kimura was not deficient for failing to make the
policy argument as requested by Petitioner. It is well-
established that tactical decisions with which the defendant
disagrees cannot be the basis for an ineffective assistance of
counsel claim. Morris v. California, 966 F.2d 448, 456 (9th Cir.
1991). Attorney Kimura’s representation did not fall below an
objective level of reasonableness for declining to make a futile
policy argument. James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994).
Petitioner cannot show any prejudice from Attorney Kimura’s
failure to make the policy argument. The District Court was
under no obligation to vary from the guidelines based on the
policy argument. United States v. Carper, 659 F.3d 923, 925 (9th
Cir. 2011). This Court has specifically rejected the exact
policy argument that Petitioner requested Attorney Kimura to put
forward. The Ninth Circuit Court of Appeals has affirmed this
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Court’s decision to reject the policy argument based on the
methamphetamine purity guidelines and found that no such variance
is necessary. See United States v. Kinoshita, 2025 WL 2848600,
*1 (9th Cir. Oct. 8, 2025). Even if the policy argument was
made, the Court would have rejected it and denied a variance on
such a basis.
Ground Four: Alleged Ineffective Assistance of Counsel
Regarding Petitioner’s Decision Not to File an Appeal
Petitioner claims that he received ineffective assistance of
counsel with respect to his right to appeal his convictions and
sentence.
Petitioner alleges that sometime prior to his sentencing on
September 4, 2025, the Department of Justice had put in place a
separatee order that prevented communication between Petitioner
and his mother Denise Kalani, his co-defendant in 23-cr-00024 HG-
01. Both were incarcerated and in Bureau of Prisons custody
during the proceedings.
Petitioner’s Section 2255 Motion appears to claim that
Attorney Kimura informed Petitioner that the separatee order
could not be lifted until his proceedings in 23-cr-00024 HG-01
were concluded. Petitioner was under the impression that the
separatee order might have remained in place had he filed a
notice of appeal. Petitioner claims that somehow Attorney Kimura
put him in a position to choose between filing a direct appeal or
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communicating with his mother.
Attorney Kimura disputes Petitioner’s allegations and
instead asserts, “I did not present to [Petitioner] that choice,
nor did he state to me his decision not to take a direct appeal
was conditioned upon the Government listing the aforesaid
separatee order.” (Affidavit of Harlan Kimura at ¶ 10, ECF No.
140-2).
There is no evidence that Attorney Kimura was deficient with
respect to Petitioner’s appellate rights. Attorney Kimura
informed Petitioner of his appellate rights, the general
procedure, and the time limits to appeal. (Affidavit of Harlan
Kimura at ¶ 11, ECF No. 140-2). The Court also explained
Petitioner’s appellate rights to him at his sentencing hearing.
(Id.; see Sentencing Minutes, ECF No. 127).
Petitioner does not claim that he instructed Attorney Kimura
to file a notice of appeal. Petitioner does not claim he was
unaware of his appellate rights. Petitioner’s decision not to
file a notice of appeal is not due to any alleged ineffective
assistance of counsel.
There is no reason to believe that a rational defendant in
Petitioner Borges’s case would have wanted to appeal given that
his sentence was below the calculated sentencing guidelines range
and given that there was a waiver of his appellate rights
contained in his Memorandum of Plea Agreement that precluded the
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ability to appeal. (MOPA at ¶ 13, ECF No. 85).
Petitioner’s appellate rights were limited and he could only
appeal a sentence if it was greater than the sentencing
guidelines. (Id. at ¶ 13(b)). Here, the Court did not sentence
Petitioner above the calculated guideline range and his ability
to appeal was generally precluded by his plea agreement.
Petitioner has failed to demonstrate that he received
ineffective assistance of counsel from Attorney Kimura with
respect to his appellate rights. See Roe v. Flores-Ortega, 528
U.S. 470, 478 (2000).
The record conclusively shows that Attorney Kimura’s
representation did not fall below an objective standard of
reasonableness in defending Petitioner Borges. Petitioner has
also failed to demonstrate that he was prejudiced by Attorney
Kimura’s performance. Strickland, 466 U.S. at 697. Petitioner
is not entitled to an evidentiary hearing.
Petitioner’s Section 2255 Motion (ECF Nos. 130 and 303) is
DENIED.
IV. Petitioner Is Not Entitled To A Certificate Of Appealability
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides that a Certificate of Appealability may be
issued in a habeas corpus proceeding “only if the applicant has
made a substantial showing of the denial of a constitutional
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right.” 28 U.S.C. § 2253(c)(2).
A “substantial” showing requires a prisoner to show that
reasonable jurists could debate whether the petition should have
been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further. Slack
v. McDaniel, 529 U.S. 473, 483–84 (2000).
Petitioner’s Section 2255 Motion has not made a substantial
showing that Petitioner was deprived of a constitutional right.
Petitioner’s arguments are not supported by the record and
applicable law. Reasonable jurists would not debate the Court’s
conclusion, and there is no reason to encourage further
proceedings.
A Certificate of Appealability is DENIED.
CONCLUSION
Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (ECF Nos. 130 and 303) is
DENIED.
A Certificate of Appealability is DENIED.
//
//
//
//
//
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The Clerk of Court is ORDERED to enter Judgment in favor of
Respondent United States of America and CLOSE THE CIVIL CASES
Civ. No. 25-00533 HG-RT and Civ. No. 25-00534 HG-RT.
IT IS SO ORDERED.
DATED: April 30, 2026, Honolulu, Hawaii.
David Borges v. United States of America; Cr. No. 23-00024 HG-01;
Cr. No. 23-00050 HG-01; Cv. No. 25-00533 HG-RT; Cv. No. 25-00534
HG-RT; ORDER DENYING PETITIONER DAVID BORGES’S MOTION TO VACATE,
SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (ECF
NOS. 130 and 303) AND DENYING A CERTIFICATE OF APPEALABILITY
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