Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

DIANE J. HUMETEWA United States Attorney District of Arizona GLENN B. MCCORMICK Assistant U.S. Attorney Arizona State Bar No. 013328 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR 04-0021-PHX-PGR v. Jesus Rivero Jaquez-Diaz, Defendant/Movant. CV 08-0569-PHX-PGR (MHB) RESPONSE TO MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE BY A PERSON IN FEDERAL CUSTODY (28 U.S.C. § 2255)

The United States of America responds to Jesus Rivero Jaquez-Diaz's (defendant) motion to vacate, set aside or correct sentence ("Motion"). For the reasons set forth in the attached memorandum, the Motion should be dismissed on procedural grounds (defendant expressly waived his right to file the Motion) and substantively (defendant's claims are without merit). Accordingly, the Government requests that the Court dismiss the Motion. Respectfully submitted this 27th day of June, 2008.

DIANE J. HUMETEWA United States Attorney District of Arizona

s/Glenn B. McCormick GLENN B. MCCORMICK Assistant U.S. Attorney

Case 2:04-cr-00021-PGR

Document 88

Filed 06/27/2008

Page 1 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Procedural History

MEMORANDUM

In CR04-0021-PHX-PGR, on August 8, 2006, defendant pled guilty to Count I of the Indictment, Felon in Possession of a Firearm, in violation of 18 U.S.C. 922(g)(1). On October 30, 2006, defendant was sentenced to 24 months imprisonment, followed by three years of supervised release. Defendant did not file an appeal. II. Defendant's Asserted Grounds for Relief In the Motion, defendant asserts two grounds for relief: (1) that his counsel was ineffective by informing him that he would not be deported to Mexico if he pled guilty and did not appeal; and (2) that he is "actually innocent" of the crimes to which he pled. (Motion at 5.) III. Discussion As discussed below, the Motion should be dismissed in its entirety because defendant expressly waived his right to file the Motion. Moreover, defendant's claims of ineffective counsel and actual innocence are meritless and should be denied. A. Defendant Expressly Waived His Right to File a § 2255 Petition. 1. The Plea Agreement and Plea Hearing: Defendant pled guilty pursuant

to written plea agreement. In exchange for his guilty plea, the defendant waived "any right to collaterally attack [his] conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack." (Plea Agreement, Exhibit A, p. 4.) Moreover, in the plea agreement, defendant agreed that "this waiver shall result in the dismissal of any appeal or collateral attack the defendant might file challenging his conviction or sentence in this case." (Id.) During the change of plea proceeding before the district court, defendant acknowledged he understood that by pleading guilty, he gave up the right to appeal:

2

Case 2:04-cr-00021-PGR

Document 88

Filed 06/27/2008

Page 2 of 11

1 2

THE COURT: Well you discussed all of your rights with [counsel], isn't that fair to say? THE DEFENDANT: Yes.

3 4 5 THE DEFENDANT: Yes. 6 7 8 THE DEFENDANT: Yes, sir. 9 10 11 12 13 14 15 16 THE DEFENDANT: Yes, sir. 17 18 19 THE DEFENDANT: I'm looking at it right now, sir. Yes, sir. 20 21 22 THE DEFENDANT: I understand. 23 24 25 26 27 28 THE COURT: Well then, having advised the Court that you are giving up all your rights to plead guilty, are you guilty? THE DEFENDANT: Yes, sir. (Reporter's Transcript of Proceedings Before The Honorable Paul G. Rosenblatt, District Judge (August 8, 2006 Plea Hearing), Exhibit B, pp. 20-23.) 3 THE COURT: It says you're going to give up all those rights in every form if the court imposes a sentence consistent with this agreement, correct? THE COURT: In fact, there is a specific provision in this Plea Agreement, isn't there, on page 4, paragraph 5, that deals with waiver of defenses and appeal rights. Do you see that? THE COURT: And if you didn't have the finds for an attorney, the court would appoint one to represent you. Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: The court would also provide at no cost to you a certified transcript of the record to assist in that appeal. Do you understand that? THE DEFENDANT: Yes. THE COURT: Do you understand then that you're willing to give up these rights to plead guilty. THE COURT: Now, if you chose to go to trial before a jury and if that jury were to convict you, you would have a right to appeal. Do you understand that? THE COURT: They appear in written form at the bottom of page 8, almost all of page 9. I believe you say you've read it and discussed it and you understood it.

Case 2:04-cr-00021-PGR

Document 88

Filed 06/27/2008

Page 3 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant stated to the court that he had completed formal schooling through the ninth year and later obtained his GED. (Id. at 3, lines 4-11.) He also agreed that since he had started working in 1973, almost every job he has held required him to know how to read and write to hold that job. (Id. at 3, lines 18-21.) Defendant stated he was able to read the plea agreement. (Id. at 3, lines 23-25.) Defendant also stated that he had in fact read the plea agreement and understood it. (Id. at pp. 5-6.) Finally, defendant stated that no one threatened or forced him to plead guilty (Id. at 12, lines 21-23) and that there were no promises outside of the written terms of the plea agreement (Id. at 13, lines 2-5.) The court found that the defendant's plea was freely and voluntarily given without force, threat, coercion or promise. (Id. at 25, lines 11-14.) 2. An Enforceable Waiver: This Court should dismiss the Motion because

defendant expressly waived his right to collaterally attack his conviction and sentence when he pled guilty. A defendant may waive his right to file a § 2255 petition if he does so expressly. United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994). Defendant also acknowledged that his waiver should result in the dismissal of any appeal or collateral attack on his conviction or sentence. (Exhibit A, p. 4.) The Motion challenges both his conviction and the sentence, and therefore is precluded under this waiver. Because defendant expressly waived his right to file a § 2255 petition and appeal his sentence, and agreed any collateral petition would be dismissed, this Court should dismiss the Motion. The waiver covers all claims under § 2255, including defendant's claims of ineffective assistance of counsel. So long as a legal sentence was imposed, the waiver covers all claims that could be raised by defendant under § 2255. Nunez, 223 F.3d at 959; Pruitt, 32 F.3d at 433. As discussed above, defendant stated that he has not been threatened or forced into pleading guilty and that he had read and understood the plea agreement. Defendant repeatedly stated that he understood the plea agreement, what rights he was waiving, and what sentence 4

Case 2:04-cr-00021-PGR

Document 88

Filed 06/27/2008

Page 4 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

he faced. (See, generally, Exhibit B.) In light of this record, defendant cannot claim that his plea agreement was not knowing and voluntary. Defendant's statements demonstrate that he was fully advised of the ramifications of his plea agreement, he understood the nature of the charges against him, and he was not fooled or tricked into pleading guilty. Accordingly, the waiver is valid and the Court should dismiss the Motion because the Court's "files and records of the case conclusively show that the prisoner is entitled to no relief." United States v. Taylor, 648 F.2d 565, 573 (9th Cir. 1981.) B. Defense Counsel Was Not Ineffective: To obtain relief for a claim of

ineffective assistance of counsel, defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 88, 692 (1984); see also Lockhart v. Fretwell, 113 S.Ct. 838, 844 (1993) (the prejudice analysis focuses on whether the result of the proceeding was fundamentally unfair or unreliable because of counsel's ineffectiveness). Defendant's Motion may be dismissed without a hearing because he fails to meet either prong of the Strickland test. See United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1985) ("a hearing must be granted unless the movant's allegations, when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal"). The record reveals that (1) defense counsel was not ineffective for allegedly making representations about immigration consequences to his client; and (2) defendant was not prejudiced by the such representations. In his grounds for relief, defendant claims that his counsel was ineffective at sentencing for advising him that he would not be deported to Mexico if he entered a guilty plea. (Motion at p. 5.) The Ninth Circuit has held that an attorney's failure to advise a client of the immigration consequences of a conviction does not constitute ineffective assistance of counsel under Strickland. United States v. Fry, 322 F.3d 1198, 1200 (9th Cir. 2003). As immigration consequences are a collateral consequence of a plea and resulting conviction, 5

Case 2:04-cr-00021-PGR

Document 88

Filed 06/27/2008

Page 5 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

neither defense counsel nor the court are constitutionally required to warn defendants about potential removal in order to assure voluntariness of a plea. United States v. Amador-Leal, 276 F.3d 511, 517 (9th Cir. 2002). However, the court has found ineffective assistance of counsel where counsel did not merely refrain from advising defendant regarding the immigration consequences, but, instead represented himself as having the requisite immigration expertise and responded to specific inquiries regarding the immigration consequences of pleading guilty. United States v. Kwan, 407 F.3d 1005, 1015-18 (9th Cir. 2005). In the present case, there is no indication defense counsel made such representations to his client aside from defendant's unsworn claims in the motion. On the contrary, the record suggests otherwise. As discussed above, during the plea hearing defendant stated he was able to read the plea agreement (Exhibit A at 3, lines 23 25) and that he had in fact read the plea agreement and understood it. (Id. at pp. 5 6.) Defendant told the court no one had made any promises to him other than those set forth in the Plea Agreement. (Exhibit B at 13, lines 2-5.) The Plea Agreement makes no mention of a promise to prevent adverse immigration consequences that may arise from the guilty plea. (See, generally, Exhibit A.) Further, the Pretrial Services Report dated January 21, 2004, of which the defense received a copy, stated that while defendant is a legal permanent resident of the United States, "if the defendant is convicted for a felony offense, he may be amenable to removal proceeding for violations of the Immigration Act. (Pretrial Sevices Report (January 21, 2004), Exhibit D, p. 1.) The report goes on to express concerns regarding the defendant's legal status in the United States in assessing the defendant's likelihood for nonappearance. (Id. at p. 3.) The record shows Defendant was not promised immunity from deportation in exchange for his plea and that he was forewarned it may have been a possibility. However, even assuming that counsel affirmatively misadvised defendant - and that defendant thus has satisfied the first Strickland prong of his ineffective assistance claim - to prevail defendant must additionally demonstrate prejudice. He has failed to do this. The test 6

Case 2:04-cr-00021-PGR

Document 88

Filed 06/27/2008

Page 6 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

for prejudice that is relevant is well established. In Hill v. Lockhart 474 U.S. 52, 58-59 (1985), the United States Supreme Court explained that a defendant who pled guilty demonstrates prejudice caused by counsel's incompetent performance in advising him to enter the plea by establishing that a reasonable probability exists that, but for counsel's incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial. Defendant specifically avers that, if counsel had informed him he would be deported as a consequence of his guilty pleas, he would not have pled guilty. (Motion at p. 5.) To meet the second prong of the Strickland test, this assertion that he would not have pled guilty if given competent advice must be more than a bare allegation that he "would have pleaded differently and gone to trial," Key v. United States, 806 F.2d 133, 139 (7th Cir. 1986.) The movant must be able to show that there is a reasonable probability that the result of the proceeding would have been different. Hill, 474 U.S. at 56. Petitioner has not contended that his counsel inaccurately communicated the government's plea offer. Nor has he adduced any substantial evidence suggesting the prosecutor might ultimately have agreed to a plea that would have allowed petitioner to avoid adverse immigration consequences. In the end, defendant pled guilty as charged; no charges were dropped. Had defendant proceeded to trial on the drug charges against him, and had the prosecution chosen to seek maximum penalties, petitioner faced a statutory maximum of 10 years of imprisonment (October 2, 2006 Presentence Investigation Report, Exhibit C, ¶49) and a guideline range of 37 to 46 months of imprisonment. As per the plea bargain, during sentencing the government recommended defendant receive the low end of the guideline range. (Reporter's Transcript of Proceedings Before The Honorable Paul G. Rosenblatt,

District Judge (October 30, 2006 Sentencing Hearing), Exhibit E, p. 7.) Defendant ultimately received only 24 months of incarceration and three years of supervised release. (Id. at p. 10.) The choice, moreover, that petitioner would have faced at the time he was considering whether to plead, even had he been properly advised, would not have been between, on the 7

Case 2:04-cr-00021-PGR

Document 88

Filed 06/27/2008

Page 7 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

one hand, pleading guilty and being deported and, on the other, going to trial and avoiding deportation. While it is true that by insisting on trial petitioner would for a period have retained a theoretical possibility of evading the conviction that rendered him deportable and excludable, it is equally true that a conviction following trial would have subjected him to the same immigration consequences and likely a longer sentence. In determining whether or not a defendant who has pled guilty would have insisted on proceeding to trial had he received competent advice, an appellate court also may consider the probable outcome of any trial, to the extent that may be discerned. Hill, 474 U.S. at 59 (probable trial outcome relevant in assessing prejudice from counsel's failure to discover exculpatory evidence or present affirmative defense). Nothing the defendant has offered indicates how he might have been able to avoid conviction or what specific defenses or evidence might have been available to him at trial. Based upon an examination of the entire record, defendant fails to demonstrate that it is reasonably probable he would have forgone the distinctly favorable outcome he obtained by pleading guilty. Defendant's claims that defense counsel misadvised him about the immigration consequences of a guilty plea are unsupported. However, even if this were shown to be true, defendant cannot show he would have insisted on proceeding to trial. The defendant does not give any indication of how he might have been able to avoid conviction at trial. A conviction following trial would have the same immigration consequences and likely a longer sentence than the below-guidelines range sentence defendant received. C. There is No Merit to Defendant's Claims of Actual Innocence 1. Claims of Actual Innocence Should Not Be Considered: Because

defendant was convicted pursuant to a plea agreement, his claims of actual innocence should not be considered. Cf. Smith v. Baldwin, 510 F.3d 1127, 1140 n. 9 (9th Cir. 2007) (en banc) ("We do not determine whether the Schlup [v. Delo, 513 U.S. 298, 314-15 (1995)] actual innocence gateway always applies to petitioners who plead guilty (or no contest), but in this case, the state has not raised the argument and, more importantly, [petitioner] has failed to 8

Case 2:04-cr-00021-PGR

Document 88

Filed 06/27/2008

Page 8 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

satisfy the requirements of Schlup.")

The government contends that claims of actual

innocence cannot be raised in the context of a plea agreement where a defendant has knowingly and voluntarily entered the plea, and provided a full and complete admission of all of the elements of the offense. As discussed above, the defendant's plea was knowing and voluntary and he provided a complete admission of his guilt both in the written plea agreement and in his sworn statements during the plea colloquy. (See Exhibit B at p. 21, line 24, p. 28, line 12; and Exhibit A at p.7.) Because his plea was knowing and voluntary, defendant cannot now claim "actual innocence" as a basis for setting aside his conviction. 2. Defendant Cannot Show Actual Innocence: To begin, a claim of

"actual innocence" does not, in and of itself, provide a basis for overturning a conviction. Instead, a claim of "actual innocence" provides a mechanism through which a petitioner may have a court consider an otherwise procedurally defaulted claim of a constitutional violation. See Schlup, 513 US. at 325-26 (noting that a procedurally defaulted habeas petitioner must show that a constitutional violation has probably resulted in the conviction of one who is actually innocent); Baldwin, 510 F.3d at 1140 ("In order to pass through the actual innocence procedural gateway of Schlup, [petitioner] must show that, in light of all available evidence, it is more likely than not that no reasonable juror would convict him of the relevant crime"). Because defendant does not present any constitutional claims that are otherwise procedurally defaulted, his protestations of innocence are irrelevant. However, even if the Court were to consider the claims of actual innocence as a basis for disregarding the valid waiver of the right to file a § 2255 petition, defendant has not met the requirements for such a claim. To establish a claim of actual innocence "petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Petitioner bears the burden of proof on this issue by a

preponderance of the evidence, and he must show not just that the evidence against him was weak, but that it was so weak that no reasonable juror would have convicted him." Lorentsen v. Hood, 223 F.3d 950, 954 (9th Cir. 2000)(internal citations omitted.) "[A] petitioner does 9

Case 2:04-cr-00021-PGR

Document 88

Filed 06/27/2008

Page 9 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S. at 329. In support of his claim of actual innocence, defendant offers no new evidence, only the unsworn argument in the Motion that he "had a defense of actual innocents (sic)" (Motion at p. 5.) Moreover, in the same statement defendant admits he was in possession of the firearms. He states: "Greater harm was prevented than harm committed by the possession of firearms. (Id. at p. 5.) In summary, defendant's assertions of innocence in a brief do not provide any evidence of his innocence and fall far short of meeting his burden of proof. Defendant has certainly done nothing to overcome his sworn statements of guilt during the change of plea proceedings, discussed above. Moreover, 1) the factual basis in the plea agreement, which the defendant agreed was accurate by signing the plea agreement, clearly established his guilt; 2) during the change of plea proceeding the defendant stated in his own words, "I had those guns under my bed, sir, and they belonged to me" (Exhibit B, p. 22, lines 24-25); and 3) the presentence report, which defendant did not object to, conclusively establishes defendant's guilt as a felon in possession of a firearm. (See Exhibit C.) The presentence report describes how defendant told a Peoria Police Department Officer there were firearms in his home when the officers executed a search warrant on the defendant's residence. (Id. at ¶5.) In a search of the defendant's bedroom, the master bedroom, the police found a Smith and Wesson .375 caliber revolver, a Winchester 12 gauge shotgun, and a SKS Norinco 7.62 mm semi-automatic assault rifle. Id. The weapons were located under the mattress of defendant's bed. Id. Defendant's guilt is not called into doubt by his general denials and he has certainly not even approached the threshold for establishing a claim of actual innocence. See Hartawan v. Gordon, 2008 WL 268969 (9th Cir. Jan. 31, 2008) (unpublished) (holding that a petitioner who presented affidavits from two witnesses recanting statements that had implicated petitioner had failed to meet burden for showing actual innocence.) Accordingly, defendant 10

Case 2:04-cr-00021-PGR

Document 88

Filed 06/27/2008

Page 10 of 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

is not entitled to relief and his claim should be denied on the pleadings. Taylor, 648 F.2d at 573. IV. Conclusion The Motion should be dismissed because defendant waived his right to file a petition under 28 U.S.C. § 2255. Additionally, the grounds for relief asserted by defendant are without merit and fail as a matter of law. Accordingly, defendant is not entitled to 2255 relief or to a hearing on the Motion, Taylor, 648 F.2d at 573, and the Court should dismiss the Motion with prejudice. Respectfully submitted this 27th day of June, 2008. DIANE J. HUMETEWA United States Attorney District of Arizona

S/Glenn B. McCormick GLENN B. MCCORMICK Assistant U.S. Attorney

CERTIFICATE OF SERVICE I hereby certify that on June 27, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and mailed one copy via U.S. Postal Service to the following: Jesus Rivero Jaquez-Diaz Prisoner #: 81551-008 White Deer-PA-Allenwood-FCI-Low Federal Correctional Institution P.O. Box 1000 White Deer, PA 17887

11

Case 2:04-cr-00021-PGR

Document 88

Filed 06/27/2008

Page 11 of 11