Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY F. ANDREW S Assistant U.S. Attorney Arizona State Bar No. 021658 4035 South Avenue A Yuma, Arizona 85365 (928) 344-1087 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff-Respondent, v. Francisco Alvarez-Espinoza, Defendant-Movant. The United States of America, by and through undersigned counsel, hereby opposes defendant Francisco Alvarez-Espinoza's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 for the reasons set forth in the attached Memorandum of Points and Authorities. Respectfully submitted this 21 st day of August 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy F. Andrews TIMOTHY F. ANDREWS Assistant United States Attorney CR 04-621-PHX-DGC CV-05-2527-PHX-DGC(ECV) RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

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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 III. II. I.

MEMORANDUM OF POINTS AND AUTHORITIES Issues Presented Francisco Alvarez-Espinoza, the defendant and movant, is currently confined in the Federal Correctional Institution on Terminal Island, California after being convicted of the crime of Reentry After Deportation on August 23, 2004. Approximately one year later, on August 22, 2005, he filed a pro se motion pursuant to 28 U.S.C. § 2255 that he received ineffective assistance of counsel that resulted in an involuntary plea and that his identity was not proven beyond a reasonable doubt. On June 23, 2006, the Court ordered the government to respond to the defendant's motion.

Procedural History On May 28, 2004, the United States Border Patrol filed a complaint against the defendant

alleging a violation of

8 U.S.C. §1326(a) and enhanced by §1326(b)(2), Reentry After

Deportation. (CR: 1). On June 9, 2004, the defendant and the Government executed a written plea agreement, where the defendant waived his right to indictment and pled guilty to the foregoing charge by way of information (CR: 9). On August 23, 2004, the Court sentenced the defendant to a 27-month term of imprisonment.

ANALYSIS A. Defendant's Motion is Timely. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132,

110 Stat. 1214, which became effective on April 24, 1996, establishes both procedural and substantive limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 2255. Particularly, Section 105 of AEDPA establishes a one-year period of limitations for such motions. Having been filed within one year of the date upon which his conviction became final, the defenant's motion is timely.

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B. Waiver of Right to Collaterally Attack Sentence. A defendant may waive the right to file a § 2255 petition if the waiver is done expressly. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000); United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994). The plea agreement Defendant executed with the government contains the following language: The defendant waives any and all motions, defenses, probable cause determinations, and objections which defendant could assert to the information or indictment, or to the court's entry of judgment against defendant and imposition of sentence upon defendant, provided that the sentence is consistent with this agreement. The defendant further waives: (1) any right to appeal the court's entry of judgment against defendant; (2) any right to appeal the imposition of sentence upon defendant under Title 18, United States Code, Section 3742 (sentence appeals); and (3) any right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack. The defendant acknowledges that this waiver shall result in the dismissal of any appeal or collateral attack defendant might file challenging his conviction or sentence in this case. (CR 12:4-5; Exhibit A at 4-5). During his change of plea hearing, Defendant was asked several questions about his plea agreement, including whether he understood it and whether he agreed to everything in it. (Exhibit B at 15-17). Defendant acknowledged that he did understand and agree to terms of the agreement. Id. More specifically, Defendant was apprised of the fact that his plea agreement contained a waiver of his right to appeal and collaterally attack his conviction or sentence. (Exhibit B at 26). Defendant acknowledged that he understood and agreed to the waiver. Id. Because Defendant has expressly waived his right to collaterally attack his conviction and sentence, the Court should dismiss his motion.

C. Ineffective Assistance of Counsel To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his attorney's acts or omissions fell below an objective standard of reasonableness, and (2) that he was prejudiced by these acts or omissions. Strickland v. Washington, 466 U.S. 668, 6878 (1984); Bonin v. Calderon, 59 F.3d 815, 833 (9 th Cir. 1995). In reviewing defense counsel's performance, the Court must "strongly presume that counsel's conduct was within the wide3

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range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Strickland, 466 U.S. at 689. This presumption can only be overcome with concrete evidence. United States v. Cronic, 466 U.S. 648, 658 (1984). To show prejudice in cases involving a guilty plea, the defendant must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty." Hill v. Lockhart, 474 U.S. 52, 59 (1985). The defendant appears to be arguing that he received ineffective assistance of counsel because he was not fully informed of the consequences he would face by entering into a plea agreement with the government and pleading guilty via plea agreement. However, this claim contradicts what he represented on the record at his change of plea hearing, where he acknowledged that he understood everything his lawyer had told him, that he had enough time to discuss the case with his lawyer, and that he was satisfied with his lawyer. (Exhibit B at 7-9). Furthermore, the defendant acknowledged that the plea agreement was read to him in Spanish, that he understood it, and that it reflected all the promises and assurances made to him by both the government and his lawyer. (Exhibit B at 15-17). The defendant was also advised of the statutory penalties he faced and of the rights he would have to give up in order to enter a guilty plea. (Exhibit B at 19-25). There is no evidence in the record that suggests his attorney's

performance fell below an objective standard of reasonableness or that the plea was entered into involuntarily.

D.

Defendant's Identity

The defendant appears to be contending that his identity was not established both as to his removal from the United States and as to the conviction that formed the basis for his sentencing enhancement. The government disagrees. The defendant's identity has been sufficiently proven. The charging document filed in the instant case alleges that the defendant was deported from the United States through Nogales, Arizona on or about August 15, 1997. (CR: 6). The 4

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factual basis in the defendant's plea agreement with the government contains the following statement, "I was deported, excluded or removed from the United States through Nogales, Arizona on August 15, 1997." (CR 12: 8). The defendant acknowledged this fact when he signed the plea agreement. Id. Furthermore, the defendant admitted to having been deported from the aforementioned place on the aforementioned date during his change of plea hearing. (Exhibit B at 29). This admission mirrors the information contained in a notice and departure verification document that was issued for a Francisco Alvarez-Espinoza on August 15, 1997, with the actual departure being witnessed on August 16, 1997. (Exhibit C). As for the conviction that formed the basis for the defendant's sentencing enhancement, it was for smuggling marijuana in Yuma County on November 20, 1992. (Exhibit D). The defendant acknowledged being convicted of this offense at his change of plea hearing. (Exhibit A at 29).

IV. Conclusion For all of the foregoing reasons, the Government requests that the Motion of Francisco Alvarez-Espinoza to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, be denied and this action dismissed. Respectfully submitted this 21 st day of August 2006

PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy F. Andrews TIMOTHY F. ANDREWS Assistant United States Attorney

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CERTIFICATE OF SERVICE I hereby certify that, on August 21, 2006, I mailed a copy of the foregoing motion response and its attached exhibits to the following, who are not registered participants of the ECF system for electronic filing: Francisco Alvarez-Espinoza 63607-208 FCI-Terminal Island P.O. Box 3007 Terminal Island, CA 90731 by: s/ Timothy F. Andrews

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