Nunez v. USA

Filing 10

MEMORANDUM DECISION AND ORDER granting 8 Motion to Dismiss; denying 1 Petition to vacate, set aside, or correct sentence. This matter is dismissed in its entirety. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
Plaintiff,

Case No. 1:07-cr-00173-EJL
1:10-cv-00477-EJL

v.
MARIO ARRIAGA NUNEZ, aka
JORGE ALEXANDER CANCHOLA,

MEMORANDUM DECISION AND
ORDER

Defendant/Petitioner.

Before the Court is a Petition (Dkt. 1) to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255, by Defendant/Petitioner Mario Arriaga Nunez aka Jorge
Alexander Canchola. The motion is fully briefed and at issue. The government opposes
and has moved to dismiss Nunez’s Petition, in part due to waiver under the terms of
Nunez’s plea agreement. Gov’t Mot., Dkts. 3, 8. Being familiar with the record and
having considered the briefing, the Court will deny Nunez’s Petition, and grant the
government’s Motion, as more fully described below.
BACKGROUND
Defendant Nunez was indicted, along with 15 other defendants, with conspiracy to
distribute, and distribution of methamphetamine, as well as two racketeering-related
counts. (Indictment, Dkt. 1 in criminal case). Roughly two weeks after his arraignment,

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Nunez retained private counsel Chad Gulstrom, who substituted in for court-appointed
counsel. Defendant signed a plea agreement, and pleaded guilty to Count One –
conspiracy to distribute, and Count Three – conspiracy to travel and transport in aid of
racketeering enterprises. (Plea Agreement, Dkt. 3-1 in civil case). In the plea agreement,
Nunez waived his rights to appeal and to petition under § 2255. (Id.) Nunez was
sentenced to 188 months imprisonment on Count One and 60 months on Count Three, to
run concurrently.
Despite the terms of his plea agreement, Nunez filed a single issue appeal, arguing
that his sentence was unreasonable, as compared to those of his co-conspirators. The
Ninth Circuit Court of Appeals denied the appeal and affirmed Nunez’s sentence, noting
that the sentence was 22 months below the guideline range of 210-262. (Memorandum,
Dkt. 553 in criminal case). The Ninth Circuit also found Nunez’s sentence appropriate,
compared to his co-conspirators, given that Nunez “maintained the drug ‘stash house,’ he
coordinated with local distributors, he was involved in Las Vegas drug deals, and, on
several occasions, he discussed future drug purchases with an undercover officer.” (Id.)
The Ninth Circuit concluded that this Court did not abuse its discretion in imposing
Nunez’s sentence. (Id.)
Nunez filed this petition under § 2255, asserting ineffective assistance of counsel
for failing to object or properly investigate, or for otherwise allowing or coercing Nunez
to plead guilty under the influence of medication. Nunez also asserts that his appellate
counsel was ineffective for failing to move to withdraw his plea or appeal the issue. And

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finally, Nunez contends that the Court erred by denying Nunez’s motion to substitute trial
counsel.
LEGAL STANDARD
A prisoner asserting the right to be released “may move the court which imposed
the sentence to vacate, set aside or correct the sentence” under 28 U.S.C. § 2255(a).
Section 2255 provides four grounds that justify relief for a federal prisoner who
challenges the fact or length of his detention: (1) whether “the sentence was imposed in
violation of the constitution or laws of the United States;” (2) whether the court was
without jurisdiction to impose such sentence; (3) whether the sentence was “in excess of
the maximum authorized by law;” or (4) whether the sentence is “otherwise subject to
collateral attack.” See Hill v. United States, 368 U.S. 424, 428 (1962). Despite this
seemingly broad language, “the range of claims which may be raised in a § 2255 motion
is narrow.” United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981).
The Court recognizes that a response from the government and a prompt hearing
are required “[u]nless 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). Further, a hearing
must be granted unless the movant’s allegations, “when viewed against the record, either
fail to state a claim for relief or are ‘so palpably incredible or patently frivolous as to
warrant summary dismissal.” United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.
1984), cert. denied, 470 U.S. 1058 (1985) (citations omitted); Marrow v. United States,
772 F.2d 525, 526 (9th Cir. 1985). A district court may summarily dismiss a § 2255
motion “[i]f it plainly appears from the face of the motion and any annexed exhibits and
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the prior proceedings in the case that the movant is not entitled to relief . . ..” Rule 4(b),
Rules Governing § 2255 Proceedings in the United States District Court. Thus, in order
to withstand summary dismissal of his motion for relief under § 2255, the defendant
“must make specific factual allegations which, if true, would entitle him to relief on his
claim.” United States v. Keller, 902 F.2d 1391, 1395 (9th Cir. 1990).
Section 2255 is not a substitute for appeal. Addonizio, 442 U.S. at 184. “Errors of
law which might require reversal of a conviction or sentence on appeal do not necessarily
provide a basis for relief under § 2255.” United States v. Wilcox, 640 F.2d 970, 973 (9th
Cir. 1981). Where a defendant fails to raise claims on direct review, those claims are
procedurally defaulted unless he can demonstrate cause for and prejudice from the
procedural default, or actual innocence. United States v. Ratigan, 351 F.3d 957, 962
(2003)(citing Bousley v. United States, 523 U.S. 614, 622 (1998)). However, when a
particular issue “has been decided adversely on appeal from a conviction, it cannot be
litigated again on a 2255 motion.” Odom v. United States, 455 F.2d 159, 160 (9th Cir.
1972)(citations omitted).
ANALYSIS
1.

Request for Evidentiary Hearing
Where a petitioner’s allegations, “viewed against the record, fail to state a claim

for relief,” United States v. McMullen, 98 F.3d 1155 (9th Cir. 1996)(citations omitted), or
where summary dismissal is warranted, the Court may deny an evidentiary hearing.
Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985)(citation omitted). In a § 2255
motion, conclusory statements, without more, are insufficient to require a hearing. United
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States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). As more fully expressed below, the
Court finds that Nunez has failed to raise allegations sufficient to warrant a hearing on
issues before it. The Court will therefore consider Nunez’s motion based upon the record
and pleadings before it.
2.

Waiver of Right to Petition Under § 2255
The government moves to dismiss Nunez’s petition, arguing that, under the terms

of Nunez’s plea agreement, his petition is waived. In the plea agreement, Nunez retained
the right to file one petition under § 2255, but only if he “believes he received ineffective
assistance of counsel based solely on the information not known to [Nunez] at the time
the [Court] imposed sentence and which, in the exercise of reasonable diligence, could
not have been known by the defendant at that time.” (Plea Agreement, at 10-11).
“[P]ublic policy strongly supports plea agreements,” including those waiving the
right to appeal. United States v. Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990).
“[P]erhaps the most important benefit of plea bargaining[ ] is the finality that results.” Id.
at 322. However, “waiver of the right to appeal would not prevent an appeal where the
sentence imposed is not in accordance with the negotiated agreement.” Id. at 321. Also,
the Ninth Circuit has held that “a plea agreement that waives the right to file a federal
habeas petition . . . is unenforceable with respect to an [ineffective assistance of counsel]
claim that challenges the voluntariness of the waiver.” Washington v. Lampert, 422 F.3d
864, 870 (9th Cir. 1005)(quoting United States v. Jeronimo, 398 F.3d 1149, 1156 n. 4 (9th
Cir. 2005)). This is consistent with holdings in other circuits. Lampert, 422 F.2d at 870-

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71(citations omitted); see e.g. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir.
1999).
To the extent that Nunez’s ineffective assistance of counsel arguments challenge
the voluntariness or enforceability of his plea agreement and waiver, the Court will
consider the § 2255 petition. For those claims unrelated to the voluntariness or
enforceability of his plea agreement and waiver, the Court will grant the government’s
motion to dismiss Nunez’s petition. Accordingly, the Court will reject and dismiss
Nunez’s argument that the Court erred in denying his motion to substitute trial counsel.
The Court considers Nunez’s ineffective assistance of counsel arguments, regarding
voluntariness of his plea agreement, below.
2.

Procedural Default of Claim That Court Erred In Denying Substitution of
Trial Counsel
Even if Nunez had not waived his right to petition under § 2255, Nunez’s claim

that the Court erred in denying his motion to substitute trial counsel is in procedural
default. Where a defendant fails to raise an issue on appeal, the claim is procedurally
defaulted unless defendant can demonstrate cause for and prejudice from the procedural
default, or actual innocence. Ratigan, 351 F.3d at 962. Nunez has given no reason why
he did not raise this claim on appeal. The Court also finds that Nunez has not shown
prejudice from failure to raise the claim, as the record supports Nunez was well
represented by trial counsel; this finding is further discussed below. For these reasons,
Nunez’s claim that the Court erred in denying substitution of trial counsel fails.

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3.

Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is a basis for habeas relief, and need

not be raised on direct appeal to preserve the issue for collateral attack. United States v.
Withers, 638 F.3d 1055, 1066 (9th Cir. 2011)(citing Massaro v. United States, 538 U.S.
500, 505 (2003)). As discussed above, the Ninth Circuit recognizes that claims for
ineffective assistance of counsel, as to the voluntariness and enforceability of a plea
agreement, are not barred by an agreement to waive rights of appeal and under § 2255.
See Lampert, 422 F.3d at 870. Nunez has the burden of proving ineffective assistance of
counsel, by showing (1) that counsel performed so deficiently as to fall below an
objective standard of reasonableness; and (2) prejudice – that but for counsel’s
deficiencies, the outcome would have been different. Strickland v. Washington, 466 U.S.
668, 687-694 (1984). These standards apply equally to trial and appellate counsel. Smith
v. Murray, 477 U.S. 527, 535-36 (1986).
In evaluating counsel’s performance, there is a strong presumption favoring a
finding of effectiveness. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)(citation
omitted). Regarding prejudice, the court considers “the totality of the evidence . . . and
presume[s] that the judge or jury acted according to law.” Strickland, 466 U.S. at 695. A
defendant “has the ultimate authority to [decide] . . . whether to plead guilty, waive a jury,
testify in his or her own behalf, or to take an appeal.” Jones v. Barnes, 463 U.S. 745, 751
(1983).

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A.

Trial Counsel

According to Nunez, his trial counsel (1) failed to investigate the effects of
medication Nunez was using at or before the time of the change of plea hearing; (2) was
ineffective in allowing Nunez to enter the plea under the influence of medication; and (3)
coerced Nunez into entering his plea. With respect to each of these arguments, the Court
examines Nunez’s burden of proving both that counsel’s performance was objectively
unreasonable, and that such performance prejudiced Nunez.
(1)

Failure to investigate medication’s effects and ineffectiveness for
allowing Nunez to enter plea under the influence of medication

According to Nunez, at the time of his plea hearing, he was under the influence of
anxiety-reducing medications. Indeed the transcript of hearing shows that the Court
inquired whether Nunez was taking any medication. (Trans., Dkt. 3-2 at 4). Nunez
responded that he was taking medication for anxiety attacks. (Id.) On the Court’s inquiry
whether the medication affected his ability to understand, Nunez responded, “No, I don’t
think so.” (Id.)
Nunez argues that his counsel, and the Court, both failed to inquire about the
effects of his medication. In so arguing, Nunez fails to identify or provide adequate
support. The Court is mindful that Nunez’s statement, “I don’t think so,” could be
interpreted as an equivocation. However, the entirety of the transcript of Nunez’s plea
proceeding reveals that Nunez was clear and consistent in answering the Court’s thorough
and meticulous inquiries of Nunez’s intentions and understanding. The record raises no
concerns about Nunez’s state of mind so as to warrant further questioning or investigation

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by counsel or the Court. Nunez thus fails to show that counsel’s performance was
deficient, so as to fall below a standard of objective reasonableness. Nor has Nunez
demonstrated error or abuse of discretion by the Court. (See Ninth Circuit Memorandum,
Dkt. 553 in criminal case).
With respect to prejudice, Nunez argues that his medication was for anxiety
attacks, which are given for depression. Without clearly stating that he suffered from
depression, Nunez asserts that one definition of depression is, “[d]ifficulty in thinking and
concentration.” (Motion, Dkt. 1-1 at 14). Nunez then concludes that his medication
caused difficulty in thinking and concentration, and thus interfered with his ability to
process facts. (Id. at 15). This conclusory leap is both illogical and unsupported by the
record. If Nunez indeed suffered from depression, then according to Nunez’s assertions,
his medication presumably had the effect of improving his thinking and concentration.
Other than Nunez’s conclusory allegations, there is no basis for the Court to find that
either Nunez’s medication, or any condition that the medication was intended to affect,
impeded Nunez’s understanding of his plea agreement or his plea hearing. The Court will
therefore reject Nunez’s ineffective assistance of counsel argument concerning counsel’s
alleged failure to investigate Nunez’s medication, or halt the plea hearing.

(2)

Coercion by counsel

More implausible and further unsupported by the record is Nunez’s contention that
counsel coerced him into accepting his plea. According to Nunez, his counsel promised
him that if he agreed to the plea, the Court “would sentence [Nunez] to a very short time.”
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(Motion, Dkt. 1-1 at 16). Absent is an explanation why counsel would coerce Nunez, or
any evidence supporting that Nunez was promised a very short time. The written plea
agreement that Nunez signed, and that the Court reviewed with Nunez at length during
his plea hearing, detailed what Nunez could expect in sentencing. (See Plea Agreement;
Trans. of Plea Hearing). Nunez also acknowledged reviewing the government’s presentence report with his attorney, which noted the sentencing range he could expect.
(Trans. of Plea Hearing, Dkt. 4 at 12). Further, the transcript from sentencing shows that
Nunez’s counsel requested a downward departure from the government’s
recommendation and sentencing guidelines, and this Court granted it. (Trans. of
Sentencing, Dkt. 4 at 19-27; see also Gov’t Resp to Downward Departure, Dkt. 5).
Nunez was sentenced to 188 months – 22 months below the guideline range of 210-262.
This fact was echoed by the Ninth Circuit in rejecting Nunez’s appeal. (Ninth Circuit
Memorandum, Dkt. 553 in criminal case).
Significantly, Nunez does not assert actual innocence, or dispute his guilt with
respect to the counts outlined in his plea agreement. From the transcripts of his plea and
sentencing hearings, it appears that Nunez agreed to the terms of his plea agreement, but
was ultimately disappointed with the sentence he received. The record fully supports that
Nunez’s decision to enter into the plea agreement was his own; Nunez has failed to meet
his burden of showing that he was coerced.
B.

Appellate Counsel

Nunez contends that his appellate counsel was deficient in failing to move to
withdraw his guilty plea. Although he does not specify, the Court presumes that the basis
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for such a motion to withdraw plea would be the medication issue also raised in Nunez’s
petition. The courts have recognized that appellate counsel “must be allowed to decide
what issues are to be pressed” on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983).
With this backdrop, Nunez must show that his appellate counsel’s failure to raise this
issue on appeal was objectively unreasonable. In addition, Nunez must demonstrate that,
but for counsel’s failure to present the argument, the outcome of Nunez’s appeal would
have been different. Nunez has not shown that either element is satisfied.
As discussed above, nothing in the record or documents provided by Nunez
supports that he was unduly influenced by medication, in accepting his plea agreement.
Even if Nunez had identified what medication he was on, or its effects – which he has not
– the mere fact that Nunez was taking an anti-anxiety medication does not, on its own,
support that his ability to comprehend or agree to his plea was compromised. Thus
Nunez has not satisfied his burden of showing that appellate counsel performed
deficiently. Nunez has also failed to establish that a motion to withdraw plea would have
been successful. Thus, Nunez has not demonstrated prejudice from counsel’s failure to
assert the claim. The Court will therefore reject this claim as well.

ORDER
IT IS ORDERED THAT Nunez’s Motion to Vacate, Set Aside, or Correct
Sentence (Dkt. 1) under § 2255 is DENIED, and this matter is DISMISSED in its
ENTIRETY.

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IT IS FURTHER ORDERED THAT the Government’s Motion to Dismiss the
Petition (Dkt. 8) is GRANTED.

DATED: November 23, 2011

Honorable Edward J. Lodge
U. S. District Judge

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