Alvarez-Lopez v. USA
Filing
10
MEMORANDUM DECISION AND ORDER. Jose Luis Alvarez-Lopezs Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 1 ) is DENIED and 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 (cjm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
Case No. 1:11-cv-00494-EJL
1:08-cr-00113-EJL
v.
JOSE LUIS ALVAREZ-LOPEZ,
MEMORANDUM DECISION AND
ORDER
Defendant/Movant.
INTRODUCTION
Pending before the Court is Jose Luis Alvarez-Lopez’s (“Alvarez-Lopez”) Motion
to Vacate Pursuant to 28 U.S.C. § 2255 (Dkt. 1). Having reviewed the Motion as well as
the Response (Dkt. 7), Reply (Dkt. 8), and the underlying criminal record, the Court
enters the following Order denying the Motion.
PROCEDURAL BACKGROUND
On May 1, 2008, Alvarez-Lopez was charged in a complaint and on May 14, 2008,
in an indictment with one count of conspiracy to distribute 500 grams or more of
methamphetamine beginning on or about November 2007 and continuing to on or about
April 30, 2008 in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and § 846 (Count One)
MEMORANDUM DECISION AND ORDER - 1
and with distributing 500 grams or more of methamphetamine on or about April 28, 2008
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count Four). Complaint, Crim. Dkt.
1; Indictment, Crim. Dkt. 23. Attorney Ronald Christian was appointed counsel for
Alvarez-Lopez for the initial appearance on the Complaint and continued to represent him
through the appeal.
On January 22, 2009, Alvarez-Lopez entered into a Plea Agreement with the
Government the factual basis of which included statements of one co-Defendant that he
obtained methamphetamine on three different occasions from Alvarez-Lopez, and
Alvarez-Lopez’s alleged admissions upon arrest that he had sold drugs for approximately
six months with a second co-Defendant and that $6,000 cash found in his closet during a
search constituted drug proceeds. Plea Agreement, Crim. Dkt. 68; Reply, App. 1, Civ.
Dkt. 8. He also agreed to testify against co-Defendant Chavez-Hernandez at his
upcoming trial. Prior to the change of plea hearing, Alvarez-Lopez decided to forego
pleading guilty and to proceed to trial as noted in counsel’s Motion to Continue Trial
(Crim. Dkt. 80).
The Court granted Alvarez-Lopez’s subsequent Motion to Sever his trial from that
of Chavez-Hernandez. Order, Crim. Dkt. 90. Trial was set for February 24, 2009. Id.
The day before trial, the parties advised the Court that Alvarez-Lopez would enter a plea.
Not. of Hearing, Crim. Dkt. 95. At the time set for trial, Alvarez-Lopez entered a plea of
guilty to Count One of the Indictment without a Plea Agreement in exchange for
dismissal of Count Four. Min. Entry, Crim. Dkt. 98. The factual basis for the plea was
MEMORANDUM DECISION AND ORDER - 2
much more limited than that included in the prior written Plea Agreement. Despite the
lack of a written Plea Agreement, the Government advised the Court that it would
consider – but not promise or guarantee – a USSG § 5K1.1 motion for a departure for
substantial assistance if Alvarez-Lopez testified against co-Defendant Chavez-Hernandez
at trial. Plea Tr. at 13. He was not called and did not testify at the trial. Exhibit and
Witness List, Crim. Dkt. 106.
At sentencing, the Government refused to make a§ 5K1.1 motion and argued
against safety-valve relief from the statutory minimum of ten years pursuant to 18 U.S.C.
§ 3553(f) on the grounds that Alvarez-Lopez was not being truthful with the Government.
Following an evidentiary sentencing hearing, the Court found that Alvarez-Lopez was not
eligible for the safety valve and sentenced him to the mandatory minimum of 120 months
on Count One based on a guideline range of 120-121 months. Min. Entry, Crim. Dkt.
126; Judgment, Crim. Dkt. 129. Count Four was dismissed on the Government’s motion.
Order, Crim. Dkt. 128. Counsel then timely filed a notice of appeal. On October 4,
2010, the Ninth Circuit Court of Appeals affirmed the Court’s denial of safety valve
relief. USCA Mem. Dec., Crim. Dkt. 140. Alvarez-Lopez subsequently filed the pending
§ 2255 Motion alleging ineffective assistance of counsel at all stages of the proceeding
and alleging errors on the part of the Court.
REVIEW OF § 2255 MOTION
Alvarez-Lopez has raised twenty-five (25) claims and numerous subclaims, the
vast majority of which challenge the voluntariness of his plea and allege ineffective
MEMORANDUM DECISION AND ORDER - 3
assistance of counsel. He also cites error on the part of the Court in certain respects
primarily in denying safety valve relief. Although the ineffective assistance of counsel
claims are directed at appointed counsel Ronald Christian, it is important to note that
Alvarez-Lopez was also represented concurrently by retained counsel Kirk Anderson
from November of 2008, before the change of plea, through sentencing. The Government
has obtained and submitted affidavits of each counsel with its Response. See Affdavit of
Kirk J. Anderson, Dkt. 7-1; Affidavit of Ron Christian, Dkt. 9.1
The claims raised by Alvarez-Lopez cover virtually every phase of the criminal
proceeding: pre-plea, plea, sentencing, and appeal. Underlying many of the claims is his
position that faulty interpretation of his confession at his post-arrest interrogation and
difficulty in understanding the officers’ questions at the time of his interrogation and
subsequent attempts at cooperation led to the failure to receive the safety valve and
benefit of a § 5K1.1 motion. Significantly, as noted above, the Court heard testimony on
this issue at the sentencing hearing and was therefore in a position to evaluate the relative
credibility of Alvarez-Lopez and the investigating officers.
The Government urges dismissal of all claims without an evidentiary hearing.
Alvarez-Lopez did not rebut any of the statements in the affidavits of counsel in his
Reply. Rather, he addressed only Ground 10 which the Government had alleged in its
Response lacked specificity.
1
The Affidavit of Ron Christian submitted with the Government’s Response as Dkt. 7-2 was
missing a page. The Affidavit of Ron Christian appearing at Dkt. 9 is the complete document.
MEMORANDUM DECISION AND ORDER - 4
STANDARDS OF LAW
1.
28 U.S.C. § 2255
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may
grant relief to a federal prisoner who challenges the imposition or length of his or her
incarceration: (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;” and
(4) that the sentence is otherwise “subject to collateral attack.” 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal
district court judge must dismiss a § 2255 motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief.”
If the Court does not dismiss pursuant to Rule 4(b), the Court shall order the
Government “to file an answer, motion, or other response within a fixed time, or to take
other action the judge may order.”
The Court may dismiss a § 2255 motion at other stages of the proceeding such as
pursuant to a motion by respondent, after consideration of the answer and motion, or after
consideration of the pleadings and an expanded record. See Advisory Committee Notes
following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by
reference into the Advisory Committee Notes following Rule 8 of the Rules Governing
Section 2255 Proceedings.
MEMORANDUM DECISION AND ORDER - 5
If the Court does not dismiss the proceeding, the Court then determines under Rule
8 whether an evidentiary hearing is required. The Court need not hold an evidentiary
hearing if the issues can be conclusively decided on the basis of the evidence in the
record. See Frazer v. United States, 18 F.3d 778, 781 (9th Cir. 1994).
2.
Ineffective Assistance of Counsel
The well-established two-prong test for evaluating ineffective assistance of
counsel claims is deficient performance and resulting prejudice. See Strickland v.
Washington, 466 U. S. 668 (1984). Mere conclusory allegations are insufficient to state a
claim of ineffective assistance of counsel. See Shah v. United States, 878 F.2d 1156,
1161 (9th Cir. 1989). The Strickland standard applies to ineffective assistance of counsel
claims against appellate counsel as well. See Miller v. Keeney, 882 F.2d 1428 (9th Cir.
1989).
In order to establish deficient performance, a defendant must show that counsel’s
performance “fell below an objective standard of reasonableness.” Strickland, 466 U.S.
at 688. Under the performance prong, there is a strong presumption that counsel’s
performance falls “within the wide range of reasonable professional assistance.” Id. at
689. This is so because for the defendant, “[i]t is all too tempting . . . to second-guess
counsel’s assistance after conviction or adverse sentence. . . .” Id. For the court, “it is all
too easy to conclude that a particular act or omission of counsel was unreasonable in the
harsh light of hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002) (discussing Strickland).
In order to establish prejudice, a defendant must affirmatively prove by a
MEMORANDUM DECISION AND ORDER - 6
reasonable degree of probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. Strickland, 466 U.S. at 694. The Strickland
standard is “highly demanding.” Kimmelman v. Morrision, 477 U.S. 365, 381-82; 386
(noting that the court should “assess counsel’s overall performance throughout the case”
when evaluating whether his assistance was reasonable).
Both prongs of the Strickland test must be met “before it can be said that a
conviction (or sentence) ‘resulted from a breakdown in the adversary process that
render[ed] the result [of the proceeding] unreliable’ and thus in violation of the Sixth
Amendment.” United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005) (quoting
Strickland, 466 U.S. at 687).
Ineffective assistance of counsel claims for failure to file a notice of appeal are
also evaluated under the Strickland test. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
Where a defendant specifically instructs counsel to file a notice of appeal, failure to do so
constitutes ineffective assistance of counsel, and the lost chance to appeal constitutes
prejudice. United States v. Sandoval-Lopez, 409 F.3d 1193, 1196-98 (9th Cir. 2005).
However, where a defendant does not instruct counsel to either file or not file a notice of
appeal, the court must first determine whether counsel consulted with the defendant
regarding an appeal. Flores-Ortega, 528 U.S. at 477-78 (2000). If counsel has not done
so, then the court must determine whether that failure to consult in and of itself
constituted deficient performance. Id.
MEMORANDUM DECISION AND ORDER - 7
If counsel fails to consult with a defendant about an appeal in circumstances giving
rise to the duty to consult, a defendant must demonstrate that he would have timely
appealed but for counsel’s failure to consult. Id. at 484. Evidence that a defendant
sufficiently demonstrated an interest in appealing is not determinative that he would have
instructed counsel to file a notice of appeal after receiving reasonable advice. Id. at 486.
DISCUSSION
In evaluating Alvarez-Lopez’s claims, the Court is mindful of its obligation to
liberally construe “pro se complaints and motions from prisoners,” including § 2255
motions. See United States v. Seesing, 234 F.3d 456, 463 (9th Cir. 2000). See also
Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010) (same in context of a 42 U.S.C.
§ 1983 action noting obstacles caused by incarceration such as “limited access to legal
materials and sources of proof”).
As previously indicated, Alvarez-Lopez’s claims revolve primarily around his
contention that his initial interrogation was flawed due to the investigating officer’s
alleged inability to speak or understand Alvarez-Lopez’s dialect of Spanish.
Accordingly, to provide a backdrop to the allegations, the Court will go into considerable
detail about the arguments concerning the interrogation and subsequent attempts at
cooperation before addressing the individual claims.
1.
Confession and Cooperation Interviews
Idaho State Police Narcotics Detective Jose Banda interrogated Alvarez-Lopez at
the time of his arrest. Sent. Tr. at 28. They conversed in Spanish because Detective
MEMORANDUM DECISION AND ORDER - 8
Banda had spoken Spanish his entire life and had interviewed many people in Spanish
over his twenty years as a law enforcement officer. Id. at 29-30. According to Detective
Banda, Alvarez-Lopez stated that he and his two co-Defendants had been dealing drugs
for four to six months and had distributed four to six pounds of methamphetamine during
that time. Id. at 34. They discussed the price he charged for various amounts of the drug.
Id. The factual basis of his initial written Plea Agreement was based on Alvarez-Lopez’s
alleged confession. The factual basis also included his alleged admission that he had
$5,000 or $6,000 at his residence that were proceeds from prior sales of drugs. Plea
Agreement, Crim. Dkt. 67 at 5-6.
As stated above, although he initially signed the Plea Agreement, Alvarez-Lopez
subsequently decided against pleading guilty pursuant to that Plea Agreement. He
contended that he and Detective Banda could not communicate effectively because
Detective Banda spoke poor Spanish which prevented effective communication.
Christian Aff. ¶ 9. Alvarez-Lopez contended that he had not admitted many of the facts in
Detective Banda’s report. Id.
In an attempt to secure a § 5K1.1 motion, counsel set a debriefing interview on
October 28, 2008. Defense counsel arranged for the services of a Spanish interpreter
when advised that Detective Banda would again be conducting the interview. Id. at ¶ 12.
After an hour of questioning, the interpreter sua sponte told counsel that she did not
believe Alvarez-Lopez and Detective Banda were communicating effectively in Spanish
essentially because they spoke different dialects. Id. ¶ 14. The interview was terminated,
MEMORANDUM DECISION AND ORDER - 9
and the Government requested a continuance of the trial to investigate whether the
confession was voluntary. Id. ¶ 16.
Negotiations continued, and Attorney Kirk Anderson was engaged by AlvarezLopez’s family to assist with the defense. Both he and Attorney Christian met with
Alvarez-Lopez two days before the February 22, 2009 trial setting. Christian Aff. ¶¶ 1718; Anderson Aff. ¶ 5. Because both attorneys felt that he was quite likely to lose at trial,
they worked with Alvarez-Lopez to come up with a sufficient factual basis to support the
conspiracy charge to which the Government would agree. Christian Aff. at ¶ 18;
Anderson Aff. ¶ 5. The Government agreed to the more limited factual basis which
included the following admissions: (1) that he knew that his codefendants were selling
methamphetamine, (2) that he had been nearby when methamphetamine was sold at the
JC Penny’s store; (3) that he had provided a location for them to exchange the
methamphetamine; and (4) that he telephoned them at least once to warn them that they
were being investigated by law enforcement. Id. ¶ 19.
2.
Plea Hearing
As illustrated below, at the change of plea hearing held on February 24, 2009, the
Court conducted a very thorough Rule 11 plea colloquy, and Alvarez-Lopez did not
express any of now claimed confusion or hesitancy at any time during the hearing.
After being sworn, Alvarez-Lopez testified under oath that he had been able to
understand the advice of counsel with the assistance of an interpreter, that he had had
adquate time to be with his attorney before making his appearance at the plea hearing,
MEMORANDUM DECISION AND ORDER - 10
that he was satisfied in all respects with the services of counsel, and that he was not under
the influence of any medication or drugs. Plea Tr. at 3-4. He further testified under oath
that he had read and gone over the conspiracy charge against him and felt that he
understood it. Plea Tr. at 4. AUSA Lucoff then recited the limited factual basis agreed
upon by the parties as to Alvarez-Lopez’s involvement in the offense and recited some
additional facts to which Alvarez-Lopez had agreed to admit. Plea Tr. at 5-7. The
additional facts included that through a confidential informant, the Idaho State Police had
purchased approximately four ounces of methamphetamine from one of the co-defendants
on March 18, 2008, another four ounces from the same co-defendant on April 16, 2008,
and two pounds on April 30, 2008 which precipitated the arrests. Plea Tr. at 5-6.
Following the recitation of the factual basis, the Court advised Alvarez-Lopez that
the offense carried a maximum punishment of life and a minimum of ten years. Plea Tr.
at 7. Alvarez-Lopez stated that he understood the maximum possible punishment. Plea
Tr. at 8. He was then advised that he could still elect to have a trial by jury where the
Government would have to prove his guilt beyond a reasonable doubt, and that he would
enjoy the presumption of innocence and the right to remain silent. Plea Tr. at 8-9. The
Court then elaborated on the various constitutional protections that would be afforded him
if he went to trial. Plea Tr. at 9. Finally, the Court advised Alvarez-Lopez that he would
be waiving each and every one of those protections except for representation by counsel.
Plea Tr. at 9-10. Alvarez-Lopez then stated under oath that he understood his
MEMORANDUM DECISION AND ORDER - 11
constitutional rights, would waive them, and would proceed with the plea hearing. Plea
Tr. at 10.
Before accepting his plea, the Court advised Alvarez-Lopez, among other things,
that any prediction of the sentence would be just that and not a promise, that the Court
had to consider relevant conduct, and that it could consider aggravating as well as
mitigating circumstances. Plea Tr. at 11-12. Alvarez-Lopez stated under oath that he
was aware of that. Plea Tr. at 12. The Court then went on to describe ways in which the
sentencing guideline range could be increased or decreased. Plea Tr. at 12. He stated he
was aware of those factors. Plea Tr. at 12-13.
AUSA Lucoff then clarified to the Court that in addition to dismissing Count Two,
he had advised counsel that if Alvarez-Lopez testified truthfully against co-Defendant
Chavez-Hernandez, the Government would consider making a § 5K1 motion, “but there
has been no promise or guarantee of that.” Plea Tr. at 13. This prompted the Court to
stress that it would be the Government that would make the decision about whether a
§ 5K1.1 motion would be filed or not, that the Court could not force it to happen, and that
it would be up to the Court as to whether and to what extent a departure should be made if
the motion was made. Id. at 14. Alvarez-Lopez stated under oath that he understood.
Plea Tr. at 14. He then admitted the factual basis as recited by AUSA Lucoff and entered
his plea which he agreed he was making voluntarily and of his own free will. Plea Tr. at
14-15. The Court concluded the plea hearing by describing the Presentence Report and
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sentencing processes and asking Alvarez-Lopez whether he had any questions at all. Plea
Tr. at 16-17. He stated under oath that he did not. Plea Tr. at 17.
3.
Grounds for Relief
A.
Pre- Plea Claims
(1)
Illegal Search and Seizure and Failure of Counsel to Contest
In Ground One, Alvarez-Lopez alleges that investigators, in violation of the Fourth
Amendment, searched his residence without a warrant or probable cause merely because
he was present in the vicinity when his two co-defendants were arrested and that counsel
was ineffective for not moving to suppress the evidence obtained in the search. The
Government asserts, and Alvarez-Lopez does not deny in his Reply, that he consented to
the search. Nor did Alvarez-Lopez contradict the statements of counsel that AlvarezLopez confirmed that he had consented to the search of his home and other property.
Christian Aff. ¶¶ 2, 4.
A search conducted without a warrant based on probable cause absent consent is
“per se unreasonable.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (citations
omitted). Consent, however, excuses the need for a warrant. Id. See also United States
v. Huffhines, 967 F.2d 314, 318 (9th Cir. 1992) (“A search conducted pursuant to valid
consent is an exception to the fourth amendment’s warrant and probable cause
requirements.”).
Because Alvarez-Lopez consented to the search, there was no basis for challenging
the search. Therefore, counsel was not deficient in failing to move to suppress the
MEMORANDUM DECISION AND ORDER - 13
evidence seized in the search. In any event, no inculpatory evidence was found during
the search. Response at 8; Christian Aff., ¶ 4. Although some cash was found, it was not
traceable to any drug sales.2 Id. Furthermore, even if the search had been illegal, preplea constitutional claims are not cognizable after entry of a plea. See Tollett v.
Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly
admitted in open court that he is in fact guilty of the offense with which he is charged, he
may not thereafter raise independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.”)
(2)
Failure to Prepare for Confession
In a portion of Ground Ten, Alvarez-Lopez asserts that counsel was ineffective for
failure to prepare for a confession. The Government urges dismissal of this ground
because it is not sufficiently detailed, specific, or non-conjectural and fails to articulate
how counsel failed to prepare for the confession. Response at 8. In his Reply, AlvarezLopez explains the basis for this claim. It appears that he is not referring to the
confession he made upon his arrest but rather to the failure of counsel to properly prepare
him for entry of his plea and cooperating with the Government. The Court will therefore
address this claim below.
2
The only evidence that the cash was connected to the drug sales was Alvarez-Lopez’s alleged
confession which the Government did not use.
MEMORANDUM DECISION AND ORDER - 14
B.
Plea Stage
(1)
Knowing and Voluntary Plea
A guilty plea is constitutionally valid only if it is “voluntary” and “intelligent.”
Bousley v. United States, 523 U.S. 614, 618 (1998) (citing Brady v. United States, 397
U.S. 742, 748 (1970)). A guilty plea is deemed valid when a defendant is advised of the
nature and elements of the charges against him as well as the possible punishment and
understands that he is waiving his constitutional rights to avoid self-incrimination, to
confront his accuser, and to have a jury decide his case. See Brady, 397 U.S. at 749. See
also Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). Furthermore, to be valid, a plea
must not be made based on threats, misrepresentations, or improper promises. Brady, at
755.
Statements made in open court at the time of a plea carry a strong presumption of
verity and are entitled to great weight. Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir.
1986) (citing Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)); see also United States v.
Kazcynski, 239 F.3d 1108, 1114-15 (9th Cir 2001) (“substantial weight” must be given to
in-court statements). Even though that presumption is not necessarily an insurmountable
barrier to an evidentiary hearing, the “subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are contentions that in the
face of the record are wholly incredible.” Id. (citations omitted).
Here, Alvarez-Lopez contends that his plea was involuntary for several reasons:
(1) because he spoke a different dialect than the investigators did and the Court accepted
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the “misinterpreted confession (Ground 2); (2) because the Court did not properly address
the “numerous instances where [he] indicated his unwillingness, hesitance in changing
his plea and his misunderstanding of the process that he was engaged in. . . .;” (Brief re
Ground 2); (3) because his plea was based on his uncorroborated statements of
investigators (Ground 3); (4) because the plea was rushed (Ground 5); (5) because he
understood the sentence would be less than he received, he did not understand the burden
of proof, the Court should have explained the burden, and the Court did not determine he
actually understood (Ground 6 and Brief at 12-13; Ground 11); (6) because he was not
provided with the assistance of a translator throughout the investigation, there were
numerous misunderstandings throughout the plea colloquy, and he exhibited “repeated
displays of confusion” during the plea colloquy (Ground 7); (7) because he did not
respond to the Court’s inquiry whether he understood the sentencing process and showed
“hesitance and misunderstanding” during the plea colloquy (Ground 8); and (8) that it
was not clarified that if he were deemed indigent he would not have to bear the cost of
counsel through trial despite having advised the Court of his misunderstanding (Grounds
9 and 11 and Brief at 21-22).
The vast majority of Alvarez-Lopez’s allegations are wholly incredible in the face
of the record. The plea was based on the limited facts he was willing to admit and not
based on his confession. He did not exhibit any uncertainty, hesitance, confusion, or
misunderstanding at the plea hearing. The Court advised him that the statutory minimum
was ten years absent the safety valve. The Court explained the burden of proof and the
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sentencing process, and indeed counsel had already been appointed precisely because he
could not afford counsel. He stated under oath than he understood everything discussed
at the plea hearing. A translator was utilized at all Court appearances, and counsel
engaged the services of a translator during all of his significant discussions with AlvarezLopez. Christian Aff. ¶ 26. Despite his claim that he confessed involvement in only a
small amount of drugs, the record reflects that he pleaded guilty to involvement with two
pounds of methamphetamine which exceeds the 500 grams or more of methamphetamine
alleged in the count of conviction. Specifically, as part of his recitation of the factual
basis of the plea, to which Alvarez-Lopez agreed, AUSA Lucoff stated:
It is my understanding that Mr. Alvarez-Lopez is prepared to
admit to his role in the conspiracy. That being that he
supplied a business or safe location for Mr. Aguirre and Mr.
Chavez-Hernandez to exchange methamphetamine; in
particular, the two pounds of methamphetamine delivered on
April 30, 2008.
Plea Tr. at 7.
As for his specific claim that the plea was rushed because of counsel’s ineffective
assistance and therefore not voluntary and knowing, the Court notes that the case he cites
in his brief in inapposite. See Brief at 10 (citing United States v. Howard, 381 F.3d 873
(9th Cir. 2004)). The court in Howard stated that “[t]he late timing of the proffer of the
plea does not, by itself, support an ineffective assistance of counsel claim.” Id. at 881.
The court found only that “[w]hen combined with Howard’s uncontroverted drug use and
allegations of incompetence [as a result of the use of powerful narcotic pain medication],
however, the claim [of ineffective assistance of counsel] has sufficient merit to justify an
MEMORANDUM DECISION AND ORDER - 17
evidentiary hearing.” Id. Here, there is no such analogous credible issue that coupled
with the late plea would warrant an evidentiary hearing on the claim of ineffective
assistance of counsel on that basis.
Alvarez-Lopez also bases his claim that his plea was involuntary on various claims
of ineffective assistance of counsel during the plea stage. However, as shown below,
Alvarez-Lopez has not met his burden of demonstrating the requisite deficient
performance and prejudice.
Alvarez-Lopez’s stated grounds are merely conclusory allegations made in
hindsight that do not support a finding of fraudulently induced or involuntary plea. Nor
do they overcome the strong presumption of verity of his sworn statements at the change
of plea hearing which complied in every respect with the requirements of Fed. R. Crim. P.
11.
(2)
Ineffective Assistance of Counsel
The appropriate standard for determining prejudice in cases involving plea
bargains is that the defendant must show “a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 59 (1985). The Ninth Circuit has construed Hill to encompass
prejudice claims that the defendant would have received a better plea bargain absent
ineffective assistance of counsel. See United States v. Baramdyka, 95 F.3d 840, 846 (9th
Cir. 1996). See also Howard, 381 F.3d at 882 (citing Baramkyka).
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The Supreme Court has recognized that “[p]lea bargains are the result of complex
negotiations suffused with uncertainty, and defense attorneys must make careful strategic
choices in balancing opportunities and risks” of a plea. Premo v. Moore, 131 S.Ct. 733,
741 (2011). Considerations surrounding these strategic choices in the pre-trial context
“make strict adherence to the Strickland standard all the more essential when reviewing
the choices an attorney made at the plea bargain stage.” Id.
A difference of opinion regarding tactics is not proof of ineffective assistance of
counsel because “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” See Cox v. Ayers, 613 F.3d
883, 893 (9th Cir. 2010) (citing Strickland, 466 U.S. at 690 and United States v. Mayo,
646 F.3d 369, 375 (9th Cir. 1981) (per curiam)).
In addressing Alvarez-Lopez’s claims of ineffective assistance of counsel during
the plea stage, the Court gives great deference to counsels’ reasoned belief that the
evidence against Alvarez-Lopez, even without the confession, was quite strong. See
Anderson Aff. ¶¶ 4, 6, 12; Christian Aff. ¶¶ 5, 10, 17, 18.
(a)
Failure to Withdraw Plea
Alvarez-Lopez claims his attorney was ineffective for failing to seek to have his
plea withdrawn based on the fact that he and Detective Banda allegedly spoke different
dialects which led to a misinterpretation of his confession (Ground 2).
“A defendant who moves to withdraw a guilty plea before a sentence is imposed is
not required to show that he would not have pled, but only that the proper legal advice of
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which he was deprived ‘could have at least plausibly motivated a reasonable person in
[the defendant's] position not to have pled guilty....’” United States v. Bonilla, 637 F.3d
980, 983 (9th Cir. 2011) (quoting United States v. Garcia, 401 F.3d 1008, 1011–12 (9th
Cir. 2005)). “A pre-sentence motion to withdraw a plea should be freely allowed if a
defendant can show a ‘fair and just reason’ for requesting the withdrawal.” Id. (quoting
United States v. Davis, 428 F.3d 802, 808 (9th Cir. 2005)). The Ninth Circuit has cited
examples of a “fair and just reason:” “ . . . inadequate Rule 11 plea colloquies, newly
discovered evidence, intervening circumstances, or any other reason for withdrawing the
plea that did not exist when the defendant entered his plea.” United States v. McTiernan,
546 F.3d 1160, 1167 (9th Cir. 2008) (internal citation and quotation marks omitted).
Here, Alvarez-Lopez has not met his burden of establishing entitlement to
withdraw his plea. He has not shown that counsels’ advice to plead in the face of strong
evidence not based on the confession could have led a reasonable person not to plead
guilty. The Rule 11 colloquy was thorough, his claims of expressions of confusion during
the colloquy are conclusively rebutted in the record, there is no claim of newly discovered
evidence, intervening circumstances, or any other reason that did not exist at the time he
entered his plea. At the time of his plea, he obviously knew of his confession and of his
claim that Detective Banda misinterpreted his confession due to translation issues.
Accordingly, counsel’s performance was not deficient in not advising him to move to
withdraw his plea.
MEMORANDUM DECISION AND ORDER - 20
To the extent that Alvarez-Lopez claims the imposition of a higher than expected
sentence constitutes grounds for withdrawing his plea, the Court notes the Ninth Circuit’s
guidance in United States v. Nostratis:
A defendant cannot withdraw his plea because he realizes that
his sentence will be higher than he had expected. See [United
States v.] Alber, 56 F.3d [1106] at 1111 [9th Cir. 1995]
(upholding denial of a plea withdrawal motion where the
defendant “moved to withdraw his plea only after he realized
that he was going to receive a heavier sentence than he
expected”); Shah [v. United States], 878 F.2d [1156] at 1162
[9th Cir. 1989] (“Nor do we believe that fear of receiving a
harsh sentence, standing alone, constitutes a ‘fair and just’
reason to withdraw a plea[.]”). Defendants cannot plead guilty
to “test the weight of potential punishment” and then
withdraw their plea if the sentence is “unexpectedly severe.”
United States v. Ramos, 923 F.2d 1346, 1359 (9th Cir.1991),
overruled on other grounds by Ruiz, 257 F.3d at 1032.
United States v. Nostratis, 321 F.3d 1206, 1211 (9th Cir. 2003).
The Court finds that counsel was not ineffective for failing to urge withdrawal of
the plea. Alvarez-Lopez was well aware of the potential of receiving a sentence at the
mandatory minimum given that he was advised of the possibility by counsel and the
Court. See Plea Tr. at 7; Anderson Aff. ¶¶ 6, 7, 12, 13; Christian Aff. ¶¶ 5, 6, 7, 18, 24,
25. At no time did he ask counsel to move to withdraw his plea. Anderson Aff. ¶ 10;
Christian Aff. ¶ 10.
(b)
Failure to Obtain a Written Plea Agreement
In Ground 5, Alvarez-Lopez alleges that counsel should have obtained a written
Plea Agreement because it would have ensured a lesser sentence and departure because
the Government would have been contractually obligated to move for the departure. The
MEMORANDUM DECISION AND ORDER - 21
written Plea Agreement he received from the Government and rejected, contained a
provision to request a downward departure for substantial assistance and relief from the
mandatory minimum. However, just as with the Government’s oral statement at the plea
hearing, it provided that the Government would only move for the departure if it
determined that he provided complete and truthful information. Having a written Plea
Agreement would not have given Alvarez-Lopez any advantage over the non-written Plea
Agreement. He was still obligated to tell the complete truth to attain the departure.
Furthermore, a written Plea Agreement would have required him to waive his right to
appeal except in very limited circumstances. Without a written Plea Agreement, he was
free to appeal any issue and, in fact, did so albeit unsuccessfully. Accordingly, the Court
finds that counsel was not ineffective for failure to obtain a written Plea Agreement.
(c)
Failure to Prepare for Plea
In Ground 10, Alvarez-Lopez alleges ineffective assistance of counsel for failure
to prepare for the plea and for his debriefiing. The Government urges dismissal of this
claim on the grounds that it is not sufficiently definite, specific, detailed, and nonconjectural. In his Reply, Alvarez-Lopez clarified this claim and supporting argument.
Alvarez-Lopez states that he decided to plead guilty and cooperate with the
Government soon after his April 30, 2008 arrest because Attorney Christian told him that
it was highly likely that he would be found guilty if he went to trial. Reply, at 2. He
referred to the October 28, 2008 debriefing attempt that was aborted after the interpreter
issues discussed above. Id. He acknowledges he signed a written Plea Agreement on
MEMORANDUM DECISION AND ORDER - 22
January 21, 2009 and that it was not presented to the Court because the Government
disagreed with him about his role in the offense. Id. at 2-3. He also references the
February 24, 2009 debriefing attempt that terminated because he would not admit the
facts to which Detectives Banda and Christiansen said he confessed after his arrest. Id. at
3. He claims that “Attorney Christian never advised [him] to agree with the role that the
government insisted [he] played in the offense.” Id. at 3. He continued:
Attorney Christian failed to provide the professional advice
that Petitioner needed in order to make an intelligent,
informed decision during the plea-bargaining process.
Knowing about Petitioner’s eagerness to cooperate with the
government during the various debriefings, Attorney
Christian should have advised Petition to put aside his
disagreement with the detectives and focus instead on the
sentencing benefits that Petitioner would receive by assisting
the government in the criminal investigation and prosecution
of other participants in the conspiracy.
Reply at 4.
Alvarez-Lopez has proclaimed his minimal involvement in the conspiracy in the
debriefings and throughout his § 2255 Motion. Against that backdrop, his argument is
tantamount to saying that counsel should have told him to lie in order to get a better
sentence. Alvarez-Lopez would have had to admit under oath at the plea hearing the very
statements he adamantly denies having made. Alvarez-Lopez points to the provision in
the written Plea Agreement regarding cooperation and a § 5K1.1 motion. The
Government offered the same conditions with respect to the oral plea. The Court finds
that Alvarez-Lopez has demonstrated neither deficient performance nor prejudice on this
claim.
MEMORANDUM DECISION AND ORDER - 23
(d)
Failure to Correct Misinterpreted Admission of Guilt to
Incorrect Charge
In Ground 11, Alvarez-Lopez alleges that the Court and counsel were well aware
that his admission of guilt was obtained as a result of the “misinterpreted translation by
investigators” and that counsel should have ensured that he knew his right to counsel and
a jury trial before permitting him to waive those rights. Brief at 21-22. Again, the guilty
plea was based on carefully negotiated facts and not based on his confession.
Furthermore, even if counsel did not advise of his right to counsel and a jury trial, the
record is clear that the Court did so. See Plea Tr. at 8-9. Therefore, Alvarez-Lopez was
not prejudiced by any such failure. In his brief, he states that even if counsel was not
aware of his “lack of understanding,” Alvarez-Lopez advised the Court in front of counsel
of his misunderstanding. This claim is rebutted by the record. The plea hearing transcript
contains no such statement. Accordingly, this claim is subject to dismissal.
C.
Sentencing Stage
Alvarez-Lopez alleges claims of Court error and claims of ineffective assistance of
counsel at the sentencing stage of the criminal proceedings.
(1)
Court Error
(a)
Failure to Determine Review of PSR with Counsel
Alvarez-Lopez claims the Court failed to inquire whether he and counsel had an
opportunity to review the Presentence Report together (Ground 25). This claim is
rebutted by the record. The Court noted that the Presentence Report had been completed
and inquired as follows:
MEMORANDUM DECISION AND ORDER - 24
THE COURT: . . . Have you had an opportunity to go over
that with your counsel?
THE DEFENDANT: Yes.
THE COURT: You have noted, then, that the tentative
findings as to the recommended Guideline calculations are a
total combined offense level of 30, criminal history category
I, which provides for a sentencing range, because of the
statutory minimum of 120-121 months . . . .
Other than any written objections and/or motions that may
have been previously filed, do you have any dispute as to the
Guideline calculations?
THE DEFENDANT: No.
Sent. Tr. at 3-4.
Because Alvarez-Lopez’s claim is conclusively rebutted by the record, it is subject
to dismissal.
(b)
Violation of Right to Confront Witnesses
Alvarez-Lopez claims that he was deprived of due process and the right to
confront witnesses because the Court relied on misinterpreted testimony (Ground 24).
The record reflects that he had the opportunity to confront Detectives Banda and
Christiansen at the sentencing hearing regarding that misinterpreted statement.
Furthermore, the Court relied on his admissions at the plea hearing and not on the
allegedly misinterpreted testimony. Accordingly, this claim is subject to dismissal.
(c)
Safety Valve
Alvarez-Lopez alleges that the Court erred by not granting safety-valve relief. He
raised this same claim on appeal. “Issues disposed of on a previous direct appeal are not
reviewable in a subsequent § 2255 proceeding. The fact that the issue may be stated in
MEMORANDUM DECISION AND ORDER - 25
different terms is of no significance.” United States v. Currie, 589 F.2d 993, 995 (9th Cir.
1979) (citations omitted). Accordingly, this claim is subject to dismissal.
(d)
Fair Sentencing Act of 2011
Alvarez-Lopez claims that his sentence should be reduced by four points under the
Fair Sentencing Act of 2011 and that he should be resentenced. The Court assumes that
he is referring to the Fair Sentencing Act of 2010 (“FSA”).
Congress passed the FSA to reduce the disparity between the amounts of crack
cocaine and powder cocaine needed to trigger mandatory minimum sentences. Dorsey v.
United States, 132 S.Ct. 2321, 2326 (2012). The FSA changed the threshold quantities of
crack cocaine and authorized the United States Sentencing Commission to amend the
sentencing guidelines to reflect the changes. United States v. Davis, 739 F.3d 1222, 1224
(9th Cir. 2014). Alvarez-Lopez’s offense involved methamphetamine and not crack
cocaine. Accordingly, this claim is subject to dismissal for that reason alone.
(2)
Ineffective Assistance of Counsel
Alvarez-Lopez asserted several grounds of ineffective assistance of counsel which
are subject to dismissal because the mandatory minimum and failure to qualify for the
safety valve precluded a lower sentenced than he received or because they are rebutted by
the record.
(a)
Failure to Request Various Departures or Variances
Alvarez-Lopez claims counsel should have requested a variance for criminal
history (Ground 18), a 4-level role reduction (Ground 17), a departure for familial
MEMORANDUM DECISION AND ORDER - 26
obligations (Ground 19), and a departure for alien status (Ground 20) and should have
introduced mitigating evidence (Ground 21). Because the Court determined that AlvarezLopez was not entitled to the safety valve and the Government did not move for a
§ 5K1.1 departure, arguing for a lesser sentence would have been futile. Accordingly, he
cannot demonstrate prejudice and these claims are subject to dismissal.
(b)
Failure to Prepare for Sentencing
Alvarez-Lopez contends that counsel failed to adequately prepare for sentencing
(Grounds 4, 10, and 21). He argues that counsel did not argue for the promised § 5K1.1
departure and did not introduce mitigating evidence. Otherwise, he provided no specific
deficiencies in support of the claim.
The record reflects that counsel were well prepared for sentencing in that they
presented testimony and cross examined Detectives Banda and Christiansen in an effort to
demonstrate that language and translation issues caused the Government to think that he
was being less than truthful and that should receive the benefit of the safety valve. As
shown below, counsel was unable to locate the interpreter who identified the dialect
difference. However, counsel called Alvarez-Lopez and his wife to testify about the
language difficulty in the interpreter’s absence. Finally, as stated above, introduction of
any mitigating evidence would have been futile given the ruling on the safety valve.
Accordingly, these claims of failing to prepare for sentencing are subject to dismissal.
(c)
Failure to Object to the Drug Quantity Determination
MEMORANDUM DECISION AND ORDER - 27
Alvarez-Lopez claims that counsel failed to object to the drug quantity
determination on the grounds that the amount was speculative, that he was not seen with
any drugs, that counsel stated at the plea hearing that he intended to challenge the drug
quantity, and that he had advised the Court at the plea hearing that he allowed his place of
business to be used for a “small” amount of drugs only. The plea transcript rebuts the
latter two grounds. Those statements were not made.
The drug quantity was based on Alvarez-Lopez’s admission at the plea hearing
that he supplied a safe location for his co-conspirators to exchange two pounds of
methamphetamine (500 grams or more) triggering the mandatory minimum sentence that
was imposed. See Plea Tr. at 5-7. Furthermore, as the Government points out in its
Response, objecting to the drug quantity and arguing for a lower amount would have
violated the Plea Agreement and possibly jeopardized his entitlement to the 2-level
adjustment for acceptance of responsibility that he received. Accordingly, because
Alvarez-Lopez can demonstrate no deficient performance or prejudice, this claim is
subject to dismissal.
MEMORANDUM DECISION AND ORDER - 28
(d)
Failure to Move to Continue Sentencing
Alvarez-Lopez claims that counsel should have moved to continue the sentencing
to secure the attendance of the interpreter who noted the dialect problems (Grounds 15
and 16). Counsel advised the Court at the sentencing hearing that he could not locate the
interpreter. His affidavit details the exhaustive efforts he made to locate her. Christian
Aff. ¶¶ 32, 33, 36. That a continuance would have resulted in his locating the interpreter
and that her testimony would have changed the outcome of the hearing is purely
speculative. Counsel made reasonable efforts to try to locate her. Accordingly, this claim
is subject to dismissal.
(e)
Failure to Review the PSR with Him
Alvarez-Lopez claims that counsel did not review the Presentence Report with
him. As stated above, the record reflects otherwise. He stated in response to the Court’s
questioning at the outset of the sentencing hearing that he and counsel had reviewed the
Presentence Report. Sent. Tr. 3-4. Furthermore, counsels’ affidavits concur that they
reviewed the Presentence Report with Alvarez-Lopez with the assistance of an interpreter.
Anderson Aff. ¶ 17; Christian Aff. ¶ 39. Accordingly, this claim is subject to dismissal as
rebutted by the record.
(f)
Failure to Renew Objection Regarding Safety Valve
Alvarez-Lopez claims that after sentencing he told counsel that he wanted to
withdraw his plea, but counsel chose to appeal the safety valve issue instead and failed to
appeal again after he lost the appeal (Ground 13). As stated above, there were no
MEMORANDUM DECISION AND ORDER - 29
colorable grounds for withdrawing his plea. Counsel appealed the issue and lost. He
could not appeal the issue a second time. Alvarez-Lopez claims counsel ignored the lack
of evidence to support his conviction. However, in reality, it is Alvarez-Lopez who
ignores that there was evidence aside from his confession such as the testimony of one of
the co-Defendants, phone records indicating that he was a middle man, and his finger
print on the bag of methamphetamine. Sent. Tr. at 73. Such evidence convinced not one
but two attorneys that he would be most certainly be convicted if he went to trial.
Counsel felt strongly enough about the issue that he appealed without even having
consulted with Alvarez-Lopez. Christian Aff. ¶ 27. He acted reasonably in the
circumstances. Accordingly, this claim is subject to dismissal.
(g)
Counsel’s Cumulative Errors
Alvarez-Lopez claims that counsel’s cumulative “failures” combined to deprive
him of effective assistance of counsel (Ground 23). The Court has considered each of the
alleged deficiencies and determined that counsel’s representation was reasonable and, that
even if it was not, there was no resulting prejudice. Accordingly, this claim is subject to
dismissal.
D.
Appeal
As noted by the Government in its Response, Alvarez-Lopez does not allege
failure to file an appeal. Rather, he makes the conclusory allegations devoid of specifics
that he asked counsel to appeal each and every issue raised in this § 2255 Motion. As
stated above, mere conclusory allegations are insufficient to state a claim of ineffective
MEMORANDUM DECISION AND ORDER - 30
assistance of counsel. Shah, 878 F.2d at 1161. Therefore, the Court will credit counsels’
statements regarding the issue of appeal. Alvarez-Lopez did not ask Attorney Anderson
to appeal. Anderson Aff. ¶ 14. Indeed, Attorney Anderson did not have any contact with
him following sentencing. Id. Attorney Christian likewise had no contact with AlvarezLopez or his family following sentencing and was frustrated at the lack of
communication. Christian Aff. ¶ 27. Nevertheless, he “felt compelled to and did file an
appeal.” Id.
Attorney Christian filed an appeal challenging the Court’s decision not to grant
safety valve relief which was by far the most significant issue. Without the safety valve
relief, most of his other claims would be moot and his ineffective assistance of counsel
claims were not cognizable on appeal. Were counsel to succeed on the safety valve issue,
Alvarez-Lopez would be resentenced and the Court would have been free to consider
various departures, variances, and mitigating evidence. That he did not succeed does not
render his performance deficient. That he did not raise any other issues on appeal also
does not render his performance deficient.
A defendant does not have a constitutional right to have appellate counsel raise
every non-frivolous issue on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). “In
many instances, appellate counsel will fail to raise an issue because she foresees little or
no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely
recognized as one of the hallmarks of effective appellate advocacy . . . .”
MEMORANDUM DECISION AND ORDER - 31
Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989). Including every weak issue on
appeal detracts from attention appellate judge can give to stronger issues and reduces
counsel’s credibility thereby likely serving a client less effectively. Id. Many of AlvarezLopez’s claimed grounds for appeal are indeed not only weak but frivolous. “An appeal
is frivolous if the results are obvious, or the arguments of error are wholly without merit.
[T]he decision to appeal should be a considered one, ... not a knee-jerk reaction to every
unfavorable ruling.” In re George, 322 F.3d 586, 591 (9th Cir. 2003) (internal quotation
marks and citations omitted).
Here, although counsel apparently did not consult with Alvarez-Lopez about filing
an appeal, there is no prejudice. Alvarez-Lopez did not lose his right to appeal. Counsel
appealed the strongest issue and omitted the weak and frivolous issues that would only
become relevant, if at all, if the Ninth Circuit had remanded for resentencing.
Accordingly, Alvarez-Lopez’s claim of ineffective assistance of counsel on appeal, to the
extent he made one, is subject to dismissal.
CONCLUSION
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky,
559 U.S. 356, 371 (2010). “[T]he Strickland standard must be applied with scrupulous
care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process
the right to counsel is meant to serve.” Harrington v. Richter, 131 S.Ct. 770, 788 (2011)
(quoting Strickland, 466 U.S. at 689-90). Great deference should be used when judging
an attorney’s representation because “the attorney observed the relevant proceedings,
MEMORANDUM DECISION AND ORDER - 32
knew of materials outside the record, and interacted with the client, with opposing
counsel, and with the judge.” Id. “The question is whether an attorney’s representation
amounted to incompetence under ‘prevailing professional norms,” not whether it deviated
from best practices or most common custom.” Id. (citing Strickland, 466 U.S. at 690).
Here, not one but two attorneys reviewed the evidence and concluded that
Alvarez-Lopez would almost certainly lose if he went to trial especially given the fact that
his fingerprint was found on the bag of methamphetamine. They thus made the eminently
reasonable decision to recommend that Alvarez-Lopez enter a plea and to focus on
receiving safety valve relief and a § 5K1.1 departure. That neither pursuit was successful
was not due to counsel’s deficient performance but rather to Alvarez-Lopez’s inability or
refusal to admit the level of his involvement in the conspiracy even in the face of the
strong evidence against him. Moreover, Alvarez-Lopez’s repeated claims of having
expressed confusion at the plea hearing are conclusively rebutted by the record. Finally,
any claims to entitlement to departure under any ground were mooted by the Court’s
decision regarding the safety valve, a decision that was upheld on appeal.
The Court had the benefit of having actually heard evidence at the sentencing
hearing regarding the key issue underlying Alvarez-Lopez’s § 2255 Motion – the
misinterpreted confession. Having heard that testimony, presided over the trial of coDefendant Chavez-Hernandez, and had Detective Banda and Detective Christiansen
appear before the Court many times in the past, the Court was comfortable in its decision
that Alvarez-Lopez was not being completely truthful. The Ninth Circuit affirmed that
MEMORANDUM DECISION AND ORDER - 33
decision. Therefore, Alvarez-Lopez’s claims of Court error are either rebutted by the
record, barred from relitigating where raised on appeal, or lacking merit as stated above.
CERTIFICATE OF APPEALABILITY
A § 2255 movant cannot appeal from the denial or dismissal of his § 2255 motion
unless he has first obtained a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b). A certificate of appealability will issue only when a movant has made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this standard when the court has dismissed a § 2255 motion (or claims within a
§ 2255 motion) on procedural grounds, the movant must show that reasonable jurists
would find debatable (1) whether the court was correct in its procedural ruling, and (2)
whether the motion states a valid claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484 (2000).3 When the court has denied a § 2255 motion or
claims within the motion on the merits, the movant must show that reasonable jurists
would find the court’s decision on the merits to be debatable or wrong. Slack, 529 U.S. at
484; Allen v. Ornoski, 435 F.3d 946, 951 (9th Cir. 2006).
After carefully considering the record and the relevant case law, the Court finds
that reasonable jurists would not find the Court’s determination that counsel’s
3
The requirements for a certificate of appealability for a § 2255 appeal do not appear to differ
from the requirements for a certificate of appealability for a § 2254 habeas petition related to a state
conviction. See United States v. Asrar, 116 F.3d 1268 (9th Cir. 1997). Therefore, cases addressing the
requirements in the context of a § 2254 proceeding are pertinent to a § 2255 proceeding as well.
MEMORANDUM DECISION AND ORDER - 34
performance was not constitutionally deficient, that the plea was not invalid, or that the
Court did not err to be debatable or wrong. Accordingly, a certificate of appealability
will not issue.
ORDER
IT IS ORDERED:
1.
Jose Luis Alvarez-Lopez’s Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. 1) is DENIED and
DISMISSED in its entirety.
2.
No certificate of appealability shall issue. Alvarez-Lopez is advised that he
may still request a certificate of appealability from the Ninth Circuit Court
of Appeals, pursuant to Federal Rule of Appellate Procedure 22(b) and
Local Ninth Circuit Rule 22-1. To do so, he must file a timely notice of
appeal.
5.
If Alvarez-Lopez files a timely notice of appeal, and not until such time, the
Clerk of Court shall forward a copy of the notice of appeal, together with
this Order, to the Ninth Circuit Court of Appeals. The district court’s file in
this case is available for review online at www.id.uscourts.gov.
DATED: August 13, 2014
Honorable Edward J. Lodge
U. S. District Judge
MEMORANDUM DECISION AND ORDER - 35
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