Rico-Villalobos v. United States of America

Filing 4

ORDER re 1 Pro Se Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action 13-CR-3014-LRR) filed by Jose Manuel Rico-Villalobos. Prior counsel is directed to file an affidavit by 6/23/2018. The clerk's office is directed t o serve both parties with a copy of the documents that counsel files. Movant may object to the court's order directing previous counsel to file an affidavit by 5/9/2018. The clerk of court is directed to appoint counsel. Movant, through appointe d counsel, may file an amended 2255 motion by 5/9/2018. The respondent shall file its response by 7/23/2018. Movant's responsive pleading due by 8/23/2018. The 2 Pro Se Motion for Leave to Proceed in forma pauperis filed by Jose Manuel Rico -Villalobos is denied as moot. The clerk of court is directed to reclassify the 3 Pro Se Motion for Writ of Coram filed by Jose Manuel Rico-Villalobos, as a supplement to 1 Pro Se Motion. Signed by Judge Linda R Reade on 4/9/2018 (copy w/NEF to Plt, eLilledahl, eWolson, eCJA). (skm) (Additional attachment(s) added on 4/9/2018: # 1 Return Receipts) (skm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
JOSE MANUEL RICO-VILLALOBOS,
Movant,

No. C18-3003-LRR

vs.

ORDER

UNITED STATES OF AMERICA,
Respondent.
____________________________

This matter is before the court on the movant’s 28 U.S.C. § 2255 motion (docket
no. 1). Movant filed his motion on January 8, 2018. Also before the court are movant’s
application to proceed in forma pauperis (docket no. 2) and pro se petition for a writ of
coram nobis (docket no. 3).1
As an initial matter, there is no filing fee for a motion pursuant to 28 U.S.C. §
2255 and the court anticipates few, if any, fees associated with the prosecution of
movant’s § 2255 action. Accordingly, movant’s application to proceed in forma pauperis
(docket no. 2) is denied as moot. If movant does incur expenses at a latter point in this
case, he may renew his motion.
Rule 4(b) of the Rules Governing Section 2255 Proceedings requires the court to
conduct an initial review of the motion.

Under that rule, summary dismissal is

appropriate where the allegations are vague or conclusory, palpably incredible, or

1

Despite being styled as a petition for a writ of coram nobis, the court will consider
docket no. 3 as a supplemental to movant’s § 2255 motion because that document merely
expounds upon the issues raised in movant’s first filing (docket no. 1). The clerk of court is
directed to reclassify that document (docket no. 3) as a supplement.

patently frivolous or false. See Blackledge v. Allison, 431 U.S. 63, 75-76 (1977).
According to 28 U.S.C. § 2255(f), a 1-year limitations period shall apply to motions filed
under 28 U.S.C. § 2255. See, e.g. Taylor v. United States, 792 F.3d 865, 869 (8th Cir.
2015). The limitation period shall run from the latest of (1) the date on which the
judgment of conviction becomes final; (2) the date on which the impediment to making a
motion created by governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making a motion by such
governmental action; (3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review; or (4) the date on which the
facts supporting the claim or claims presented could have been discovered through the
exercise of due diligence. 28 U.S.C. § 2255(f). This is a strict standard with only a
very narrow exception. As set out by the Eighth Circuit Court of Appeals:
the Antiterrorism and Effective Death Penalty Act of 1996 imposed, among
other things, a one-year statute of limitations on motions by prisoners under
section 2255 seeking to modify, vacate, or correct their federal sentences.
See Johnson v. United States, 544 U.S. 295, 299, 125 S.Ct. 1571, 161
L.Ed.2d 542 (2005). The one-year statute of limitation may be equitably
tolled “only if [the movant] shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’
and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 130 S.
Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418, 125 S. Ct. 1807, 161 L.Ed.2d 669 (2005)) (applicable
to section 2254 petitions); see also United States v. Martin, 408 F.3d 1089,
1093 (8th Cir.2005) (applying same rule to section 2255 motions).
Muhammad v. United States, 735 F.3d 812, 815 (8th Cir. 2013).
Movant pled guilty to one count related to the distribution of methamphetamine on
August 5, 2013. (See CR13-3014-LRR, docket no. 30). On December 9, 2013, the
court sentenced movant to 87 months incarceration. (See CR13-3014-LRR, docket no.
43). Movant did not appeal. On April 17, 2015, this court lowered movant’s sentence
2

to 57 months incarceration pursuant to the All Drugs Minus-Two Guideline Amendment.
(See CR13-3014-LRR, docket no. 48). Movant did not appeal.
Based on the date movant’s conviction became final (sometime in early 2014), his
motion, filed on January 8, 2018, was beyond the one-year statute of limitations set out
in 28 U.S.C. § 2255(f)(1). However, movant alleges that ineffective assistance of counsel
tainted his guilty plea pursuant to the rational recognized in Lee v. United States, _ U.S.
_, 137 S. Ct. 1958, 1969 (2017). (See docket no. 3). Assuming, without deciding, that
movant’s motion is premised on a new constitutional rule, his motion would be filed
within the one-year limitation period articulated in 28 U.S.C. § 2255(f)(3) because it was
filed less than a year after Lee was decided. Because it is possible that movant’s motion
is timely filed pursuant 28 U.S.C. § 2255(f)(3), the court will order the case briefed.2
The parties are DIRECTED to respond in the following manner:
1.
The government is DIRECTED to file a brief in response to the
movant’s amended § 2255 motion on or before July 23, 2018. The
government may attach relevant materials to its brief.
2.
If he so chooses, the movant is DIRECTED to file a brief in reply
to the government’s response and/or additional materials related to § 2255
motion on or before August 23, 2018.
The movant raises at least one claim of ineffective assistance of counsel. A claim
of ineffective assistance of counsel waives the attorney-client privilege as to
communications with the attorney that are necessary to prove or disprove the claim. See
Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) (“When a client calls into
public question the competence of his attorney, the privilege is waived.”); see also United
Statesv. Pinson, 584 F.3d 972, 978 (10th Cir. 2009) (citing Tasby, 504 F.2d at 336);

2

This analysis does not prejudice the respondent’s right to make any argument it deems
appropriate regarding the timeliness of movant’s motion or the applicability of 28 U.S.C. §
2255(f)(3).

3

United States v. Davis, 583 F.3d 1081, 1090 (8th Cir. 2009) (making clear that attorneyclient privilege cannot be used as both a sword and a shield); In re Lott, 424 F.3d 446,
453 (6th Cir. 2005) (citing Tasby, 504 F.2d at 336); Bittaker v. Woodford, 331 F.3d 715,
720 (9th Cir. 2003) (addressing scope of waiver); United States v. Ballard, 779 F.2d
287, 292 (5th Cir. 1986) (permitting an attorney to reveal otherwise privileged
communications when defending himself against charges of improper conduct);
Schwimmer v. United States, 232 F.2d 855, 863 (8th Cir. 1956) (indicating that waiver
may be express or implied).
Therefore, counsel whose representation is challenged is DIRECTED to file with
the court an affidavit that responds only to the movant’s specific allegation(s) of
ineffective assistance of counsel. Such affidavit must contain all of the information that
counsel reasonably believes is necessary to respond to the movant’s specific allegation(s).
In addition, counsel is DIRECTED to attach to, or include with, his or her affidavit all
of the documents that he or she reasonably believes are necessary to respond to the
movant’s allegation(s). This court-supervised response to the movant’s allegation(s) must
be filed with the court on or before June 23, 2018. The clerk of court is DIRECTED to
provide a copy of this order to the movant’s former counsel.3 After counsel complies
with the court’s directives, the clerk’s office is DIRECTED to serve both parties with a
copy of the documents that counsel files. If the movant objects to counsel responding as
ordered herein, the movant is DIRECTED to notify the court of the objection and the
basis for the objection by May 9, 2018.

Upon receipt of an objection by the movant,

3

Relevant ethical guidelines are set in the ABA Model Rules of Professional Conduction.
See ABA Model Rules of Prof’l Conduct R. 1.6(b)(5)-(6); see also ABA Model Rules of Prof’l
Conduct R. 1.6 cmt. 12-15. If counsel concludes that he or she cannot comply with this order
without violating an attorney-client privilege or if counsel concludes that he or she cannot
reasonably determine the scope of the waiver of the attorney-client privilege, counsel is directed
to file a response, in camera with a request for a protective order if necessary, that specifically
states the reasons for his or her conclusion. To comply with this order, counsel must file either
an affidavit, a response or, if appropriate, a combination of the two by the required date.

4

the court will notify the parties and counsel that they need not take further action until
they are directed to do so by the court.
Finally, after considering the issues raised in movant’s motion, the court concludes
that the appointment of counsel is appropriate. See 28 U.S.C. § 2255(g). The clerk of
court is direct to appoint counsel to represent movant in this matter. If appointed counsel
deems it appropriate, appointed counsel may file an amended or substituting § 2255
motion by May 9, 2018.
IT IS THEREFORE ORDERED:
(1)

Movant’s motion to proceed in forma pauperis (docket no. 2) is denied as
moot.

(2)

The clerk of court is directed to reclassify docket no. 3 as a supplement.

(3)

The clerk of court is directed to appoint counsel as set out above.

(4)

Movant, through appointed counsel, may file an amended § 2255 motion
by May 9, 2018.

(5)

Movant may object to the court’s order directing previous counsel to file
an affidavit by May 9, 2018.

(6)

The clerk of court is directed to provide a copy of this order to movant’s
prior counsel. As set out above, prior counsel is directed to file affidavit
by June 23, 2018.

(7)

The respondent shall file its response on or before July 23, 2018.

(8)

If he so chooses, the movant may file a responsive pleading on or before
August 23, 2018.

DATED this 9th day of April, 2018.

5