Lnu v. USA
Filing
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MEMORANDUM OPINION AND ORDER: 1. United States Magistrate Judge Robert E. Wier's Recommended Disposition [Record No. 175 in 6:06-cr-96-1] is ADOPTED IN FULL and INCORPORATED by reference. 2. Defendant Estrada-Elias' Objections [Recor d No. 176 in 6:06-cr-96-1] to the Recommended Disposition are OVERRULED. 3. Defendant Estrada-Elias petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [Record No. 166 in 6:06-cr-96-1] is DENIED. This matter is DI SMISSED WITH PREJUDICE and STRICKEN from the Court's docket. 4. Defendant Estrada-Elias' motion for appointment of counsel and an evidentiary hearing [Record No. 166 in 6:06-cr-96-1] is DENIED. 5. The Court declines to issue a Certificate of Appealability. 6. A judgment in favor of the United States shall issue this date. Signed by Judge Danny C. Reeves on 11/16/2015.(KJA)cc: COR, paper copy to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
V.
HORACIO RAUL ESTRADA-ELIAS,
Defendant/Movant.
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Criminal Action No. 6: 06-96-DCR
and
Civil Action No. 6: 15-7398-DCR
MEMORANDUM OPINION
AND ORDER
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This case is pending for consideration of Defendant/Movant Horacio Raul EstradaElias’ pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
[Record No. 166] The motion was referred to United States Magistrate Judge Robert E.
Wier for issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). On
October 19, 2015, Magistrate Judge Wier issued a Recommended Disposition in which he
recommends that Estrada-Elias’ motion be denied as time-barred.
[Record No. 175]
Magistrate Judge Wier also recommends that the Court deny a Certificate of Appealability.
Id.
Estrada-Elias has filed timely objections to Magistrate Judge Wier’s Recommended
Disposition.
[Record No. 176]
However, after conducting a de novo review of the
defendant’s motion, the Court will adopt Magistrate Judge Wier’s Recommended
Disposition and deny the relief Estrada-Elias seeks.
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I.
On April 10, 2007, Estrada-Elias pled guilty to Count 1 of the Superseding
Indictment, charging a conspiracy to distribute 1,000 kilograms or more of marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and 846. [Record No. 108] Estrada-Elias also agreed to
forfeit certain assets identified in Count 2. Id. Estrada-Elias was represented throughout the
case by Walter Nash, a retained attorney from Tucson, Arizona, and Martin Pinales, a
retained attorney from Cincinnati, Ohio. As part of the Plea Agreement, Estrada-Elias
“waive[d] the right to appeal and the right to attack collaterally the guilty plea, conviction
and sentence, including any order of restitution.
[Record No. 152, ¶
8]
The Plea
Agreement also provided that Estrada-Elias “will not file a motion for a decrease in the
offense level based on a mitigating role pursuant to U.S.S.G. § 3B1.2 or a departure motion
pursuant to U.S.S.G. Chapter 5, Parts H or K.” Id., ¶ 7. However, the agreement allowed
the United States to file a motion for downward departure if Estrada-Elias provides
substantial assistance in the investigation or prosecution of others involved in the offense. It
specifically stated that, “[t]he determination as to whether the Defendant provided substantial
assistance is solely within the discretion of the United States.” Id. at ¶ 9.
On April 24, 2008, this Court sentenced Estrada-Elias to life without release, the
mandatory minimum set by the United States Sentencing Guidelines. [Record No. 151] At
the conclusion of the sentencing hearing, the clerk informed Estrada-Elias that he should file
a Notice of Appeal with the Sixth Circuit within ten days of the entry of the judgment if he
wished to appeal his conviction. [Record No. 173-2, p. 53] However, Estrada-Elias never
filed a Notice of Appeal.
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On May 19, 2015, Estrada-Elias filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255. [Record No. 166] Estrada-Elias signed and dated the
motion May 11, 2015, certifying that the motion was placed in the prison mailing system on
that date. Id. at 13. In his motion and attached “Declaration,” Estrada-Elias asserts that,
“Counsel Nash has perpetrated an [sic] 9 year fraud that led petitioner to believe that an
appeal would be filed – if necessary.” Id. at 4. According to Estrada-Elias, he only pled
guilty to a life sentence because his counsel and the Court told him that he would be
resentenced later under Rule 35 of the Federal Rules of Criminal Procedure. [Record No.
166-1] Estrada-Elias also claims that he waited to file an appeal because of his counsel’s
promise that he would be resentenced at a later date. Thus, Estrada-Elias contends that the
Court should vacate its judgment and re-enter it, thereby recommencing the time for him to
file a Notice of Appeal. [Record No. 166, p. 13] Alternatively, Estrada-Elias seeks an
evidentiary hearing1 “or any other relief to which movant may be entitled.” Finally, EstradaElias requests appointment of appellate counsel.2 Id. at 12.
On May 20, 2015, Magistrate Judge Wier directed Estrada-Elias to show cause no
later than June 22, 2015 as to why his motion should not be dismissed as untimely. [Record
1
Subsection (b) of 28 U.S.C. § 2255 provides that the district court shall grant a
prompt hearing “[u]nless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief.” Because the record establishes that 28 U.S.C.
§ 2255(f) bars the motion as untimely, the Court will deny Estrada-Elias’ request for an
evidentiary hearing.
2
Subsection (g) of 28 U.S.C. § 2255 together with 18 U.S.C. § 3006A(a)(1)(B) leaves
appointment of counsel in the district court’s discretion. Because the motion is clearly time
barred by 28 U.S.C. § 2255(f), appointed counsel is unnecessary to the disposition of this
§ 2255 motion, and Estrada-Elias’ motion for appointed counsel will be denied.
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No. 167] Thereafter, Magistrate Judge Wier granted him an extension until July 22, 2015 to
respond. [Record Nos. 168 and 169] Magistrate Judge Wier denied Estrada-Elias’ second
motion for an extension, and Estrada-Elias responded to the show cause order on August 11,
2015. [Record No. 173]
Estrada-Elias claims that § 2255’s one year statute of limitation should be equitably
tolled because he diligently contacted his lawyer for years and “only now is convinced that
Attorney Walter Nash’s efforts are a fraud.” Id. at 5. As support, Estrada-Elias attached his
own affidavit, swearing to the veracity of the response; the transcripts of the rearraignment
and sentencing; a “Letter of Declaration” signed by his daughter, Elizabeth Estrada-Abuzaid;
and a letter to Estrada-Elias from Nash providing information about payments made by
Estrada-Elias’ family on his behalf to Nash’s law firm in 2006. [Record Nos. 173-1 and 1732]
Having reviewed all materials relevant to this matter, the undersigned concludes that
Estrada-Elias filed his motion after § 2255’s one-year period of limitation ended, and he has
not shown that he is entitled to equitable tolling. Therefore, this Court will adopt Magistrate
Judge Wier’s recommendation and deny Estrada-Elias’ motion.
Likewise, the Court
concludes that Estrada-Elias is also not entitled to a Certificate of Appealability.
II.
Title 28 of the United States Code, § 2255(f), establishes a one-year statute of
limitation for motions under § 2255. Generally, this one-year period begins on “the date on
which the judgment becomes final,” but it may also begin “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).
-4-
It is undisputed that Estrada-Elias’ motion was not filed within one year of the
judgment becoming final. Judgment upon Estrada-Elias’ plea of guilty was filed on April 24,
2008. [Record No. 151] Estrada-Elias admits in his “Sworn Declaration and Attestation”
that he received a copy of the judgment in jail. [Record No. 176-5, p. 22] He also attached
to his Objections a copy of the Court’s Advice of Right to Appeal, informing him that he has
ten days from the entry of the judgment to file a notice of appeal. [Record No. 176-3]
Because Estrada-Elias never filed an appeal, under the Federal Rules of Appellate Procedure
in place at the time, the judgment became final on May 5, 2008, ten days after its entry. Fed.
R. App. P. 4(b)(1)(A) (2008 ed.).3 Estrada-Elias mailed his § 2255 motion to the Court on
May 11, 2015, over seven years after the judgment became final. Accordingly, the motion is
time-barred under § 2255(f).
III.
Even though he admittedly filed the motion well after the one-year period, EstradaElias argues that his attorneys’ unfulfilled promises support a finding of equitable tolling of
the otherwise applicable time limitation. The Sixth Circuit has recognized that § 2255 is
subject to equitable tolling. Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir. 2001),
abrogated on other grounds by Hall v. Warden, 662 F.3d 745 (6th Cir. 2011). “A habeas
petitioner is entitled to rely upon equitable tolling only if he can make a two-part showing:
(1) he has pursued his rights diligently; and (2) some extraordinary circumstance prevented
untimely filing.” Robertson v. Simpson, 624 F.3d 781, 784 (6th Cir. 2010). According to the
3
As Magistrate Judge Wier observes in his Recommended Disposition, Federal Rule of
Appellate Procedure 4(b)(1)(A) now gives criminal defendants fourteen days to file a Notice
of Appeal. [Record No. 175, p. 3, n. 4]
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Sixth Circuit in Robertson, “an attorney’s failure to satisfy professional standards of care
may constitute extraordinary circumstances.” Id. However, even if a petitioner proves
extraordinary circumstances, he still has the burden of proving that he diligently pursued his
rights. Id. at 786. Magistrate Judge Wier was correct in concluding that Estrada-Elias has
not satisfied either prong.
Estrada-Elias has failed to show a violation of any professional standards of care,
amounting to extraordinary circumstances. In fact, all of the evidence presented by EstradaElias proves that his counsel and the Court acted appropriately in the circumstances.
Estrada-Elias accuses his counsel of perpetrating a “continuous and ongoing fraud” by
accepting $225,000.00 to represent him and then continuously threatening him and
ultimately abandoning him. [Record No. 166, p. 4]
In the letter from Nash to Estrada-Elias dated March 16, 2015, Nash purports to
disclose all the details of payments made on Estrada-Elias’ behalf to Nash’s firm. [Record
No. 173-2] According to Nash, all of the payments were made in 2006 before Estrada-Elias
even entered a guilty plea. Based on the evidence provided by Estrada-Elias, neither he nor
his family have continuously made payments to Nash in expectation of continued services.
Nash was paid to represent Estrada-Elias in these criminal proceedings, and he did so
through sentencing.
Estrada-Elias also states that he relied on representations made by Nash and Pinales to
his daughter Elizabeth that they were actively working on reducing his sentence. In her
“Letter of Declaration” attached to Estrada-Elias’ show cause response, Elizabeth avers that
Pinales told her that there was nothing they could do other than wait for the United States
Attorney’s Office to file a motion for a downward departure. [Record No. 173-2, p. 59]
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Pinales’ representations to Elizabeth were consistent with Estrada-Elias’ plea agreement.
The rearraignment transcript, also submitted by Estrada-Elias, establishes that the Court
explained all relevant waivers to Estrada-Elias.
[Record No. 173-2, pp. 18-20]
The
Assistant United States Attorney also explained during the rearraignment that the United
States had discretion in determining whether to motion for downward departure on the basis
of substantial assistance. Id. at 11. Further, the record demonstrates that Estrada-Elias
understood that a motion for downward departure was not certainty. When asked by the
Court during rearraignment if he had been promised a specific sentence in exchange for the
guilty plea, Estrada-Elias answered no. Id. at 14.
The letters written by Estrada-Elias’ counsel and attached to his Objections resolve
many of the issues he raises. [Record No. 176-2] In a letter dated July 24, 2013, Pinales
attempts to clarify for Estrada-Elias some of the “misunderstandings about what we have
said to you and to Elizabeth.” Id. Pinales does not ask Estrada-Elias not to talk to anyone
about his case. Rather, he warns Estrada-Elias about discussing certain facts from the case in
outgoing letters that may be viewed by other inmates. Id. In a letter dated July 15, 2014,
Nash explains that he and Pinales are working to determine whether Estrada-Elias qualifies
for an early release program for inmates with serious health problems. Id. at 3. Nash goes
on to remind Estrada-Elias of the entire negotiation process leading up to his guilty plea. Id.
at 4-5. Nash states that, at one point, Estrada-Elias wanted to back out of the negotiations
and proceed to trial but then changed his mind. According to Nash,
We were able to keep the proposed deal open, you entered your guilty plea,
and we moved forward with the next step. However, when the critical time
came, you pursued a different course which resulted in your not receiving the
benefit of the program we created for you. Marty and I recognized that this
was your decision, but the consequences of it were not our fault.
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Unfortunately, you chose to change the course of what you agreed [to] do after
you had entered a guilty plea. We tried to reopen the discussion with the
prosecution, but they were not interested after the position you took in a
meeting with them.
Id. at 5-6.
In short, as Nash’s letter suggests, Estrada-Elias never received a sentence reduction
because he refused to fully cooperate with the government. Whatever happened, neither
Nash nor Pinales had any control over whether the U.S. Attorney’s Office filed a motion for
a departure or a sentence reduction. Nothing in the record indicates that Estrada-Elias’
counsel represented anything contrary to him. Instead, the record indicates that Estrada-Elias
was fully appraised by the Court and by his attorneys that any reduction from his original
sentence was discretionay with the government. Finally, the six-year delay in filing the
motion is substantial. And Estrada-Elias has not provided any credible proof to excuse such
a lengthy delay.
IV.
The applicable limitations period for seeking relief under 28 U.S.C. § 2255 should not
be tolled under the facts presented. Further, a Certificate of Appealability will not issue.
Slack v. McDaniel, 529 U.S. 473 (2000). Jurists of reason wount not find this Court’s
procedural determination fairly debatable. Therefore, based on the foregoing discussion and
analysis, it is hereby
ORDERED as follows:
1.
United States Magistrate Judge Robert E. Wier’s Recommended Disposition
[Record No. 175] is ADOPTED IN FULL and INCORPORATED by reference.
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2.
Defendant Estrada-Elias’ Objections [Record No. 176] to the Recommended
Disposition are OVERRULED.
3.
Defendant Estrada-Elias’ petition to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255 [Record No. 166] is DENIED. This matter is DISMISSED WITH
PREJUDICE and STRICKEN from the Court’s docket.
4.
Defendant Estrada-Elias’ motion for appointment of counsel and an
evidentiary hearing [Record No. 166] is DENIED.
5.
The Court declines to issue a Certificate of Appealability.
6.
A judgment in favor of the United States shall issue this date.
This 16th day of November, 2015.
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