Lopez-Monjaraz v. USA

Filing 3

ORDERED that the motion to vacate or correct sentence pursuant to 28 U.S.C. § 2255 is GRANTED in-part and DENIED in-part in accordance with this order. FURTHER ORDERED that the clerk of court shall VACATE and RE-ENTER the judgment (Doc. #20 in Case No. 3:09-cr-00046). Signed by Judge Larry R. Hicks on 10/18/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA

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Plaintiff,

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v.

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GILBERTO LOPEZ-MONJARAZ,

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Defendant.

3:09-cr-0046-LRH-RAM
ORDER

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Before the court is defendant Gilberto Lopez-Monjaraz’s (“Monjaraz”) motion to vacate, set

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aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Doc. #22.1

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I.

Facts and Procedural History

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On November 3, 2009, Monjaraz pled guilty to possessing with intent to distribute 500

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grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii).

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Doc. #14. Monjaraz was subsequently sentenced to one hundred eighty-eight (188) months

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incarceration. Doc. #20. Thereafter, on June 9, 2011, Monjaraz filed the present motion to vacate

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pursuant to 28 U.S.C. §2255. Doc. #22.

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Refers to the court’s docket number.

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II.

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Discussion
Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or correct

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a sentence if “the sentence was imposed in violation of the Constitution or laws of the United

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States, or that the court was without jurisdiction to impose such sentence, or that the sentence was

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in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”

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28 U.S.C. § 2255; 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and

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Procedure § 41.3b (5th ed. 2005).

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In his motion for relief under § 2255, Monjaraz argues that his counsel was constitutionally

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ineffective because his counsel failed to file a notice of appeal after he requested an appeal be filed

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and failed to raise an Apprendi challenge relating to the amount of methamphetamine which

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resulted in a higher base sentencing guideline range. See Doc. #22.

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The Sixth Amendment to the Constitution provides that criminal defendants “shall enjoy

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the right to have the assistance of counsel for his defense.” U.S. Const. Amend. VI. To establish

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ineffective assistance of counsel, a petitioner must show that his counsel’s performance was

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deficient, and that petitioner was prejudiced as a result of counsel’s deficient performance.

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Strickland v. Washington, 466 U.S. 668, 687 (1984). In determining whether counsel’s performance

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was deficient, the court must examine counsel’s overall performance, both before and at trial, and

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must be highly deferential to the attorney’s judgments.” Quintero-Barraza, 78 F.3d at 1348 (citing

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Strickland, 466 U.S. at 688-89) (internal quotations omitted). Once a petitioner has established that

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counsel’s performance was deficient, the petitioner “must then establish that there is a reasonable

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probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

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been different. A reasonable probability is a probability sufficient to undermine confidence in the

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outcome.” Id.

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1. Failure to File A Notice of Appeal

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Any attorney who “disregards specific instructions from the defendant to file a notice of

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appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470,

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477 (2000). In his motion, Monjaraz contends that he requested his attorney file a notice of appeal

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and that the attorney failed to do so. See Doc. #22.

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When presented with a defendant who claims that he ordered his attorney to file an appeal,

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the court has two options. First, “the district court can hold an evidentiary hearing to decide

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whether petitioner’s allegation is true, and if it is, vacate and re-enter the judgment, allowing the

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appeal to proceed.” United States v. Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir. 2004). Second,

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“if the state does not object, the district court can vacate and re-enter judgment without a hearing

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and allow the appeal to proceed, assuming without deciding that the petitioner’s claim is true.” Id.

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Here, the government does not object to vacating and re-entering the judgment. Therefore,

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the court shall grant Monjaraz’s motion as to this issue, vacate the judgment and re-enter it to allow

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Monjaraz an opportunity to file an appeal.

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2. Apprendi Challenge

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After reviewing the documents and pleadings on file in this matter, the court finds that

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Monjaraz has failed to establish that his counsel’s performance was constitutionally ineffective as it

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relates to raising an Apprendi challenge concerning the amount of methamphetamine used in his

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sentencing calculations. First, Monjaraz fails to provide any basis for his claim that he was entitled

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to an Apprendi challenge related to the amount of methamphetamine. Second, he fails to identify on

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which grounds his counsel could have raised such a challenge or that such a challenge would have

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been sustained in light of his acknowledgment in both the plea agreement and the plea hearing that

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at the time of his arrest he had in his possession over 5,000 grams of methamphetamine. Therefore,

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the court finds that Monjaraz has failed to establish that his claims are anything but frivolous.

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Accordingly, the court shall deny his motion to vacate, set aside, or correct sentence as to this issue.

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IT IS THEREFORE ORDERED that defendant’s motion to vacate or correct sentence

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pursuant to 28 U.S.C. § 2255 (Doc. #22) is GRANTED in-part and DENIED in-part in accordance

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with this order.

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IT IS FURTHER ORDERED that the clerk of court shall VACATE and RE-ENTER the
judgment in this action (Doc. #20).

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IT IS SO ORDERED.

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DATED this 18th day of October, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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