James v. United States of America
MAGISTRATE JUDGE'S [SECOND] PROPOSED FINDINGS AND RECOMMENDED DISPOSITION regarding Movant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 1 ) by Magistrate Judge Kirtan Kh alsa. Objections to Magistrate Judge's Proposed Findings and Recommended Disposition are due by 1/23/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (kmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Civ. No. 14-481 MV/KK
(Cr. No. 07-2251 MV)
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on:
(1) Defendant/Movant Evelyne James’
(“Movant”) claim, raised in her Brief in Support of Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence (Doc. 20), filed October 15, 2015, that her trial counsel provided
her with ineffective assistance by failing to appeal the denial of her motion to withdraw her
guilty plea and to substitute counsel; and, (2) Plaintiff/Respondent the United States of
America’s (“Government”) Motion to Enforce the Defendant’s Valid Appellate Waiver in the
Plea Agreement (Doc. 39) (“Motion to Enforce Appellate Waiver”), filed December 13, 2016.
For the following reasons, the undersigned recommends that the Court GRANT Movant’s
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (Doc. 1) (“Section 2255 Motion”) as to her ineffective assistance of counsel claim, and
VACATE and REENTER its judgment of conviction and sentence to allow Movant to file a
timely notice of appeal.
The undersigned further recommends that the Court DENY the
Government’s Motion to Enforce Appellate Waiver.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY 1
On November 6, 2007, a federal grand jury charged Movant, a member of the Navajo
Nation, with the first-degree murder of A.J., a minor, in Indian country, in violation of 18 U.S.C.
§§ 1111 and 1153. (CR Doc. 12.) 2 On May 24, 2012, pursuant to a signed plea agreement,
Movant pled guilty to an information charging her with the voluntary manslaughter of A.J., and
Chief United States Magistrate Judge Karen Molzen accepted Movant’s plea of guilty to the
reduced charge. (CR Docs. 59, 63; Doc. 6-2; Doc. 6-3 at 17.) Movant’s plea agreement
included a waiver of appellate and collateral attack rights, which stated:
the Defendant knowingly waives the right to appeal her conviction and any
sentence imposed in this case, except to the extent, if any, that the Court may
impose a sentence that differs from that agreed to by the parties under Federal
Rule of Criminal Procedure 11(c)(1)(C). Additionally, . . . the Defendant
knowingly waives the right to collaterally attack any sentence imposed in this
case except on the grounds of ineffective assistance of counsel.
(Doc. 6-2 at 6-7.)
The Court received a letter from Movant on June 28, 2012, 3 in which she asked to be
allowed to withdraw her guilty plea and for a new attorney. (CR Doc. 64.) On September 11,
2012, United States District Judge Martha Vázquez held a hearing to address Movant’s letter,
which was construed as a pro se motion to withdraw her plea and to substitute counsel. (CR
Docs. 72, 110.) After hearing the statements and arguments of the Government, Movant, and
The undersigned hereby incorporates by reference Section I of her August 10, 2016 Proposed Findings and
Recommended Disposition (“August 2016 PFRD”) in this matter, also entitled “Factual Background and Procedural
History.” (See Doc. 32 at 3-17.) The undersigned will not repeat all of that section’s particulars here, but rather,
will highlight those aspects that directly pertain to the issues now before the Court.
References to “CR Doc.” are to the docket in Cr. No. 07-2251 MV (D.N.M.), the underlying criminal case.
The letter was dated June 18, 2012. (CR Doc. 64 at 1.)
Movant’s trial counsel, Judge Vázquez denied Movant’s motion to withdraw her plea and to
substitute counsel, finding no
basis for withdrawal of your plea agreement. Because you have to have a legal
basis to withdraw your plea agreement, and I am not aware of any basis in your
letter for withdrawal of your plea agreement. Nor have I heard any reason to . . .
have your lawyer removed.
(CR Doc. 110 at 26-27.) On April 23, 2013, Judge Vázquez accepted Movant’s plea agreement
and sentenced her to 25 years’ imprisonment in accordance with the parties’ agreement pursuant
to Federal Rule of Criminal Procedure 11(c)(1)(C). (CR Doc. 94; CR. Doc. 101 at 48.) The
Court entered a judgment of conviction against Movant on May 20, 2013. (CR Doc. 95.)
Movant filed the Section 2255 Motion presently before the Court on May 22, 2014, 4
arguing in the motion and subsequent briefing that: (a) her sentence was illegal and her guilty
plea was unknowing and involuntary; (b) her trial counsel failed to represent her at the hearing
on her pro se motion to withdraw her plea and to substitute counsel, in violation of her Sixth
Amendment right to counsel; (c) the Court erred in denying her pro se motion to withdraw her
plea and to substitute counsel; and, (d) her trial counsel provided her with ineffective assistance
by failing to appeal that denial. (Doc. 1 at 4; Doc. 20 at 2, 6, 8-9; Doc. 26 at 3-12.) The
Government responded that Movant’s sentence was legal and her plea was knowing and
voluntary; that trial counsel represented her at all phases of the criminal proceedings; that the
Court properly denied her pro se motion to withdraw her plea and to substitute counsel; and, that
she has failed to show prejudice from her trial counsel’s failure to appeal that denial. (Doc. 25 at
After a comprehensive review of the pleadings and attachments in this civil proceeding
and the underlying criminal case, Cr. No. 07-2251 MV, the undersigned issued the August 2016
The Section 2255 Motion was dated May 18, 2014. (Doc. 1 at 9.)
PFRD, recommending that the Court dismiss all of Movant’s claims with prejudice, except the
claim that her trial counsel provided her with ineffective assistance by failing to appeal the denial
of her pro se motion to withdraw her guilty plea and to substitute counsel. (Doc. 32 at 41.) The
undersigned recommended that the Court reserve ruling on the latter claim pending a review of
Movant’s answers to interrogatories that the Court subsequently propounded. (Id.) Movant filed
objections to the August 2016 PFRD on August 24, 2016, (Doc. 34), and answers to the Court’s
interrogatories on September 19, 2016. (Doc. 37.)
In her interrogatory answers, Movant stated under oath that her trial attorney, Benjamin
Gonzales, never discussed with her whether he should file an appeal on her behalf of the Court’s
September 11, 2012 decision denying her pro se motion to withdraw her guilty plea and to
substitute counsel, at any time before the deadline for filing such an appeal had passed. (Doc. 37
at 1.) Movant further swore that, if Mr. Gonzales had done so, she would have timely told him
to file an appeal.
According to Movant, a number of witnesses would be able to
corroborate her sworn statements, including inmate Gloria Vigil, and family members Anne
James, Zandra James, Desirae Spencer, and Randall Spencer. (Id. at 2.)
Although the Court expressly permitted the Government to file a written response to
Movant’s interrogatory answers, with or without affidavits, the Government failed to do so.
(Doc. 33 at 2.) Thus, on December 7, 2016, the Court ordered the Government to show cause
why it should not deem the Government’s silence to be an admission that Movant’s interrogatory
answers are true and accurate. (Doc. 38 at 1.) The Government filed a response to the Court’s
Order to Show Cause on December 13, 2016. (Doc. 39.) In its response, the Government
refused to concede the veracity of Movant’s answers, but admitted that it had no “information or
belief” to refute them. (Id. at 3-5.) The Government also incorporated in its response its Motion
to Enforce Appellate Waiver. (Id. at 5-7.) Movant responded in opposition to the incorporated
motion on December 27, 2016, asserting that the Government waived its right to seek
enforcement of the appellate waiver by failing to do so earlier in these proceedings. (Doc. 40 at
On June 16, 2016, Judge Vázquez referred this matter to the undersigned to conduct any
proceedings necessary to recommend an ultimate disposition. (Doc. 28.) Movant’s claim that
her counsel provided her with ineffective assistance by failing to appeal the denial of her motion
to withdraw her plea and to substitute counsel, and the Government’s Motion to Enforce
Appellate Waiver, are now before the undersigned for proposed findings and a recommended
Movant’s Ineffective Assistance of Counsel Claim
For a defendant in a criminal case to succeed on a Sixth Amendment claim of ineffective
assistance of counsel, she must demonstrate both that: (1) “counsel’s representation fell below
an objective standard of reasonableness”; and, (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hill v. Lockhart, 474 U.S. 52,
57-58 (1985) (applying Strickland to plea process).
“[A] lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts in a manner that is professionally
unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). Thus, a defendant who shows
that her lawyer failed to file a notice of appeal despite the defendant’s specific instructions to do
so satisfies the first prong of the Strickland test. Id. Moreover, “if counsel does not file a
requested appeal, a defendant is entitled to a new appeal without a showing that his appeal likely
would have had merit.” United States v. Garrett, 402 F.3d 1262, 1265 (10th Cir. 2005) (citations,
internal quotation marks, and brackets omitted).
In other words, prejudice from counsel’s
deficient performance is presumed, thus satisfying Strickland’s second prong. Id.; see also
United States v. Parker, 720 F.3d 781, 785-86 (10th Cir. 2013) (“A defendant receives ineffective
assistance of counsel if his attorney disregards a specific instruction to take an appeal from a
conviction or sentence. Under such circumstances a defendant is entitled to a belated appeal
without showing the appeal to have merit.”) (citations omitted).
When a defendant has not specifically instructed counsel whether to file an appeal, the
required analysis is more complex. Id. at 785 n.3. As to the first Strickland prong, the pertinent
questions are whether counsel consulted with the defendant about an appeal, and, if not, whether
he had a duty to do so. Flores-Ortega, 528 U.S. at 478. Although “the better practice is for
counsel routinely to consult with the defendant regarding the possibility of an appeal,” the
Flores-Ortega Court “reject[ed] a bright-line rule that counsel must always” do so. Id. at 480.
counsel has a constitutionally imposed duty to consult with the defendant about an
appeal when there is reason to think either (1) that a rational defendant would
want to appeal (for example, because there are nonfrivolous grounds for appeal),
or (2) that this particular defendant reasonably demonstrated to counsel that he
was interested in appealing. In making this determination, courts must take into
account all the information counsel knew or should have known.
Id.; Parker, 720 F.3d at 785 n.3.
In deciding whether a duty to consult exists, one relevant factor is
whether the conviction follows a trial or a guilty plea, both because a guilty plea
reduces the scope of potentially appealable issues and because such a plea may
indicate that the defendant seeks an end to judicial proceedings. Even in cases
when the defendant pleads guilty, the court must consider such factors as whether
the defendant received the sentence bargained for as part of the plea and whether
the plea expressly reserved or waived some or all appeal rights. Only by
considering all relevant factors in a given case can a court properly determine
whether a rational defendant would have desired an appeal or that the particular
defendant sufficiently demonstrated to counsel an interest in an appeal.
Flores-Ortega, 528 U.S. at 480. Nevertheless, the Flores-Ortega Court stated the expectation
that “courts evaluating the reasonableness of counsel’s performance using the inquiry we have
described will find, in the vast majority of cases, that counsel had a duty to consult with the
defendant about an appeal.” Id. at 481.
As to the second Strickland prong, i.e., whether counsel’s deficient performance
prejudiced the defendant’s defense, a breach of the duty to consult with a defendant about an
must actually cause the forfeiture of the defendant’s appeal. . . . [T]o show
prejudice in these circumstances, a defendant must demonstrate that there is a
reasonable probability that, but for counsel’s deficient failure to consult with him
about an appeal, he would have timely appealed.
Id. at 484.
In the present matter, the undersigned proposes to find that trial counsel provided Movant
with ineffective assistance by failing to consult with her regarding whether to appeal the denial
of her motion to withdraw her plea and to substitute counsel. Initially, the undersigned proposes
to find that trial counsel had a duty to engage in such a consultation. By filing a motion to
withdraw her plea and to substitute counsel on her own initiative, and by arguing in support of
that motion at a hearing before Judge Vázquez, Movant reasonably demonstrated to Mr.
Gonzales that she was interested in filing an appeal.
(See generally CR Docs. 64, 110.)
Movant’s prior entry of a guilty plea, and the appellate waiver in her plea agreement, do not
support a different conclusion, because Movant’s motion to withdraw her plea put Mr. Gonzales
on notice that she no longer desired “an end to judicial proceedings,” Flores-Ortega, 528 U.S. at
480, but rather, wished to revive them. Likewise, the fact that Movant ultimately received the
sentence to which she agreed does not negate her manifest desire to appeal, when she expressly
stated that she was no longer “happy” with that sentence at the hearing on her motion to
withdraw her plea. (CR Doc. 110 at 14.)
The undersigned further proposes to find that trial counsel in fact did not consult with
Movant regarding whether she wanted to appeal the denial of her motion to withdraw her plea
and to substitute counsel. Movant’s interrogatory answer to this effect stands uncontested.
(Doc. 37 at 1.) The Government has had ample opportunity to produce affidavits, or seek an
evidentiary hearing at which to offer testimony, to refute Plaintiff’s sworn statements, but has
failed to do so. (Doc. 33 at 2; Doc. 38 at 2.) Instead, it has admitted that it is “without
information or belief” to contradict Movant’s interrogatory answers. (Doc. 39 at 3-4.) As such,
not only is there no evidence in the record that Mr. Gonzales consulted with Movant about an
appeal, but also there is no indication that any such evidence will ever be forthcoming. The
undersigned therefore proposes to find that Movant has satisfied the first Strickland prong as to
her ineffective assistance of counsel claim.
The undersigned also proposes to find that Movant has satisfied Strickland’s second
prong by demonstrating a reasonable probability that she would have timely instructed her trial
counsel to appeal the denial of her motion to withdraw her plea and to substitute counsel, but for
his deficient failure to consult with her. Flores-Ortega, 528 U.S. at 484. Again, Movant’s sworn
statements to this effect stand uncontested, despite the Government’s having had ample
opportunity to challenge them. (Doc. 33 at 2; Doc. 37 at 1; Doc. 38 at 2.) The undersigned
acknowledges her previous observation that, if trial counsel had consulted with Movant about an
appeal, he would likely have advised against it. 5
(See Doc. 32 at 39.)
As noted in the August 2016 PFRD, trial counsel would likely have advised Movant that an appeal would be
unsuccessful because she had waived her right to bring it. (Doc. 32 at 39.) In addition, as discussed in Sections
III.C. and III.D.1. of the August 2016 PFRD, he would likely have advised against the appeal because there were no
nonfrivolous grounds for it, and it would not have benefitted Movant even if successful. (Id.)
uncontroverted evidence before the Court indicates that Movant would not have followed such
advice. (Doc. 37 at 1-3.) Moreover, at Movant’s direction, counsel would have been obliged to
file the appeal notwithstanding the appellate waiver in her plea agreement. “Counsel may not
refuse to file a notice of appeal based upon a waiver in the plea agreement, because the waiver
must ordinarily be raised by the government and a court, not counsel, must determine its
efficacy.” Parker, 720 F.3d at 786.
The Government argues that Movant has failed to demonstrate the prejudice that
Strickland requires, because she validly waived her right to appeal her conviction and sentence in
her plea agreement, and thus, the Tenth Circuit would have summarily rejected her appeal if trial
counsel had filed it. (Doc. 39 at 6-7.) This argument is without merit. Under Flores-Ortega, to
satisfy Strickland’s second prong, Movant must show—and has shown—a reasonable probability
that she would have instructed her trial counsel to file an appeal, not that such an appeal was
likely to be successful. 528 U.S. at 483, 86. The prejudice to Movant arises from the forfeiture
of a judicial proceeding she had a right to initiate, regardless of the proceeding’s likely outcome.
Id. at 483-84.
Allowing the defendant to proceed in spite of unpersuasive pro se arguments is
not a matter of formalistic compliance with a technical rule merely postponing the
inevitable denial of relief on the merits. Rather, it serves to safeguard important
interests with concrete and potentially dispositive consequences which can be
guaranteed only by the direct-appeal process and the concomitant right to counsel.
Garrett, 402 F.3d at 1265-66 (citations, internal quotation marks, and brackets omitted). Further,
while Movant’s “appellate rights have been significantly limited by [her] waiver, . . . the waiver
does not foreclose all appellate review of [her] sentence.” Id. at 1266-67. In other words, the
Government’s successful enforcement of Movant’s appellate waiver on appeal, however likely,
is not absolutely guaranteed.
For the foregoing reasons, the undersigned proposes to find that Movant’s trial counsel
provided her with ineffective assistance by failing to consult with her about whether to appeal
the denial of her motion to withdraw her plea and to substitute counsel. The remedy for an
attorney’s failure to file an appeal as a defendant requested—or, in this case, as Movant most
likely would have requested, had she been consulted—is to grant the defendant leave to file a
delayed appeal. Id. at 1267; United States v. Snitz, 342 F.3d 1154, 1159 (10th Cir. 2003). More
particularly, the preferred procedure, and thus the one the undersigned recommends, is for the
Court to vacate and reenter its judgment of conviction and sentence to allow Movant to timely
file a notice of appeal. Snitz, 342 F.3d at 1159.
The Government’s Motion to Enforce Appellate Waiver
The undersigned recommends that the Court deny the Government’s Motion to Enforce
Appellate Waiver as premature.
At this juncture, Movant has demonstrated a reasonable
probability that she would have filed an appeal had her trial counsel discussed one with her.
However, she has not yet actually elected to file an appeal after consultation with her present
counsel. Thus, at present, there is no appeal for her appellate waiver to bar. Logically, the
proper time and venue for the Government to move to enforce the appellate waiver would be
after Movant has filed a timely notice of appeal in the Tenth Circuit. Parker, 720 F.3d at 786 &
Presumably, Movant’s appeal would then “initially be evaluated under the summary
procedure and analysis described in [United States v. Hanh, 359 F.3d 1315, 1328 (10th Cir.
2004)].” Garrett, 402 F.3d at 1267.
Movant’s argument that the Government has waived its right to seek enforcement of the
appellate waiver is likewise premature, and should properly be raised, if at all, after Movant has
filed an appeal and the Government has moved to enforce the waiver in the Tenth Circuit. (Doc.
40 at 2-4.) It seems to the undersigned improbable that the Tenth Circuit would find that the
Government waived its right to seek enforcement of the appellate waiver by its conduct in a
district court proceeding, particularly when the Government referred to the appellate waiver in
both of its response briefs, and also filed a motion to enforce the appellate waiver. (Doc. 6 at 5,
9; Doc. 25 at 14; Doc. 39 at 5-7); see, e.g., United States v. Contreras-Ramos, 457 F.3d 1144,
1145 (10th Cir. 2006) (government waives enforcement of appellate waiver when it “utterly
neglects to invoke the waiver” in appellate court). However, that decision is not this Court’s to
Finally, in the Government’s Motion to Enforce Appellate Waiver, there is some
suggestion—though certainly no straightforward argument—that the waiver of collateral attack
rights in Movant’s plea agreement bars the ineffective assistance of counsel claim presently
before the Court. (Doc. 39 at 6.) To the extent that the Government actually intends to make
such an argument in its motion, the undersigned disagrees. On its face, the waiver of collateral
attack rights in Movant’s plea agreement does not apply to the ineffective assistance of counsel
claim presently before the Court, because the waiver expressly excludes from its scope all
collateral attacks “on the grounds of ineffective assistance of counsel.” 6 (Doc. 6-2 at 7); see,
e.g., Garrett, 402 F.3d at 1266 n.5 (“[T]he plain language of [defendant’s waiver of collateral
attack rights] does not address the type of claim [defendant] has raised.”); see also Hahn, 359
F.3d at 1325 (courts must strictly construe appellate waivers and read any ambiguities in them
against the government).
Cases in which the Tenth Circuit affirmed the district courts’ enforcement of collateral attack waivers to bar claims
similar to Movant’s are distinguishable, because the collateral attack waivers at issue in these cases lacked an
express exception for ineffective assistance of counsel claims. See, e.g., Parker, 720 F.3d at 785, 787; United States
v. Lechuga, 527 F. App’x 713, 714, 716 (10th Cir. 2013); United States v. Viera, 674 F.3d 1214, 1216-19 (10th Cir.
For all of the foregoing reasons, the undersigned recommends that the Court GRANT
Movant’s Section 2255 Motion as to her claim that her trial counsel provided her with ineffective
assistance by failing to appeal the denial of her pro se motion to withdraw her guilty plea and to
The undersigned further recommends that the Court VACATE and
REENTER its judgment of conviction and sentence to allow Movant to timely file a notice of
appeal. Finally, the undersigned recommends that the Court DENY the Government’s Motion to
Enforce Appellate Waiver.
UNITED STATES MAGISTRATE JUDGE
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition they may file
written objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A
party must file any objections with the Clerk of the District Court within the fourteen-day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.
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