Terrones-Lopez v. United States of America
MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker Granting 1 Motion to Vacate/Set Aside/Correct Sentence (2255); Plaintiff will be resentenced accordingly. (bap)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 16-CV-1353 JAP/SCY
UNITED STATES OF AMERICA,
MEMORANDUM ORDER AND OPINION
On December 12, 2016, Plaintiff Reyes Terrones-Lopez (Plaintiff) pro se filed a
MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
BY A PERSON IN FEDERAL CUSTODY (No. 16 CV 1353, Doc. No. 1; No. 15 CR 0645,
Doc. No. 38) (Motion) asking this Court to vacate, set aside, or correct his sentence and alleging
that his attorney’s performance violated his Sixth Amendment right to effective assistance of
counsel. He claims that his legal counsel did not effectively represent him during the change of
plea and sentencing proceedings. In its response,1 the United States argues that at all times
Plaintiff’s counsel performed reasonably and in accordance with Plaintiff’s instructions. The
Plaintiff’s Reply2 denies this assertion.
On February 20, 2018, the Court conducted a hearing on Plaintiff’s Motion3 as well as on
the issue regarding instructions Plaintiff had given his counsel that was raised in Plaintiff’s
Reply. The Court has reviewed the Motion, the exhibits, and all briefing. For the reasons
explained below, the Court will grant the Motion.
UNITED STATES’ RESPONSE TO DEFENDANT/PETITIONER’S MOTION TO VACATE, SET ASIDE OR
CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (Civ. Doc. No. 11) (Response).
MOTION IN OPPOSITION TO THE GOVERNMENT’S RESPONSE TO MOTION § 2255 (Civ. Doc. No. 13)
On February 8, 2018, the Court appointed Mr. Brian Pori to represent defendant for the hearing. Civ. Doc. No. 20.
On January 12, 2015, United States Border Patrol Agents encountered Plaintiff in Dona
Ana County, New Mexico and discovered he was a Mexican citizen in this country illegally. A
records check revealed Plaintiff had served a 108-month sentence for a federal drug crime, and
subsequently had been deported from the United States in 2014. On January 14, 2015, the
government charged him with Reentry of a Removed Alien in Violation of 8 U.S.C. §§1326(a)
and (b). Crim. Doc. 1.
a. Plea Hearing
On February 26, 2015, Plaintiff pled guilty to an Information without the benefit of a plea
agreement. Crim. Doc. 13. Ms. Cori Harbour-Valdez (Ms. Harbour-Valdez) had been appointed
to represent him and did so at the change of plea hearing.4 A Spanish interpreter was present, and
Plaintiff had a headset so that he could hear the Spanish translation.
At the change of plea hearing, Ms. Harbour-Valdez stated that Plaintiff wished to plead
guilty. She explained that he had declined a fast-track plea agreement under Fed. R. Crim. P.
11(a)(1)(C).5 She acknowledged that with the fast-track plea agreement Plaintiff would serve
between 30 to 37 months or 37 to 46 months, depending on Plaintiff’s criminal history category,
Ms. Harbour-Valdez also represented Plaintiff in the corresponding supervised release violation proceeding.
Fast-track plea agreements allow defendants accused of certain immigration offenses to plead guilty early in the
process. In so doing, they waive their rights to file appeals and certain motions, in exchange for prosecutors’
recommendations of reduced sentences under the United States Sentencing Guidelines (USSG). United States v.
Morales-Chaires, 430 F.3d 1124, 1127 (10th Cir. 2005); see also USSG §5K3.1 (providing “Upon motion of the
Government, the court may depart downward not more than 4 levels pursuant to an early disposition program….”).
If the sentencing court accepts the plea agreement under Rule 11(c)(1)(C), the sentence recommendation is binding
on the court. If the court rejects the agreement, defendants have the right to revoke their plea.
and that without one he faced a range of 51 to 63 months or 63 to 78 months. Civ. Doc. No. 11-1,
p. 26. Ms. Harbour-Valdez gave the following reason for rejecting the fast-track plea agreement:
There are some extenuating circumstances that I intend to bring forth to the
District judge under a 3553 framework that I would be prohibited from doing with
the fast track and I believe that those will be moving factors that the Court will
Civ. Doc. No. 11-1, p. 25.
b. Post Plea Events
On April 21, 2015, the United States Probation Office (USPO) disclosed the Petitioner’s
Presentence Investigation Report (PSR). On April 29, 2015, the USPO provided an Addendum.
The PSR documented Plaintiff’s allegations that information he gave the government in an
earlier case had resulted in death threats to his family and him, the kidnapping of family
members, and the vandalizing of his home. On this basis, the PSR indicated that under United
States Sentencing Guideline 5K1.12 coercion and duress might be potential grounds for a
downward departure from the calculated guideline range and therefore, a lower sentence. PSR ¶¶
63–64. The PSR also mentioned factors that may warrant a sentence under 18 U.S.C. § 3553(a)
outside the Guideline range. PSR ¶ 65. However, because the USPO was unable to corroborate
any of Plaintiff’s statements with outside sources, the PSR did not recommend a departure under
USSG 5K2.12 or a variance under 18 U.S.C. § 3553(a). Instead, the USPO concluded that a
sentence within the guideline range of 46 to 57 months was warranted. PSR ¶ 66.
On July 21, 2015, Plaintiff attended a debriefing with his attorney Ms. Harbour-Valdez
regarding the individuals Plaintiff had paid to smuggle him across the border into the United
States. None of the information he revealed during his debriefing was helpful to the Assistant
United States Attorney (AUSA), who declined to file a motion for a downward departure under
USSG § 5K1.1 based on substantial assistance. Until Plaintiff’s sentencing hearing on December
8, 2015, nothing further occurred in the case. Despite having told Magistrate Judge Lourdes A.
Martinez at the change of plea hearing that she contemplated making an argument at sentencing
based on “a 3553 framework,” Ms. Harbor-Valdez never filed a sentencing memorandum
presenting that argument.
c. Sentencing Hearing
On December 8, 2015, the Court held a sentencing hearing. Prior to the hearing, Ms.
Harbour-Valdez did not file any objections to the PSR nor did she file a motion or sentencing
memorandum seeking a downward departure under the USSG or a variance under 18 U.S.C. §
3553. The Court found that “Mr. Reyes Terrones-Lopez knowingly, voluntarily and intelligently
entered a plea of guilty to the charge in Information 2015-645.” Civ. Doc. No. 11-2, p. 5. The
Court adopted the facts and findings in the PSR and its Addendum. Id. The Court indicated that
it intended to impose a sentence of 46 months, which was at the bottom of the guideline range.
Ms. Harbour-Valdez then asked the Court to “consider something a little bit less than the
46 months.” Transcript of Sentencing Hearing, Civ. Doc. No. 11-2, p. 9. She informed the Court
that her client had attempted to help the government by disclosing information about other
criminals and criminal acts. She mentioned the death threats against Plaintiff and his family. She
indicated that prior to the sentencing hearing, Plaintiff asked her:
[T]o get him the most amount of time as possible because he felt like he was more
safe in a U.S. prison than he would be in Mexico after being deported. After being
in jail for almost eleven months, he’s obviously changed his mind. He—his mom
has been diagnosed with breast cancer. There’s some other concerns obviously
with his wife who is not a legal resident but has filed paperwork based on the
threats that she’s received to try to adjust her status.
But he told me just this morning that just getting to another part of Mexico and
moving as far away to try to hide because they know that obviously he can’t be
here but he obviously fears going back to where he was from in Mexico.
Transcript of Sentencing Proceedings, Civ. Doc. No. 11-2, pp. 8–9. Plaintiff also made a
statement to the court:
I want to apologize for having returned to the United States but my life was in
danger in Mexico. I was beaten up and had to come back because my mother was
sick and my son also died. My brother as well died in February and what I want is
to see them again because I haven’t seen them since 2006. My parents cannot
travel to see me and she told me that she might have another attack because of the
diabetes at any time.
Transcript of Sentencing Proceedings, Civ. Doc. No. 11-2, pp. 9–10
This Court imposed a sentence of 46 months, which was at the bottom of the PSR
d. Direct Appeal
On December 22, 2015, Plaintiff filed a sealed direct appeal with the Tenth Circuit
alleging ineffective assistance of counsel.7 In an Order and Judgment entered on November 4,
2016, the Tenth Circuit dismissed the appeal without prejudice because it could not resolve
Plaintiff’s claims on the record before it. Crim. Doc. No. 37-1.8
The Court imposed an additional one-month consecutive sentence for violation of a provision of the Defendant’s
supervised release for his Oklahoma aggravated felony conviction.
On January 6, 2016, the Tenth Circuit entered an order appointing Ms. Harbour-Valdez as appellate counsel
effective nunc pro tunc as of the date of the notice of appeal. The same order ends her appointment and appoints the
Federal Public Defender for the District of New Mexico as new counsel. Crim. Doc. 30. Subsequently, on January
13, 2016, Assistant Federal Public Defender Brian Pori entered an appearance as counsel for Plaintiff.
In its order, the Tenth Circuit observed:
Although defense counsel’s conversation with the magistrate judge reveals her reasons for
advising Terrones-Lopez to forgo the fast track plea, we do not know the nature and quality of the
extenuating circumstances defense counsel planned to present to the district court; the extent of
any investigation defense counsel conducted prior to the plea hearing; the events that occurred
between Terrones-Lopez’s guilty plea and the sentencing hearing; or defense counsel’s reasons for
not filing a downward departure motion.
Crim. Doc. 37-1 p. 3–4. In a footnote, the Tenth Circuit urged any district court evaluating a subsequent §2255
petition to consider “expedited review so as to avoid the potential injustice that would occur if Terrones-Lopez were
to complete his 46-month sentence prior to a judicial determination of his claim.” Crim. Doc. 37-1, p. 4.
Petitioner’s § 2255 Argument
In his Motion, Plaintiff alleges that he received ineffective assistance of counsel in his
representation by Ms. Harbour-Valdez. He raises the following claims: (1) Counsel was
ineffective during plea proceedings; and (2) Counsel was ineffective at sentencing.9
In its Response, the government states that there is no merit to Plaintiff’s claims.
Included with the Response is an Affidavit from Ms. Harbour-Valdez.10 The Affidavit states that
Ms. Harbour-Valdez did not render ineffective assistance of counsel because she properly
advised Plaintiff of his options throughout the criminal proceedings and all her actions complied
with Plaintiff’s wishes. Ms. Harbour-Valdez asserts that at the time of the plea hearing she
believed Plaintiff wanted “to be sentenced to as much time as possible” because “he felt safer in
a U.S. prison than in Mexico, where he believed his life was in danger.” Affidavit, Civ. Doc. No.
11-3, p. 1.
In his Reply, Plaintiff alleges that Ms. Harbour-Valdez perjured herself in her Affidavit.
He attaches as exhibits to his Reply copies of various documents dated 2009 through 2016 that
he asserts demonstrate his desire to get out of prison as soon as possible.
A defendant in a criminal case has a Sixth Amendment right to effective assistance of
counsel during any stage of the prosecution, formal or informal, in court or out, where counsel’s
Plaintiff’s Motion made the following four claims: (1) Trial counsel was ineffective in failing to properly advise
Plaintiff of his constitutional rights under the Fifth and Sixth Amendments, so his guilty plea was involuntary and
unknowing; (2) Trial counsel was ineffective by failing to object to the presentence report, specifically, to
information that he had a conviction for an aggravated felony; 3)Trial counsel was ineffective because she did not
assure that there was an adequate basis for his guilty plea; 4) Trial counsel was ineffective by failing to raise a
timely notice of appeal based on Plaintiff’s actual innocence. At the February 20, 2018 hearing, Plaintiff advised the
Court that he was only pursuing the claims based on ineffective assistance of counsel at his change of plea
proceeding and at his sentencing.
Upon motion by the government, Judge Yarbrough found that Plaintiff had waived attorney client privilege. Civ.
Doc. No. 10.
absence might “derogate from the accused’s right to a fair trial.” United States v. Wade, 388
U.S. 218, 226 (1967). Plea negotiations, sentencing hearings, and appeals are critical stages of
criminal proceedings to which the right to counsel adheres. Lafler v. Cooper, 566 U.S. 156, 177
(2012) (plea negotiations); Glover v. United States, 531 U.S. 198, 203-04 (2001) (sentencing);
Ellis v. United States, 356 U.S. 674, 675 (1958) (direct appeals).
A court examines whether a defendant received effective assistance of counsel through
the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prove a claim, a
defendant must demonstrate that his attorney’s representation fell below an objective standard of
reasonableness and that he was prejudiced. Id. at 687. The court may address the performance
and prejudice component in any order but need not address both if the defendant fails to make a
sufficient showing of one. Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998).
Ineffectiveness of counsel is a mixed question of law and fact. Strickland, 466 U.S. at 698.
A. Ineffective Assistance of Counsel During Plea Proceedings
When a defendant enters a guilty plea on the advice of counsel, the defendant may
challenge the voluntariness of the plea by showing ineffective assistance of counsel. Hill v.
Lockart, 474 U.S. 52, 56-57 (1985). A guilty plea is valid only if a defendant enters it
knowingly, voluntarily, and intelligently. United States v. Hurlich, 293 F.3d 1223, 1230 (10th
Cir. 2002). This standard is satisfied only if a defendant has “a full understanding of what the
plea connotes and of its consequences.” Under Boykin v. Alabama, 395 U.S. 238, 244 (1969). A
guilty plea will be void if it is “induced by promises …which deprive it of the character of a
voluntary act.” Wellnitz v. Page, 420 F.2d 935, 936 (10th Cir. 1970). An erroneous estimate that
becomes the basis for a defendant’s subjective expectations is not involuntary. See United States
v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993). However, a guilty plea based on an estimate
communicated in the form of a promise is involuntary. Wellnitz, 420 F.2d at 936.
Plaintiff asserts that his plea was not knowing or voluntary because Ms. Harbour-Valdez
effectively made a promise to Plaintiff that he would get a lower sentence if he let the judge
sentence him without a plea agreement. However, Ms. Harbour-Valdez disputes that she ever
made any promises to the Mr.Terrones-Lopez regarding his sentence. According to Ms. HarbourValdez, Plaintiff wanted to reject the offer of the fast-track plea agreement because he wanted a
long sentence so he could stay in the United States and avoid returning to Mexico. She
maintains that during the plea proceedings she acted only at Plaintiff’s direction. The record
reflects conflicting evidence on this point.
There is evidence that supports Ms. Harbour-Valdez’ assertion that Plaintiff feared
returning to Mexico. Repeatedly, Plaintiff asserted that his life and his family’s lives were in
danger while they were in Mexico. During his sentencing hearing, Plaintiff apologized for
returning to the United States, and he defended his decision by stating that he returned for two
reasons: (1) he feared for his life in Mexico; and (2) he wanted to see his family who were in the
United States. Throughout the record, Plaintiff iterated his fear of individuals in Mexico. Not
once has Plaintiff refuted this.
There is equally strong evidentiary support for Plaintiff’s contention that he did not direct
Ms. Harbour-Valdez to seek a long sentence. During the change of plea hearing, Ms. HarbourValdez informed the Court that the Plaintiff rejected the fast-track plea offer because it was her
strategy to get the defendant a lower sentence by arguing for a § 3553 variance. These statements
contradict her assertion that Plaintiff told her he wanted a long sentence.11 At the February 20,
2018 hearing, she explained the discrepancy by stating that the Plaintiff did not want to reveal
his true reasons for rejecting the fast-track plea offer.
Both the Plaintiff and Ms. Harbour-Valdez testified at the February 20, 2018 hearing. The
Court found them equally credible. It is unclear what caused the miscommunication between
them during the change of plea proceedings. Therefore, based on the record and the testimony of
the parties, the Court cannot find that Ms. Harbour-Valdez performed objectively unreasonably
in her representation of Plaintiff during the change of plea proceedings.
B. Ineffective Assistance of Counsel During Sentencing Hearing
Before sentencing, counsel has a duty to make reasonable investigations within the
context of the circumstances of the case. Strickland, 466 U.S. at 690-91. When evaluating an
attorney’s decision not to introduce mitigating evidence of a petitioner’s background during
sentencing, a court should focus on “whether the investigation supporting counsel’s decision not
to introduce mitigating evidence of [a defendant’s background] was itself reasonable.” Wiggins
v. Smith, 539 U.S. 510, 523 (2007). A defendant must specifically identify the alleged
unreasonable acts or omissions. Strickland, 466 U.S. at 690-91. When evaluating strategic
choices regarding representation, the Court may examine conversations between the petitioner
and his counsel that may prove or disprove the petitioner’s § 2255 claim. United States v.
Pinson, 584 F.3d 972, 978 (10th Cir. 2009).
Plaintiff argues that in regard to the sentencing proceedings Ms. Harbour-Valdez was
ineffective for two reasons. First, he contends that Ms. Harbour-Valdez should have filed, but did
While the Court is mindful of a defense attorney’s obligation to defend a client vigorously, the Court is concerned
that, by her own admission, Ms. Harbour-Valdez misled the Magistrate Judge during the plea hearing about the
reason for declining the fast-track plea offer.
not file, an objection to the findings in the PSR. Second, he claims that because Mr. HarbourValdez did not file a sentencing memorandum, she failed to present effectively any arguments
for a downward departure or a variance from the guideline range calculated in the PSR.
In her Affidavit and in her testimony at the February 20, 2018 hearing, Ms. HarbourValdez gave two reasons in support of her decision not to file a sentencing memorandum or to
advocate for a departure from the guidelines during sentencing. First, she stated that she did not
file a sentencing memorandum because, until the morning of the sentencing hearing,12 she
believed Plaintiff wanted to serve a long sentence. She contends that until that moment, she
based all of her actions on that assumption. Second, she said that she did not seek a departure
under section 5K of the guidelines because Plaintiff did not give any helpful information to the
government during his debriefing in July 2015.
The Court finds that Ms. Harbour-Valdez’s representation of Plaintiff during the
sentencing proceedings was objectively unreasonable. While prior to the sentencing hearing Ms.
Harbour-Valdez may have believed that Plaintiff wanted a long sentence, and although her belief
may have been the result of a miscommunication, the record shows that on the morning of the
sentencing hearing she became aware that Plaintiff wanted something completely different. At
no time did she ask the Court for a continuance so she could accommodate her client’s new
Ms. Harbour-Valdez gave conflicting testimony about the timing of her client’s change of instructions. At the
sentencing hearing, Ms. Harbour-Valdez said that Plaintiff had changed his instructions to her on the morning of the
sentencing hearing. Transcript of Sentencing Hearing, Doc. 11-2 p. 8. She made the same statement in her Affidavit.
Doc. 11-3, p. 2. At the February 20, 2018 hearing, however, Ms. Harbour-Valdez testified that Plaintiff gave her
new instructions the day prior to the sentencing hearing. Although the actual date on which Plaintiff changed his
instructions to Ms. Harbour-Valdez has no bearing on the Court’s analysis, the Court finds that Plaintiff changed his
instructions to Ms. Harbor-Valdez on the day of the sentencing hearing.
At the February 20, 2018 hearing, Ms. Harbour-Valdez explained that she did not think
she needed to ask for a continuance to seek corroboration of the danger her client faced because
she planned to state what her client had told her and he was going to make a separate statement.
However, neither her statement nor his could have constituted corroborating evidence.
Specifically, Ms. Harbour-Valdez knew that Plaintiff’s wife might corroborate the statements in
the PSR concerning coercion and duress, but Ms. Harbour-Valdez did not seek a continuance to
try and obtain that testimony from Plaintiff’s wife. Furthermore, although Ms. Harbour-Valdez
requested something “a little bit less than the 46 months,” she never asked for any specific lower
sentence nor did she identify any legal basis on which the Court could grant her vague request.
While courts have excused an attorney’s decision not to contest certain findings in a PSR as
strategical, there is no indication that at Plaintiff’s sentencing hearing Ms. Harbour-Valdez was
pursuing a reasonable strategy that justified her decision not to seek a continuance.
In her Affidavit, Ms. Harbour-Valdez also claimed that she did not seek a downward
departure on Plaintiff’s behalf because “None of the information Mr. Terrones-Lopez provided
[to the government’s attorneys] was useful and thus no §5K motion was filed on his behalf.” Her
statement implies that the only basis for a departure would have been assistance to the
government. That is incorrect given the information in the PSR. A defendant may ask for a
departure under the USSG or a variance under § 3553 based on many things. See USSG §5K2
(listing 24 departure provisions).13 As mentioned, the PSR identified coercion or duress as one
valid basis for departure. USSG §5K2.12 (providing for a downward departure because of
serious coercion, blackmail, or duress). Furthermore, the departure provisions found in Part K of
the USSG are not the only means of obtaining a departure. One of the other USSG provisions
Part K of the Sentencing Guidelines lists the grounds and criteria for listed departures.
also may have been relevant.14 Yet although Ms. Harbour-Valdez knew of the potential
availability of a departure, she did not object to the PSR’s conclusions or prepare a sentencing
memorandum requesting a USSG departure or a § 3553 downward variance. It seems she simply
abandoned, both orally or in writing, the very argument for a lower sentence under a § 3553
framework that she told Magistrate Judge Martinez justified the rejection of the fast-track plea
Next, under Strickland, the Court must address whether Plaintiff was prejudiced by Ms.
Harbour-Valdez’ representation of Plaintiff at the sentencing hearing. Prejudice is established
when “‘any amount of [additional] jail time has Sixth Amendment significance.’” Lafler, 566
U.S. 156, 165 (2012) (citing Glover v. United States, 531 U.S. 198, 203 (2001)). For the
following reasons, the Court finds that Plaintiff has demonstrated prejudice.
The Court notes that, as an initial matter, if Ms. Harbour-Valdez had asked for a
continuance, the Court would have granted it. It is the Court’s custom to grant an attorney’s
request for a continuance based on circumstances beyond the attorney’s control. Here, on the day
of sentencing, Ms. Harbour-Valdez received information from her client that substantively
changed her approach to the hearing. There is no doubt that the Court would have granted a
continuance had she asked for one.
Next, it is the Court’s customary practice to impose a low sentence on a defendant who
appears for sentencing on his first reentry offense, if the defendant does not have a lengthy
criminal history. Usually, the Court increases the sentence length when a defendant, who is being
sentenced on an unlawful reentry charge, has illegally reentered multiple times. If an attorney
presents the Court with evidence supporting a basis for a departure under the USSG or a variance
At the hearing, Mr. Pori referenced §2L1.2 n.7, which allows a departure based on cultural assimilation.
under § 3553, the Court often does so, particularly when the Court finds that the guideline range
seems inappropriately high for the circumstances of the offense. Here, the Plaintiff did not have
an extensive criminal history and this was his first immigration offense. At the sentencing
hearing, the Court sentenced the Plaintiff at the bottom of the range calculated in the PSR. Had
Ms. Harbour-Valdez presented an argument for a lower sentence, the Court would have departed
downward under the USSG or alternatively, would have varied downward under § 3553.
Because Plaintiff received a longer sentence than he would have if a proper argument for a lower
sentence had been made, the Court finds that he was prejudiced.
“When a petitioner establishes ineffective assistance during sentencing, the appropriate
remedy is resentencing.” Anderson v. Sirmons, 476 F.3d 1131, 1148 (10th Cir. 2007). Because
the Court has found a violation of Plaintiff’s Sixth Amendment rights during sentencing based on
ineffective assistance of counsel, the Court will grant Plaintiff’s Motion to correct his sentence.
IT IS THEREFORE ORDERED that Plaintiff’s MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY is GRANTED and Plaintiff will be resentenced accordingly.
SENIOR UNITED STATES DISTRICT JUDGE
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