Reyes-Espinoza v. United States of America

Filing 41

PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Oscar Reyes-Espinoza by Magistrate Judge Laura Fashing. Objections to PF&RD due by 3/8/2018. 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).) (ccp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.

Nos.

CR 15-1399 KG
CIV 16-1408 KG/LF

OSCAR REYES-ESPINOZA,
Defendant/Movant.
PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Oscar Reyes-Espinoza’s Motion Pursuant to
28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence. Doc. 35. 1 The Honorable Kenneth
J. Gonzales referred this case to me to recommend to the Court an ultimate disposition of the
case. No. CIV 16-1408 KG/LF, Doc. 4. Having reviewed the submissions of the parties and the
relevant law, I recommend that the Court DENY Reyes-Espinoza’s motion.
I.

Background Facts and Procedural Posture
On September 8, 2015, Reyes-Espinoza pled guilty to an indictment that charged him

with reentry of a removed alien, in violation of 8 U.S.C. §§ 1326(a) and (b). See Docs. 11, 30,
47. He pled guilty without a plea agreement. See Docs. 33, 47 at 23–24. The probation officer
who prepared Reyes-Espinoza’s presentence report (“PSR”) determined that Reyes-Espinoza’s
base offense level was 8 under USSG 2 § 2L1.2. PSR ¶ 9. He received a sixteen-level
enhancement pursuant to USSG § 2L1.2(b)(1)(A) because he had been convicted of a crime of

1

Citations to “Doc.” are to the document number in the criminal case, case number CR 15-1399
KG, unless otherwise noted.

2

Reyes-Espinoza was sentenced using the 2014 version of the Sentencing Guidelines. See PSR
¶ 8. All references to the Guidelines are to the 2014 version unless otherwise noted.

violence before he was removed from the United States. PSR ¶ 10. He received a three-level
reduction pursuant to USSG § 3E1.1 for acceptance of responsibility. PSR ¶¶ 17, 18. ReyesEspinoza’s total offense level was 21, and his criminal history category was VI, which resulted
in an advisory guideline sentencing range of 77 to 96 months in prison. PSR ¶¶ 19, 33–35, 53.
Neither party objected to the PSR’s guideline calculations. See Doc. 48 at 2–3, 7. ReyesEspinoza came before the Court for sentencing on December 15, 2015. See generally id. The
Court adopted the PSR’s guideline calculations, but it determined that Reyes-Espinoza’s criminal
history category—category VI—overrepresented the seriousness of his criminal history. See id.
at 14–15. The Court departed downward to criminal history category IV, which resulted in an
advisory guideline range of 57 to 71 months in prison. Id. at 15. The Court sentenced ReyesEspinoza to 57 months in prison. Id. It entered its judgment the same day. See Doc. 34.
On December 27, 2016, Reyes-Espinoza filed a Motion to Vacate, Set Aside or Correct
Sentence pursuant to 28 U.S.C. § 2255, in part based on a claim that his counsel was ineffective
because he failed to file a notice of appeal. Doc. 35. The government filed its response on
March 14, 2017, and asked the Court to hold an evidentiary hearing on Reyes-Espinoza’s
ineffective assistance of counsel claim. Doc. 40 at 8. On July 19, 2017, Reyes-Espinoza filed a
Notice of Change of Address and Motion to Supplement, Doc. 43, which the Court construed as
a motion to amend his 2255 motion. See Doc. 50. The Court appointed counsel to represent
Reyes-Espinoza and gave him an opportunity to file a memorandum in support of his motion to
amend, as well as an opportunity to file a reply to the government’s response. See Docs. 45, 50,
52, 56. Reyes-Espinoza did not file any additional materials in support of his motion to amend,
nor did he reply to the government’s response to his 2255 motion. See generally Clerk’s Docket
Sheet. The government opposed Reyes-Espinoza’s motion to amend, arguing that the motion

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was untimely, and that the claims that Reyes-Espinoza raised were meritless. Doc. 66. The
Court held an evidentiary hearing on January 19, 2018, on Reyes-Espinoza’s claim that his
attorney did not file a notice of appeal despite his request that he do so. Doc. 68. Both ReyesEspinoza and his former attorney testified. See id.
II.

Reyes-Espinoza’s Claims and the Government’s Response
Reyes-Espinoza argues in his 2255 motion that the Court erred in sentencing him because

“[t]here is no distinguishable difference between the residual clause [that the Supreme Court
struck down in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015)] and the guideline
enhancement [Reyes-Espinoza] received in this case at sentencing.” Doc. 35 at 5. Therefore, he
says, “the Supreme Court’s ruling in Johnson applies to this case,” and his sentence must be
vacated. Id. Reyes-Espinoza also argues that his attorney was ineffective because he had asked
his attorney to file a notice of appeal shortly after he was sentenced, and his attorney failed to do
so. Id. at 6. In his motion to supplement, which the Court construed as a motion to amend, he
alleges that he had told his defense counsel that he was a United States citizen because he had
been adopted by his U.S. citizen step-father. Doc. 43 at 1. To support this claim, he attaches a
document showing that his name was changed from Oscar Omar Reyes to Oscar Omar
Hernandez on June 19, 2002, when Reyes-Espinoza was about twelve years old. See Doc. 43 at
3; PSR at 2 (showing date of birth). He also claims that he would not have pled guilty had he
been informed of the immigration consequences of his plea. Doc. 43 at 1.
The government argues in response that Reyes-Espinoza’s first claim is precluded by the
Supreme Court’s decision in Beckles v. United States, 137 S. Ct. 886 (2017). Doc. 40 at 7. It
further argues that even if Beckles did not foreclose his claim, the Court enhanced ReyesEspinoza’s sentence based on the enumerated crimes clause of § 2L1.2, not the residual clause.

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Doc. 40 at 6–8. With respect to Reyes-Espinoza’s claim that his attorney failed to file a notice of
appeal, the government acknowledged that the Court should hold an evidentiary hearing on that
issue, but it attached an affidavit from Reyes-Espinoza’s former attorney that stated that the
attorney had consulted with Reyes-Espinoza about his appellate rights, and that Reyes-Espinoza
did not tell him to file a notice of appeal. Doc. 40 at 8; Doc. 40-3 ¶¶ 8, 10. In response to
Reyes-Espinoza’s motion to amend, the government argues that the motion is untimely, that
Reyes-Espinoza has not submitted any evidence that he is a U.S. citizen, and that ReyesEspinoza was fully informed of the immigration consequences of his guilty plea on the record
and immediately before he pled guilty. Doc. 66. In sum, the government asks the Court to deny
Reyes-Espinoza’s motion to amend, and to deny his 2255 petition.
III.

Discussion
A.

Johnson Does not Apply to this Case, and Beckles Forecloses Reyes-Espinoza’s
Claim that he was Sentenced Under an Unconstitutionally Vague Guideline
Provision.

Reyes-Espinoza’s first claim is based on the Supreme Court’s decision in Johnson, which
struck down a portion of the Armed Career Criminal Act (ACCA). The ACCA provides, in
pertinent part, that “[i]n the case of a person who violates section 922(g) of this title and has
three previous convictions . . . for a violent felony . . . committed on occasions different from one
another, such person shall be . . . imprisoned not less than fifteen years . . . .” 18 U.S.C.
§ 924(e)(1). “[T]he term ‘violent felony’ means any crime punishable by imprisonment for a
term exceeding one year . . . that—(i) has as an element the use, attempted use, or threatened use
of physical force against the person of another [the “elements clause”]; or (ii) is burglary, arson,
or extortion, involves use of explosives [the “enumerated crimes clause”], or otherwise involves
conduct that presents a serious potential risk of physical injury to another [the “residual clause”]
. . . .” 18 U.S.C. § 924(e)(2)(B). In Johnson, 135 S. Ct. at 2563, the Supreme Court struck down
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the residual clause as unconstitutionally vague, but it left intact the elements clause and the
enumerated crimes clause. The following year, the Court held that Johnson announced a
substantive rule that applied retroactively on collateral review. Welch v. United States, 136 S.
Ct. 1257, 1268 (2016). Thus, to be entitled to relief under Johnson, a defendant must have been
sentenced under the residual clause of the ACCA, not the elements clause or the enumerated
crimes clause.
In this case, Reyes-Espinoza was not sentenced under the ACCA. Instead, he received a
sixteen-level enhancement to his base offense level because he had been deported after having
been convicted of a crime of violence. See PSR ¶ 11; USSG § 2L1.2(b)(1)(A)(ii). The term
“crime of violence” is defined as
any of the following offenses under federal, state, or local law: murder,
manslaughter, kidnapping, aggravated assault, forcible sex offenses (including
where consent to the conduct is not given or is not legally valid, such as where
consent to the conduct is involuntary, incompetent, or coerced), statutory rape,
sexual abuse of a minor, robbery arson, extortion, extortionate extension of credit,
burglary of a dwelling, or any other offense under federal, state, or local law that
has as an element the use, attempted use, or threatened use of physical force
against the person of another.
USSG § 2L1.2, comment. (n.1(B)(iii)). Notably absent from this definition is anything that
resembles the residual clause of the ACCA—that is, “conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Thus, the basic premise of ReyesEspinoza’s claim—that “[t]here is no distinguishable difference between the residual clause [of
the ACCA] and the guideline enhancement petitioner received in this case”—is simply wrong.
The “crime of violence” definition that was applied to Reyes-Espinoza did not contain a
“residual clause” that resembles the residual clause in the ACCA. Thus, the reasoning of
Johnson does not apply to this case.

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Moreover, Reyes-Espinoza’s claim, based on the vagueness of the pertinent guideline
provision, is squarely foreclosed by Beckles v. United States, 137 S. Ct. 886 (2017). In Beckles,
the Supreme Court held that the sentencing guidelines are not subject to the void-for-vagueness
doctrine. 137 S. Ct. at 897. Reyes-Espinoza conceded as much through his counsel at the
evidentiary hearing. Reyes-Espinoza is not entitled to relief based on any claim that the crimeof-violence sentencing enhancement he received is unconstitutionally vague.
B.

Reyes-Espinoza’s Counsel was not Ineffective.

An ineffective assistance of counsel claim requires a showing that (1) “counsel’s
performance was deficient” and (2) “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant bears the burden of proving
ineffective assistance by a preponderance of the evidence. Sallahdin v. Mullin, 380 F.3d 1242,
1247–48 (10th Cir. 2004).
“[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). In such circumstances, the defendant is entitled to a new appeal, regardless of
whether such appeal would have merit. United States v. Garrett, 402 F.3d 1262, 1265 (10th Cir.
2005). Even when a defendant neither instructs counsel to file an appeal nor requests that an
appeal not be taken, counsel still may be ineffective for failing to file an appeal if he or she did
not consult with the defendant about an appeal, that is, if the attorney failed to “advis[e] the
defendant about the advantages and disadvantages of taking an appeal” and “mak[e] a reasonable
effort to discover the defendant’s wishes.” Roe, 528 U.S. at 478. “[C]ounsel 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

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nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing.” Id. at 480. In making this determination, relevant
factors include “whether the conviction follows a trial or guilty plea” (“because a guilty plea
reduces the scope of potentially appealable issues and . . . may indicate that the defendant seeks
an end to judicial proceedings”), “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.”
Id.
Reyes-Espinoza claims that his attorney was ineffective for failing to file a notice of
appeal even though he specifically asked his attorney to do so. Doc. 35 at 6. At the evidentiary
hearing, Reyes-Espinoza testified that immediately after sentencing, while he still was standing
at the podium with his attorney, he told his attorney, “I want to appeal.” He then was taken back
to the holding cell by a deputy marshal, who told Reyes-Espinoza that he should be thankful for
the sentence he was given. According to Reyes-Espinoza, he had a short conversation with the
deputy marshal about why Reyes-Espinoza thought five years was too much time, and that he
would have been happy had the judge sent him back home to be with his family. ReyesEspinoza testified that although his attorney followed him back to the holding cell, his attorney
did not speak to him, nor did he speak to his attorney.
Reyes-Espinoza’s former attorney testified that Reyes-Espinoza did not say anything to
him about filing an appeal while they were still standing at the podium, immediately after the
sentencing hearing. The attorney followed Reyes-Espinoza back to the holding cell and
explained to him the significance of the district judge’s downward departure. The attorney
testified that Reyes-Espinoza seemed satisfied with the sentence that had been imposed. The
attorney discussed with Reyes-Espinoza his appellate rights and offered to file a notice of appeal

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on his behalf, but Reyes-Espinoza did not respond. Reyes-Espinoza did not tell him to file an
appeal. The attorney asked Reyes-Espinoza if he had any other questions, thoughts or concerns,
and made sure that Reyes-Espinoza knew how to contact him if necessary. The attorney did not
recall ever hearing from Reyes-Espinoza again. The attorney did not have any documentation
regarding Reyes-Espinoza’s decision not to file an appeal, nor had the attorney reviewed his file
before testifying or signing his affidavit.
I find Reyes-Espinoza’s version of events not credible, for several reasons. First, during
cross-examination, Reyes-Espinoza continued to claim that he did not understand that he would
be deported as a result of his guilty plea, even when the prosecutor confronted him with the
transcript of his change of plea hearing where the magistrate judge told him on the record that he
would be deported. At the change of plea hearing, the magistrate judge said, “once I accept your
plea and you’re sentenced you’re going to be deported,” and Reyes-Espinoza said, “Well, I
understand that, but . . . I’d rather be deported and try to get all of my legal matters the right way
and then . . . .” Doc. 47 at 26. Second, he also claimed he was “shocked” by and unhappy with
his 57-month sentence, even though his presentence report made clear that the advisory guideline
sentencing range was 77 to 96 months in prison. Reyes-Espinoza’s attorney’s view that ReyesEspinoza seemed “content” with his sentence—given that it was significantly shorter than ReyesEspinoza had expected—seems more probable. Third, it seems unlikely that Reyes-Espinoza’s
attorney would have followed Reyes-Espinoza back to the holding cell just to stand there,
without discussing the sentencing hearing and the possibility of an appeal, particularly if ReyesEspinoza had just told him to file a notice of appeal. The attorney’s version of events is more
credible.

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Finally, although the attorney testified that Reyes-Espinoza did not respond when he
offered to file a notice of appeal, I find that the attorney made a reasonable effort to discover
Reyes-Espinoza’s wishes. Although Reyes-Espinoza pled guilty without a plea agreement in
part to preserve his appellate rights, the only basis for an appeal would have been if the sentence
was unreasonable. Given that the sentence was well below the advisory guideline sentencing
range, the attorney would have been correct in believing that there likely were no nonfrivolous
grounds for an appeal. Further, at the sentencing hearing, it was clear that Reyes-Espinoza’s
main concern was the amount of time he was facing. At sentencing, he said,
when my attorney showed me my PSR, I saw the time that I was facing and I saw
it, like it was ridiculous. Like, wow, I’m really facing that much time? I had no
idea it was like that. If I would have known that, I would have just stayed in
Mexico and tell my family to keep fighting the immigration side that way.
Doc. 48 at 9. Reyes-Espinoza’s 57-month sentence was significantly below what he was
expecting, and a rational defendant likely would have been relieved with such a sentence. Thus,
when the attorney told Reyes-Espinoza that he would file a notice of appeal if he wanted him to,
the fact that Reyes-Espinoza did not respond and did not instruct him to file a notice of appeal
did not require further inquiry. Reyes-Espinoza’s attorney made a reasonable effort to discover
Reyes-Espinoza’s wishes, and the attorney’s failure to file a notice of appeal was not ineffective.
C.

Reyes-Espinoza’s Motion to Amend his Petition is Untimely.

The Court construed Reyes-Espinoza’s Notice of Change of Address and Motion to
Supplement 28 U.S.C. § 2255 (Doc. 43) as a motion to amend. Doc. 50. Motions to amend are
governed by FED. R. CIV. P. 15:
(1) Amending as a Matter of Course. A party may amend its pleading once as a
matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21
days after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.
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(2) Other Amendments. In all other cases, a party may amend its pleading only
with the opposing party’s written consent or the court’s leave. The court should
freely give leave when justice so requires.
Here, more than 21 days have passed since the government was served and filed its response.
Reyes-Espinoza, therefore, may only amend with the government’s written consent, or with the
Court’s leave.
Further, there is a one-year statute of limitations on asserting a claim under § 2255. 28
U.S.C § 2255(f). In this case, the one-year period began to run on the date that ReyesEspinoza’s judgment of conviction became final, which was December 29, 2015. See 28 U.S.C.
§ 2255(f)(1); Doc. 34 (judgment was entered on December 15, 2015, and became final 14 days
later because no notice of appeal was filed). The one-year statute of limitations expired on
December 29, 2016. Reyes-Espinoza filed his original petition on December 27, 2016, Doc. 35,
but did not file his motion to supplement until July 19, 2017, Doc. 43, well after the limitations
period had run. An amendment may avoid the one-year statute of limitations, however, if it
relates back to the original petition. But an amendment only relates back to the original petition
if “the amendment asserts a claim . . . that arose out of the conduct, transaction, or occurrence set
out—or attempted to be set out—in the original pleading.” FED. R. CIV. P. 15(c)(1)(B). Any
new claims of ineffective assistance of counsel that do not relate back to Reyes-Espinoza’s
original claims are time-barred. See United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th
Cir. 2000).
A claim of actual innocence, however, can serve as a gateway through which a petitioner
may overcome the one-year bar of the statute of limitations. McQuiggin v. Perkins, 569 U.S.
383, 386 (2013). The Supreme Court has cautioned, however, that the actual-innocence gateway
is narrow: “[A] petitioner does not meet the threshold requirement unless he persuades the

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district court that, in light of the new evidence, no juror, acting reasonably, would have voted to
find him guilty beyond a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329
(1995)).
In his motion to amend, Reyes-Espinoza raises two additional issues. He asserts that his
sentence and conviction are illegal because he was adopted by an American citizen. Doc. 43.
He also asserts that he would not have pled guilty if he had been advised of the immigration
consequences of his plea. Id. Neither issue relates in any way to the claims in his original
petition that his sentence was based on an invalid sentencing enhancement, or that his counsel
was ineffective for failing to file a notice of appeal. And because his motion to supplement was
not filed until July 2017, approximately 7 months after the expiration of the one-year statute of
limitations, the claims are time-barred unless Reyes-Espinoza can slip through the actual
innocence gateway.
If Reyes-Espinoza is in fact a United States citizen, he would be innocent of the crime to
which he pled guilty. See United States v. Villarreal-Valdez, 85 F. App’x 185, 187 (10th Cir.
2004) (unpublished) (court reviewed the elements of illegal reentry after deportation and noted
that government must prove that defendant is an alien, but held that defendant had presented
insufficient evidence of derivative citizenship to warrant dismissal of indictment). But to
overcome the statute-of-limitations bar, Reyes-Espinoza must present sufficient evidence that he
is in fact a U.S. citizen. The only evidence that Reyes-Espinoza submitted to support his claim
of citizenship is a document showing that in 2002, in Georgia, Oscar Omar Reyes’s name was
changed to Oscar Omar Hernandez. Doc. 43 at 3. This document is insufficient to show that
Reyes-Espinoza was adopted by a U.S. citizen. Reyes-Espinoza’s attorney acknowledged at the
evidentiary hearing that she had no further evidence to support Reyes-Espinoza’s claim of

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citizenship. Although Reyes-Espinoza may have a valid claim to citizenship if he indeed was
adopted by a United States citizen, see 8 U.S.C. § 1431 (describing conditions that must be met
for foreign-born child to acquire citizenship automatically), the document he has submitted falls
far short of “new evidence, [such that] no juror, acting reasonably, would have voted to find him
guilty beyond a reasonable doubt.” Perkins, 569 U.S. at 386. Thus, the claims Reyes-Espinoza
raises in his motion to supplement are time-barred. The Court should deny his motion to
supplement, which the Court construed as a motion to amend.
IV.

Recommendation
I recommend that the Court DENY Reyes-Espinoza’s 2255 motion. Reyes-Espinoza is

not entitled to relief under the Supreme Court’s decision in Johnson. He was not sentenced
under the ACCA’s residual clause, and the guideline provision that was used to enhance his
sentence bears no resemblance to the ACCA’s residual clause. Even if it did, the Supreme Court
held in Beckles that the Guidelines are not subject to void-for-vagueness challenges.
With respect to his claim that his attorney was ineffective for failing to file a notice of
appeal, I find that Reyes-Espinoza did not instruct his attorney to file a notice of appeal.
Moreover, I find that the attorney consulted with Reyes-Espinoza about filing a notice of appeal
and made a reasonable effort to discover his wishes. Reyes-Espinoza has failed to prove that his
attorney was ineffective for failing to file a notice of appeal.
Finally, I recommend that the Court deny Reyes-Espinoza’s motion to supplement or
amend his motion. His claims do not relate back to his original motion and therefore are
untimely. Further, Reyes-Espinoza has failed to put forth sufficient evidence to support his
claim to U.S. citizenship, which would support a claim of actual innocence.

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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.

_______________________
Laura Fashing
United States Magistrate Judge

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