Benitez v. U.S.

• Decision Date: 09 April 2008
• Docket Number: No. 05-2484.,05-2484.
• Citation: 521 F.3d 625
• Parties: Alberto Rodriguez BENITEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

521 F.3d 625

Alberto Rodriguez BENITEZ, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 05-2484.

United States Court of Appeals, Sixth Circuit.

Submitted: March 11, 2008.

Decided and Filed: April 9, 2008.

ON BRIEF: Christopher P. Yates, Yates, Lagrand & Denenfeld, Grand Rapids, Michigan, for Appellant. B. Rene Shekmer, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before KEITH, CLAY, and GILMAN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Alberto Rodriguez Benitez pled guilty to one count of conspiracy to distribute more than 100 grams of marijuana and one count of conspiracy to launder money. He was subsequently sentenced to two concurrent terms of 120 months of imprisonment, four years of supervised release, a $10,000 fine, and a $200 special assessment. Benitez did not pursue a direct appeal. He did, however, file a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Benitez raised five grounds for relief, all of which related to his counsel's performance at sentencing and to the sentence itself. One of the claims raised by Benitez was that he was denied his Sixth Amendment right to counsel during the sentencing hearing.

The district court dismissed Benitez's § 2255 motion on the basis that the motion was not timely filed, but did not consider whether Benitez was entitled to equitable tolling. In any event, the court did not rest its decision on the lack of timeliness. It instead proceeded to explain why Benitez's claims were without merit. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

In May of 2003, Benitez pled guilty to one count of conspiracy to distribute more than 100 grams of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(vii), and one count of conspiracy to launder money, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(h). Benitez's sentencing hearing took place in August of 2003. Although there was no interpreter present at Benitez's plea hearing, an interpreter was on hand at his sentencing hearing in case Benitez did not understand something that was said.

At the sentencing hearing, the district court considered the government's motion for a downward departure based on Benitez's cooperation in the investigation of the drug conspiracy in which he participated. The government outlined the testimony that Benitez had given at the trial of two coconspirators. Benitez's attorney, John Beason, was then asked if he wished to be heard. Beason replied: "Your honor, before I — I would inform the Court that I was told last night that I was fired from this case and he wished me not to represent him any longer. So am I to still speak on his behalf if the Court knows that fact?" The court responded by asking Benitez how he wished to proceed. After Benitez conferred with the interpreter, the interpreter said that Benitez did not want Beason to represent him. Benitez also declined to speak for himself, indicating through the interpreter that "he felt very upset, very nervous."

The district court then asked whether Benitez wanted Beason "to speak on [his] behalf at this time." Benitez replied "no," and his interpreter followed up by stating: "Well, he can speak, but I don't want him to represent me any longer." The court explained that by speaking, "he would be representing you and telling what's good about you and your position here." Benitez responded through the interpreter, saying: "No, I do not want him to represent me."

The court then asked Beason to remain where he was, and addressed Beason directly: "I want you here for just a little while longer. I want the record to reflect that you were on your feet and you were prepared to make comments, presumably — may I presume that they were in support of the government's motion for a downward departure for your client?" Beason replied: "Very much so, Your Honor."

The district court proceeded by granting the government's downward-departure motion. It then asked Benitez if he wanted to say anything on his own behalf before the court imposed the actual sentence. Benitez said: "I don't feel good. I can't speak." At this point, the following colloquy between the court and Benitez took place:

THE COURT: You do not wish Mr. Beason to speak on your behalf; is that right?

DEFENDANT BENITEZ: Am I going to get sentenced still even though he won't represent me?

. . . .

THE COURT: Right, right.

DEFENDANT BENITEZ: Might as well just have him speak for me, then.

THE COURT: You might as — excuse me?

THE INTERPRETER: Go ahead and have him speak for me. Go ahead and have him speak for me.

The district court concluded the hearing by sentencing Benitez to two 120-month terms of imprisonment, to be served concurrently, in addition to four years of supervised release, a $10,000 fine, and a $200 special assessment. Beason then requested that he be relieved from representing Benitez on appeal, reasoning that "if he should choose to appeal I know ... he's going to allege ineffective assistance of counsel." The court granted the request, but also stated: "I want the record to reflect that you have, with Mr. Benitez's permission, spoken on his behalf, accepted the papers, and turned those papers over to him and executed your responsibilities as Mr. Benitez permitted you in this proceeding this morning." At this point, the following exchange occurred:

THE COURT: Is that correct, Mr. Benitez?

MR. BEASON: You have to answer yes.

DEFENDANT BENITEZ: Yes.

B. Procedural background

Benitez did not pursue a direct appeal. But on September 17, 2004, acting through counsel, he filed a motion for relief from judgment pursuant to 28 U.S.C. § 2255. Benitez argued that (1) he was deprived of his Sixth Amendment right to counsel during the sentencing hearing, (2) he received ineffective assistance of counsel "during the phase of the sentencing hearing for which he had counsel," (3) he was deprived of his Fifth Amendment right to due process of law when the district court imposed a sentence while operating under a misapprehension of law, (4) his sentence was calculated in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and (5) he received ineffective assistance of counsel because Beason failed to file a timely notice of appeal.

The district court denied Benitez's motion on the basis that the same was barred by the one-year statute of limitations contained in 28 U.S.C. § 2255. It also noted that "even if [it] were to consider the merits of Benitez's claims for relief, the motion would be denied." With respect to Benitez's claim that he was denied the right to counsel during his sentencing hearing, the district court concluded that although "the record evidences some confusion on Benitez's part as to his counsel's role at sentencing, there is no evidence that he was without counsel during the proceeding." The court further determined that all of Benitez's other claims for relief were "completely without merit."

Benitez subsequently filed a motion to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, contending, among other things, that he was entitled to equitable tolling based on the failure of his counsel to timely file his § 2255 motion. The district court denied the motion, concluding that "even assuming equitable tolling applies, the outcome of the case does not change" because Benitez's claims lacked merit. Nevertheless, the court issued a COA on Benitez's right-to-counsel claim. This court subsequently declined to expand the COA as to Benitez's claim that he received ineffective assistance of counsel when Beason failed to file a notice of appeal after Benitez was sentenced. Benitez's claim regarding his right to counsel during his sentencing hearing is thus the sole issue presently before us.

II. ANALYSIS

A. Statute of limitations

A motion filed pursuant to 28 U.S.C. § 2255 is subject to a one-year statute of limitations, with the limitations period beginning to run "from the latest of four possible dates. The only two that are potentially relevant in the present case are

the date on which the judgment of conviction becomes final; [or] the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review....

28 U.S.C. § 2255(f)(1) & (3).

Although Benitez's claim based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), is not before us, we note that any sentencing claim would now be governed by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Moreover, Booker has not been made retroactively applicable to cases on collateral review. Humphress v. United States, 398 F.3d 855, 860 (6th Cir.2005).

Benitez's judgment became final on September 15, 2003, the date that marked the expiration of the 10-day time period (plus intervening weekends and a federal holiday) when he could have filed a timely appeal of his August 29, 2003 judgment and commitment order. See Fed. R.App. P. 4(b)(1); Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir.2004) (concluding that, as a general matter, the time limitation for appealing a criminal judgment contained in Rule 4(b)(1) of the Federal Rules of Appellate Procedure governs when a judgment of conviction becomes final for the purposes of 28 U.S.C. § 2255(f)(1)). Benitez filed his § 2255 motion on September 17, 2004, two days after the limitations period lapsed. The district court therefore determined that Benitez's motion was untimely.

As the government points out, the district court's "primary ruling of time barred has never been found to be in error." Neither the parties nor the district court,...