Gomez v. U.S., No. CIV. 99-3022.

CourtU.S. District Court — District of South Dakota
Writing for the CourtKornmann
Citation100 F.Supp.2d 1038
PartiesJuan GOMEZ, Plaintiff, v. UNITED STATES of America, Defendant.
Docket NumberNo. CR 97-30073.,No. CIV. 99-3022.
Decision Date19 May 2000

Page 1038

100 F.Supp.2d 1038
Juan GOMEZ, Plaintiff,
v.
UNITED STATES of America, Defendant.
No. CIV. 99-3022.
No. CR 97-30073.
United States District Court, D. South Dakota, Central Division.
May 19, 2000.

Page 1039

COPYRIGHT MATERIAL OMITTED

Page 1040

Juan Gomez, Oxford, WI, pro se.

Ted L. McBride, United States Attorney, by Michelle G. Tapken, Assistant U.S. Attorney, Sioux Falls, SD, for United States.

ORDER

KORNMANN, District Judge.


The Court having adopted the magistrate's report and recommendation.

IT IS ORDERED that the motion to vacate or set aside conviction and sentence (Doc. 104) is denied.

ORDER

Juan Gomez, plaintiff, filed a motion (Doc. 104) pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. This Court referred the matter to U.S. Magistrate Judge Mark Moreno pursuant to 28 U.S.C. § 636(b)(2)(B). Judge Moreno caused to be filed on March 27, 2000, his report and recommendations for disposition (Doc. 112). Gomez was specifically warned that failure to file written objections to the report and recommendations for disposition within ten (10) days from the date of service "shall bar an aggrieved party from attacking such Report and Recommendations before the assigned United States District Judge."

Gomez thus was given a very clear warning as to the consequences of failing to file written objections. He obviously received the report and recommendation on or before April 1, 2000, since he refers to it in his docketing statement (Doc. 113) in which he states that his notice of appeal (Doc. 114) to the United States Court of Appeals for the Eighth Circuit (which notice is dated April 3, 1999(sic)) was mailed on April 1, 2000. To the present date, Gomez has filed no objections to the report and recommendation and the time to do so has long since expired.

"A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). Gomez is proceeding pro se. According, despite the failure to file objections, the Court has conducted a de novo determination of the report of the file. This Court presiding over the Gomez trial, heard all the evidence, and sentenced him. The Court found that Gomez testified falsely at the trial and ordered an enhancement for obstruction of justice. Clearly, there would

Page 1041

have been no basis at all for any downward departure. The entire report and recommendation should be adopted and accepted.

The Court notes that the Court of Appeals has refused to permit the filing of the notice of appeal and docket entries (Doc. 116). This Court must now consider whether to issue a certificate of appealability and should decline to do so as there are no issues which merit any such appeal. Now, therefore,

IT IS ORDERED:

1. The report and recommendation is accepted and adopted in toto.

2. No certificate of appealability will issue by this court and Gomez may seek from the Court of Appeals such a certificate.

REPORT AND RECOMMENDATIONS FOR DISPOSITION

MORENO, United States Magistrate Judge.

I.

The above-captioned 28 U.S.C. § 2255 case was referred to this Court by the District Court1 pursuant to 28 U.S.C. § 636(b)(1)(B), for purposes of determining defendant, Juan Gomez's (Gomez) eligibility to proceed in forma pauperis, conducting any necessary hearings, including evidentiary hearings, and submitting to it proposed findings of fact and recommendations for disposition.

II.

Gomez was charged by indictment with first degree burglary, in violation of 18 U.S.C. § 1152 and SDCL 22-32-1. He was arrested, arraigned and thereafter released pending trial. On December 17, 1997, a jury found Gomez guilty of the burglary charge. The trial court thereafter denied Gomez's post-trial motions and sentenced him to forty-six months of imprisonment.

Subsequently, Gomez appealed but the Eighth Circuit Court of Appeals affirmed his conviction and sentence. The Eighth Circuit's decision is reported at United States v. Gomez, 165 F.3d 650 (8th Cir. 1999).

Approximately eight months later, Gomez filed a motion under § 2255 to vacate, set aside or correct his sentence. The motion was referred to this Court for a report and dispositional recommendations.

III.

During the evening of August 9, 1997 and on into the early morning hours of the following day, Carol Thompson Muniz (Muniz), Kerrie Flute (Flute), Fernando Aranda (Aranda) and Danielle LaRoche (LaRoche) spent time together drinking alcohol at a Reliance, South Dakota bar and at Muniz's house, located on the Lower Brule Indian Reservation. After the bar closed at midnight, the foursome went to a dance in the town of Lower Brule, where they stayed until 2:00 or 3:00 a.m. Once the dance ended, they began drinking again at Muniz's home.

While, sitting in Muniz's kitchen, the group heard someone banging at the front door of the house. Muniz and Aranda yelled at the person to go around to the back door. Gomez, who was the one at the front door, went to the back door and the upon discovering that the door was locked, kicked and pounded on it until it flew open. He then entered the house but before proceeding, broke a beer bottle he was carrying on the kitchen door frame, scattering glass around the kitchen. As he did this, a piece of glass hit LaRoche on the head, causing her to run out of the house.

Flute attempted to flee the house also but Gomez confronted her with the broken beer bottle, brandishing the jagged edge as he approached her. When Gomez turned his attention to Aranda and lunged

Page 1042

at him, Flute escaped. While inside the house, Gomez looked at Muniz and yelled "Bitch, you're dead," or words to that effect. Gomez and Aranda began to fight and Muniz dashed off to her bedroom. Moments later, she came out and, seeing that the coast was clear, went to a neighbor's house and telephoned the police.

Officer Tim Felicia of the Lower Brule Police Department and a tribal deputy arrived at Muniz's residence at approximately 3:30 a.m., within a few minutes of receiving the call. Felicia noticed that the back door was open and the door frame had been broken, and that there was a broken beer bottle and glass in the entryway of the kitchen, along with blood.

Gomez, who testified in his own defense, gave a markedly different version of what took place at Muniz's house. He testified that he went to the house in search of his girlfriend, Beverly Skunk (Skunk), but only found Aranda. According to Gomez, after he asked if Skunk was around, Aranda, without any provocation, broke a beer bottle over Gomez's face and cut him under his arm with the bottle.

Following Gomez's arrest that same day, Muniz saw Gomez standing nearby. Muniz testified that Gomez yelled at her, threatening to hurt her if she told on him.

The trial lasted two days and the jury, disbelieving Gomez's rendition of what happened, returned a guilty verdict on the burglary charge. The trial court imposed sentencing enhancements to Gomez's base offense level for possession of a dangerous weapon and for obstruction of justice and sentenced him to a forty-six month sentence.

IV.

Although Gomez has not requested or otherwise sought to have counsel appointed for him, this Court feels compelled to decide whether he is entitled to the appointment of counsel under the Criminal Justice Act, 18 U.S.C. § 3006A, in view of the nature of the proceeding, the issues raised and the relief sought.

A court may appoint counsel for a defendant seeking § 2255 relief when "the interests of justice so require." § 3006A(a)(2)(B). If the court conducts an evidentiary hearing, the interests of justice require the court to appoint counsel. Rule 8(c) of the Rules Governing § 2255 Proceedings. If no evidentiary hearing is necessary, the appointment of counsel is discretionary.

In exercising its discretion, a court should first determine whether a pro se defendant has presented a non-frivolous claim. See Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir.), cert. denied, 513 U.S. 857, 115 S.Ct. 163, 130 L.Ed.2d 101 (1994). If the defendant has presented only claims that are frivolous or clearly without merit, the court should dismiss the case on the merits without appointed counsel. Id.; Rule 4 of the Rules Governing § 2255 Proceedings. If the defendant has presented a non-frivolous claim, the court should then determine whether, given the particular circumstances of the case, the appointment of counsel would benefit the defendant and the court to such an extent that "the interests of justice so require" it. Nachtigall v. Class, 48 F.3d 1076, 1081 (8th Cir.1995); Abdullah, 18 F.3d at 573; § 3006A(a)(2)(B). In determining whether appointment of counsel is required for a defendant seeking § 2255 relief with non-frivolous claims, the court should consider the factual and legal complexities of the case, the defendant's ability to investigate and present claims, the existence of conflicting testimony, and any other relevant factors. Nachtigall, 48 F.3d at 1081-82; Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir.1994); Abdullah, 18 F.3d at 573.

Applying these factors to the case at hand, this Court concludes that the interests of justice do not require the appointment of counsel. The claims Gomez raises in his motion, while not frivolous or devoid of any colorable merit on their face,

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nonetheless, are not ones that involve complex legal or factual issues or ones that arise out of conflicted testimony or require further fact investigation. Nachtigall, 48 F.3d at 1082; Hoggard, 29 F.3d at 472. It is evident that Gomez understands the issues involved and is capable of presenting his claims and responding to the rejoinder arguments of plaintiff, United States of America (government). Id. His motion and accompanying briefs are well-written and contain proper citations to applicable legal authorities so as to enable the Court to determine whether § 2255 relief...

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  • U.S. v. One Star, No. CR 04-30070.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • August 25, 2008
    ...v. Norris, 18 F.3d 571, 573 (8th Cir.), cert, denied, 513 U.S. 857, 115 S.Ct. 163, 130 L.Ed.2d 101 (1994); Gomez v. United States, 100 F.Supp.2d 1038, 1042 (D.S.D.2000). If the movant has presented only claims that are frivolous or clearly without merit, the court should dismiss the case on......
  • U.S. v. Arcoren, No. CR 05-30129.
    • United States
    • U.S. District Court — District of South Dakota
    • July 7, 2009
    ...v. Norris, 18 F.3d 571, 573 (8th Cir.), cert. denied, 513 U.S. 857, 115 S.Ct. 163, 130 L.Ed.2d 101 (1994); Gomez v. United States, 100 F.Supp.2d 1038, 1042 (D.S.D.2000). If the movant has presented only claims that are frivolous or clearly without merit, the court should dismiss the case on......
  • United States v. Lewis, No. 4:11-cr-40037-001
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • February 18, 2015
    ...assistance of counsel. See, Reid v. United States, 2010 WL 3829397, at *11 (E.D. MO. September 23, 2010); Gomez v. United States, 100 F.Supp.2d 1038 (S.D. 2000). There is no per se ineffectiveness for failing to file a sentencing memorandum. Page 14 Lewis makes no specific allegation regard......
  • United States v. Jennings, Criminal Action No. 2: 06-79-DCR
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • July 25, 2011
    ...before this Court . . . that a defendant file a written sentencing memorandum prior to sentencing"); United States v. Gomez, 100 F. Supp. 2d 1038, 1045 (D.S.D. 2000) (failure to file sentencing memorandum is not ineffective assistance of counsel). Second, Jennings does not identify specific......
  • Request a trial to view additional results
6 cases
  • U.S. v. One Star, No. CR 04-30070.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • August 25, 2008
    ...v. Norris, 18 F.3d 571, 573 (8th Cir.), cert, denied, 513 U.S. 857, 115 S.Ct. 163, 130 L.Ed.2d 101 (1994); Gomez v. United States, 100 F.Supp.2d 1038, 1042 (D.S.D.2000). If the movant has presented only claims that are frivolous or clearly without merit, the court should dismiss the case on......
  • U.S. v. Arcoren, No. CR 05-30129.
    • United States
    • U.S. District Court — District of South Dakota
    • July 7, 2009
    ...v. Norris, 18 F.3d 571, 573 (8th Cir.), cert. denied, 513 U.S. 857, 115 S.Ct. 163, 130 L.Ed.2d 101 (1994); Gomez v. United States, 100 F.Supp.2d 1038, 1042 (D.S.D.2000). If the movant has presented only claims that are frivolous or clearly without merit, the court should dismiss the case on......
  • United States v. Lewis, No. 4:11-cr-40037-001
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • February 18, 2015
    ...assistance of counsel. See, Reid v. United States, 2010 WL 3829397, at *11 (E.D. MO. September 23, 2010); Gomez v. United States, 100 F.Supp.2d 1038 (S.D. 2000). There is no per se ineffectiveness for failing to file a sentencing memorandum. Page 14 Lewis makes no specific allegation regard......
  • United States v. Jennings, Criminal Action No. 2: 06-79-DCR
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • July 25, 2011
    ...before this Court . . . that a defendant file a written sentencing memorandum prior to sentencing"); United States v. Gomez, 100 F. Supp. 2d 1038, 1045 (D.S.D. 2000) (failure to file sentencing memorandum is not ineffective assistance of counsel). Second, Jennings does not identify specific......
  • Request a trial to view additional results

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