Quiroga v. U.S.
| Decision Date | 25 May 2011 |
| Docket Number | No. C 10-3019-MWB,No. CR 06-3009-MWB,C 10-3019-MWB,CR 06-3009-MWB |
| Parties | FRANCISCO MARCOS QUIROGA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
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¦I. ¦NTRODUCTION ¦2 ¦
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¦ ¦A. The Petitioner's Criminal Proceedings ¦2 ¦
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¦ ¦B. The Petitioner's §2255 Motion ¦6 ¦
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¦II. ¦PRELIMINARY MATTERS ¦7 ¦
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¦III. ¦LEGAL ANALYSIS ¦8 ¦
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¦ ¦A. Standards For Relief Pursuant To § 2255 ¦8 ¦
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¦ ¦B. Ineffective Assistance Of Counsel ¦11¦
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¦ ¦1. Applicable standards ¦11¦
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¦ ¦2. Failure to raise issue on appeal ¦13¦
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¦ ¦3. Failure to advise during plea process ¦21¦
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¦ ¦a. Withdrawal of plea ¦21¦
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¦ ¦b. Delay in plea ¦22¦
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¦ ¦4. Failure to request a downward variance ¦24¦
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¦ ¦5. Cumulative errors ¦26¦
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¦ ¦6. Failure to challenge conviction and sentence ¦27¦
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¦ ¦C. Certificate Of Appealability ¦27¦
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¦IV. ¦CONCLUSION ¦29¦
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This case is before me on petitioner Francisco Marcos Quiroga's Pro Se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1), filed on April 26, 2010, and on Plaintiff's Brief (Civ. docket no. 7), filed by appointed counsel on August 20, 2010. Quiroga claims that the attorneys who represented him at the trial and appellate level provided him with ineffective assistance of counsel in several ways. The respondent denies that Quiroga is entitled to any relief on his claims.
On March 22, 2006, Quiroga was charged by a sealed one-count Indictment (Crim. docket no. 2), with possession with intent to distribute 5 grams or more of actual methamphetamine within 1,000 feet of a playground, after having previously been convicted of a felony drug offense. On March 31, 2006, Quiroga personally appeared for an Initial Appearance and Arraignment and entered a plea of not guilty. See Crim. docket no. 6. Quiroga appeared before United States Magistrate Judge, Paul A. Zoss, on October 25, 2006, to plead guilty, pursuant to a plea agreement, to count one of the Indictment. See Crim. docket no. 27. On October 25, 2006, Judge Zoss filed his Report and Recommendation (Crim. docket no. 30) to accept Quiroga's guilty plea. I filed an Order Accepting Report and Recommendation (Crim. docket no. 31) on November 13, 2006. On January 8, 2007, Quiroga, by counsel, filed a Motion to Withdraw Plea of Guilty (Crim. docket no. 32), on the ground that his prior decision to plead guilty had been basedon counsel's erroneous advice that he would not qualify as a career offender. The prosecution filed a Response (Crim. docket no. 34), arguing that Quiroga could not demonstrate any fair or just reason for withdrawal of his guilty plea because his plea was knowingly and voluntarily made, that Quiroga made no claim of legal innocence, and that the timing of Quiroga's motion implied that he was simply having "belated misgivings about the wisdom" of having pled guilty. The prosecution also argued that it would be prejudiced if it was required to proceed to trial because the memory of witnesses would be diminished. See Crim. docket no. 34. I entered an Order (Crim. docket no. 36) denying Quiroga's Motion to Withdraw Plea of Guilty on January 16, 2007.
On January 24, 2007, Quiroga filed a Pro Se Motion for New Attorney (Crim. docket no. 40). On February 1, 2007, by counsel, Quiroga filed Objections (Crim. docket no. 42), to application of the career offender guidelines in his case because the conviction that increased his sentence as a prior felony drug conviction was also employed to trigger a sentencing enhancement under the career offender provision of the guidelines.
Quiroga appeared, with counsel, before me on February 13, 2007, for a sentencing hearing. See Crim. docket no. 43. I continued the sentencing to a later date to give the prosecution time to reply to Quiroga's objection based on Cunningham v. California, 549 U.S. 270 (2007), noting that if I did not sustain Quiroga's objection, I would allow Quiroga to withdraw his guilty plea. See Crim. docket no. 43. On February 16, 2007, the prosecution filed a Supplement/Addendum (Crim. docket no. 44), to its Sentencing Memorandum, asserting that Cunningham was not applicable to Quiroga's case because it did not involve a sentencing enhancement resulting from a prior conviction. The prosecution further argued that Apprendi v. New Jersey, 530 U.S. 466 (2000), made it clear that the fact of a prior conviction is not one that must be charged in the indictment and proven to a jury beyond a reasonable doubt. See Supplement at 3. I entered aMemorandum Opinion and Order (Crim. docket no. 45) on March 23, 2007, granting Quiroga's Motion To Withdraw His Plea Of Guilty and granting Quiroga's Motion For New Attorney.
On May 29, 2007, Quiroga, by counsel, filed a Motion in Limine (Crim. docket no. 51) and a separate Motion to Suppress (Crim. docket no. 52). In his Motion in Limine, Quiroga sought to exclude references to and evidence of, a number of previous convictions, "any and all physical drug evidence with incomplete Chain of Custody and his previously withdrawn plea agreement." See Crim. docket no. 51. Quiroga also sought to exclude "any physical items or substances, observations, statements, or other evidence resulting from incidents that occurred on September 21, 2005." See Crim. docket no. 52. The prosecution filed a Resistance (Crim. docket no. 57) to Quiroga's Motion to Suppress, on June 1, 2007, and a Resistance (Crim. docket no. 63) to Quiroga's Motion in Limine, on June 11, 2007. On June 12, 2007, I entered a Memorandum Opinion and Order (Crim. docket no. 65), granting in part and denying in part Quiroga's Motion in Limine. I granted the Motion to the extent that evidence of certain prior convictions would be excluded, but denied the Motion with regard to evidence of two prior convictions and with regard to exclusion of physical evidence and evidence of Quiroga's prior plea agreement. See Crim. docket no. 65.
On June 13, 2007, Judge Zoss filed a Report and Recommendation (Crim. docket no. 66), recommending denial of Quiroga's Motion to Suppress. Quiroga, through counsel, filed an Objection to Report and Recommendation (Crim. docket no. 68), on June 19, 2007. When Quiroga filed his Notice of Consent To Entry Of A Plea Of Guilty (Crim. docket no. 72), on July 6, 2007, the Report and Recommendation had not yet been ruled on. On July 6, 2007, Quiroga appeared before Judge Zoss to plead guilty to count-one of the Indictment. See Crim. docket no. 74. A Report and Recommendation (Crim. docketno. 75) to accept Quiroga's plea of guilty was filed on July 6, 2007. On July 6, 2007, Quiroga, by counsel, filed a Notice Regarding Conditional Plea (Crim. docket no.76), providing notice that Quiroga intended to appeal the court's ruling on his motion to suppress and motion in limine. I entered an Order (Crim. docket no. 78), accepting the Report and Recommendation as to Quiroga's plea of guilty to count one of the Indictment on July 23, 2007, and accepting Quiroga's plea of guilty.
Quiroga appeared before me on August 10, 2007, for sentencing. See Crim. docket nos. 82 and 95. The prosecution requested that Quiroga receive a sentence within the guideline range of 292 to 327 months. See Crim. docket no. 80. Quiroga objected to application of the career offender guidelines on the basis that it resulted in "double counting," but requested that the court sentence Quiroga to a term of 292 months, at the bottom of the guidelines range, and specifically order that his rights to appeal were preserved. See Crim. docket no. 81. Quiroga was sentenced to 292 months. See Crim. docket no. 84.
Quiroga, by counsel, filed a Notice of Appeal (Crim. docket no. 87), to the United States Court of Appeals for the Eighth Circuit, on August 28, 2007. Quiroga challenged the denial of his motion to suppress currency found on his person when he was arrested, on the ground that the officers lacked probable cause to arrest him. See Crim. docket no. 100. Quiroga also argued, on appeal, that I erroneously denied his motion in limine to exclude evidence relating to his previously withdrawn plea agreement. See Crim. docket no. 100. Additionally, Quiroga challenged his sentence on the ground that I erred by classifying him as a career offender by erroneously counting one of his prior offenses as a felony...
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