U.S. v. Gutierrez

Decision Date10 February 1988
Docket NumberNo. 86-2154,86-2154
Citation839 F.2d 648
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Toby Joe GUTIERREZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Jennifer A. Salisbury, Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with her, on brief), Albuquerque, N.M., for plaintiff-appellee.

Ann Steinmetz, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

Before McKAY, SEYMOUR and BALDOCK, Circuit Judges.

PER CURIAM.

Toby Gutierrez (defendant) appeals the denial of his motion to vacate or set aside his sentence pursuant to 28 U.S.C. Sec. 2255. At the beginning of 1965, defendant pleaded guilty to trafficking in heroin. 26 U.S.C. Sec. 4705(a) (1964) (repealed 1970). At that time he was 22 years old and had been addicted to heroin for nine years. He served four years, including a drug rehabilitation program. For ten years defendant maintained a clean record. In 1980, however, he was convicted of heroin trafficking under N.M.Stat.Ann. Sec. 30-31-20(A)(2) (1978). Two years later, New Mexico enhanced his sentence to life imprisonment because of the prior federal offense, pursuant to N.M.Stat.Ann. Sec. 30-31-20(B)(2) (1978). Defendant now argues that his 1965 guilty plea was not knowing and voluntary.

Defendant, who initially appeared pro se in district court but was subsequently represented by counsel, raised three grounds in support of relief. First, defendant alleged that he was suffering from the symptoms of withdrawal from heroin addiction at the time of his plea, and hence was incompetent to enter a knowing and voluntary plea. Second, defendant alleged that neither the court nor his trial counsel advised him of the sentencing range for his offense or that he would not be eligible for suspension, probation, or parole. He argued that his plea was therefore not knowing and voluntary, and that his counsel was ineffective. Third, defendant alleged that he was convicted under a statute which only applies to physicians.

The United States moved to dismiss the motion on the ground that the transcript of the plea proceeding demonstrated that defendant understood the charges to which he was pleading guilty. In the alternative, the government contended that defendant's motion should be dismissed pursuant to Rule 9(a) of the Rules Governing Sec. 2255 Proceedings because the government had been prejudiced in its ability to respond to the motion by defendant's twenty-year delay in bringing the motion. The United States attached letters and an affidavit to the motion to show that the attorneys present at the plea and at sentencing no longer had any specific recollection of defendant's condition.

John F. Quinn, a former assistant United States attorney, wrote a letter indicating that he had no "remembrance of [defendant's] demeanor the morning of the change of plea." The assistant United States attorney at the time of sentencing, Scott McCarty, stated in an affidavit that he had "no specific recollection" of the sentencing. Mr. McCarty noted, however, that if defendant had appeared to be under the influence of heroin or any other illicit drug at the time of sentencing, he would have noticed defendant's condition. Mr. McCarty further stated that if he had believed defendant was under the influence of drugs, he would have brought it to the attention of the judge.

After the defendant filed a response, the government supplemented its motion with a letter from defendant's former counsel, who indicated that a review of the transcript had not refreshed his recollection of events. Counsel also indicated that his files were "no longer retained." He volunteered that he would be happy to cooperate if the government could think of another way to trigger his memory.

In his response, defendant, through counsel, argued that Rule 9(a) was inapplicable because 28 U.S.C. Sec. 2255 states that "a motion for such relief may be made at any time." Defense counsel did not object to the procedural aspects of the case until it was on appeal. Nor was there any meaningful analysis of the substantive issues until the case reached the court of appeals. Only then were the relevant issues briefed and the substance of the government's position opposed on grounds sufficiently specific to admit of review. Notwithstanding the result in this case, we do not condone this type of practice.

Pursuant to 28 U.S.C. Sec. 636(b)(1)(B), the district court referred the motion to dismiss to the United States magistrate. The magistrate found that the government had been prejudiced by the delay and that defendant had knowledge of the alleged defects in his plea proceeding for the entire time prior to filing his motion pursuant to Sec. 2255. The magistrate therefore recommended dismissal under Rule 9(a). The magistrate also reviewed the transcript of the plea proceeding and concluded that the defendant's guilty plea was accepted in compliance with Fed.R.Crim.P. 11 as it existed in 1965. The magistrate therefore recommended that in the alternative the district court deny the motion on the merits. The district court adopted the magistrate's recommendation without specifying either alternative.

I.
A.

Rule 9(a) states, "A motion for relief made pursuant to these rules may be dismissed if it appears that the government has been prejudiced in its ability to respond to the motion by delay in its filing unless the movant shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the government occurred." The district court's dismissal under Rule 9(a) raises the issues of the substantive standards for considering a motion to dismiss under the rule and the proper procedure for reviewing the motion. See Hill v. Linahan, 697 F.2d 1032 (11th Cir.1983). Because these issues are related, we will consider them together.

A motion under 28 U.S.C. Sec. 2255 may be filed "at any time." Therefore, the passage of time alone cannot logically be sufficient to bar defendant's motion under Rule 9(a). Cf. Bowen v. Murphy, 698 F.2d 381 (10th Cir.1983) (Sec. 2254 case holding "[d]elay alone is not sufficient to dismiss a petition pursuant to Rule 9(a))." Prior to the adoption by the Supreme Court in 1976 of the Rules Governing Sec. 2255 Proceedings, this court had indicated that any diligence requirement in filing a Sec. 2255 motion would in effect impose a statute of limitations on Sec. 2255, contrary to the language of the statute. Haier v. United States, 334 F.2d 441 (10th Cir.1964). This court therefore rejected a diligence requirement per se, although the court indicated that there might be circumstances in which a defendant's conduct would "disentitle him to the relief he seeks." Id. at 443.

Rule 9(a) under Sec. 2255 is in accord with our holding in Haier that delay in filing alone cannot bar defendant from the relief he seeks. The original draft of Rule 9(a) provided that a rebuttable presumption of prejudice would arise after a delay of five years in seeking relief. H.R.Rep. No. 1471, 94th Cong., 2d Sess. 1, 5, reprinted in [1976] U.S.Code Cong. & Ad.News 2478, 2481. Congress, however, rejected even a rebuttable presumption against defendant arising from delay, indicating that it was "unsound policy to require the defendant to overcome a presumption of prejudice and that the [change brought] Rule 9(a) into conformity with other provisions of law," specifically the same provision relied on in Haier that a Sec. 2255 motion may be made "at any time." Id. at 2481 and 2482 n. 9.

In Bowen, we interpreted Rule 9(a) under 28 U.S.C. Sec. 2254, which contains nearly identical language to Rule 9(a) under Sec. 2255. We concluded that the government "must first make a particularized showing of prejudice in its ability to respond." 698 F.2d at 383. Only then does the burden shift to the defendant. Id. In accord with the legislative history of Rule 9(a) and the reasoning in Bowen, we conclude that the burden of proof remains on the government, regardless of the length of the delay.

Rule 9(a) is also consistent with the equitable standard announced in Haier that a defendant's conduct may "disentitle him to the relief he seeks." Haier, 334 F.2d at 443. "Subdivision (a) provides a flexible, equitable time limitation based on laches to prevent movants from withholding their claims so as to prejudice the government both in meeting the allegations of the motion and in any possible retrial. It includes a reasonable diligence requirement for ascertaining possible grounds for relief. If the delay is found to be excusable, or nonprejudicial to the government, the time bar is inoperative." Advisory Committee Note to Rule 9, 28 U.S.C. foll. Sec. 2255.

In McDonnell v. Estelle, 666 F.2d 246 (5th Cir.1982), the Fifth Circuit addressed Rule 9(a)'s equitable standard under Sec. 2254. "The doctrine of laches, as codified in Rule 9(a), is an equitable one. It is fact-oriented and its application varies from case to case.... While it is clear that the purpose of Rule 9(a) is to permit summary dismissals of stale claims, such dispositions are drastic and final. They should be entered only when the evidence before the court fully satisfies the standards required in the rule." Id. at 254-55; see Bowen, 698 F.2d at 382. Substantively, then, Rule 9(a) provides to the government what is in essence an equitable affirmative defense.

Rule 9(a) is a substantive rule permitting dismissal of a motion under Sec. 2255 in some circumstances. The Rules Governing Sec. 2255 Proceedings do not suggest the procedure to be used in considering a motion to dismiss under Rule 9(a). The Federal Rules of Civil Procedure therefore apply. Rule 12, 28 U.S.C. foll. Sec. 2255; see also McDonnell, 666 F.2d at 249. In view of the substantive requirements of summary disposition under Rule 9(a), a motion under the rule raising factual allegations of prejudice to the government must be...

To continue reading

Request your trial
27 cases
  • U.S. v. Simmonds, 96-3287
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 14, 1997
    ...of attorney fees to prevailing party). The same inconsistency exists in the treatment of § 2255 proceedings. In United States v. Gutierrez, 839 F.2d 648, 651 (10th Cir.1988), this court held the Federal Rules of Civil Procedure apply to a motion to dismiss a § 2255 motion. However, in Cook,......
  • Moore v. U.S.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 2, 1991
    ...1, 20, 83 S.Ct. 1068, 1079, 10 L.Ed.2d 148 (1963); United States v. Estrada, 849 F.2d 1304, 1306 (10th Cir.1988); United States v. Gutierrez, 839 F.2d 648, 652 (10th Cir.1988). The district court should proceed in accordance with § 2255 and R. 8, Rules Governing § 2255 Proceedings, and cons......
  • U.S. v. Nahodil
    • United States
    • U.S. Court of Appeals — Third Circuit
    • June 22, 1994
    ...89 S.Ct. 1068, 1073-74, 22 L.Ed.2d 227 (1969) (applying precedent under Sec. 2254 to a Sec. 2255 proceeding); United States v. Gutierrez, 839 F.2d 648, 650 (10th Cir.1988) (same). Thus, prejudice to the government's ability to retry the case is not a consideration when ruling upon a Sec. 22......
  • David v. City and County of Denver
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 3, 1996
    ...Food Services Co., 985 F.2d 1419, 1423 (10th Cir.1993); Ketchum v. Cruz, 961 F.2d 916, 919 (10th Cir.1992); United States v. Gutierrez, 839 F.2d 648, 651 (10th Cir.1988). The required notice may be actual or constructive, and in some circumstances, courts have concluded that the submission ......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT