U.S. v. Vazque-Munoz
| Decision Date | 28 September 2006 |
| Docket Number | No. CR99-4057-MWB.,CR99-4057-MWB. |
| Citation | 453 F.Supp.2d 1078 |
| Parties | UNITED STATES of America, Plaintiff, v. Juan Carlos VAZQUEMUNOZ, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Kevin C. Fletcher, U.S. Attorney's Office, Sioux City, IA, Peter E. Deegan, Jr., U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
I. INTRODUCTION ...............................................................1081
A. Charges, Conviction, Sentencing, And Appeal .............................1081
B. The Motion To Vacate Sentence ...........................................1082
II. LEGAL ANALYSIS .............................................................1084
A. Standards For Relief Pursuant To § 2255 ............................1084
B. Ineffective Assistance Of Counsel .......................................1085
1. Failure to file after being expressly instructed by the client .......1086
2. Failure to file without obtaining defendant's consent ................1088
3. Failure to object to the PSIR regarding the defendant's role in the
offense ..............................................................1090
C. Certificate Of Appealability ............................................1092
III. CONCLUSION .................................................................1092
This matter comes before the court pursuant to defendant Juan Carlos Vazquez-Munoz's June 24, 2002, Motion To Vacate, Set Aside, Or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 59). In this motion, Vazquez-Munoz seeks relief from his sentence on a drug conspiracy charge based on the alleged ineffective assistance by his counsel in failing to file a notice of appeal after being so instructed by defendant Vazquez-Munoz. The parties have briefed the issues presented, and the court has held an evidentiary hearing. Therefore, the court finds the motion is now ripe for disposition.
In a single count Indictment handed down on October 27, 1999, defendant Vazquez-Munoz was charged with conspiring to distribute 1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846. The charge followed Vazquez-Munoz's arrest that resulted from a search effectuated at a residence located in South Sioux City, Nebraska, on September 17, 1999. At the time of his arrest, Vazquez-Munoz claims he was on a three-day methamphetamine binge and has no memory of the details he provided regarding his involvement in the drug distribution conspiracy. Despite the fact that Vazquez-Munoz contested the attributable drug quantity and the government's contention that he was a leader or manager in the organization, he agreed to plead guilty to the underlying charge. On July 18, 2000, Vazquez-Munoz appeared before Magistrate Judge Paul A. Zoss and entered a plea of guilty. Judge Zoss determined that Vazquez-Munoz's guilty plea was knowing and voluntary and that the offense charged was supported by an independent basis in fact containing each of the essential elements of such an offense. Consequently, Judge Zoss issued a Report and Recommendation recommending that Vazquez-Munoz's plea of guilty be accepted (Doc. No. 29). This court accepted Judge Zoss's Report and Recommendation on August 8, 2000 (Doc. No. 30).
Vazquez-Munoz appeared for sentencing before this court on October 27, 2000. The Presentence Investigation Report (PSIR) attributed 23 pounds of methamphetamine to Vazquez-Munoz and concluded he was a leader in the drug conspiracy. Prior to the sentencing, Vazquez-Munoz filed objections to the first draft of the PSIR with respect to the quantity of drugs attributed to him and his role in the conspiracy. Specifically, Vazquez-Munoz argued he was only accountable for 4.4 pounds of methamphetamine and that he was not a leader or manager of the conspiracy. However, during the sentencing hearing, the defendant's attorney, Michael Frey, represented that, following his review of the PSIR with his client, Vazquez-Munoz decided to withdraw his objections to the PSIR and proceed to sentencing by accepting the PSIR in its final form. Vazquez-Munoz agreed with Frey's rendition of the events on the record and indicated to the court that he had been afforded adequate opportunity to review the PSIR with Frey. Consequently, in accord with the calculations computed by the final PSIR, the court determined that Vazquez Munoz's total offense level was 36 and that he had a criminal history category of III, which resulted in a sentencing range of 235-293 months. The court sentenced Vazquez-Munoz at the bottom end of the guideline range for a term of 235 months. Vazquez-Munoz did not file a timely appeal of his conviction or sentence.
On March 26, 2001, Vazquez-Munoz filed a pro se Motion To Reopen The Time To File An Appeal, requesting the case be reopened based on good cause. He contended that the failure of his counsel to file a notice of appeal constituted good cause. On March 26, 2001, the court entered an order denying Vazquez-Munoz's motion on the ground that the court lacked jurisdiction to grant him leave to file a late notice of appeal pursuant to Rule 4(b)(4) of the Federal Rules of Appellate Procedure. Vazquez-Munoz appealed that order to the Eighth Circuit Court of Appeals. The Eighth Circuit Court of Appeals affirmed the denial of leave to file a late notice of appeal on July 9, 2001.
On June 24, 2002, Vazquez-Munoz filed, pro se, his Motion To Vacate, Set Aside, Or Correct Sentence, which is now before the court. In his motion, Vazquez-Munoz asserted ineffective assistance of counsel due to his attorney's failure to file a notice of appeal when so instructed by defendant Vazquez-Munoz. Vazquez-Munoz averred that, immediately after imposition of his sentence, he indicated to Frey that he wished to file an appeal. In addition to his requested relief, Vazquez-Munoz requested an evidentiary hearing on the matter.
In an Initial Review Order, filed June 26, 2002 (Doc. No. 60), the court held that Vazquez-Munoz's claim of ineffective assistance of counsel was not such that it plainly appeared that Vazquez-Munoz was not entitled to any relief. See 28 U.S.C. § 2255 (). Therefore, the court ordered the United States Attorney to respond to Vazquez-Munoz's motion. In a response filed August 9, 2002 (Doc No. 64), the government resisted Vazquez-Munoz's claim of ineffective assistance of counsel on the merits. Specifically, the government contested Vazquez-Munoz's assertions that he had requested .Frey file an appeal. Rather, the government represented, in the form of an affidavit from Frey, that Vazquez-Munoz informed counsel he did not want to appeal his case, and was, instead, interested in pursuing a Rule 35 motion. Vazquez-Munoz filed a reply on September 25, 2002 (Doc. No. 67), in which he referred to the Government's response as "maddening."
Because the motions, files, and records of the case were inconclusive regarding whether Vazquez-Munoz instructed his counsel to file an appeal, an evidentiary hearing was held on September 22, 2006. See Holloway v. United States, 960 F.2d 1348, 1357 (8th Cir.1992) (); see also Estes v. United States, 883 F.2d 645, 649 (8th Cir.1989) (same)1 At the hearing, Vazquez-Munoz testified, in contradiction to the assertion made in his brief, that immediately following imposition of his sentence, he did not discuss filing a notice of appeal with Frey.2 Instead, Vazquez-Munoz testified that he did not make an attempt to discuss filing an appeal with Frey until sometime between the 10th and 13th of November, 2000, when he left a message with Frey's secretary to have Frey contact him regarding the possibility of appealing his sentence. According to Vazquez-Munoz, he subsequently did have a conversation with Frey, via telephone, on approximately November 13, 2000. During that conversation, he inquired into whether Frey had appealed. When Frey responded in the negative, Vazquez-Munoz informed Frey that he wished to pursue an appeal. Vazquez-Munoz testified Frey responded by stating there was nothing more that could be done and that the only recourse available to Vazquez-Munoz was a motion under 28 U.S.C. § 2255. Immediately following that conversation, Vazquez-Munoz drafted a letter to this court, with the aid of a fellow inmate acting as a Spanish interpreter, dated November 13, 2000. The letter reads as follows:
I am writing to you to request another attorney be appointed to me concerning an appeal of my sentencing in your court on October 27[,] 2000.
I've spoken to my attorney, Michael Frey, and he has advised me that I need to file a 2255 motion for new legal council [sic]. As I am not a legal expert, or an advocate of the court, I am at this time requesting your assistance in filing this motion.
There is a conflict of interest pursuant to my plea-agreement and my P.S.I. report. I was sentenced according to the accusations in my P.S.I. and I was not givin [sic] the oppertunity [sic] to challenge the accusation at my time of sentencing, per my present attorney.
I would like to exersise [sic] my legal write [sic] to appeal my sentencing and challenge my alleged role in my offence [sic] according to the government allegations.
Let...
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