United States v. Alvarez
| Decision Date | 04 June 2021 |
| Docket Number | Case No.: 19cv1489-GPC,Case No.: 18cr1653-GPC |
| Court | U.S. District Court — Southern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. FRANCISCO ALVAREZ Defendant. |
[REDACTED -ORIGINAL FILED UNDER SEAL]
Petitioner Francisco Alvarez ("Petitioner"), proceeding with counsel, filed an amended petition for writ of habeas corpus pursuant to 28 § U.S.C. § 2255. (ECF No. 53.) The United States of America ("Government") filed a response. (ECF No. 57.) When the Government filed its response late, Petitioner filed a motion to strike the Government's untimely response and grant the petition and also a motion to strike irrelevant exhibits and a motion for order to disclose grand jury transcripts. (ECF. No. 58.) In response to the Court's order, the Government filed a response. (ECF No. 61.) Petitioner filed a reply to the Government's response. (ECF No. 63.)
For the reasons set forth below, the Court DENIES the petition for writ of habeas corpus and DENIES Petitioner's motion to strike the Government's response and irrelevant exhibits1 and motion for order to disclose grand jury transcripts.
On March 28, 2018, a federal grand jury indicted Petitioner on three counts for 1) possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1); 2) possession of a firearm by an unlawful drug user in violation of 18 U.S.C. § 922(g)(3); and 3) knowingly making a false written statement in connection with the acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6). (ECF No. 1, Indictment.)
On July 26, 2018, Petitioner, with the advice of counsel, plead guilty to Count 3 of the Indictment for knowingly making a false written statement in the acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6) pursuant to a plea agreement. (ECF No. 24 ("Plea Agreement").) Petitioner signed the plea agreement and attested that he discussed the facts of the case with his counsel and understood the charges and consequences of pleading guilty. (Id.) During the guilty plea hearing before the Magistrate Judge, Petitioner represented that the plea was knowing and voluntary and that he fully understood the terms of the agreement. (ECF No. 44 at 15-16.2) Specifically, the presiding Magistrate Judge inquired into the Petitioner's state of mind during the plea colloquy:
(Id. at 4-5.)
The Magistrate Judge again confirmed whether Petitioner understood what was happening and whether he had reasons that he did not feel like he was competent toproceed with the plea. (Id. at 6-7.) When the Magistrate Judge asked Petitioner's counsel whether he had any reasons to believe his client was not fully competent, counsel responded in the negative. (Id. at 7:23-25.) The Magistrate Judge further asked whether Petitioner was entering the plea agreement freely and voluntarily and whether anyone had threatened him or coerced him into pleading guilty, and he responded in the negative. (Id. at 8:1-14.) In conclusion, the Magistrate Judge found that the guilty plea was made knowingly and voluntarily and with a full understanding of the nature of the charges, the constitutional rights and all consequences of the plea. (Id. at 27:6-13.) Subsequently, the Magistrate Judge issued Findings and Recommendations that Petitioner's guilty plea was made "knowingly, intelligently, and voluntarily, and did not result from force, threats, or promises (other than those made in a plea agreement)" and he was competent to enter a plea. (ECF No. 25 at 2-3.)
On July 27, 2018, the undersigned adopted the Findings and Recommendation of the Magistrate Judge and accepted the guilty plea. (ECF No. 27.) On August 9, 2018, Petitioner was sentenced to a time-served sentence on Count 3, the remaining counts were dismissed and Petitioner was subject to supervised release for three years. (ECF No. 32.) On April 2, 2021, the Court granted Petitioner's motion for early termination of supervised release. (ECF No. 66.)
On August 8, 2019, Petitioner timely filed a preventative petition for writ of habeas corpus under 28 U.S.C. § 2255 seeking to vacate his guilty plea as being involuntary and seeking to dismiss the indictment in violation of his Fifth Amendment due process rights. (ECF No. 39.) He claims that at the time he plead guilty, he was not competent because "he was under medication, suffering from serious psychological delusions, real constant threats to his safety, constant humiliations from inmates, and extreme phobias." (Id. at 4.) He also claims the indictment was secured by misleading statements made to thegrand jury. (Id. at 13-14.) On January 24, 2020, Petitioner filed an amended petition and added a claim for ineffective assistance of counsel for defense counsel's failure to adequately assess whether Petitioner could have formed the required mens rea for the alleges crimes and whether he could effectively and meaningfully assist in his own defense and failed to adequately investigate Petitioner's long history of psychological problems. (ECF No. 53 at 3-4.) On February 24, 2020, the Government filed an opposition. (ECF No. 57.) In response to the Government's late filing, Petitioner filed a motion to strike the Government's untimely response and to strike irrelevant exhibits as well as a motion for an order to disclose grant jury transcripts. (ECF No. 58.) The Government filed a response. (ECF No. 61.) On September 29, 2020, Petitioner filed a reply. (ECF No. 63.)
On August 13, 2017, the San Diego County Sheriff's Department ("SDSD") responded to a domestic disturbance after Petitioner's mother called to report that her son refused to turn down loud music. (ECF No. 53-1, Ex. A-9.) When two SDSD Deputies arrived, they announced their presence and asked Petitioner to open his bedroom door. (Id.) Petitioner refused, told the officers to leave, and after the Deputy asked Petitioner to open the door again, he stated "how about I have guns in here." (Id.) Subsequently, the Deputies heard a shotgun rack from inside Petitioner's bedroom. (Id.) Multiple deputies then responded to assist. (Id.) After making telephone contact and his refusal to exit the home, SDSD left the scene once Petitioner stated he was not going to hurt anyone. (Id.)
On September 9, 2017, Petitioner purchased a DSA rifle, which is an AR-15 assault-style firearm. (ECF No. 53-1, Ex. A-15.) In order to purchase the firearm, Alverez was required to fill out a Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") Form 4473. (Id.) Question 11(e) of the form asks whether the applicant is an"unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug or any other controlled substance?" (Id.) Question 11(e) also states in bold letters, "Warning: The use or possession of marijuana remains unlawful under Federal Law regardless of whether it has been legalized or decriminalized for medicinal or reactional purposes in the state where you reside." (Id.) On September 29, 2017, when he picked up the firearm, Petitioner was required to recertify that all his answers on the form were true. (Id.)
On October 1, 2017, two days after he picked up the DSA rifle, SDSD received a call from a concerned citizen about Petitioner's social media posts containing numerous pictures, posts, and comments depicting marijuana and firearms. (ECF No. 57-1, ROI 1 at 2-3.) In response, ATF began to surveil Petitioner's home. (Id.)
On October 3, 2017, SDPD deputies received a 911 call from Petitioner's brother stating Petitioner was attempting to break down his door and was possibly in possession of a firearm. (ECF No. 53-1, Ex. A-10.) When SDPD Deputies asked Petitioner to come out of the house, he complied and briefly exited the home. (Id.) Deputies eventually left the scene once it was determined no crime had been committed. (Id.)
On October 4, 2017, ATF agents obtained and executed a search warrant of Petitioner's home. (ECF No. 57-3, ROI 2 at 4.) ATF agents seized seven firearms, over 8,000 rounds of assorted ammunition, 22 grams of marijuana, marijuana paraphernalia, and several cellphones. (Id. at 3-5.) A search warrant of Alverez's phone also revealed his Instagram account, which depicted photos of him in possession of firearms and marijuana. (ECF No. 57-2, ROI 3 at 9-10.) On April 11, 2018, after a long standoff with SDSD in its effort to extricate him from his residence, Petitioner was arrested and taken into custody. (ECF No. 53-1, Ex. A-8.)
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Section 2255 authorizes this Court to "vacate, set aside, or correct the sentence" of a federal prisoner on "the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]" 28 U.S.C. § 2255(a). To warrant relief under section 2255, a prisoner must allege a constitutional or jurisdictional error, or a ...
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