United States v. Chavez-Marquez
| Decision Date | 19 September 2012 |
| Docket Number | No. CR 10-2846 RB,No. CIV 12-744 JCH/LFG,CIV 12-744 JCH/LFG,CR 10-2846 RB |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. MARIA ISELA CHAVEZ-MARQUEZ, Defendant/Movant. |
| Court | U.S. District Court — District of New Mexico |
AND RECOMMENDED DISPOSITION1
1. On July 10, 2012, Movant Maria Isela Chavez-Marquez ("Chavez Marquez") filed a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255, and a separate supporting memorandum. [Docs, 1, 2.] On August 2, 2012, the United States filed a response [Doc. 7]; on August 16, 2012, Chavez-Marquez filed a reply. [Doc. 8.] Chavez-Marquez currently is incarcerated at the Carswell Federal Medical Center in Fort Worth, Texas. [Doc. 1.]
2. In making its findings and recommendation on this matter, the Court examined all of the pleadings and attachments in this civil proceeding and the related criminal case [No. CR 10-2846 RB],2 and reviewed transcripts of the pertinent criminal proceedings and hearings before the District Court Judges. After carefully considering the pleadings, attachments, argument by parties and the pertinent law, the Court recommends that Chavez-Marquez's § 2255 motion be denied and dismissed, with prejudice. Because it is possible to resolve the issues on the pleadings, and the record establishes conclusively that Chavez-Marquez is not entitled to relief, the Court concludes that no evidentiary hearing is necessary. See 28 U.S.C. § 2255: United States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000), cert, denied, 532 U.S. 943 (2001).
3. On May 13, 2009, a Criminal Complaint and an arrest warrant were filed against Chavez-Marquez, charging her with violating 8 U.S.C. § 1326(b)(2), Reentry of a Removed Alien. [CR Doc. 1.] On May 26, 2009, the government filed a notice stating that this criminal matter was related to another criminal proceeding. United States of America vs. Lisa Maldonado,3 a/k/a "Chela". Case No. 09-CR-95 RB. [CR Doc. 3.]
4. On June 12, 2010, Chavez-Marquez was found in Bernalillo County, New Mexico. She was a passenger in a vehicle that was pulled over by Bernalillo County Sheriff's Office for crossing over the centerline. During the traffic stop, Officer Smith found a gun and traces of cocaine within the vehicle and traces of a drug in a bag that Chavez-Marquez claimed. In addition, Officer Smith determined that Chavez-Marquez and another passenger in the vehicle were in the United States illegally. On June 29, 2010, Chavez-Marquez was taken into federal custody. On October14, 2010, the Grand Jury returned an indictment charging her with re-entry of a removed alien pursuant to 8 U.S.C. § 1326(a) and (b). [Doc. 7, at 2;4 CR Doc. 20.; CR Doc. 39, attachment.]
5. On January 31, 2011, Chavez-Marquez entered a guilty plea to the Indictment. [CR Doc. 32.] On October 3, 2011, Chavez-Marquez was sentenced in accordance with the Presentence Report ("PSR"), to 32 months of imprisonment, to be followed by three years of unsupervised release.5 [CR Doc. 43, 44.] On October 4, 2011, the Court entered Judgment. [CR Doc. 44.] Chavez-Marquez did not appeal.
6. On July 10, 2012, Chavez-Marquez filed this § 2255 motion.6 [CR Doc. 58; Doc, 1.] She alleges ineffective assistance of counsel with respect to her plea proceedings and that her guilty plea was "constitutionally invalid." [Docs. 1, 2.]
7. When a habeas petitioner challenges her guilty plea on the ground that she was denied her Sixth Amendment right to effective assistance of counsel, she must satisfy two criteria to show entitlement to relief. United States v. Weeks, 653 F.3d 1188, 1200-01 (10th Cir. 2011).
First, she is required to show that her attorney's representation "fell below an objective standard of reasonableness." Id. (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). Second, she "must show that the [attorney's] deficient performance prejudiced the defense." Id. (citation omitted). See also Hill v. Lockhart, 474 U.S. 52, 56-58 (1985) (). To demonstrate the second prong of prejudice, Chavez-Marquez "must show that there is a reasonable probability that, but for the counsel's errors, [she] would not have pleaded guilty and would have insisted on going to trial." Weeks, 653 F.3d at 1201 (citation omitted).
8. The Court may address the performance and prejudice components in any order and need not address both if it concludes that the defendant failed to satisfy demonstrating one of the two prongs. United States v. Gonzalez, 596 F.3d 1228, 1233 (10th Cir.), cert denied, — U.S. —, 131 S.Ct. 172, 178 L.Ed.2d 102 (2010). See also Strickland, 466 U.S. at 697 ()
9. In Strickland, the United States Supreme Court emphasized that judicial scrutiny of counsel's performance must be highly deferential. An adverse result is not evidence of ineffective assistance, and a court should not second-guess counsel's representation after an adverse verdict or sentence. An attorney's performance should be evaluated from counsel's perspective at the pertinent time, giving due regard to counsel's trial tactics and strategy, and thereby eliminating any distorting effects of 20/20 hindsight. A court must indulge a strong presumption that counsel's conduct was reasonable and could have been considered sound trial strategy. Id. at 689. The defendant has the burden of proof to overcome that presumption. United States v. Cronic, 466 U.S. 648, 658 (1984).
10. Chavez-Marquez's contentions concerning alleged ineffectiveness of her retained attorney, Joseph Riggs are unsupported and unclear. On January 31, 2011, Chavez-Marquez pled guilty [CR Doc. 6], but asserts that she would never have pled guilty if she had understood her "Fourth Amendment rights, Miranda, or had known about Perez-Partida [United States v. Perez-Partida, 773 F.Supp.2d 1054 (D.N.M. Mar. 28, 2011)],7 a case where the defendant's right to suppress identity evidence was harder to prove than in the present case." [Doc. 2, at 3.] Thus, her position appears to be that Attorney Riggs was ineffective for not filing a motion to suppress based on alleged Fourth Amendment violations in relation to her arrest.
11. For example, Chavez-Marquez claims that in June 2012,8 "[ she], her nephew and her three-year old son, were the victims of a home invasion style robbery, where [she] was beaten with a baseball bat, stabbed and a gun was put to the head of her son." [Doc. 2, at 1.] She further asserts that she called the police and provided a full statement to the police in assisting with the investigation, [Id.] Chavez-Marquez contends that during the interaction with police, a female officer [Id.]
12. According to Chavez-Marquez, the next day after being released from the hospital, this same female officer was present when Chavez-Marquez's vehicle was pulled over. The officerpurportedly walked up to Chavez-Marquez, "stating that she had the immigration officials on her cell-phone and they wanted to talk to [Chavez-Marquez]." The officer also supposedly reminded Chavez-Marquez of the officer's previous promise to arrest her. Chavez-Marquez claims she was taken to jail and that immigration officials, without providing her Miranda rights, began to question her about her immigration status and then took her fingerprints. As a result, Chavez-Marquez states she was charged in the underlying criminal case and sentenced to 32 months of imprisonment, which will end in October 2012.9
13. When Chavez-Marquez retained Attorney Riggs to represent her on the charges of illegal reentry, she states she explained how the stop and arrest came about and that Attorney Riggs "promised that the charges would not go through and he would assist in suing the officer involved in violating her civil rights." [Doc. 2, at 2.] Chavez-Marquez did not supply any supporting affidavit testimony by Riggs. Chavez-Marquez asserts that a review of the record shows that Attorney Riggs did not file any motions in the case.10
14. Because Attorney Riggs failed to raise the possible Fourth Amendment issues concerning the stop and arrest of Chavez-Marquez, the movant asserts that her guilty plea was not made voluntarily, knowingly, or intelligently. Chavez-Marquez also claims that a police report and hospital records provided to the court prove that she had been a victim of a crime on the day she first encountered the female police officer. [Doc. 2, at 3-4.]
15. The Court cannot confirm any of Chavez-Marquez's allegations concerning the events leading up to her arrest, including the purported "home invasion style robbery," during whichChavez-Marquez was "beaten with a baseball bat, stabbed and a gun was put to the head of her son." [Doc .2, at I.] The police report, describing Chavez-Marquez's arrest on June 12, 2010,11 states that an officer was on patrol when he or she observed a vehicle traveling south bound on Isleta Blvd. in Albuquerque that crossed the painted inside line divider and then crossed the outside shoulder painted divider. The officer pulled over the vehicle and asked the male driver for his driver's license, etc. The driver appeared nervous. There were two occupants in the car, including Chavez-Marquez. The officer issued a warning citation for the driver who did not have current insurance on the vehicle and a verbal warning for failure to maintain lanes. The officer began to walk away from the vehicle and then re-approached to...
To continue reading
Request your trial