United States v. Delacruz
| Docket Number | Criminal 2:14-cr-00047,Civil 3:19-cv-00030 |
| Decision Date | 31 August 2023 |
| Parties | United States of America, Plaintiff/Respondent, v. Jose Luis Delacruz, Defendant/Petitioner. |
| Court | U.S. District Court — District of North Dakota |
[¶1] THIS MATTER comes before the Court on two motions filed by the Defendant. First, the Defendant filed a Motion to Vacate under 28 U.S.C. § 2255 on February 5, 2019. Doc. No 428. The Defendant was given leave to file his Memorandum in Support of his Motion at a later date. Doc. No. 432. On June 17, 2019, the Defendant filed his Memorandum in Support. Doc No. 433. A Supplement was filed by the Defendant on June 28 2019. Doc. No. 435. The United States filed its Response on March 18, 2020. Doc. No. 453. The Defendant filed his Reply on September 7, 2021. Doc. No. 485.
[¶2] On January 20, 2022, the Defendant filed a Motion for Leave to File supplemental grounds for relief under 28 U.S.C. § 2255. The United States filed a Response on March 3, 2022. Doc. No. 492. The Defendant did not file a Reply.
[¶3] For the reasons set forth below, both of the Defendant's Motions are DENIED.
[¶4] On July 17, 2014, the Defendant was originally charged in a criminal Complaint with Conspiracy to distribute controlled substances in the District of North Dakota. Doc. No. 1. He made his initial appearance on the Complaint on July 28, 2014. See Doc. No. 7. Attorney Theodore Sandberg (“Attorney Sandberg”) represented the Defendant at this hearing. Id. Delacruz was detained pending trial. Doc. No. 13.
[¶5] On August 13, 2014, an Indictment was filed charging the Defendant with (1) Conspiracy to Possess with Intent to Distribute and Distribute a Controlled Substance and (2) Use of a Firearm During a Drug Trafficking Crime. Doc. No. 14. On October 8, 2014, a Superseding Indictment was filed, adding additional co-defendants to the charges. Doc. No. 22.
[¶6] On November 7, 2014, Attorney Sandberg moved to withdraw has counsel for the Defendant, citing a conflict with potential witnesses. Doc. No. 83. After an ex parte hearing on the motion, Attorney Sandberg's request to withdraw as counsel was granted. Doc. No. 110. Attorney Brian Toay (“Attorney Toay”) was appointed to represent the Defendant on November 26, 2014.
[¶7] On January 26, 2015, the Defendant filed a pro se Motion for New Attorney, claiming he had “no real contact with [his attorney].” Doc. No. 124, p. 1. After an ex parte hearing, the Court denied this request, finding “there is not a breakdown in the attorney-client relationship that requires the appointment of a new attorney or that will improve by appointing a new attorney.” Doc. No. 137. The Defendant filed another Motion for New Attorney on February 17, 2015. Doc. No. 144. The Court denied this request on February 18, 2015. Doc. No. 145. The Defendant again asked for a new attorney on April 27, 2015, claiming Attorney Toay had provided ineffective assistance of counsel. Doc. No. 193. The Court denied this motion finding the Defendant only asserted conclusory claims of ineffective assistance of counsel and that such a claim was not ripe. Doc. No. 197.
[¶8] The matter went to trial from May 11 through May 13, 2015. See Doc. No. 232. The Defendant was represented by Mr. Toay at trial. A jury returned guilty verdicts on both counts of the Superseding Indictment. Doc. No. 233. After trial, Attorney Brian Toay filed a Motion for Acquittal and a Motion for New Trial. Doc. Nos. 237, 238. On May 21, 2015, the Court held an ex parte status conference to address Attorney Toay's continued representation of the Defendant. The same day as the hearing, the Court granted the Defendant's oral motion for new counsel because it came to light the Defendant had filed a disciplinary complaint against Attorney Toay. Doc. No. 240 The Court appointed Attorney Jade Rosenfeldt[1] (“Attorney Rosenfeldt”) to represent the Defendant. Id.
[¶9] Once appointed, Attorney Rosenfeldt moved to release the Defendant from Custody on June 3, 2015. Doc. No. 247. The Court denied this request on June 8, 2015. Doc. No. 249. On July 13, 2015, Attorney Rosenfeldt moved for an extension of time to file a memorandum in support of the Motions for Acquittal and New Trial filed by Attorney Toay. Doc. No. 281. The Court granted the Motion on July 14, 2015. Doc. No. 283. Ultimately, the memorandum in support of the Motion for Acquittal was filed on October 26, 2015. Doc. No. 318. The memorandum in support of the Motion for New Trial was filed on March 16, 2016. Doc. No. 343. On March 18, 2016, the Court denied these two motions. Doc. No. 344.
[¶10] Prior to trial, the United States filed an Information to Establish Prior Convictions, certifying two prior convictions felony-level controlled substance convictions. Doc. No. 62. This was subsequently amended on April 20, 2016, shortly before the Court held a hearing on whether one of the Defendant's prior convictions was counseled. See Doc. Nos. 348, 349, 352. The Court ultimately sentenced the Defendant to a term of life imprisonment on April 25, 2016. Doc. No. 354.
The Defendant appealed the Judgment on April 27, 2016. Doc. No. 357. The Court of Appeals affirmed the judgment on July 31, 2017. Doc. No. 399.
[¶11] The present Motion to Vacate under 28 U.S.C. § 2255 was filed on February 5, 2019. Doc. No. 428. In it, the Defendant raises twelve grounds for relief: (1) Attorney Toay operated under a conflict of interest throughout the trial proceedings until Attorney Toay admitted the conflict after the trial; (2) Attorney Toay was ineffective when he failed to advise the Defendant of his plea options during plea negotiations; (3) Attorney Toay was ineffective when he failed to advise the Defendant he could proceed by a bench trial; (4) Attorney Toay was ineffective when he failed to advise the Defendant the decision to testify was the Defendant's alone and he failed to prepare the Defendant to testify; (5) Attorney Toay was ineffective when he failed to advise the Defendant of his right to represent himself; (6) Attorney Toay was ineffective when he failed to challenge the empanelment of an all-white jury; (7) Attorney Toay was ineffective when he failed to conduct legal research on the issue of the Defendant's purported withdrawal form the conspiracy and the drug transactions after he left the conspiracy; (8) Attorney Toay was ineffective when he failed to adequately prepare for and perform at trial; (9) Attorney Toay was ineffective when he failed to research the facts and law relating to the drug amount used for sentencing enhancement purposes; (10) Attorney Toay was ineffective when he failed move for acquittal on Count Two (firearm used in furtherance of the drug conspiracy) because the United States allegedly amended the charge; (11) Attorney Rosenfeldt was ineffective when she failed to challenge the Information Establishing Prior Convictions (Doc. No. 349); and (12) the cumulative effective of these alleged deficiencies resulted in the Defendant being denied Counsel as guaranteed by the Sixth Amendment. See Doc. No. 248.
[¶12] On January 20, 2022, the Defendant moved to supplement his Motion to Vacate under 28 U.S.C. § 2255 to assert what appears to be nine new theories for relief: (1) Attorney Toay was ineffective when he failed to raise a corpus delicti rule violation; (2) Attorney Toay was ineffective when he failed challenge the lack of physical evidence and proof by alleged hearsay admissions and statements; (3) Attorney Toay and Attorney Rosenfedlt were ineffective when they failed to raise a Kastigar objection to the alleged compelled testimony of co-conspirators; (4) Attorney Toay and Attorney Rosenfedlt were ineffective when they failed to challenge the indictment as being defective; (5) Attorney Toay and Attorney Rosenfedlt were ineffective when they failed argue the United States filed to prove the quantity of drugs “agreed upon” (Doc. No. 489-1 at pp. 6-7); (6) Attorney Toay and Attorney Rosenfedlt were ineffective when they failed to contest the lack of evidence showing an agreement; (7) Attorney Toay and Attorney Rosenfedlt were ineffective when they failed challenge the court reporter not transcribing the reading of the jury instructions; (8) the state and federal agents subjected him to involuntary servitude by charging him in federal court because there was a lack of evidence that would have allowed him to plead guilty; and (9) the supplemental grounds one through eight have resulted in an abuse of legal process resulting in his involuntary servitude. Doc. No. 489-1. The Defendant also argues the one-year statute of limitation period is unconstitutional as it conflicts with the Thirteenth Amendment's prohibition on involuntary servitude. Doc. No. 489-1 at p. 12.
[¶13] “28 U.S.C. § 2255 provides a federal prisoner an avenue for relief if his ‘sentence was imposed in violation of the Constitution or laws of the United States or . . . was in excess of the maximum authorized by law.'” King v. United States, 595 F.3d 844, 852 (8th Cir. 2010) (quoting 28 U.S.C. § 2255(a)). This requires a showing of either constitutional or jurisdictional error, or a “fundamental defect” resulting in a “complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). A motion brought under Section 2255 is not a substitute for a direct appeal and is not the proper way to complain about simple trial errors. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). A Section 2255 movant “must clear a significantly higher hurdle...
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