United States v. James, Civ. No. 14-481 MV/KK

• Decision Date: 10 August 2016
• Docket Number: Cr. No. 07-2251 MV,Civ. No. 14-481 MV/KK
• Parties: UNITED STATES OF AMERICA, Plaintiff/Respondent, v. EVELYNE JAMES, Defendant/Movant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff/Respondent, v. EVELYNE JAMES, Defendant/Movant.

Civ. No. 14-481 MV/KK

Cr. No. 07-2251 MV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

August 10, 2016

MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER is before the Court on Defendant/Movant Evelyne James' ("Movant") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Motion"), which she filed pro se on May 22, 2014. (Doc. 1.) Plaintiff/Respondent the United States of America ("the Government") responded in opposition to the Motion on August 6, 2014. (Doc. 6.) The Court appointed counsel to represent Movant in this civil action on May 18, 2015. (Doc. 9.) Thereafter, on October 15, 2015, Movant filed a supplemental brief in support of her Motion. (Doc. 20.) The Government responded to the supplemental brief on November 30, 2015, and Movant filed a reply on December 14, 2015. (Docs. 25, 26.) On June 16, 2016, United States District Judge Martha Vázquez referred this matter to the undersigned to conduct any proceedings necessary to recommend an ultimate disposition. (Doc. 28.)

In November 2007, a federal grand jury charged Movant, a member of the Navajo Nation, with the first-degree murder of A.J., a minor, in Indian country, in violation of 18 U.S.C. §§ 1111 and 1153. (CR Doc. 12.)¹ On May 24, 2012, pursuant to a signed plea agreement, Movant pled guilty to an information charging her with the voluntary manslaughter of A.J., andChief United States Magistrate Judge Karen Molzen accepted Movant's plea of guilty to the reduced charge. (CR Docs. 59, 63; Doc. 6-2; Doc. 6-3 at 17.) On April 23, 2013, Judge Vázquez accepted the plea agreement and sentenced Movant to 25 years' imprisonment in accordance with the parties' agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). (CR Doc. 94; CR. Doc. 101 at 48.) The Court entered a judgment of conviction against Movant on May 20, 2013. (CR Doc. 95.)

Movant now seeks to have her conviction and sentence set aside, arguing that: (a) her sentence was illegal and her guilty plea was unknowing and involuntary; (b) her trial counsel failed to represent her at a hearing on her pro se motion to withdraw her plea and to substitute counsel, in violation of her Sixth Amendment right to counsel; (c) the Court erred in denying her pro se motion to withdraw her plea and to substitute counsel; and, (d) her trial counsel provided her with ineffective assistance by failing to appeal that denial. (Doc. 20 at 2, 6, 8-9; Doc. 26 at 3-12.) The Government responds that Movant's sentence was legal and her plea was knowing and voluntary; that trial counsel represented her at all phases of the criminal proceedings; that the Court properly denied her pro se motion to withdraw her plea and to substitute counsel; and, that she has failed to show prejudice from her trial counsel's failure to appeal that denial. (Doc. 25 at 7-14.)

The undersigned has meticulously reviewed all of the pleadings and attachments in this civil proceeding and the underlying criminal case, Cr. No. 07-2251 MV. The undersigned has also examined the transcripts of Movant's plea hearing, the hearing on her motion to withdraw her plea and to substitute counsel, and her sentence hearing. (CR Docs. 101, 110; Doc. 6-3.) As to all but one of Movant's claims, the Court proposes to find that the Motion, exhibits, and record conclusively establish that Movant is not entitled to relief, and that an evidentiary hearingis unnecessary. 28 U.S.C. § 2255(b); United States v. Flood, 713 F.3d 1281, 1291 (10^th Cir. 2013); United States v. Kennedy, 225 F.3d 1187, 1193 (10^th Cir. 2000). Having carefully considered the parties' submissions, the civil and criminal record, and the relevant law, the undersigned recommends that these claims be DISMISSED with prejudice. However, as to Movant's claim that her trial counsel provided her with ineffective assistance by failing to appeal the Court's denial of her motion to withdraw her plea and to substitute counsel, the undersigned will reserve recommending a disposition pending a review of Movant's answers to the interrogatories that the undersigned will propound by separate order, and of the Government's response, if any, thereto.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 11, 2007, the Government filed a criminal complaint charging Movant, a member of the Navajo Nation, with the first-degree murder of A.J., a four-year-old child, in Indian country. (CR Doc. 1.) The Court appointed Federal Public Defender Benjamin A. Gonzales to represent Movant on October 12, 2007, and on October 15, 2007 ordered Movant to be detained pending trial. (CR Docs. 3, 7.) On November 6, 2007, a federal grand jury returned an indictment charging Movant with A.J.'s first-degree murder in violation of 18 U.S.C. §§ 1111(a), (b), (c)(1), (c)(2), and (c)(3) and 1153.² (CR Doc. 12.) The Court ordered a competency evaluation on October 20, 2009, and on June 21, 2011, after a hearing on June 14, 2011, found that Movant was competent to stand trial. (CR Docs. 42, 51; CR Doc. 52 at 1.)

On May 24, 2012, the Government and Movant entered into a plea agreement, in which Movant "agree[d] to plead guilty to an Information charging a violation of 18 U.S.C. §§ 1112(b),1153, and 3559(f)(3), that being Voluntary Manslaughter."³ (CR Doc. 59; Doc. 6-2 at 2-3.) In the agreement, Movant admitted the Government could prove beyond a reasonable doubt that:

a. On or about October 4, 2007, [i]n Indian Country, in McKinley County, in the District of New Mexico, the defendant, EVELYNE JAMES, an Indian, unlawfully killed John Doe, a four-year-old child, upon a sudden quarrel or heat of passion by assault, by striking, beating, and wounding, and did so without due caution and circumspection, and while acting with wanton and reckless disregard for human life, and her acts produced the death of John Doe, in violation of Title 18, United States Code, Sections 1153, 1112(b), and 3559(f)(3).

b. EVELYNE JAMES is a registered member of the Navajo Nation, and the child, John Doe, had not attained the age of 18, per 18 U.S.C. 3559(f)(3).

c. . . . [T]he Defendant . . . admits that there is a factual basis for each element of the crime to which the Defendant will plead guilty. The Defendant agrees that the Court may rely on any of these facts, as well as facts in the presentence report, to determine the Defendant's sentence.

(Doc. 6-2 at 5.) The Government agreed not to "bring any additional charges against the Defendant arising out of . . . these events occurring on or about October 4, 2007." (Id. at 6.)

In the plea agreement, Movant confirmed her understanding that "the imprisonment range for Voluntary Manslaughter is for a term of not less than 10 years to life." (Id. at 2.) Further, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the Government and Movant stipulated that the appropriate disposition of the case was a term of imprisonment of 25 to 27 years, a term of supervised release, a special penalty assessment, and mandatory restitution. (Id. at 3.) Movant "recognize[d] that this plea agreement already has conferred a benefit upon her and that no downward departure or variance from the sentence agreed upon pursuant to Federal Rule of Civil Procedure 11(c)(1)(C) is appropriate." (Id.) The parties acknowledged that the Court could

accept or reject this plea agreement, or may defer its decision as to acceptance or rejection until there has been an opportunity to consider the presentence report. Pursuant to Federal Rule of Criminal Procedure 11(c)(5), if the Court rejects this plea agreement, the Defendant shall have the right to withdraw her guilty plea.

(Id. at 4.)

The plea agreement also contained a waiver of appellate rights, which stated:

the Defendant knowingly waives the right to appeal her conviction and any sentence imposed in this case, except to the extent, if any, that the Court may impose a sentence that differs from that agreed to by the parties under Federal Rule of Criminal Procedure 11(c)(1)(C). Additionally, . . . the Defendant knowingly waives the right to collaterally attack any sentence imposed in this case except on the grounds of ineffective assistance of counsel.

(Id. at 6-7.)

In Movant's plea agreement, there are a number of representations about the knowing and voluntary nature of the plea. Thus, Movant represented

that this plea of guilty is freely and voluntarily made and is not the result of force, threats, or promises (other than the promises set forth in this agreement). . . . The Defendant represents that the Defendant is pleading guilty because the Defendant is in fact guilty and for no other reason.

(Id. at 7.) Movant also represented that she had "thoroughly reviewed all aspects of this case with [her] attorney and is fully satisfied with that attorney's legal representation." (Id. at 1.) In signing the agreement, Movant affirmed that

[t]his Agreement has been read to me in the language I understand best, and I have carefully discussed every part of it with my attorney. I understand the terms of this Agreement, and I voluntarily agree to those terms. My attorney has advised me of my rights, of possible defenses, of the sentencing factors set forth in 18 U.S.C. § 3553(a), of the relevant Sentencing Guidelines provisions, and of the consequences of entering into this Agreement. No promises or inducements have been given to me other than those contained in this agreement. No one has threatened or forced me in any way to enter into this Agreement. Finally, I am satisfied with the representation of my attorney in this matter.

(Id. at 8.) Movant's attorney also signed the agreement, representing that he had

carefully discussed every part of this Agreement with my client. Further, I have fully advised my client of her rights, of possible defenses, of the sentencing factors set forth in 18 U.S.C. § 3553(a), of the relevant Sentencing

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