United States v. Martinez
| Decision Date | 26 March 2019 |
| Docket Number | Cause No. CR 13-026-BLG-SPW,Cause No. CV 15-126-BLG-SPW |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. ELISEO LOPEZ MARTINEZ, Defendant/Movant. |
| Court | U.S. District Court — District of Montana |
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
On September 15, 2015, Defendant Eliseo Lopez Martinez filed a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Lopez filed in the Court of Appeals, which transferred the motion to this Court on December 2, 2015 (Doc. 197). Counsel was appointed to represent Lopez, and an amended § 2255 motion was filed on October 13, 2017.
On June 22, 2018, the Court advised Lopez that one claim in his amended motion still did not allege sufficient facts to state a claim. Although he was represented by counsel, the Court extended a second opportunity to plead more specific facts. Lopez responded on September 24, 2018.
On April 3, 2013, Lopez was indicted on charges of drug trafficking and possessing a firearm. Trial was initially set for June 4, 2013. The deadline for filing either a motion to change plea or notice of intent to proceed to trial was set for May 13, 2013. See Order (Doc. 37) at 2.
On May 13, Lopez filed a motion to change his plea. He filed a plea agreement the following day. At the change of plea hearing on May 28, however, Lopez chose not to proceed. He had not filed a motion for new counsel, but he raised concerns about counsel's representation. Judge Haddon, who presided throughout the criminal case, explained that counsel must decide whether to file a motion to withdraw. He also explained that mere dissatisfaction with counsel's advice did not justify counsel's removal. The change of plea hearing was continued, and Lopez was required to decide by June 4, 2013, whether he wanted to go to trial or plead guilty. See Order (Doc. 1) at 2.
On June 4, 2013, Lopez filed notice that he intended to proceed to trial. Trial was set for August 6, 2013. See Notice (Doc. 74); Order (Doc. 76).
The next day, June 5, Lopez's counsel filed a motion to withdraw due to Lopez's "dissatisfaction with [counsel's] representation" and "lack of trust . . . in [counsel's] judgement and advice." Mot. to Withdraw (Doc. 77) at 4 ¶¶ 8, 9. A hearing was held on June 20. Judge Haddon found that Lopez was willing to work with counsel and denied the motion. See Minutes (Doc. 88); Order (Doc. 91). Trial remained set for August 6.
On July 15, 2013, Lopez filed another motion to change his plea. See Mot.(Doc. 95). A hearing was set for July 17. See Order (Doc. 97). On July 16, Lopez filed a motion to vacate the hearing on the grounds that he had again changed his mind and was "in the process of retaining alternative counsel to represent him." Mot. to Vacate (Doc. 99) at 2.
The hearing convened as scheduled on July 17. After a discussion of the July 16 motion and Lopez's intentions, and after he had an opportunity to consult with his counsel, Lopez pled guilty to one count of conspiracy to possess with intent to distribute 500 grams or more of a substance containing methamphetamine, a violation of 21 U.S.C. §§ 846 and 841(a)(1). See Indictment (Doc. 16) at 3-5; Plea Agreement (Doc. 54) at 3 ¶ 3; Minutes (Doc. 100).
At sentencing, Lopez was found responsible for bringing to Montana more than 800 grams of heroin, 2.13 kilograms of cocaine, and 92 pounds of methamphetamine. He was sentenced to serve 324 months in prison, to be followed by a five-year term of supervised release. Judgment was entered on October 22, 2013. See Minutes (Doc. 128); Judgment (Doc. 132) at 2-3.
Lopez alleges that, on October 24, 2013, counsel mailed a copy of the judgment to him with a letter, written in Spanish, stating Am. Mot. (Doc. 265) at 23 ( Google translation). The letter "did not discuss any appeal rights." Id.
Lopez also alleges that he contacted counsel's office "immediately after" sentencing and said that he wanted to appeal. He "called several times before anyone answered." He does not say whether these "several times" occurred in one day, over a couple of months, or somewhere in between. He claims he told the only person who answered his call that he wanted to appeal, and she said "they were done with my case and couldn't help anymore." Lopez Decl. (Doc. 277-1) at 2 ¶ 6. In his pro se motion, Lopez responded to a preprinted form question as follows:
Pro Se § 2255 Mot. (Doc. 197) at 5.
Lopez did not file a timely notice of appeal. His conviction became final on November 5, 2013. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
On August 15, 2014, Lopez filed a pro se notice of appeal. See Notice of Appeal (Doc. 154). In the Court of Appeals, he also filed a motion to proceed in forma pauperis and a motion for the appointment of counsel. All three documents were written in English. He did not file anything else. The appellate court issued an order to show cause why the appeal should not be dismissed as untimely, butLopez did not respond. The appeal was dismissed "as untimely and for failure to comply with the order to show cause." See Order (Doc. 158) at 1, United States v. Lopez, No. 14-30167 (9th Cir. Nov. 14, 2014).
In August 2015, Lopez, acting pro se, sought a sentence reduction under 18 U.S.C. § 3582(c)(2) and Guidelines Amendments 782 and 788. New counsel Cammi Woodward filed a brief on his behalf on November 23, 2015. See Mem. in Supp. (Doc. 191). The motion was denied. See Order (Doc. 192) at 1-3.
On September 14, 2015, Lopez, still acting pro se, filed a petition for writ of habeas corpus in the Ninth Circuit Court of Appeals. On December 2, 2015, the petition was transferred to this Court as a motion under 28 U.S.C. § 2255. See Order (Doc. 196) at 1.
This Court appointed new counsel to represent Lopez. Counsel filed an amended § 2255 motion (Doc. 265) that supersedes Lopez's original motion. See Order (Doc. 208) at 2 ¶ 4.
Lopez alleges three claims:
These claims will be addressed out of order.
Lopez argues that counsel did not ensure his guilty plea was knowing, voluntary, and intelligent because he did not protect Lopez against an "atmosphere . . . of intimidation" "at every hearing." Am. § 2255 Mot. at 33. He asserts that counsel should have done something when Judge Haddon informed him "that, even if he were able to hire counsel, Mr. Babcock would represent him and the trial set in two weeks would not be continued." Id. at 32.
But what should counsel have done? Judge Haddon was not wrong when he told Lopez, for the third time, "[Y]ou have but two courses of action to take: One is to have the court consider a change of plea; the other is to go to trial." Change of Plea Tr. (Doc. 225) at 5:21-23; see also First Change of Plea Tr. (Doc. 223) at 8:1-3 ( ); Mot. H'rg Tr. (Doc. 224) at 9:9-13 ( ).
Nor was Judge Haddon wrong to hold the trial date of August 6, 2013. That date had been set since June 5, 2013, which was about 70 days after indictment andabout 40 days before Lopez filed his second motion to change his plea. Lopez could have retained counsel at any time from his initial appearance in mid-March until the hearing on July 17. Other than dissatisfaction with appointed counsel and a financially unrealistic desire to retain counsel, Lopez did not identify—and still has not identified—a reason to continue the trial beyond August 6. There is no reason to suppose an ends-of-justice continuance would have been available under the Speedy Trial Act. See 18 U.S.C. § 3161(h)(7)(A), (B)(iv).2
If the July 17 hearing had been the first occasion when Lopez was advised that trial was set and he had to choose between pleading guilty and going to trial, this claim might have merit. But the July 17 hearing was the third hearing of the kind. It was set because Lopez was headed for trial but filed a motion to plead guilty. At the June 20 hearing on counsel's motion to withdraw, Lopez said more than once that he did not want to stand trial. On each occasion, Judge Haddon refused to allow him to plead guilty and advised Lopez he must consult with counsel before making his decision. See Mot. H'rg Tr. (Doc. 224) at 8:24-11:1.
Under these circumstances, it is not accurate to say the judge gave "lip service to the right to trial," Am. § 2255 Mot. at 32, or compelled or intimidatedLopez into pleading guilty. Judge Haddon did not compel a guilty plea any more than the United States compelled Lopez to plead guilty by charging him with a crime it could prove beyond reasonable doubt.
Lopez does not claim trial counsel's advice to plead guilty was unreasonable. Nor does he adequately allege a reasonable probability that a reasonable person in his circumstances would have proceeded to trial rather than pleading guilty were it not for the alleged coercion. See Hill v. Lockhart, 474 U.S. 52, 59-60 (1985). He fails to allege facts supporting an inference...
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