Villa-Rodriguez v. United States

• Decision Date: 14 May 2013
• Docket Number: CRIM. NO. 2:10-CR-225(4),CIV. NO. 2:12-CV-280
• Parties: GUADALUPE VILLA-RODRIGUEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Ohio

GUADALUPE VILLA-RODRIGUEZ, Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

CIV. NO. 2:12-CV-280

CRIM. NO. 2:10-CR-225(4)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

May 14, 2013

JUDGE MARBLEY

MAGISTRATE JUDGE KING

ORDER and

REPORT AND RECOMMENDATION

Petitioner brings this action to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the original Motion to Vacate, Doc. No. 140, respondent's Return of Writ, Doc. No. 171, petitioner's Reply, Doc. No. 179, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that counsel be appointed to represent petitioner at an evidentiary hearing on his claim that he was denied the effective assistance of counsel because his attorney failed to file an appeal after having been requested to do so and failed to consult with him regarding the filing of an appeal. The Magistrate Judge further RECOMMENDS that the remainder of petitioner's claims be DISMISSED.

Petitioner's Motion for a Status Update, Doc. No. 182, is DENIED as moot.

FACTS and PROCEDURAL HISTORY

Petitioner, along with a number of other individuals, was originally charged by way of indictment with conspiracy to engage in hostage taking and hostage taking in violation of 18 U.S.C. § 1203 (Counts 1 and 2), possession of firearms in furtherance of those crimes of violence in violation of 18 U.S.C. § 924(c) (Counts 3-8), and possession of firearms while being an alien illegally and unlawfully in the United States in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2) (Counts 9-14). Indictment, Doc. No. 1. Petitioner pled guilty, pursuant to a negotiated plea agreement, Plea Agreement, Doc. No. 80, to Count 13 of the Indictment, which charged him with possession of a rifle while being an alien illegally in the United States. Petitioner was sentenced to a term of imprisonment of 111 months, to be followed by a three year term of supervised release. Judgment, Doc. No. 111. Petitioner did not file an appeal.

On April 2, 2012,¹ petitioner filed the Motion to Vacate pursuant to 28 U.S.C. § 2255, Doc. No. 140. He alleges that he was denied the effective assistance of counsel because his attorney coerced him into pleading guilty (claim one), failed to subject the prosecution's case to meaningful adversarial testing at sentencing (claim two) and failed to file a notice of appeal after having been requested to do so (claim three); petitioner also alleges that the Court lacked subject matter jurisdiction as to Counts 1-9 of the Indictment (claim four).²

INEFFECTIVE ASSISTANCE OF COUNSEL

In claims one through three, petitioner alleges that he was denied the effective assistance of counsel. In claim one, petitioner specifically alleges that his guilty plea was coerced by his counsel, who assured petitioner that he would be sentenced to no more than five years incarceration if he pleaded guilty; had he been properly advised by his counsel, petitionerargues, he would have proceeded to trial. Motion to Vacate, PageID #504. In claim two, petitioner complains that his attorney failed to object to an increase in the sentence recommended under U.S.S.G. § 2A4.1, failed to provide petitioner with discovery materials, failed to conduct adequate research and investigation in regard to the filing of pre-trial motions and failed to file a sentencing memorandum. Motion to Vacate, PageID #507-11. In claim three, petitioner alleges that his attorney failed to file an appeal after having been requested to do so. Motion to Vacate, PageID # 512-15. In support of these claims, petitioner has submitted his affidavit in which he states in relevant part as follows:

I can not speak English which has subjected me to being mis-led and taken advantage of by my defense counsel in the case at bar.

Although some of my sworn statements herein contradict my statements made under oath during my Rule 11 colloquy this is as the result of coercion by my attorney W. Joseph Edwards.

I repeatedly requested my Discovery material from my attorney but he never provided me with a copy of my Brady material in the case at bar.

My attorney Mr. Edwards only came to visit me several times advising me to plead guilty he never explained to me a potential trial strategy he only advised me to plead guilty.

My attorney Mr. Edwards informed me, I could receive up to 10 yrs. in federal prison but upon accepting guilty plea he could get no more than 5 years in federal prison.

My attorney Mr. Edwards erroneously informed and induced my guilty plea by his promise that, I would only receive 5 years in federal prison but then recommending at my sentencing that I receive the statutory maximum of 10 years in federal prison. My counsel coerced my guilty plea and if not for his coercion I would not plead guilty but would have insisted on going to trial in the case at bar.

My attorney came to visit me one (1) day prior to me being sentenced he told me that the P.S.I. recommended 20 years infederal prison but he never reviewed P.S.I. Report with me or gave me a copy of my P.S.I. in the case at bar.

***

My attorney was ineffective for failing to file my notice of appeal as, I instructed him to do on the record at my sentencing.

My attorney was ineffective. . . for failing to come visit me as he informed the District Court on the record that he would visit me in Delaware to explain to me the advantages and disadvantages to filing a notice of appeal for a direct appeal to commence. . . .

As a result of the coercion and inducement of my guilty plea by Attorney Edwards my plea of guilty was entered involuntary[ily] and is therefore VOID & must "set aside". . . .

Affidavit of Guadalupe Villa-Rodriguez, attached to Motion to Vacate, PageID #500-501[sic](emphasis in original).

In response to these allegations, respondent has submitted the affidavit of petitioner's former trial counsel, which states in relevant part as follows:

Mr. Villa-Rodriguez was charged by indictment with fourteen counts relating to a hostage and kidnapping conspiracy on August

26, 2010.

After obtaining discovery in this matter, I met with Mr. Villa-Rodriguez on October 5, 2010, for four (4) hours and October 13, 2010 for three and a half (3.5) hours. During these meetings we discussed the evidence against him, the strengths and weaknesses contained therein, the pros and cons of going to trial, and the possible penalties he faced should he be found guilty. Due to Mr. Villa-Rodriguez's lack of fluency in English, I had an interpreter at these meetings.

On November 2, 2010, after obtaining a plea offer from Assistant U.S. Attorney Kevin Kelley, I met again . . . with Mr. Villa-Rodriguez for three (3) hours. As with my previous meetings, I obtained an interpreter for this meeting. At this meeting, I explained to Mr. Villa-Rodriguez that should he plead guilty to Count 13 of the Indictment, the United States would dismiss the other charges and he would be facing a maximum of ten (10) yearsin federal prison. Additionally, I explained the penalties he would face under the United States Sentencing Guidelines should he go to trial and be found guilty. After much discussion in which I answered all of Mr. Villa-Rodriguez's questions, Mr. Villa-Rodriguez decided that pleading guilty was in his best interest.

On December 10, 2010, I appeared before this Honorable Court with Mr. Villa-Rodriguez and he entered a guilty plea to Count 13.

I met with Mr. Villa-Rodriguez two more times after the P.S.R. had been completed by the United States Probation Department. As before, an interpreter was present. At those meetings I indicated that although he had "guidelined out" at an offence level of 37 and a criminal history level of 1 and thus, under the guidelines was looking at a sentencing range of 210-262 months, because he had pled guilty to Count 13 the most time he was facing was 120 months - or ten years - under 18 U.S.C. § 922(g)(5).

Mr. Villa-Rodriguez was sentenced to 110 [sic] months on April 1, 2011.

I represented Mr. Villa-Rodriguez to the best of my ability. The evidence against him was incredibly strong and I believe his plea to Count 13 of the Indictment was in his best interest. Further, I believe that Mr. Villa-Rodriguez entered his plea of guilty knowingly, voluntarily, and intelligently

Affidavit of W. Joseph Edwards, attached to Return of Writ, PageID #726-27.

Claims One and Two:

In claim one, petitioner alleges that his guilty plea was coerced by his counsel, who assured petitioner that he would be sentenced to no more than five years incarceration if he pleaded guilty; had he been properly advised by his counsel, petitioner argues, he would have proceeded to trial. Motion to Vacate, PageID #504. In claim two, petitioner complains that his attorney failed to object to an increase in the sentence recommended under U.S.S.G. § 2A4.1, failed to provide petitioner with discovery materials, failed to conduct adequate research and investigation in regard to the filing of pre-trial motions and failed to file a sentencingmemorandum. Motion to Vacate, PageID #507-11. Because a criminal defendant waives numerous constitutional rights when he enters a plea of guilty, the plea must be entered into knowingly and voluntarily in order to be constitutionally valid. Boykin v. Alabama, 395 U.S. 238, 244 (1969). "'The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In applying this standard, a court must look at the totality of circumstances surrounding the plea. Id. A criminal defendant's solemn declaration of guilt carries a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637, 648 (1976).

Criminal defendants are entitled to the constitutionally effective assistance of counsel during the plea negotiation phase. Missouri v. Frye, ––...