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United States v. James

United States District Court, D. New Mexico

January 9, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
EVELYNE JAMES, Defendant/Movant. Cr. No. 07-2251 MV

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on: (1) Defendant/Movant Evelyne James'

         (“Movant”) claim, raised in her Brief in Support of Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 20), filed October 15, 2015, that her trial counsel provided her with ineffective assistance by failing to appeal the denial of her motion to withdraw her guilty plea and to substitute counsel; and, (2) Plaintiff/Respondent the United States of America's (“Government”) Motion to Enforce the Defendant's Valid Appellate Waiver in the Plea Agreement (Doc. 39) (“Motion to Enforce Appellate Waiver”), filed December 13, 2016.

         For the following reasons, the undersigned recommends that the Court GRANT Movant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 1) (“Section 2255 Motion”) as to her ineffective assistance of counsel claim, and VACATE and REENTER its judgment of conviction and sentence to allow Movant to file a timely notice of appeal. The undersigned further recommends that the Court DENY the Government's Motion to Enforce Appellate Waiver.

         I. Factual Background and Procedural History[1]

         On November 6, 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.)[2] 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., and Chief 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.) Movant's plea agreement included a waiver of appellate and collateral attack 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.

(Doc. 6-2 at 6-7.)

         The Court received a letter from Movant on June 28, 2012, [3] in which she asked to be allowed to withdraw her guilty plea and for a new attorney. (CR Doc. 64.) On September 11, 2012, United States District Judge Martha Vázquez held a hearing to address Movant's letter, which was construed as a pro se motion to withdraw her plea and to substitute counsel. (CR Docs. 72, 110.) After hearing the statements and arguments of the Government, Movant, and Movant's trial counsel, Judge Vázquez denied Movant's motion to withdraw her plea and to substitute counsel, finding no

basis for withdrawal of your plea agreement. Because you have to have a legal basis to withdraw your plea agreement, and I am not aware of any basis in your letter for withdrawal of your plea agreement. Nor have I heard any reason to . . . have your lawyer removed.

         (CR Doc. 110 at 26-27.) On April 23, 2013, Judge Vázquez accepted Movant's plea agreement and sentenced her 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 filed the Section 2255 Motion presently before the Court on May 22, 2014, [4]arguing in the motion and subsequent briefing that: (a) her sentence was illegal and her guilty plea was unknowing and involuntary; (b) her trial counsel failed to represent her at the 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. 1 at 4; Doc. 20 at 2, 6, 8-9; Doc. 26 at 3-12.) The Government responded 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.)

         After a comprehensive review of the pleadings and attachments in this civil proceeding and the underlying criminal case, Cr. No. 07-2251 MV, the undersigned issued the August 2016 PFRD, recommending that the Court dismiss all of Movant's claims with prejudice, except the claim that her trial counsel provided her with ineffective assistance by failing to appeal the denial of her pro se motion to withdraw her guilty plea and to substitute counsel. (Doc. 32 at 41.) The undersigned recommended that the Court reserve ruling on the latter claim pending a review of Movant's answers to interrogatories that the Court subsequently propounded. (Id.) Movant filed objections to the August 2016 PFRD on August 24, 2016, (Doc. 34), and answers to the Court's interrogatories on September 19, 2016. (Doc. 37.)

         In her interrogatory answers, Movant stated under oath that her trial attorney, Benjamin Gonzales, never discussed with her whether he should file an appeal on her behalf of the Court's September 11, 2012 decision denying her pro se motion to withdraw her guilty plea and to substitute counsel, at any time before the deadline for filing such an appeal had passed. (Doc. 37 at 1.) Movant further swore that, if Mr. Gonzales had done so, she would have timely told him to file an appeal. (Id.) According to Movant, a number of witnesses would be able to corroborate her sworn statements, including inmate Gloria Vigil, and family members Anne James, Zandra James, Desirae Spencer, and Randall Spencer. (Id. at 2.)

         Although the Court expressly permitted the Government to file a written response to Movant's interrogatory answers, with or without affidavits, the Government failed to do so. (Doc. 33 at 2.) Thus, on December 7, 2016, the Court ordered the Government to show cause why it should not deem the Government's silence to be an admission that Movant's interrogatory answers are true and accurate. (Doc. 38 at 1.) The Government filed a response to the Court's Order to Show Cause on December 13, 2016. (Doc. 39.) In its response, the Government refused to concede the veracity of Movant's answers, but admitted that it had no “information or belief” to refute them. (Id. at 3-5.) The Government also incorporated in its response its Motion to Enforce Appellate Waiver. (Id. at 5-7.) Movant responded in ...


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