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United States v. Archuleta

United States District Court, D. New Mexico

January 10, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
NATHAN ARCHULETA, Defendant/Movant.

          SECOND PROPOSED FINDINGS AND RECOMMENDED DISPOSITION [1]

          LOURDES A. MARTÍNEZ, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendant/Movant's (hereinafter “Defendant”) § 2255 Motion [Doc. 1][2] and Declaration filed in support of the § 2255 Motion [Doc. 2], both of which were filed on April 13, 2015. On April 6, 2016, the undersigned entered a Proposed Findings and Recommended Disposition [Doc. 26], recommending that all but one of Defendant's claims be dismissed. On August 16, 2016, the presiding judge entered an Order Adopting the Proposed Findings and Recommended Disposition [Doc. 35] and dismissed all of Defendant's claims except his claim that his trial counsel (Mario Carreon) was ineffective because he failed to properly communicate to the Government Defendant's acceptance of a fifteen-year plea offer, resulting in the withdrawal of that offer. On November 16, 2016, the undersigned held an evidentiary hearing on Defendant's remaining claim of ineffective assistance of counsel, at which Defendant, his appointed counsel, and counsel for the Government were present. See [Doc. 59 at 2 and 14]. Having considered the parties' submissions, the record in both this case and in Defendant's underlying criminal case (Case No. CR-09-2968), relevant law, and the testimony given at the evidentiary hearing, the Court recommends, for the reasons set forth below, that the remaining ineffective assistance of counsel claim be DENIED and that this case be DISMISSED with prejudice.

         Factual and Procedural Background

         On December 3, 2009, a New Mexico grand jury returned a four-count superseding indictment against Defendant and five other defendants. [Cr.Doc. 99]. On July 22, 2010, the grand jury returned an eight-count third superseding indictment, which charged Defendant with six crimes. [Cr.Doc. 233]. All but one of Defendant's co-defendants pled guilty to the charges against them, leaving Defendant and Daniel Munoz as the sole remaining defendants. Defendant did not enter into a plea agreement with the Government and, on August 16, 2010, after a trial, a federal jury found him guilty on four of the six criminal counts charged against him. [Cr.Doc. 289]. Those counts were: (Count 1) conspiring to possess with intent to distribute 50 grams and more of methamphetamine on July 2 and 3, 2009; (Count 2) possession with intent to distribute 50 grams and more of methamphetamine on July 2, 2009; (Count 5) being a felon in possession of a firearm and ammunition; and (Count 7) possession of methamphetamine. Id. On January 12, 2012, the Court sentenced Defendant to prison for 360 months on Counts 1 and 2; 120 months on Count 5; and 12 months on Count 7, with all sentences to run concurrently for a total of 360 months. [Cr.Doc. 392]. Defendant appealed his convictions to the Tenth Circuit Court of Appeals, which affirmed (with one judge dissenting) on December 17, 2013. See United States v. Archuleta, 737 F.3d 1287 (10th Cir. 2013). The United States Supreme Court denied Defendant's petition for writ of certiorari on June 23, 2014. Archuleta v. United States, 134 S.Ct. 2859 (2014).

         Defendant timely filed his § 2255 motion on April 13, 2015, [3] in which he raised several claims of ineffective assistance of counsel. On April 6, 2016, the Court entered a Proposed Findings and Recommended Disposition [Doc. 26] (hereinafter, “PF&RD”), recommending that all of Defendant's claims in his § 2255 motion [Doc. 1] be dismissed except for his claim that his trial counsel failed to properly communicate to the Government Defendant's acceptance of a 15-year plea offer, resulting in the withdrawal of that offer. See [Doc. 26 at 20]. For this remaining claim, the Court was unable to determine from the then-current record whether Defendant's first trial counsel, Mario Carreon, timely communicated Defendant's acceptance of a plea offer, and concluded that an evidentiary hearing on that single claim was required. Id. at 7-12. On July 15, 2016, Defendant filed objections to the PF&RD. [Doc. 34]. After conducting a de novo review of those portions of the PF&RD to which Defendant objected, on August 16, 2016, the presiding judge in this case entered an order: (1) overruling Defendant's objections as untimely and meritless; (2) adopting the PF&RD [Doc. 26]; (3) denying all of Defendant's claims except his claim that his trial counsel failed to properly communicate Defendant's acceptance of a 15-year plea offer; and (4) ordering the undersigned to appoint counsel for Defendant and conduct an evidentiary hearing and recommend a disposition of this remaining claim. [Doc. 35].

         Attorney Jared Abrams was appointed to represent Defendant, and, after consultation with counsel during a telephonic status conference on September 7, 2016, the Court set an evidentiary hearing for November 16, 2016. [Docs. 40 and 41]. The Court further ordered the parties to file their witness lists, exhibit lists, and proposed findings of fact and conclusions of law, no later than November 1, 2016. [Doc. 41]. On November 1, 2016, the Government filed its proposed findings of fact and conclusions of law [Doc. 44], exhibit list [Doc. 45], and witness list [Doc. 46], but Defendant failed to file these documents, in violation of the Court's order setting the evidentiary hearing. On November 2, 2016, the Court filed an Order to Show Cause (Doc. 47) regarding Defendant's failure to file his witness list, exhibit list, and proposed findings of fact and conclusions of law. Defendant then filed his proposed findings of fact and conclusions of law (Doc. 48) and witness list (Doc. 49), but did not file an exhibit list.

         On November 16, 2016, the Court held an evidentiary hearing to resolve the factual dispute regarding Defendant's remaining claim. Witnesses at the hearing included Defendant, Attorney Mario Carreon, and Attorney Stephen Wong. See [Doc. 56] (clerk's minutes from the evidentiary hearing) and [Doc. 59 at 102] (transcript from evidentiary hearing). The Government offered and the Court admitted into evidence the transcript from a motion hearing in Defendant's criminal case (see Doc. 56-1 and Doc. 59 at 80), and Defendant offered and the Court admitted into evidence an e-mail from Mr. Wong to Mr. Carreon (see Doc. 56-1 and Doc. 59 at 92-93). At the conclusion of the hearing, the Court stated that it would take the matter under advisement. [Doc. 59 at 101]. The Court ordered the parties to file supplemental findings of fact and conclusions of law [Doc. 55], which Defendant filed on December 12, 2016 [Doc. 62], and the Government filed on December 23, 2016 [Doc. 63].

         Evidentiary Hearing

         At the beginning of the hearing, Mr. Abrams argued that the formal plea offer made by the Government was for a 17-year term and not for the 15-year term that Defendant claimed in his § 2255 motion. [Doc. 59 at 9:2-12]. Mr. Abrams stated that Defendant now claims that this 17-year plea offer was not explained to him, and that “[i]f there's any offer that wasn't explained to [Defendant], was explained badly, was explained too late for him to take it, and he would have taken it, then he's entitled to have that considered and to be resentenced according to that offer.” Id. at 10:22-25. The Government opposed Defendant's request for the Court to consider any claim not raised in Defendant's § 2255 motion. Id. at 11:10-25, 12:1-11.

         Defendant's Testimony

         In his direct examination, Defendant was asked about the plea negotiations between his counsel (Mr. Carreon) and the Government, as follows:

Q. If the Government had made a part of a plea deal to testify against your codefendants, would you have done so? A. No, sir. That's what tied us up, was the fact that [Mr. Carreon] told me that that was the only way I could secure a plea bargain, was to testify against my codefendants.

Id. at 15:20-24; see also Id. at 19:8-10 (“Q. Would you have taken [a 15-year plea bargain] if it required testifying against your codefendants? A. No.”). Defendant testified that, while he was not clear on the dates, his counsel told him about a 15-year plea offer, and that, about a month or two later, Defendant told his counsel he would accept that offer. Id. at 19:13-24. Defendant testified that the next time he talked with his counsel, Defendant thought that they had come to Court to sign the 15-year plea bargain, and that “that's when me and him got into it the last time, and that's when I thought I asked him to excuse himself.” Id. at 20:7-8. Defendant stated that he was then told about a possible plea offer for 11 to 19 years, and that Defendant told his counsel that “[he] would take 15 [years].” Id. at 20:17. Defendant further testified that he would have agreed to either the 11-to-19-year plea bargain, or a 15-year plea bargain, even if it was contingent upon one of Defendant's codefendants taking the plea bargain as well. Id. at 23:3-15. Defendant was then asked if he recalled if his counsel told him that the Government had later made a 17-year plea offer, and Defendant stated that he did not recall. Id. at 23:19-25, 24:1-3.

         On cross-examination, Defendant admitted that, on December 26, 2009, he wrote in a letter that he told his counsel that he would go to trial if he did not get an offer of 8 to 13 years. Id. at 28:9-19. Defendant also admitted that, on January 27, 2010, Defendant told his girlfriend in a phone call that he would not take a plea bargain for 12 to 15 years. Id. at 33:21-25, 34:1-18. Defendant testified that, on January 29, 2010, the date that he requested new counsel, he knew that any plea agreement for 11, 12 or 15 years had been rejected and was gone. Id. at 34:19-23. In addition, when asked if he stated in a call with his girlfriend on January 29, 2010 that “it didn't matter that the United States ...


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