United States District Court, D. New Mexico
January 10, 2017
UNITED STATES OF AMERICA, Plaintiff/Respondent,
NATHAN ARCHULETA, Defendant/Movant.
SECOND PROPOSED FINDINGS AND RECOMMENDED
LOURDES A. MARTÍNEZ, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendant/Movant's
(hereinafter “Defendant”) § 2255 Motion
[Doc. 1] 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
and Procedural Background
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).
timely filed his § 2255 motion on April 13, 2015,
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].
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.
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].
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.
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.
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 revoked their plea offer
because [Defendant] wasn't going to plead guilty to the
15-year deal that day anyway, ” Defendant admitted that
he said this out of frustration. Id. at 44:6-13.
Carreon testified that he was appointed to represent
Defendant on December 14, 2009, and that, shortly after being
appointed, he began plea negotiations with Assistant United
States Attorney Mr. Wong. Id. at 53:19-25, 54:1-8.
Mr. Carreon stated that Defendant told him that he would not
enter into any plea agreements that would require him to
cooperate with the Government, and that Mr. Carreon
communicated this to Mr. Wong. Id. at 54:18-25,
55:1. Mr. Carreon testified that, on January 16, 2010, he
discussed with Mr. Wong the possibility of a 15-year plea
agreement, which would be subject to approval by Mr.
Wong's supervisor. Id. at 55:5-9. Mr. Carreon
stated that he met with Defendant on January 20, 2010 at the
Otero County detention facility and that they discussed
discovery, trial options, possible testimony by codefendants,
and the possibility of a 15-year plea agreement. Id.
at 56:15-25, 57:1-5. Mr. Carreon testified that Defendant
“rejected the 15-year offer and he instructed [Mr.
Carreon] to make a counteroffer for 12 years.”
Id. at 57:7-8. Mr. Carreon stated that he called Mr.
Wong and told him that Defendant had rejected the 15-year
agreement and countered with a 12-year plea agreement.
Id. at 57:10-14. Mr. Carreon testified that there
was never a 15-year plea offer that had been approved by Mr.
Wong's supervisor. Id. at 57:25, 58:1-6. Mr.
Carreon stated that on January 21, 2010, he received an
e-mail from Mr. Wong suggesting a range of 11 to 19 years,
subject to Mr. Wong's supervisor's approval.
Id. at 58:12-14. This agreement would be contingent
on Defendant's codefendant, Mr. Munoz, also accepting a
plea agreement. Id. at 59:6-11. Mr. Carreon
testified that he then called Mr. Wong and that they
discussed a possible plea agreement of 12 to 15 years.
Id. at 59:19-25. Mr. Carreon stated that, on January
23, 2010, he met with Defendant and that they discussed a
12-to-15-year plea agreement, subject to Mr. Wong's
supervisor's approval. Id. at 61:19-20. When
asked if he communicated to the Government Defendant's
agreement to the 12-to-15-year range, Mr. Carreon stated:
“There were several e-mails that were written after
that. I am fairly certain -- I can't be a hundred percent
certain but I'm fairly certain that I communicated Mr.
Archuleta's wishes to Mr. Wong in that short period of
time.” Id. at 63:5-8.
Carreon testified that, on January 28, 2010, he received a
formal plea offer via e-mail from Mr. Wong for a 17-year plea
agreement. Id. at 63:9-13; see also Id. at
61:21-25. Mr. Carreon stated: “That was the only formal
Plea Agreement with supervisory approval that the Government
ever made to Mr. Archuleta.” Id. at 62:7-9.
Mr. Carreon testified that this plea offer did not require
Defendant to testify against his codefendants, but it was
contingent upon Mr. Munoz, Defendant's codefendant, also
pleading guilty. Id. at 63:14-17. Mr. Carreon stated
that the next morning, on January 29, 2010, prior to a motion
hearing to continue Defendant's trial, he told Defendant
about the 17-year plea offer. Id. at 62:1-7. Mr.
Carreon testified that Defendant was very upset after hearing
about this plea offer, and that he then advised Mr. Carreon
that he wanted new counsel. Id. at 64:3-4. Mr.
Carreon stated that Defendant “never really told [Mr.
Carreon] whether he wanted to accept the 17-year 11(c)(1)(C)
agreement.” Id. at 64:5-6. When the Court
presented Mr. Carreon with the transcript from the January
29, 2010 hearing on Defendant's motion to continue before
Judge Brack, at which Mr. Carreon told Judge Brack that
Defendant had rejected the offer he had received from Mr.
Wong the day before (see Id. at 72:15-25), Mr.
Carreon then testified that he recalled that Defendant
refused the 17-year plea agreement on that date (id.
Wong testified that he was the Assistant United States
Attorney prosecuting Defendant's underlying criminal
case, No. CR-09-2698. Id. at 81:4-11. Mr. Wong
testified that he never “extended a formal Plea
Agreement to [Defendant] that he could accept, ” but
that Mr. Wong “did extend to [Defendant] terms that
were solid that he -- that I represented I was authorized to
-- to make to him, ” which was “an 11(c)(1)(C)
Plea Agreement to a specific sentence of 17 years contingent
on Mr. Munoz also pleading guilty.” Id. at
82:5-12. Mr. Wong testified that he never offered Defendant a
15-year plea agreement that Defendant could have accepted.
Id. at 82:16-21; see also Id. at 82:25,
83:1-2 (“Mr. Archuleta rejected the 15-year deal before
a formal Plea Agreement was ever drafted and extended to
cross-examination, Mr. Wong was asked if the 17-year plea
offer was a formal offer, and he stated:
These were terms that I represented I was empowered to extend
to [Defendant]. There was no written Plea Agreement, but
those were terms that [Defendant] could have accepted should
he have agreed to -- agreed to accept them and we had gone
through the process of reducing it to a formal plea offer,
and if Mr. Munoz had also agreed to plead guilty at the
Id. at 83:14-19. When Mr. Wong was asked by the
Court if the 17-year plea offer was a formal plea offer, Mr.
Wong stated that the 17-year plea offer that was conveyed on
January 28, 2010 contained some of the terms that would have
become part of a formal plea agreement, and that, “[a]s
to the term of incarceration, [Defendant] could have accepted
that, and that was -- that was our offer, ” but that
“[t]here were many other terms that would be required
to -- we would be required to work out in order for it to be
a valid plea.” Id. at 88:21-24. When asked if
this plea offer was accepted by Defendant, Mr. Wong stated
that it was not because Defendant told Judge Brack at the
motion hearing that he did not want to accept any plea offer
and did not want to plead guilty. Id. at 88: 25,
close of the hearing, Mr. Abrams again asked the Court to
consider the claim that “either [Defendant] wasn't
told about [the 17-year plea offer] or [Defendant] wasn't
told about it in a manner he could understand.”
Id. at 97:22-23.
to 28 U.S.C. § 2255, a federal prisoner who
“claim[s] the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
the sentence.” 28 U.S.C. § 2255(a). Relief is
available under § 2255 only if “the claimed error
constituted a fundamental defect which inherently results in
a complete miscarriage of justice.” United States
v. Addonizio, 442 U.S. 178, 185 (1979) (internal
quotation marks and citation omitted). The court must presume
“that the proceedings leading to the conviction were
correct;” the burden is on the petitioner to
demonstrate otherwise. Klein v. United States, 880
F.2d 250, 253 (10th Cir. 1989) (citation omitted).
evaluating an ineffective assistance of counsel claim, an
attorney's performance is measured by a two-prong
standard established by the Supreme Court in Strickland
v. Washington, 466 U.S. 668 (1984). To prevail on an
ineffective assistance claim under the Strickland
standard, Defendant must show that: (a) his attorney's
performance was deficient because it fell below an objective
standard of reasonableness; and (b) he was prejudiced by the
attorney's deficient performance. Id. at 687.
Both showings must be made to satisfy the Strickland
standard. Id. To demonstrate unreasonable
performance, Defendant must show that his attorney made
errors so serious that his performance could not be
considered “reasonable under prevailing professional
norms.” Id. at 688. To demonstrate prejudice,
Defendant must show a reasonable probability, sufficient to
undermine confidence in the outcome, that the result of the
proceeding would have been different but for his
attorney's alleged unprofessional errors. Id. at
694. Finally, a court need not address both prongs of the
Strickland standard if the movant makes an
insufficient showing on either one of the prongs.
Id. at 697. In assessing ineffectiveness claims,
“judicial scrutiny of counsel's performance must be
highly deferential.” Strickland, 466 U.S. at
689. Judicial review requires “that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged
conduct, ands to evaluate the conduct from counsel's
perspective at the time.” Id. Thus, a
reviewing court “must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” Id.
15-Year Plea Offer
remaining claim in this case is that Mr. Carreon's
representation was ineffective because Mr. Carreon delayed in
conveying to the Government Defendant's acceptance of a
15-year plea offer, which resulted in the withdrawal of the
plea offer. See [Doc. 1 at 10-12].
Specifically, Defendant contends:
1. On December 12, 2009, Attorney Mario Carreon was appointed
to represent me in my federal case. [S]hortly after that
appointment, Carreon advised me during a meeting that the
government extended a fifteen year plea offer in an attempt
to timely resolve the court action. At that time, Carreon
advised me that the government could prove, in his opinion,
two of the four counts upon which I was charged and those
counts were three and four. Carreon allowed me some time to
think it over at which time, I communicated the offer to my
family and friends for advice regarding its acceptance o[r]
2. After these discussions, I informed Carreon that I wished
to accept the fifteen year offer. Carreon explained that he
would speak with the U.S. Attorney when he got a chance. It,
however, was several weeks before me [sic] and Carreon spoke
again regarding the offer. At that time, Carreon apologized
and stated that the fifteen year offer had come and gone
before he could solidify it. Carreon explained that a
different offer had been made which was less favorable and
called for eighteen years. I was upset with Carreon because
after speaking with him regarding the fifteen year plea offer
I'd set my mind to the fifteen year term and at night
calculated the amount of time I would serve with good
behavior and likewise communicated that to my family. [S]o to
hear that the offer amounted to a hoax, I began to argue with
Carreon who admitted that he'd neglected to express my
intention to accept the offer. Carreon added that he was also
upset, but upset with the U.S. Attorney for allowing plea
negotiations to become frustrated.
[Doc. 2 at 1-2].
Supreme Court has explained that a formal plea offer must
have a fixed expiration date, with “terms and 
processing [that] can be documented so that what took place
in the negotiation process becomes more clear if some later
inquiry turns on the conduct of earlier pretrial
negotiations.” Missouri v. Frye, 132 S.Ct.
1399, 1408-09 (2012). When there is no formal plea offer,
“mere speculation” regarding a favorable plea
that might have been forthcoming is insufficient to show
ineffective assistance of counsel under Strickland.
See United States v. Rendon-Martinez, 497 Fed.
App'x 848, 849 (10th Cir. Sept. 27, 2012) (unpublished)
(rejecting an ineffective assistance of counsel claim that
the movant's counsel should have sought out a favorable
plea); see also Greenspan v. Cate, No.
12-cv-2402-AJB (BGS), 2014 WL 197749, at *36 (S.D. Cal. Jan.
16, 2014) (unpublished) (“In contrast to Frye,
. . . [the] prosecutor extended no formal plea offer, written
or even verbal, containing the no sex offender registration
term [and] [a]lthough [the defendant] may well have accepted
a plea offer that provided for avoidance of the sex offender
registration consequence, as he now represents, the record
reflects his attorney's attempt to secure such an offer
never came to fruition”).
Court first finds that Defendant has failed to establish that
a 15-year plea offer was ever made to him by the Government.
At the evidentiary hearing, both Mr. Carreon and Mr. Wong
testified that Mr. Wong never offered Defendant a 15-year
plea agreement because such an agreement had never been
approved by Mr. Wong's supervisor. See Mr.
Carreon's testimony [Doc. 59 at 55:5-9] (stating
that, on January 16, 2010, he discussed with Mr. Wong the
possibility of a 15-year plea agreement, which would be
subject to approval by Mr. Wong's supervisor) and
id. at 57:25, 58:1-6 (stating that there was never a
15-year plea offer that had been approved by Mr. Wong's
supervisor); see also Mr. Wong's testimony
id. at 82:16-21 (stating that he never offered
Defendant a 15-year plea agreement that Defendant could have
accepted) and Defendant's Exhibit 2, attached hereto,
(January 28, 2010 e-mail from Mr. Wong to Mr. Carreon stating
that Mr. Wong's supervisor rejected the proposed
12-to-15-year plea proposal). While Defendant stated in both
his § 2255 motion and at the evidentiary hearing that he
was willing to accept a 15-year plea agreement if it did not
require him to testify against his codefendants, Defendant
presents no evidence that any such offer was ever made to
Defendant by the Government. Instead, the evidence before the
Court shows only that Mr. Carreon and Mr. Wong engaged in
settlement negotiations in which a 15-year plea was
discussed, but was never formally presented as a plea offer.
The Court, therefore, finds no support for Defendant's
claim that Mr. Carreon was ineffective as to a 15-year plea
offer. See, e.g., Greenspan, 2014 WL 197749, at *36
(explaining that “[the defendant] identifies no
controlling United States Supreme Court authority for the
proposition that an inchoate bargain proposed by defense
counsel during plea negotiations, even one a prosecutor may
have agreed to propose to his or her supervisor, can support
an [ineffective assistance of counsel] claim [under the
holding of Frye] when there was no resulting offer
that defense counsel could have communicated to the
the Court finds that Defendant presented no credible evidence
that Mr. Carreon failed to communicate Defendant's
willingness to accept a 15-year plea offer if one had been
presented. Mr. Carreon testified that he was “fairly
certain” that he communicated to Mr. Wong
Defendant's wish to enter into a 12-to-15-year plea
agreement (Doc. 59 at 63:5-8), and this was
confirmed by Mr. Wong's testimony that he and Mr. Carreon
had discussed a 15-year plea agreement and that Mr. Wong
“spent some time drafting up a proposal to 15 years,
” and that this was a “tentative agreement”
that was rejected by Defendant before it could have been
drafted as a formal offer (id. at 82:21-25, 83:1-2).
While Defendant stated in his declaration filed in support of
his § 2255 motion that Mr. Carreon had told him that he
had failed to timely communicate Defendant's acceptance
of a 15-year plea offer, which resulted in the withdrawal of
that offer (see Doc. 2 at 1-2), Defendant did not
present any evidence at the hearing supporting this
statement. In contrast, both Mr. Carreon and Mr. Wong
testified that the 15-year plea was never approved by Mr.
Wong's supervisor, was never presented as an offer from
the Government that Defendant could have accepted, and,
nevertheless, was rejected by Defendant before it could have
been formally offered. See Mr. Carreon's
testimony [Doc. 59 at 57:7-8] (stating that when he
met with Defendant on January 20, 2010 at the Otero County
detention facility Defendant “rejected the 15-year
offer and he instructed [Mr. Carreon] to make a counteroffer
for 12 years”) and id. at 57:10-15 (stating
that Mr. Carreon called Mr. Wong and told him that Defendant
had rejected the 15-year agreement and countered with a
12-year plea agreement); and Mr. Wong's testimony
id. at 82:25, 83:1-2 (stating that “Mr.
Archuleta rejected the 15-year deal before a formal Plea
Agreement was ever drafted and extended to him.”). This
is further corroborated by Mr. Carreon's statement at the
January 29, 2010 hearing before Judge Brack that a first plea
offer was taken to Defendant and that, on January 20, 2010,
Defendant “rejected that plea offer.”
See [Cr.Doc. 154 at 4]. In addition to
failing to rebut these statements, additional evidence
presented at the hearing supports a finding that Defendant
did not intend to accept a 15-year plea offer, such as the
December 26, 2009 letter from Defendant stating that he told
his counsel that he would go to trial if he did not get an
offer of 8 to 13 years (see Doc. 59 at 28:9-19);
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 (see Id. at 33:21-25, 34:1-18); and that on
January 29, 2010 Defendant stated in a call with his
girlfriend that “it didn't matter that the United
States revoked their plea offer because [Defendant]
wasn't going to plead guilty to the 15-year deal that day
anyway” (id. at 44:6-13).
reasons stated above, the Court finds that Defendant has
failed to establish that Mr. Carreon provided ineffective
assistance as to the negotiation of a 15-year plea offer.
When there is conflicting testimony at a § 2255
evidentiary hearing, “it is ultimately the role of the
district court . . . to assess credibility and weigh the
evidence before it.” United States v.
Gonzalez, 209 Fed. App'x 842, 846-47 (10th Cir. Dec.
26, 2006) (unpublished) (citing United States v.
Browning, 252 F.3d 1153, 1157 (10th Cir. 2001)). Having
evaluated the testimony of Defendant, Mr. Carreon, and Mr.
Wong, the Court finds that the accounts by Mr. Carreon and
Mr. Wong regarding the plea negotiations for a 15-year plea
agreement are more credible than Defendant's account. The
Court finds that there is substantial evidence that the
Government never made a 15-year plea offer to Defendant that
he could have accepted. The Court further finds that the
record shows that Mr. Carreon appropriately conveyed his
client's wishes to Mr. Wong and competently engaged in
plea negotiations. Therefore, the Court finds that Mr.
Carreon's performance did not fall below an objective
standard of reasonableness as to his negotiations with Mr.
Wong for a 15-year plea, and recommends that this claim be
Plea Offer Claim
Court next considers Defendant's claim that Mr.
Carreon's performance was ineffective as to the
Government's 17-year plea offer. While this claim was not
raised in Defendant's § 2255 motion, this claim was
the subject of the majority of the testimony presented at the
November 16, 2016 hearing and both parties addressed this
issue in their supplemental proposed findings of fact and
conclusions of law (see Docs. 62 and 63).
In addition, it appears that Defendant discussed this plea
offer extensively in both his § 2255 motion and his
declaration filed in support of his § 2255 motion, even
though Defendant refers to it in those documents as an
18-year plea offer. See [Doc. 1 at 12] and
[Doc. 2 at 2]. The Court, therefore, finds that it
would be most efficient to consider Mr. Carreon's
performance as to the 17-year plea offer at this time.
See Sipp v. Unumprovident Corp., 107 Fed. App'x
867, 875 (10th Cir. Aug. 20, 2004) (unpublished) (“The
inherent authority of a district court to manage its own
docket includes the discretion to determine which claims to
evidence before to the Court shows that, on January 28, 2010,
the Government presented a 17-year plea offer to Defendant,
and that Defendant could have accepted this offer with regard
to the 17-year term presented in the offer. See
Defendant's Exhibit 2, attached hereto (e-mail dated
January 28, 2010 from Mr. Wong to Mr. Carreon stating that
Mr. Wong is authorized to extend to Defendant a 17-year plea
agreement, contingent upon Mr. Munoz also pleading guilty).
The evidence also shows that Mr. Carreon communicated this
17-year offer to Defendant. See Mr. Carreon's
testimony, [Doc. 59 at 62:1-7] (stating that he told
Defendant about the 17-year plea offer on January 29, 2010
prior to a hearing in Defendant's criminal case). This
testimony is corroborated by Mr. Carreon's statement to
Judge Brack at the January 29, 2010 hearing that Mr. Carreon
received an e-mail from the Government at 8:00 p.m. the night
before, and that he “reviewed [the Government's]
offer with [his] client today.” [Cr.Doc. 154
at 5]. Finally, the evidence shows that Defendant rejected
the 17-year plea offer. See Mr. Carreon's
testimony [Doc. 59 at 73:4-9] (stating that he
recalled that Defendant refused the 17-year plea offer on
January 29, 2010 prior to the hearing before Judge Brack);
[Cr.Doc. 154 at 5] (Mr. Carreon's statement at
the January 29, 2010 hearing that Defendant rejected the
offer received at 8:00 p.m. the night before); and Mr.
Wong's testimony (id. at 88:25, 89:1-8) (stating
that Defendant stated at the January 29, 2010 hearing that he
did want to accept any plea offer and did not want to plead
Court, therefore, finds that Mr. Carreon presented the
17-year plea offer to Defendant and that Defendant rejected
the offer. The Court further finds that Defendant's
self-serving assertions that he would have accepted this
offer if he had better understood it is belied by
Defendant's conduct and statements to the Court leading
up to his trial. See [Cr.Doc. 154 at 15-17]
(transcript of the January 29, 2010 hearing wherein Defendant
denies any involvement in the charged crimes, and states that
he does not know the facts of the case and, therefore, he
would “rather spend [his] life in jail than tell a lie
that would possibly put a man in jail for ten years, five
years, whatever it may be”). A defendant who rejects
all plea offers and steadfastly proclaims his innocence
cannot show ineffective assistance of counsel in plea
negotiations by asserting, post-conviction, that he was
willing to accept a plea deal. See United States v.
Gonzalez-Rivera, 217 Fed. App'x 166, 170 (3rd Cir.
Feb. 15, 2007) (unpublished) (finding that the claim by
defendant, who maintained his innocence and refused to plead
guilty during plea negotiations, that he would have accepted
a plea offer is “far too speculative” to
establish prejudice). Therefore, the Court finds that Mr.
Carreon's performance did not fall below an objective
standard of reasonableness as to the 17-year plea offer, and
recommends that this claim also be denied.
HEREBY RECOMMENDED, for the reasons stated above, that
Defendant's § 2255 motion [Doc. 1] be
DENIED and that this case be DISMISSED with prejudice.
 Within fourteen (14) days after a
party is served with a copy of these proposed findings and
recommended disposition, that party may, pursuant to 28
U.S.C. § 636(b)(1), file written objections to such
proposed findings and recommended disposition. A party must
file any objections with the clerk of the United States
District Court for the District of New Mexico within the
fourteen (14) day period allowed if that party wants to have
appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review
will be allowed. Pursuant to Fed.R.Civ.P. 72(b)(2), a party
may respond to another party's objections within fourteen
(14) days after being served with a copy of the
 Hereinafter, all documents from Case
No. CIV-15-0298 cited in this decision will be designated as
“Doc.” followed by their docket number,
and all documents from Case No. CR-09-2968 cited in this
decision will be designated as “Cr.Doc.”
followed by their docket number.
 A motion under 28 U.S.C. § 2255
is timely if it is filed within one year from the date the
conviction becomes final. See 28 U.S.C. §
2255(f)(1). The Tenth Circuit Court of Appeals has held that
“the one-year limitation period for filing for federal
post-conviction relief does not begin to run until after the
United States Supreme Court has denied review.”
Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999)
(citations omitted). Here, the United States Supreme Court
denied Defendant's petition for writ of certiorari on
June 23, 2014. Since Defendant filed his motion within one
year of that denial, on April 13, 2015, his motion is