United States District Court, D. New Mexico
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 ...