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United States v. James

United States District Court, D. New Mexico

March 31, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
EVELYNE JAMES, Defendant/Movant. Cr. 07-2251 MV

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HONORABLE MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         THIS MATTER comes 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 consult with her about an appeal; 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. In her second Proposed Findings and Recommended Disposition in this matter (Doc. 41) (“Second PFRD”), filed January 9, 2017, United States Magistrate Judge Kirtan Khalsa recommended 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. Judge Khalsa further recommended that the Court deny the Government's Motion to Enforce Appellate Waiver. The Government filed Objections to Magistrate Judge's Proposed Findings and Recommended Dispositions (“Objections”) on January 20, 2017, (Doc. 42), and Movant's Section 2255 Motion and the Government's Motion to Enforce Appellate Waiver and Objections are now before the Court.

         District courts may refer dispositive motions to a magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b)(1). “Within 14 days after being served with a copy of the [magistrate judge's] recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1). When resolving objections to a magistrate judge's proposal,

[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1). “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). Further, “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see also United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.”).

         The Court has considered Movant's Section 2255 Motion, the Government's Motion to Enforce Appellate Waiver and Objections, and the Magistrate Judge's Second PFRD in light of the foregoing standards, and has conducted a de novo review of the record in this case and the underlying criminal case. Based on this review, and as explained below, the Court finds that the Government's Objections should be overruled, the Magistrate Judge's Second PFRD should be adopted, the Government's Motion to Enforce Appellate Waiver should be denied, and Movant's Section 2255 Motion should be granted as to her claim that her counsel provided her with ineffective assistance by failing to consult with her about an appeal.

         For a defendant in a criminal case to succeed on a Sixth Amendment claim of ineffective assistance of counsel, she must demonstrate both that: (1) “counsel's representation fell below an objective standard of reasonableness”; and, (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In cases like this one, where the defendant claims that her trial counsel provided her with ineffective assistance by failing to consult with her about an appeal, more particularized standards apply. To satisfy the first Strickland prong in such cases, a defendant must show that her trial counsel had a duty to consult with her about an appeal yet failed to do so. Roe v. Flores-Ortega, 528 U.S. 470, 478-80 (2000).

[C]ounsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.

Id. at 480; United States v. Parker, 720 F.3d 781, 785 n.3 (10th Cir. 2013). To satisfy the second Strickland prong, a breach of the duty to consult with a defendant about an appeal

must actually cause the forfeiture of the defendant's appeal. . . . [T]o show prejudice in these circumstances, a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed.

Flores-Ortega, 528 U.S. at 484.

         Applying the foregoing standards to the undisputed facts of this case is straightforward. First, the Court finds that Movant's trial counsel had a duty to consult with her about an appeal, because Movant reasonably demonstrated that she was interested in pursuing an appeal by personally filing and arguing in support of her motion to withdraw her plea and to substitute counsel. Id. at 480; (see generally CR Docs. 64, 110.) Movant's pro se motion and argument unequivocally put her trial counsel on notice that she no longer desired “an end to judicial proceedings, ” Flores-Ortega, 528 U.S. at 480, and was no longer “happy” with the sentence to which she had previously agreed. (CR Doc. 110 at 14.)

         The Court further finds that trial counsel breached his duty to consult with Movant about an appeal. In answer to the Court's interrogatories, Movant swore that her trial counsel did not consult with her regarding whether she wanted to appeal the denial of her motion to withdraw her plea and to substitute counsel. (Doc. 37 at 1.) The Government has failed to avail itself of at least three opportunities to produce affidavits or seek an evidentiary hearing at which to offer testimony to refute Plaintiff's sworn statements: (1) in response to Movant's interrogatory answers; (2) in response to the Court's Order to Show Cause; and, (3) in its Objections to the Magistrate Judge's Second PFRD.[1] (Docs. 33, 38, 39, 42.) Instead, the Government has admitted that it is “without information or belief” to contradict Movant's ...


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