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Gallegos v. United States

United States District Court, D. New Mexico

February 26, 2018



         Before the Court is Jesus Manuel Gallegos' Motion to Vacate Sentence Under 28 U.S.C. § 2255 (CR Doc. 283).[1] Gallegos seeks to vacate his conviction and sentence for kidnapping based on ineffective assistance of counsel and actual innocence. Having reviewed the record, the supplemental materials filed by the United States, and the relevant law, the Court will dismiss the Motion and deny a certificate of appealability.


         The criminal proceeding began in late 2011, after Gallegos and his co-conspirator, Brandon Jones, purportedly forced a man into a vehicle and terrorized him for hours. The record reflects Gallegos assaulted the victim, pressed his thumb into his left eye, and withdrew money from several of the victim's bank accounts. Jones eventually pulled over at a truck stop, where both he and Gallegos fell asleep. The victim then escaped from the vehicle and called police.

         Gallegos was charged by Indictment of kidnapping in violation of 18 U.S.C. § 1201(a). Attorney Todd Farkas was appointed on November 7, 2011 to represent Gallegos pursuant to the Criminal Justice Act (CJA). Gallegos clashed with Farkas - who was his first of four attorneys -within about six months. He filed a motion to appoint new counsel on May 31, 2012, but then withdrew it seven weeks later, stating: “I am satisfied with the representation by Mr. Todd E. Farkas.” (Doc. 51). Around the same time, Farkas engaged Dr. Samuel Roll to perform a psychological assessment of Gallegos. Farkas also obtained an order directing the New Mexico Corrections Department to disclose Gallegos' previous state court diagnostic evaluation.

         Dr. Roll issued his report on September 24, 2012. He found Gallegos had no serious mental illness and was competent to stand trial, but opined that a number of mitigating psychological problems could impact sentencing, rehabilitation, and the potential for violence. Farkas disclosed the report to the United States and requested a plea agreement with a sentence range between five and ten years. The United States rejected the offer and indicated it was unwilling to enter into any plea agreement with Gallegos or Jones.

         On January 3, 2013, Gallegos pled guilty to all charges in the Indictment. As part of the plea colloquy, which is discussed in more detail below, Gallegos stated he understood all charges and consequences and was satisfied with Farkas' legal advice. By February 25, 2013, however, the relationship had again fractured, and Farkas moved to withdraw on the grounds that Gallegos did not trust his advice. Two weeks later, Gallegos changed his mind and Farkas withdrew the motion. Finally, on April 24, 2013, Attorney Jerry Herrera was substituted as counsel for Gallegos.

         Herrera handled the sentencing proceedings. He challenged the proposed sentence enhancements and advocated for a downward adjustment on the theory that Gallegos played a mitigating role in the kidnapping. After a half-day evidentiary hearing, the Court rejected Herrera's arguments and found Gallegos was subject to sentence enhancements for permanently damaging the victim's eye and using a dangerous weapon. Gallegos was sentenced to 360 months imprisonment. Herrera assisted Gallegos in initiating an appeal but then withdrew.

         The Tenth Circuit appointed Gallegos' third attorney, Thomas Jameson, to prosecute the appeal. He was partially successful, and the Tenth Circuit remanded the case for clarification as to whether a two-level or four-level sentencing enhancement was appropriate based on the severity of the victim's eye injury. The parties agreed to the two-level enhancement, and Jameson also requested a downward variance based on a lower criminal history calculation. Applying the criteria set forth in 18 U.S.C. § 3553(a), the Court rejected Jameson's arguments and imposed the same sentence of 360 months.

         Gallegos again appealed. Jameson withdrew, and the Tenth Circuit appointed Gallegos' fourth and final attorney, Gregory Acton. Shortly thereafter, Acton filed an Anders brief and moved to withdraw based on his assessment that the appeal presented no non-frivolous issues. See Anders v. California, 386 U.S. 738, 744 (1967). On August 2, 2016, the Tenth Circuit issued a mandate granting the motion and dismissing the appeal as “wholly frivolous.” Gallegos, proceeding pro se, now seeks to vacate the conviction and sentence on the basis of ineffective assistance of counsel and actual innocence. The Motion raises ten grounds for relief, although several are duplicative:

(Claims 1, 4, and 5) Counsel failed to request a competency hearing based on Gallegos' drug and alcohol abuse or pursue remedies such as an insanity defense;
(Claim 2) Counsel promised Gallegos he would serve less than 360 months if he pled guilty;
(Claim 3) Counsel failed to protect Gallegos' right to a speedy trial;
(Claim 6) Counsel failed to prepare for trial;
(Claim 7) Counsel failed to investigate exculpatory information supporting his innocence;
(Claim 8) Counsel failed to “make informed decisions and [made] too many errors;”
(Claim 9) Counsel failed to challenge the Indictment or demand a probable cause hearing; and
(Claim 10) Counsel failed to challenge the sentence enhancements. The United States filed an answer to the Motion with supporting supplemental ...

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