United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DISMISSING HABEAS
the Court is Jesus Manuel Gallegos' Motion to Vacate
Sentence Under 28 U.S.C. § 2255 (CR Doc.
283). 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.
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.
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.
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
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.
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.
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.
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 ...