United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE.
matter is before the Court on Ms. Zayas's Motion to
Reconsider Motion to Withdraw Guilty Plea, filed on December
1, 2017. (Doc. 220.) The Court held hearings on this matter
on March 26, 2018, and April 3, 2018. (See Docs.
229; 234.) Having considered the oral argument, briefs, and
relevant law, the Court will deny the Motion.
October 22, 2007, Annalicia Zayas, [Mr. and] Ms. Zayas's
daughter, died just two months after she was born.”
(Doc. 201 at 1 (citing Presentence Report (PSR) at 3).)
“Annalicia's autopsy showed she suffered multiple
skull fractures, hemorrhages, and scalp contusions two to
three hours before she died.” (Id. (citing PSR
at 4).) These were in addition to multiple other injuries,
all in various stages of healing, that Annalicia had
sustained over her life. (Id. at 1-2; see
also Doc. 223-5.) Both Mr. and Ms. Zayas were arrested
in 2012; Ms. Zayas pleaded guilty to an Information on
February 24, 2014. (See Docs. 5; 6; 150; 152; 154.)
Zayas has contemplated withdrawing her guilty plea since
September 2014. “In September 2014, Ms. Zayas wrote the
Court a letter, expressing her desire to withdraw her guilty
plea and remove” her then-counsel. (Doc. 201 at 4.) The
Court removed her counsel and “Magistrate Judge Lynch
assigned Carlos Ibarra to represent Ms. Zayas.”
(Id. (citing Doc. 161); see also Docs.
159-60.) The Court later held a status conference, where
“Ms. Zayas expressed issues with the PSR and wanted to
meet with Dr. [Harry] Wilson” (Ms. Zayas's medical
expert) “regarding the facts in” the PSR.
(See Id. at 2, 4.) “Ms. Zayas then filed a
[pro se] Motion to Withdraw Plea of Guilty” in November
2015 (see Id. at 4 (citing Doc. 166)), “and
Mr. Ibarra filed a Motion to Withdraw as Attorney”
(id. (citing Doc. 167)). Ms. Zayas filed a
Supplemental Motion to Withdraw Plea of Guilty in October
2016. (Id. (citing Doc. 188).) During a hearing on
the motions, the Court heard from Mr. Ibarra that he and Ms.
Zayas were at odds over her desire to withdraw her guilty
plea. (See Doc. 189 at 2:20-3:18.) The Court granted
Mr. Ibarra's Motion to Withdraw as Attorney and reserved
judgment on Ms. Zayas's Motion to Withdraw Plea of Guilty
so that her new attorney could look at the matter.
(Id. at 22:5-24:5.) Later in October 2016, Ms. Zayas
filed an Amended Motion to Withdraw Plea of Guilty or in the
Alternative, Motion for Reconsideration. (Doc. 192.) The
Court denied each of Ms. Zayas's motions to withdraw her
plea in its February 2017 Opinion. (Doc. 201 at 4, 17-18
(denying Docs. 166-1, 188, 192).)
January 29, 2017, Ms. Zayas's codefendant and husband,
Mr. Peter Zayas, sent an unsworn letter to the Court, in
which he attempted to explain and take responsibility for
three injuries found on the couple's daughter (the skull,
wrist, and rib fractures). (See Doc. 206 at 7.) Mr.
Zayas concluded that he “could no longer go on
continuing with a lie knowing that is, [sic] [his] wife did
not do this.” (Id.)
Zayas's attorney requested that Mr. Zayas undergo a
psychological examination, after which Mr. Zayas
“agreed to an interview with the attorneys for”
both the government and Ms. Zayas. (See Doc. 215 at
1; see also Doc. 213 at 19:19-22:19.) Counsel for
the parties met with Mr. Zayas after his psychological
examination. (See Doc. 216 at 3.) Mr. Zayas refused
to share the examination results, and he refused to provide
any testimony on the substance of his letter when questioned
by counsel for the United States. (See id.)
Zayas then moved for an evidentiary hearing, seeking to
“discover and develop the exculpatory evidence”
from Mr. Zayas. (Doc. 215 at 1.) During a hearing on her
motion, Mr. Zayas's counsel stated that Mr. Zayas was
willing to allow counsel for Ms. Zayas “to interview
him in the presence of the Government.” (Doc. 219 at
2.) “The Court directed the parties to record the
interview” and denied Ms. Zayas's motion for an
evidentiary hearing as moot. (Id. (denying Doc.
parties interviewed Mr. Zayas on November 16, 2017.
(See Doc. 220 at 1; 223 at 4; see also Doc.
223-3 (DVD of Nov. 16, 2017 Interview).) Neither party has
provided the Court with a transcript of that interview,
although the Government did submit DVD files of the interview
with its response. (See Doc. 223-3.) The Government
also submitted DVD files of Mr. Zayas's April 24, 2012
interview (see Doc. 223-2), which the Government
argues is virtually identical to Mr. Zayas's November 16,
2017 interview. (See Doc. 223 at 5-6.)
Zayas now moves the Court to reconsider its February 2017
Opinion. (See Doc. 220.)
Motion to Reconsider
to reconsider are proper in criminal cases even though the
Federal Rules of Criminal Procedure do not specifically
provide for them.” United States v. Christy,
739 F.3d 534, 539 (10th Cir. 2014) (citations omitted).
“A motion to reconsider may be granted when the court
has misapprehended the facts, a party's position, or the
law.” Id. (citing Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000)).
“Specific grounds include: ‘(1) an intervening
change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or
prevent manifest injustice.'” Id. (quoting
Servants of Paraclete, 204 F.3d at 1012 (internal
citation omitted)). “A motion to reconsider should not
be used to revisit issues already addressed or advance
arguments that could have been raised earlier.”
Id. (citing Servants of Paraclete, 204 F.3d
Motion to Withdraw Guilty Plea
to Rule 11(d)(2)(B), “a defendant may withdraw a plea
of guilty [if] . . . the defendant can show a fair and just
reason for requesting the withdrawal.” A defendant
proceeding under Rule 11(d)(2)(B) does not have an absolute
right to withdraw a guilty plea. United States v.
Rhodes, 913 F.2d 839, 845 (10th Cir. 1990).
“Although a motion to withdraw a plea prior to
sentencing should be ‘freely allowed, ' [the
appellate court] will not reverse a district court's
decision unless the defendant can show that the court acted
‘unjustly or unfairly.'” United States v.
Hamilton, 510 F.3d 1209, 1213-14 (10th Cir. 2007)
(quotation omitted). The decision of whether to permit
withdrawal of a plea “always and ultimately lies within
the sound discretion of the district court to determine on a
case by case basis . . . .” United States v.
Soto, 660 F.3d 1264, 1267 (10th Cir. 2011) (quotation
marks and citations omitted).
Tenth Circuit analyzes seven factors when considering a
motion to withdraw a plea:
(1) whether the defendant has asserted her innocence,
(2) whether the plea was knowing and voluntary,
(3) whether defendant was assisted by counsel,
(4) whether the defendant delayed filing her motion and, if
(5) whether withdrawal would prejudice the government,
(6) whether withdrawal would substantially inconvenience the
(7) whether withdrawal would waste judicial resources.
Hamilton, 510 F.3d at 1214 (quotation omitted).
Among the factors, the most important are whether the
defendant asserted innocence, the validity of the plea, and
the effectiveness of counsel. Id. at 1214-17. If the
defendant cannot meet the burden to prove these factors, then
the Court need not address the remaining factors. United
States v. Byrum, 567 F.3d 1255, 1265 (10th Cir. 2009).
The Tenth Circuit has suggested an additional factor:
“the likelihood of conviction.” United States
v. Carr, 80 F.3d 413, 421 n.5 (10th Cir. 1996).