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United States v. Zayas

United States District Court, D. New Mexico

April 10, 2018




         This 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.

         I. Background[1]

         “On 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.)

         Ms. 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).)

         On 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.)

         Mr. 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.)

         Ms. 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. 215).)

         The 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.)

         Ms. Zayas now moves the Court to reconsider its February 2017 Opinion. (See Doc. 220.)

         II. Legal Standards

         A. Motion to Reconsider

         “Motions 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 at 1012).

         B. Motion to Withdraw Guilty Plea

         Pursuant 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).

         The 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 so, why,
(5) whether withdrawal would prejudice the government,
(6) whether withdrawal would substantially inconvenience the court, and
(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).

         III. ...

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