United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Magistrate Judge Laura
Fashing's Proposed Findings of Fact and Recommended
Disposition, Doc. 71 (Report), and movant Oscar
Reyes-Espinoza's Objections to the Recommendations of
Magistrate Judge, Doc. 72. The United States filed a Response
to Reyes-Espinoza's objections. Doc. 73. Having reviewed
the record in this case, the Court overrules
Reyes-Espinoza's objections and adopts the magistrate
judge's recommendation to deny Reyes-Espinoza's
Standard of Review
party files timely written objections to the magistrate
judge's recommendation, the district court generally will
conduct a de novo review and “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(C);
see also Fed. R. Civ. P. 72(b)(3). To preserve an
issue for de novo review, “a party's objections to
the magistrate judge's report and recommendation must be
both timely and specific.” United States v. One
Parcel of Real Prop., With Buildings, Appurtenances,
Improvements, & Contents, Known as: 2121 E. 30th St.,
Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996).
magistrate judge recommended that the Court deny
Reyes-Espinoza's challenge to his sentence because the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015)-which held that that
residual clause in the Armed Career Criminal Act (ACCA) was
unconstitutionally vague-does not apply to this case.
Reyes-Espinoza was not sentenced under the ACCA, and the
Guideline provision that was used to enhance his sentence did
not contain a residual clause similar to the one in the ACCA.
See Doc. 71 at 5. Further, even if the Guideline had
contained a similar provision, the Supreme Court's
decision in Beckles v. United States, 137 S.Ct. 886
(2017) forecloses void-for-vagueness challenges to the
Guidelines. See Doc. 71 at 6.
magistrate judge also recommended that the Court deny
Reyes-Espinoza's ineffective assistance claim based on
his counsel's failure to file a notice of appeal.
See Doc. 71 at 6-9. The magistrate judge found
Reyes-Espinoza's former attorney more credible than
Reyes-Espinoza, and found that Reyes-Espinoza did not direct
his attorney to file a notice of appeal. See Id. at
7-8. The magistrate judge also found that the attorney made a
reasonable effort to determine whether Reyes-Espinoza wanted
to file an appeal. See Id. at 9.
respect to Reyes-Espinoza's motion to amend, the
magistrate judge recommended that the Court deny the motion.
Because Reyes-Espinoza sought to add new claims in his
motion, they did not relate back to his original petition,
and the new claims are time-barred. See Id. at
10-11. And although Reyes-Espinoza's actual innocence
claim could overcome the statute-of-limitations bar, he
submitted insufficient evidence to support this claim.
See Id. at 11- 12.
only objects to one aspect of the magistrate judge's
Report. See Doc. 72. Specifically, he objects to the
magistrate judge's finding that Reyes-Espinoza's
attorney made a reasonable effort to discover whether
Reyes-Espinoza wanted to file a notice of appeal.
Id. at 1. He argues that “[u]nder the
circumstances of this case, where Mr. Reyes specifically
wanted to retain his right to appeal, and where he made
statements regarding his potential innocence at the time of
the plea and at sentencing, it was not reasonable or
sufficient for the attorney to ask the question (whether he
wanted to appeal) yet not get an answer.” Id.
at 3. In Reyes-Espinoza's view, the attorney should have
demanded an answer, or just filed the notice of appeal
without an answer. See Id. In response, the
government argues that given the limited nature of an appeal
after a guilty plea, and given the substantially reduced
sentence that Reyes-Espinoza received, it was reasonable for
the attorney to accept Reyes-Espinoza's silence as an
indication that he did not want to appeal. See Doc.
73. The Court agrees with the government.
Roe v. Flores-Ortega, 528 U.S. 470 (2000), the
Supreme Court described how the Court should address claims
of ineffective assistance of counsel similar to the one
In those cases where the defendant neither instructs counsel
to file an appeal nor asks that an appeal not be taken, we
believe the question whether counsel has performed
deficiently by not filing a notice of appeal is best answered
by first asking a separate, but antecedent, question: whether
counsel in fact consulted with the defendant about an appeal.
We employ the term “consult” to convey a specific
meaning-advising the defendant about the advantages and
disadvantages of taking an appeal, and making a reasonable
effort to discover the defendant's wishes. If counsel has
consulted with the defendant, the question of deficient
performance is easily answered: Counsel performs in a
professionally unreasonable manner only by failing to follow
the defendant's express instructions with respect to an
Id. at 478.
case, Reyes-Espinoza does not challenge the magistrate
judge's credibility findings, or its recitation of what
occurred immediately after the sentencing hearing in this
case. See Doc. 72 at 1-2. Those factual findings
make clear that Reyes-Espinoza's attorney “followed
Reyes-Espinoza back to the holding cell and explained to him
the significance of the district judge's downward
departure, ” “discussed with Reyes-Espinoza his
appellate rights and offered to file a notice of appeal,
” “asked Reyes-Espinoza if he had any other
questions, thoughts or concerns, and made sure that
Reyes-Espinoza knew how to contact him if necessary.”
Doc. 71 at 7-8. These facts make clear that the attorney
adequately “consulted” with Reyes-Espinoza about
an appeal under Roe. Thus, the attorney's
performance could be professionally unreasonable only if he
“fail[ed] to follow the defendant's express
instructions with respect to an appeal.” Roe,
528 U.S. at 478. Because Reyes-Espinoza did not respond to
the attorney's inquiry and gave no express instructions
one way or the other, the attorney's performance was not
argument that, under the circumstances, his attorney should
have demanded a response, or filed an appeal in the absence
of a response, is not persuasive. Reyes-Espinoza acknowledges
that “he may not have had grounds to appeal his
sentence, ” but instead says that he had grounds to
appeal his conviction based on his repeated assertion that he
believed he had a claim to citizenship. Doc. 72 at 2. At his
change of plea hearing, however, Reyes-Espinoza said only
“that there is a possibility that I'm a United
States Citizen” based on his belief he was adopted by a
U.S. citizen, but he acknowledged that he did not have proof
of that claim. Doc. 47 at 25. He also admitted he was a
Mexican citizen who previously had been deported from the
United States, and that he did not have permission to reenter
the United States. Id. at 26-27. At sentencing, he
again said that he believed that there was a “high
possibility” he was a citizen, but that he was
“still looking into that, ” and “still
[didn't] know what's going on with that.” Doc.
48 at 11. In short, Reyes-Espinoza persisted in his guilty
plea despite his belief that he may have a claim to U.S.
citizenship. As the government points out, “a valid
guilty plea relinquishes any claim that would contradict the
admissions necessarily made upon entry of a voluntary plea of
guilty.” Class v. United States, 138 S.Ct.
798, 805 (2018) (internal quotation marks omitted). And
unlike United States v. Carillo, 860 F.3d 1293,
1302-05 (10th Cir. 2017), the prosecutor in this case clearly
set forth the factual basis for the reentry offense to which
Reyes-Espinoza pled guilty, and the Court reviewed the
elements of the offense with Reyes-Espinoza before it
accepted his guilty plea. Doc. 47 at 24-28. Thus, after the
sentencing hearing, it was not unreasonable for
Reyes-Espinoza's attorney to believe that there were no
nonfrivolous grounds for an appeal. Reyes-Espinoza's
attorney was not ineffective for failing to demand that
Reyes-Espinoza respond to his question about whether he
wanted to appeal, or for failing to file a notice of appeal
without being directed to do so by his client.