United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
H. RITTER, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Petitioner/Defendant Carlos
Tafoya, Jr.'s (“Petitioner” or “Mr.
Tafoya”) Motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. (Doc.
250). Petitioner argues that he received
ineffective assistance of counsel, and the Court should grant
him an evidentiary hearing, and vacate his sentence and
judgment. The Court has satisfied itself that
Petitioner's Motion is limited to only matters of law,
and its disposition requires no further factual development
or evidentiary hearing. See 28 U.S.C. § 2255(b)
(providing that a court must hold an evidentiary hearing on a
§ 2255 motion “[u]nless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief.”). Having thoroughly reviewed
the submissions of the parties, the record before the Court,
including the Presentence Investigation Report (Doc. 199),
and the relevant law, the undersigned
recommends that Mr. Tafoya's motion be denied,
because he has not stated a plausible claim that he received
ineffective assistance of counsel.
and Procedural Facts
November 19, 2015, Mr. Tafoya was indicted for conspiring to
distribute methamphetamine, contrary to 21 U.S.C.
§§ 841(a)(1) and 21 U.S.C. § 841(b)(1)(A) for
events occurring between April 9, 2015 and October 16, 2015.
(Doc. 3). On April 18, 2016, Mr. Tafoya filed a Motion to
Appoint New Counsel to replace his first defense counsel.
(Doc. 105). District Judge Brack granted Plaintiff's
motion, and Plaintiff was appointed Mario A. Esparza as
substitute counsel. (Doc. 114; Doc. 115). On August 15, 2016,
Mr. Esparza made a Giglio request for evidence from the
United States of bias and credibility of witness, government
promises of favorable treatment, prior criminal records, and
prior testimony and statements. (Doc. 133). On September 7,
2016, a definite trial setting was set for December 12, 2016.
(Doc. 149). On September 21, 2016, a superseding indictment
was entered, charging Mr. Tafoya with conspiracy to
distribute 50 grams or more of methamphetamine as well as
distributing, and possessing with intent of distributing, 50
grams or more of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A), and possessing a
firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c), for events taking place
on November 13, 2015, after the original indictment and while
Mr. Tafoya was on supervised release.
September 2, 2016, Mr. Tafoya filed a motion to dismiss his
charges pro se, but while still represented by counsel. (Doc.
150). On September 19, 2016, the United States filed a Motion
to Strike Mr. Tafoya's pro se filing. (Doc. 155). On
September 27, 2016, Mr. Esparza filed a response to the
United States' Motion to Strike, informing the Court that
“Defendant [Carlos Tafoya] filed his Motion pro se
after defense counsel advised him not to do so, ” and
that there was “no case law or statute which supports
the pro se Motion filed by the Defendant.” (Doc. 162 at
1-2). District Judge Robert C. Brack granted the United
States' Motion to Strike Defendant's Pro Se Filing on
October 14, 2016. (Doc. 171).
United States then filed a Motion in Limine to Exclude
Proposed Expert Testimony Witness on October 7, 2016, which
sought to exclude Mr. Tafoya's handwriting expert, Curt
Baggett, whom Mr. Esparza sought to introduce to impeach the
United States' witness, DEA Special Agent Amy Billhymer.
(Doc. 168). Mr. Esparza filed a response to the Motion in
Limine, in which he argued that Mr. Baggett's expert
testimony “would assist the jury in understanding the
evidence…that a signature on the document [in
question] was forged, [and] …in determining how much
weight to give that document.” (Doc. 190 at 3). The
Court held a status hearing on November 3, 2016, during which
the Government's witness, DEA Special Agent Amy
Billhymer, testified that she was at 703 Giles
Lane, Socorro, New Mexico, on November 13,
2015, conducting two search warrants on Petitioner and his
parents. (Doc. 256-1 at 6-7). She also testified that a State
search warrant was executed on that day, and that she had
executed DEA Form 12, which provides a receipt for cash or
items that are seized. (Id. at 7). After
cross-examination, the United States requested the Court to
set the matter for a Daubert hearing to exclude Mr.
Tafoya's handwriting expert. (Id. at 12-13). Mr.
Eparza responded that he wanted an “opportunity to put
on an expert witness document to examine Mr. [C]arl Baggett
who is of the opinion that the signature on the return
receipt, the inventory return receipt, is not that
of…Special Agent Billhymer in this matter.”
(Id. at 13-14). On November 4, 2016, the Court gave
notice of a hearing on the Motion in Limine, to be held on
November 29, 2016. (Doc. 182).
prior to the hearing on the Motion in Limine, Mr. Tafoya
executed a plea agreement with the United States (Doc. 194),
and the Court held a Change of Plea Hearing on November 14,
2016. (Doc. 195). In the plea agreement, Mr. Tafoya agreed to
waive his right to a trial by jury including confronting and
cross-examining witnesses, his appeal rights, and his right
to collaterally attack his sentence except as to his defense
counsel's effective assistance. (Doc. 194 at 1-2, 5). At
the plea hearing, Petitioner swore before the Court that he
was satisfied with his counsel's advice, and that he had
no complaints about his counsel. (Doc. 256-2 at 13:19-24).
Petitioner was ultimately sentenced to 156 months
imprisonment for Counts 2 and 3, to run concurrently with one
another. (Doc. 242 at 3).
September 8, 2017, Petitioner filed pro se his
Motion to Vacate under 28 U.S.C. § 2255. (Doc. 250). On
September 22, 2017, the undersigned ordered Defendant United
States of America to answer Petitioner's motion for
§ 2255 relief within 23 days of entry of the order.
(Doc. 252). After moving for an extension to file its
response on September 25, 2017 (Doc. 253), Defendant filed
its response on November 7, 2017. (Doc. 256). On December 4,
2017, Petitioner filed a motion for an extension of time to
file a reply in support of his Section 2255 Motion, which the
Court granted. (Doc. 261; Doc. 262). However, he never filed
a reply brief, and his Section 2255 Motion is now ripe for
to 28 U.S.C. § 2255, a federal prisoner who:
claim[s] the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside, or correct
28 U.S.C. § 2255(a). Relief is available under Section
2255 only if “the claimed error constituted a
fundamental defect which inherently results in a complete
miscarriage of justice.” United States v.
Addonizio, 442 U.S. 178, 185 (1979) (internal quotation
marks and citation omitted). The court must presume
“that the proceedings leading to the conviction were
correct, ” and the burden is on the movant to
demonstrate otherwise. Klein v. United States, 880
F.2d 250, 253 (10th Cir. 1989) (citing United States v.
Morgan, 346 U.S. 502, 512 (1954)).
defendant to succeed on a claim of ineffective assistance of
counsel, he must demonstrate both that: (1)
“counsel's representation fell below an objective
standard of reasonableness”; and (2) “the
deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687-688
(1984). In applying the two-pronged Strickland test,
the Court “may address the performance and prejudice
components in any order, but need not address both if [the
defendant] fails to make a sufficient showing of one.”
Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir.
1998). Strickland recognized that the
“availability of intrusive post-trial inquiry into
attorney performance or of detailed guidelines for its
evaluation would encourage the proliferation of
ineffectiveness challenges.” Id. at 690.
Therefore, “every effort [must] be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel's ...