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United States v. Atole

United States District Court, D. New Mexico

June 28, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent,
TYSON SICILY ATOLE, Defendant-Movant.


         THIS MATTER comes before the Court on Defendant-Movant Tyson Sicily Atole (“Atole's”) Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Doc. 17.[1] By an Order of Reference filed January 23, 2018, this matter was referred to the undersigned to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis required to recommend to the Court an ultimate disposition of this habeas action. Doc. 18. The undersigned is satisfied that an evidentiary hearing is unnecessary, because Atole's Motion and the record of the case conclusively establish that he is not entitled to relief. 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 reviewed all the submissions of the parties and the relevant law, and being otherwise fully advised in the premises, the Court recommends that Atole's Section 2255 Motion be denied.


         In a separate criminal case, Atole was charged by Indictment, on January 26, 2016, with Assault with a Dangerous Weapon and Assault Resulting in Serious Bodily Injury, in violation of 18 U.S.C. §§ 113 and 1153. United States v. Atole, 16cr0289 MCA, Doc. 2. According to the Presentence Investigation Report, Atole was videotaped on May 2, 2015, striking a woman with a whiskey bottle, kicking her in the ribs, picking her up by her hair, and violently slamming her head and torso to the ground. Doc. 8 at 5. The report indicates that the woman suffered a concussion with loss of consciousness for an unknown duration as well as other injuries and scarring to her forehead. Id. ¶ 12.

         Three months later, in the instant criminal case, Atole was charged with a second assault in violation of 18 U.S.C. §§ 113 and 1153. The United States alleged that this second assault took place on January 28, 2016, two days after Atole's indictment for the 2015 assault. Doc. 2. According to the Presentence Investigation Report, Atole repeatedly struck the arm and elbow of a female officer with the Jicarilla Apache Nation Police Department, causing torn ligaments and tendons that ultimately required surgery. Doc. 8 ¶¶ 16, 19.

         On May 16, 2016, Defendant pled guilty to Assault with a Dangerous Weapon for the 2015 incident and Assault Resulting in Serious Bodily Injury for the 2016 incident. Doc. 5 at 2. Atole and the United States entered into a Plea Agreement, which consolidated the two separate assault cases into one plea. Doc. 5. In the Plea Agreement, Atole acknowledged that 28 U.S.C. § 1291 and 18 U.S.C. § 3742 afforded him the right to appeal his convictions and sentence. Doc. 5 ¶ 15. Nevertheless, he agreed therein to “knowingly waive[] the right to appeal the . . . conviction(s) and any sentence.” Id. Moreover, he agreed to “waive any collateral attack to [his] conviction(s) and any sentence, including any fine, pursuant to 28 U.S.C. §§ 2241 or 2255, or any other extraordinary writ, except on the issue of defense counsel's ineffective assistance.” Id. Atole also agreed that his guilty plea was “freely and voluntarily made and [was] not the result of force, threats, or promises.” Id. ¶ 18.

         At a plea hearing before the Honorable Kirtan Khalsa on May 16, 2016, Atole testified concerning the contents of his Plea Agreement. See Doc. 21. For instance, Judge Khalsa specifically asked Atole whether he understood that he was “giving up [his] right to collaterally attack [his] conviction and sentence, except on the issue of [his] attorney's ineffective assistance of counsel.” Doc. 21 at 17:5-9. Atole responded affirmatively. Id. at 17:10. Likewise, he testified that he had read and understood each and every term in the Plea Agreement. Id. at 12:11-22.

         The Presentence Investigation Report found a criminal history category I and a total offense level of 25 and calculated Atole's guideline imprisonment range to be 57 to 71 months. Id. ¶ 78. On February 22, 2017, after hearing from the parties and reviewing the video of the 2015 incident, the Honorable Robert A. Junell sentenced Atole to a term of 71 months for each count, imposed concurrently. Doc. 16.

         On January 25, 2018, Atole filed the instant Motion to Vacate, Set Aside, or Correct the Sentence under § 2255.


         Under 28 U.S.C. § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming 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 the sentence.

         A Section 2255 motion must allege facts that, if proven, would warrant relief from his conviction or sentence. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995).

         Collateral review under Section 2255 “is not an alternative to appellate review for claims that could have been presented on direct appeal but were not.” United States v. Megleby, 420 F.3d 1136, 1139 (10th Cir. 2005). However, the movant may overcome this procedural bar by showing either of two well-recognized exceptions. See United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004). First, he must show good cause for failing to raise the issue earlier as well as actual prejudice to his defense. Id. at 990. Cause may be established under this exception by demonstrating ineffective assistance of counsel. United States v. Wiseman, 297 F.3d 975, 979 (10th Cir. 2002). Otherwise, the movant must show that failing to consider the federal claims will result in “a fundamental miscarriage of justice.” Cervini, 379 F.3d at 990.


         In his Section 2255 Motion, Atole asserts that his sentence should be vacated “because it implicates selective or malicious prosecution and equal protection violation” and because his attorney, Benjamin A. Gonzales, failed to provide effective assistance of counsel, when he “did nothing to remedy the potential conflict of interest and selective prosecution inherent [in] the case.” Doc. 17 at 5, 7. According to Atole, the arresting officer involved in the 2016 incident, to whom he was related, “falsely claimed she was assaulted” as a result of “inter-family squabbles and feuds.” Id. Atole insists that Mr. Gonzales was “grossly ineffective for failing to investigate the depth of [the female officer's] relationship with his client, ” which he maintains would have revealed a “fatal conflict of interest” and “trumped up” charges. Id. at 8. Atole asserts that his sentence and conviction should be vacated on account of “selective prosecution” and his attorney's “refusal to subject the government's case, to ‘strict adversarial testing.'” Id.

         In response, the United States argues that Atole waived his right to collaterally attack his conviction and sentence on any issue other than ineffective assistance of counsel, including on the issue of selective prosecution. Doc. 22 at 3. Moreover, it contends that Atole has failed ...

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