United States District Court, D. New Mexico
PROPOSED FINDINGS OF FACT AND RECOMMENDED
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. 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.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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. ¶
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.
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.
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
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.
January 25, 2018, Atole filed the instant Motion to Vacate,
Set Aside, or Correct the Sentence under § 2255.
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
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).
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.
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.
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 ...