United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
MATTER comes before the Court on the following: the
Magistrate Judge’s Proposed Findings and Recommended
Disposition (PF&RD), filed September 3, 2018 (Doc.
65); Mr. Orozco-Sanchez’s Objections to the
Magistrate Judge’s Proposed Findings of Fact and
Recommended Disposition, filed September 27, 2018 (Doc.
73); the United States’ Objections to the
Court’s Proposed Findings of Facts and Recommended
Disposition, filed September 27, 2018 (Doc. 74); the
United States’ Response to Defendant’s
Objections, filed October 25, 2018 (Doc. 79); and
Mr. Orozco-[Sanchez]’s Response to the
Government’s Objections to the Magistrate Judge’s
Proposed Findings of Fact and Recommended Disposition, filed
October 29, 2018 (Doc. 80). By Order of Reference
entered July 5, 2016, this matter was referred to Magistrate
Judge Karen B. Molzen 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. Orozco-Sanchez v.
United States, 16cv0762 WJ/KBM, Doc. 2 (D.N.M. July 5,
Molzen held an Evidentiary Hearing on Cirilo
Orozco-Sanchez’s”) Section 2255 Motion on January
12, 2018. Mr. Orozco-Sanchez was present with his counsel,
James Loonam, and the Court’s certified staff
interpreters provided simultaneous Spanish translation of the
proceedings. Assistant United States Attorney Dustin Segovia
appeared for the United States. The Court heard testimony
from both Mr. Orozco-Sanchez and his trial counsel, Ms.
Margaret Strickland. Post-evidentiary hearing briefing was
completed by the parties on June 7, 2018, and Judge Molzen
issued her PF&RD on September 3, 2018, wherein she
recommended that Mr. Orozco-Sanchez’s Section 2255
Motion be denied. Both parties filed Objections to Judge
Molzen’s PF&RD as well as Responses to Objections.
While Mr. Orozco-Sanchez agreed with Judge Molzen’s
finding that Ms. Strickland’s performance was
constitutionally deficient, he objected to her determination
that he had not established prejudice. Doc. 73 at 1.
Conversely, although the United States concurred with Judge
Molzen’s prejudice analysis, it objected to her finding
that Ms. Strickland’s performance was constitutionally
deficient. Doc. 74 at 1.
Improper Guideline Calculations
PF&RD, Judge Molzen determined that Ms.
Strickland’s representation of Mr. Orozco-Sanchez at
the time he entered his Plea Agreement and pled guilty fell
below the objective standard of reasonableness required by
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Judge Molzen noted that there was a consensus among the
parties and Ms. Strickland that Ms. Strickland had
erroneously calculated Mr. Orozco-Sanchez’s guideline
range at 30 to 37 months imprisonment. Indeed, Ms. Strickland
conceded that she miscalculated the guideline range but
testified that she was unsure whether that miscalculation was
a product of her ignorance of a 148-day sentence on a
supervised release violation or a failure to correctly
summate Mr. Orozco-Sanchez’s period of
incarceration. Either way, she conceded deficient
performance by failing to adequately advise Mr.
Orozco-Sanchez of the consequences of his guilty plea.
Molzen concluded that Ms. Strickland’s performance
failed to pass constitutional muster for two reasons: (1)
because she failed to perform basic factual research that
would have revealed Mr. Orozco-Sanchez’s 148-day
supervised release violation sentence and its dramatic impact
on his guideline calculations; and (2) because her
misstatements at the Plea Hearing regarding Mr.
Orozco-Sanchez’s guideline range, when coupled with
reinforcement from Magistrate Judge Martinez and her failure
to temper those statements with contemporaneous reminders
that the range was a mere estimate, essentially amounted to
promises that Mr. Orozco-Sanchez would fall into the
30-to-37-month guideline range. Doc. 65 at 20-25.
United States urges this Court not to adopt Judge
Molzen’s determination of deficient performance for the
following reasons: (1) additional evidence, which it appended
to its Objections, purportedly establishes that trial counsel
did not fail to adequately investigate Mr.
Orozco-Sanchez’s criminal history; (2) the mere
miscalculation of a defendant’s guideline range does
not, in itself, render counsel’s performance
constitutionally deficient; and (3) trial counsel did not
recklessly promise Mr. Orozco-Sanchez a particular sentence.
Doc. 74 at 3-4. In response, Mr. Orozco-Sanchez
urges the Court to strike the post-Evidentiary Hearing
affidavit of Ms. Strickland. Doc. 80 at 5-10. He
maintains that the United States has failed to explain why
the statements contained in that affidavit were not relevant
or available at the time of the Evidentiary Hearing.
Id. at 10. Alternatively, Mr. Orozco-Sanchez asks
the Court to return the case to Judge Molzen for further
hearings and additional findings and recommendations.
Id. at 8 (citing 28 U.S.C. § 636(b)(1)(C) (the
district court “may recommit the matter to the
magistrate judge with instructions”).
because the Court adopts Judge Molzen’s determination
that Mr. Orozco-Sanchez suffered no prejudice from any
deficient performance of counsel at the plea stage, it
becomes unnecessary to either determine whether Ms.
Strickland’s performance was in fact deficient or to
return the matter to Judge Molzen for further recommendations
in light of the newly-submitted affidavit. See United
States v. Zajac, 680 F. App’x 776, 783 (10th Cir.
2017) (“As a practical consideration, we need not
examine both prongs [of the Strickland analysis] if
one or the other is lacking.”) Accordingly, the Court
proceeds to the second prong of the Strickland
the prejudice prong, Judge Molzen concluded that Mr.
Orozco-Sanchez failed to establish prejudice because he could
not show that, absent ineffective assistance of counsel, he
would have entered an open guilty plea or that the result of
his criminal proceeding would have been more favorable.
See Doc. 65 at 31. The United States concurs with
Judge Molzen’s prejudice determination. Mr. Orozco-
Sanchez, in contrast, contends that Judge Molzen
significantly undervalued the strength of his grounds for
downward departure and variance as well as his resolve to
plead guilty without a plea agreement. See Doc. 73
at 2. He insists that he has established prejudice.
parties and Judge Molzen have referenced the United States
Supreme Court’s decision in Missouri v. Frye,
566 U.S. 134 (2012) in conducting the Strickland
prejudice analysis; their application of the legal framework,
however, is not entirely consistent. Judge Molzen restated
the prejudice framework as follows:
The [Frye] Court in reasoned that, in order to
establish prejudice, the defendant was required to show
“a reasonable probability that the end result of the
criminal process would have been more favorable by reason of
a plea to a lesser charge or a sentence of less prison
time.” It explained that it was also “necessary
to show a reasonable probability neither the prosecution nor
the trial court would have prevented the offer from being
accepted or implemented.” In other words, the Court
indicated that, in assessing prejudice, courts must entertain
how things would have played out had the defendant pursued an
alternative plea option.
Doc. 65 at 27 (citations omitted). Applying that
framework to Mr. Orozco-Sanchez’s case, Judge Molzen
Given the implausibility of his imperfect duress defense, and
the sentencing judge’s stated inclination not to
sentence at the low-end of the guideline range when a
defendant is in Criminal History Category VI, Mr.
Orozco-Sanchez cannot show a “reasonable
probability” that the end result would have been more
favorable without the Plea Agreement. Notably, even if the
factors enumerated by Mr. Orozco-Sanchez contributed to a
low-end guideline sentence, which the Court considers more
likely than a below-guidelines sentence, Mr. Orozco-Sanchez
would have still received a sentence higher than 72 months.
Moreover, a low-end sentence would only shave one month off
of his high-end guideline exposure with the Plea Agreement.
At the same time, he would risk a high-end guideline sentence
that was 18 months higher than with his Plea Agreement. Under
these circumstances, the Court simply cannot say that,
properly advised, Mr. Orozco-Sanchez would have entered an
open guilty plea.
* * *
[Further, ] [a]pplying the rationale of Missouri v.
Frye in reverse – that is, considering whether the
outcome of the proceeding would have been more favorable if
Mr. Orozco-Sanchez declined the Fast-Track Plea Agreement and
instead entered an open plea – the Court concludes that
Mr. Orozco-Sanchez cannot demonstrate prejudice.
Id. at 31, 35. Thus, Judge Molzen was concerned both
with whether a properly-advised Mr. Orozco-Sanchez would have
entered an open guilty plea and with whether there
was a “reasonable probability” that the final
result would have actually been more favorable for him
without the Plea Agreement. Mr. Orozco-Sanchez, too, relied
upon Frye to frame the issue of prejudice,
[a] reasonable probability that, absent counsel’s
inadequate representations, a defendant would have rejected
the plea agreement he accepted and chosen a different,
potentially more favorable plea option also satisfies
Strickland’s prejudice prong. Missouri v.
Frye, 566 U.S. 133, 148 (2012) (prejudice is established
where ineffective assistance of counsel caused the defendant
to miss out on a plea offer more favorable than the one the
defendant ultimately accepted).
Doc. 58 at 17. While he did not directly attack
Judge Molzen’s framing of the prejudice standard in his
Objections, he subtly offered a competing one, focusing more
narrowly on whether he would have chosen to pursue an open
guilty plea if he had been properly advised. See, e.g.,
Doc. 73 at 21. In other words, Mr. Orozco-Sanchez
essentially relieves himself of the additional burden of
demonstrating a “reasonable probability” that he
would have received a more favorable result had he entered an
open guilty plea. In his Objections, he relies upon Lee
v. United States, 137 S.Ct. 1958 (2017), and emphasizes
that to obtain relief, he need not show that everyone in his
position would have chosen to enter an open plea, but only
that he in particular would have made that choice. See
Doc. 73 at 21. He submits that he has met that
burden and that the Court must, therefore, overrule Judge
Molzen’s prejudice determination. See id.
Court must determine, as a foundational issue, which standard
is the proper prejudice standard in this context – the
one advanced by Mr. Orozco-Sanchez in his Objections or the
more demanding one applied by Judge Molzen in her PF&RD.
Following the parties’ lead, the Court’s begins
with the Supreme Court’s analysis in Frye.
There, the Court first determined that the defendant’s
attorney was ineffective when he failed to communicate an
earlier plea offer to the defendant. Frye, 566 U.S.
at 147. Under the second prong of the Strickland
analysis, the Court considered whether the defendant was
prejudiced by entering an open guilty plea rather than
entering into a plea agreement. Id. at 137. As Judge
Molzen noted in her PF&RD, Frye presented a
legal question similar to the one presented by Mr.
Orozco-Sanchez, but in reverse. See Doc. 65 at 26.
Critically, the Court in Frye reasoned that to
establish prejudice, ...