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United States v. Sepulveda

United States District Court, D. New Mexico

October 24, 2019

UNITED STATES OF AMERICA, Plaintiff-Respondent,



         In accordance with 28 U.S.C. §§ 636(b)(1)(B), (b)(3) and Virginia Beach Federal Savings & Loan Association v. Wood, 901 F.2d 849 (10th Cir. 1990), the Court referred Defendant Sepulveda's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Motion”) [Cr Doc. 62; CV Doc. 2] to Magistrate Judge Gregory Fouratt to conduct hearings and recommend an ultimate disposition. See Order of Reference, CV Doc. 3. On August 7, 2019, Judge Fouratt filed his Proposed Findings and Recommended Disposition (“PFRD”). CR Doc. 65; CV Doc. 12. The PFRD recommended that this Court deny Defendant's Motion and decline to issue a certificate of appealability.

         On August 30, 2019, Defendant objected to the PFRD. See Doc. 13. The Government neither objected to the PFRD nor responded to Defendant's objections. Having reviewed de novo the portions of the PFRD to which Defendant objects, the Court now overrules the objections and adopts the PFRD. Accordingly, the Court will deny Defendant's Motion, dismiss this action with prejudice, and deny Defendant a certificate of appealability.

         I. BACKGROUND

         Judge Fouratt detailed the factual background of this case in his PFRD. CR Doc. 65 at 1-11; CV Doc. 12 at 1-11. In sum, Defendant pleaded guilty to Enticement of a Minor in violation of 18 U.S.C. § 2422(b) and Receipt of Child Pornography in violation of 18 U.S.C. § 2252A(a)(2). The plea agreement contemplated a range of twenty to twenty-five years in prison, followed by a lifetime of supervised released. As part of his obligations under the plea agreement, Defendant agreed to waive all appeal rights, except for claims based on ineffective assistance of counsel. After considering the PSR, the parties' sentencing memoranda, and the parties' arguments at the sentencing hearing, this Court sentenced Defendant to twenty-five years imprisonment followed by a lifetime of supervised release. During the litigation of this case, Defendant was represented by three appointed attorneys: Dennis Candelaria, Mario Esparza, and John Granberg.


         Defendant begins his challenge to the PFRD by objecting to Judge Fouratt's conclusion that his ineffective assistance of counsel claim, grounded in a failure to investigate, related only to Mr. Esparza. CV Doc. 13. at 3. While this ordinarily would be a cognizable objection worthy of analysis, Defendant introduces two new theories-ones not advanced in his original Motion-as to why his three appointed counsel were ineffective for failing to investigate. Specifically, he now argues that “no competent attorney would have advised his client to plead guilty being fully aware that New Mexico's legal age of consent is sixteen years old-the age of the alleged victim in this case.” Id. Moreover, Defendant asserts that he was the “victim of an attempted murder plot orchestrated by the alleged victim-the sixteen-year-old because [Defendant] could no longer pay the sixteen year old [sic] blackmail demands.” Id. at 6. Defendant submits that his first appointed counsel (Assistant Federal Public Defender (“AFPD”) Dennis Candelaria) should have investigated this alleged murder plot. While it is improper for a § 2255 movant to introduce at the objection phase new theories that he did not raise in the original Motion, the Court will address them nonetheless.

         Defendant also attacks Judge Fouratt's decision to discount certain evidence that Defendant referred to in his Motion. Defendant asserts that the self-titled “Exhibit A” appended to his Motion, CR Doc. 62 at 29-30; CV Doc. 2 at 29-30, proves that AFPD Dennis Candelaria failed to conduct an investigation. CV Doc. 13 at 5. Lastly, Defendant takes issue with the PFRD's determination that a letter docketed on June 2, 2017, CR Doc. 30, failed to establish that he had requested that Mr. Esparza withdraw his guilty plea. CV Doc. 13 at 7.


         A. Standard for Objections to a Magistrate Judge's Report

         Pursuant to 28 U.S.C. § 636(b)(1)(B) (2012), a district judge may designate a magistrate judge to submit proposed findings of fact and recommendations for the disposition of any case pending before the Court. Where a party timely objects to the magistrate judge's proposed disposition, this Court conducts a de novo review of all portions of the recommendation which have been objected to and “may accept, reject, or modify, in whole or in part, the findings or recommendations.” See id. § 636(b)(1)(C). De novo review requires the district judge to consider relevant evidence of record and not merely to review the magistrate judge's recommendation. In re Griego, 64 F.3d 583-84 (10th Cir. 1995). “[A] party's objections to the magistrate judge's [PFRD] must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop., With Buildings, Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1060 (10th Cir. 1996).

         B. Standard for Ineffective Assistance

         The Sixth Amendment to the United States Constitution guarantees Defendant the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). And the same two-part standard, i.e., that counsel's performance fell below an objective standard of reasonableness and the defendant suffered prejudice as a result of the deficient performance, applies equally to ineffective assistance claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 58 (1985).

         To establish the first prong, a defendant must overcome the presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 690). Overcoming this burden requires a defendant to establish that the “attorney's representation amounted to incompetence under ‘prevailing professional norms,' not whether it ...

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