United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
WILLIAM P. JOPMSON, CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
Standard for Objections to a Magistrate Judge's
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).
Standard for Ineffective Assistance
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).
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