Free Order on Motion to Vacate (2255) - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Criminal Action No. 01-cr-00182-MSK1 Civil Action No. 05-cv-01315-MSK UNITED STATES OF AMERICA, Plaintiff - Respondent, v. JESUS HERALDEZ-MARTINEZ, Defendant - Petitioner. ______________________________________________________________________________ OPINION AND ORDER DENYING MOTION TO VACATE SENTENCE ______________________________________________________________________________ THIS MATTER comes before the Court pursuant to the Defendant-Petitioner's Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (# 280), and the Plaintiff -Respondent's response (# 282). FACTS On May 22, 2001, the Defendant was initially indicted (# 1) on a single claim of unlawful re-entry of a deported alien in violation of 8 U.S.C. § 1321. Extensive pretrial proceedings ensued, in which the Defendant attempted to obtain discovery to establish his defense that he was born in California in 1957, and thus, an American citizen. However, the Government intended to offer evidence, including various statements by the Defendant revealing inconsistent claims as to the place of his birth, and statements by the Defendant that he was actually born in Mexico. See The case numbers in these actions have been modified to reflect the 2006 reassignment of cases from the late Judge Sparr to the undersigned. 1
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e.g. Docket # 38 (Defendant's motion to suppress his statement to INS agents that he was born in Mexico), # 44 (order denying motion to suppress); # 212 (supplemental brief by Defendant containing Defendant's own transcription of an Oct. 2, 1998 immigration hearing, in which the Defendant claims to have testified that he first came to the U.S. in 1969); # 113 (Defendant's Motion for Stay of Deportation, including affidavits from witnesses stating Defendant had told them he was not sure whether he was born in the U.S. or Mexico). On August 15, 2003, with trial scheduled to begin within weeks, the Defendant filed a Notice of Disposition (# 253), and on August 27, 2003 (# 257), entered a plea of guilty to the charge. At that hearing, the Defendant initially stated an intention to enter a nolo contendere plea, conceding the Government's position that he was an alien, but reserving the right to contest that fact with immigration authorities at a later date. The trial judge refused to accept the nolo contendere plea, noting that the Defendant's alien status was a critical element of the offense. A recess ensued, in which the Defendant was given an opportunity to confer with his counsel, and, following the recess, the hearing resumed and the Defendant pled guilty to the offense. The trial judge specifically inquired as to whether he was prepared to admit that he was an alien, and the Defendant stated that he was prepared to do so. On December 4, 2003, the Defendant was sentenced (# 267) to time served and, at some point thereafter, apparently deported to Mexico. The Defendant did not file a direct appeal of either his conviction or his sentence. At some point in 2004, the Defendant attempted to return to the United States. He was apprehended in California, and charged in the Southern District of California with attempted unlawful reentry after deportation, in violation 8 U.S.C. § 1326. The Defendant elected to proceed to trial, and in his defense, called his mother, a Mexican national. The Defendant's 2

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mother apparently testified that the Defendant was born in California. In March 2005, the jury returned a verdict in favor of the Defendant on the charge against him. On July 14, 2005, the Defendant filed the instant Motion to Vacate Sentence (# 280) in this Court, raising the following arguments: (i) that he was acquitted of the charge of unlawful reentry in California, which the Court construes to be a contention that the subsequent acquittal demonstrates the Defendant's innocence of the charge to which he pled guilty in this Court; (ii) that the Court in this action denied him the opportunity to call his mother as a witness, see Docket # 135 (Defendant's Motion To Parole Alien Into the United States), # 158 (order denying said motion, insofar as the Court lacks jurisdiction over the Attorney General's discretion to grant parole); (iii) that the Government failed to turn over discoverable evidence (and/or that the Court erred in denying the Defendant's motion to compel production of such evidence, see Docket # 170 (Defendant's motion requesting release of INS records), # 236 (order denying said motion without prejudice)), namely, unspecified evidence from INS files relating to the Defendant's deportation from the U.S. in 1969; (iv) that the Defendant testified in the California proceeding that he was born in California, which this Court construes as a contention that the plea he made in this Court was without factual basis; (v) that the trial court improperly prohibited him from entering a nolo contendere plea; and (vi) that the Government proffered a forged document at a suppression hearing on December 14, 2001. The Government responds (# 282), arguing: (i) that the Petition is untimely under 28 U.S.C. § 2255; (ii) the Defendant's subsequent acquittal in California is irrelevant to his prior plea of guilty in Colorado; (iii) claims 2-6 are waived by the Defendant's admission of guilt and failure to file a direct appeal; (iv) that the Defendant was provided with full discovery and/or failed to 3

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timely request certain documents; (v) that the issue of the allegedly-forged document could have been addressed at the suppression hearing; (vi) that the Government was not responsible for the Defendant's mother's inability to travel from Mexico to testify; and (vii) that the Defendant had a weak factual basis for his claimed defense. ANALYSIS In considering the Defendant's motion, the Court is mindful of his pro se status, and accordingly, reads his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, such liberal construction is intended merely to overlook technical formatting errors and other defects in the Defendant's use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se status does not relieve the Defendant of the duty to comply with the various rules and procedures governing litigants and counsel or the requirements of the substantive law, and in these regards, the Court will treat the Defendant according to the same standard as counsel licensed to practice law before the bar of this Court. See McNeil v. U.S., 508 U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). A. Timeliness and Procedural Default The Government has raised two threshold arguments: that some, if not all, of the Defendant's claims are both untimely and procedurally defaulted. As to timeliness, 28 U.S.C. § 2255 provides that "A 1-year period of limitation shall apply to a motion under this section." As relevant here, that period begins to run from the later of "the date on which the judgment of conviction becomes final"; "the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed"; or 4

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"the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(1), (2), (4). In this case, the accrual date for the Defendant's motion varies, depending on the nature of the claim, and the Court will address the accrual date of each claim in turn. As to procedural default, the Court observes that a § 2255 motion is not a substitute for a direct appeal, and the failure to raise most claims on direct appeal will constitute a procedural default of those claims for § 2255 purposes. See Zhang v. U.S., 506 F.3d 162, 166 (2d Cir. 2007). In cases such as these, where the crux of the Defendant's collateral attack is that his guilty plea was not knowing or voluntary, the Defendant is required to have sought on appeal to vacate that plea. See Bousley v. U.S., 523 U.S. 614, 621 (1998); U.S. v. Cervini, 379 F.3d 987, 991 (10th Cir. 2004). A petitioner who has failed to adequately present a claim on direct appeal may overcome his procedural default of that claim by either: (i) showing "cause" and "prejudice" for the default, or (ii) by asserting his actual innocence. Id. at 622. To show "cause" and "prejudice" for a default, the Defendant must show that the failure to raise the issue on direct appeal was caused by external factors not attributed to him, and that he suffered actual prejudice, in that the cited errors by the trial court created more than just a possibility of an unfavorable outcome, but that they actually and substantially infected the proceedings with error of constitutional dimensions. U.S. v. Salazar, 323 F.3d 852, 855 (10th Cir. 2003); U.S. v. Bailey, 286 F.3d 1219, 1223 (10th Cir. 2002). In the alternative, the Defendant can attempt to show "actual innocence" ­ that is, that but for the various errors cited in the defaulted claims, no reasonable juror would have convicted him of the charge. Schlup v. Delo, 513 U.S. 298, 314-15 (1995).

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There is no dispute that the Defendant did not take a direct appeal from his plea or sentence. As a result, all of his claims, other than those not susceptible to resolution on direct appeal, would be procedurally barred. For the reasons set forth herein, the Court finds that claims 2-5 of the Defendant's motion clearly fall within this category. In addition, the Court finds that those same claims are untimely. The first claim cannot be subject to direct appeal from his plea, because that claim involves the acquittal of the Defendant on subsequent charges in California. Moreover, the Court finds that this claim is timely, in that it was raised within one year of the Defendant's acquittal in the California case. The second claim turns on the trial court's refusal to direct the Attorney General to parole the Defendant's mother into the United States to testify on his behalf. This claim was adequately developed on the record, insofar as the Defendant expressly moved (# 135) for an order allowing his mother to enter the U.S. to testify, and the trial court denied it (# 158), finding that it lacked the authority to enter such an order. The Defendant points to nothing that would have prevented an appellate court from considering the trial court's ruling on a direct appeal, and thus, the failure to present this claim on direct appeal constitute a procedural default of this claim. Moreover, because this claim does not turn on allegations of newly-discovered evidence, this claim necessarily accrued under 28 U.S.C. § 2255(1) on the date the Defendant's conviction became final, namely, on or about December 25, 2003. Docket # 268 (Judgment entered on December 15, 2003); Fed. R. App. P. 4(b)(1)(A) (appeal from conviction must be filed within 10 days of Judgment). The Defendant's Motion was filed more than one year from this date, and thus, this claim is also untimely. 6

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The Defendant's third claim challenges the Government's failure to produce unspecified information during discovery. Specifically, the Defendant contends that the Government withheld unspecified I.N.S. records while maintaining, without adequate proof, that no such records existed. The Defendant cites to specific docket entries supporting this contention. Those entries indicate that the Defendant moved for production (# 127) of certain I.N.S. records, and that the trial court denied (# 158) the motion on timeliness grounds. Thus, the matter was one amenable to resolution on direct appeal, and the Defendant's failure to take such an appeal constitutes a procedural default. Moreover, because the Defendant does not point to any newly-discovered evidence or a change in the Government's position that would suggest a different accrual date, the Defendant's third claim is subject to 28 U.S.C. § 2255(1), not (2) or (4). Thus, this claim is untimely as well. The Court construes the Defendant's fourth claim to be a claim that his guilty plea in Colorado was made without an accurate factual basis ­ i.e. that his admission that he was an alien was inaccurate. Obviously, this issue was raised extensively in pretrial proceedings and explored further at the plea hearing, as the Defendant cited the confusion over his citizenship as the reason he wished to enter a nolo contendere plea instead of confessing his alien status. The Defendant points to no new evidence that would have prevented an appeals court from resolving whether his plea was knowing and voluntary, and thus, his failure to take such an appeal constitutes a procedural default of this claim. For the same reasons, the claim is not subject to any delayed accrual, and the claim is also untimely.

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The Defendant's fifth claim challenges the trial court's refusal to receive his nolo contendere plea. For the same reasons discussed above with regard to claim four, this claim is also untimely. Finally, the Defendant's sixth claim alleges that the Government tendered a forged document at a December 14, 2001 suppression hearing (# 44). That hearing was occasioned by the Defendant's Motion to Suppress (# 38) a statement he made to I.N.S. Agent Greg Jensen, in which the Defendant admitted that he was born in Mexico. The Defendant moved to suppress the statement on the grounds that the statement had been improperly induced by Jensen through promises of lenient treatment. The Defendant has attached two different copies of this statement as Exhibit F to his Petition. The first copy contains only the first page of a document entitled "Record of Sworn Statement." That page consists of a series of advisements, each of which has been initialed, the Defendant's signature, and three printed questions, to which the Defendant has responded. The third and final question on the page asks "What is your true, full, and correct name?" and in response, the Defendant has written "Rafael Soto-Majorado"2 and signed the lower-right corner of the page. The second copy of this document in the Defendant's exhibit is a two page document. The first page of this second document is identical to the page described above, with two exceptions. First, the second document contains a large watermark, stating "May not be reproduced. Property of U.S. Government." Second, the second document does not contain the Defendant's handwritten name or signature in response to the third question, although a faint echo of a portion of his signature can be seen in the lower-right corner of the

The Defendant's correct legal name, like the place of his birth, has been a subject that has been in some dispute. 8

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page. Instead, the document appears to bear a Bates stamp number of 244. The second page of the second document contains numerous handwritten answers to questions (including the operative admission by the Defendant that he was born in Mexico), an acknowledgment that the document consists of two pages, and the Defendant's signature. The Defendant's § 2255 motion appears to contend that the first document ­ that bearing the Defendant's handwritten name ­ is the "authentic" version of the first page of the Record of Sworn Statement, and that the document the Government produced at the suppression hearing ­ the one that omits the Defendant's answer to the third question ­ was "forged."3 The Defendant's § 2255 motion does not indicate when or under what circumstances he allegedly came into possession of the second document, nor when he learned that the first document offered at the hearing was forged. (The trial court's findings (# 56) do not reflect any apparent dispute as to the authenticity of the document.) Thus, the Court is unable at this point to discern whether this sixth claim was one that could have been presented on direct appeal, or whether it accrued as of December 25, 2003, or at some later point pursuant to 28 U.S.C. § 2255(4). Because both procedural default and (un)timeliness of a petition are an affirmative defense on which the Government bears at least the initial the burden of proof, see generally McClesky v. Zant, 499 U.S. 467, 494 (1991); Kilgore v. Attorney General of Colorado, ___ F.3d ___, 2008 WL 638727 (10th Cir., March 11, 2008), the Court will assume for purposes of this ruling that the sixth claim is properly before the Court and timely asserted.

It would be highly implausible for the Defendant to assert the contrary situation ­ that the version that omits the Defendant's answer to the third question is the "authentic" version, and the Government "forged" his name and signature on the version presented to the trial court ­ as the "authentic" version in this scenario bears some faint trace of the "forged" material. 9

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Having concluded that claims 2-5 are both procedurally defaulted and untimely, the Court must determine how to dispose of those claims. As stated above, a procedurally defaulted claim may nevertheless be considered by the Court if cause and prejudice exists for the default, or if the Defendant makes a sufficient showing of actual innocence. Similarly, a claim of actual innocence might permit equitable tolling, allowing the Court to reach an otherwise untimely claim. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000). Accordingly, the Court turns to the "cause and prejudice" and "actual innocence" standards. Considering first whether the Defendant has shown "cause" and "prejudice" for his failure to take a direct appeal from his plea and sentence, the Defendant's motion explains the failure to appeal by stating only that "Attorney did not file Notice of Appeal, and Movant was deported to Mexico." This is not a sufficient showing of "cause," as it does not indicate that the Defendant indicated to his attorney a desire to appeal, and that it was only through the fault of the attorney that no appeal was filed. Without such a representation, the Court cannot find that the failure to appeal was the result of circumstances external to the Defendant, rather than as a result of his own failure to seek an appeal. In any event, the Court would also find that the Defendant cannot demonstrate "prejudice" resulting from his failure to appeal. This analysis is similar to that that the Court undertakes in assessing the Defendant's alternative claim of actual innocence. Both analyses examine whether, had the trial court not committed the alleged errors, the outcome of the proceeding was more likely than not to have been different. Here, the Defendant essentially asserts three errors by the trial court: (i) refusing to compel the presence of his mother to testify that the Defendant was actually born in the U.S.; (ii) failing to compel the production of unspecified I.N.S. documents; 10

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(iii) refusing to receive a nolo contendere plea. (For obvious reasons, the fact that the Defendant wished to enter a nolo contendere plea instead of a plea of guilty would have had no effect on the outcome of the proceedings in Colorado, and thus, the Court does not consider this argument further. The Government's case as to the Defendant's alien status consisted of evidence that: (i) the Defendant had admitted, both the Agent Jensen and against to the Court during the plea colloquy, that he was an alien, having been born in Mexico, see Cervini, 379 F.3d at 993 (court considers admissions in plea colloquy as part of actual innocence analysis); (ii) that the Defendant had given conflicting versions of his place of birth in prior proceedings, even when alleging it to have been within the U.S.; and (iii) that the I.N.S. had repeatedly deported the Defendant to Mexico, without any apparent protest by the Defendant or prior claim of U.S. citizenship. Balanced against this evidence are the alleged errors by the trial court. Although the Defendant's mother would likely have offered testimony that the Defendant was actually born in the U.S., the Defendant faced an uphill battle in suggesting that the jury should credit the interested testimony of his mother over his own detrimental admissions that he was born in Mexico. 4 The Court notes that, notwithstanding the effective exclusion of the Defendant's mother's testimony, the Defendant was not prevented from calling other members of his family, or from locating and

The fact that a jury in California allegedly chose to credit the Defendant's mother's testimony does not alter this analysis. As discussed more fully below, this Court cannot assess the factual record presented by the Government in the California trial, nor can it assume that the result of that proceeding was dictated by the Defendant's mother's testimony, as opposed to some failure of the Government's proof. In any event, the "actual innocence" analysis in this action is not whether some jurors could find the Defendant not guilty, but whether no reasonable juror could find the Defendant guilty under these facts. 11

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calling as witnesses the individuals who allegedly witnessed his birth and early days in California, all of whom could have offered effectively the same testimony as his mother would have given. The Court also notes that the evidence allegedly withheld by the Government would have been of little probative value to the Defendant. The Defendant requested various records from I.N.S. deportation proceedings in, among other years, 1969, 1994, and 1997. The Defendant does not specifically identify what he believes these records would have shown, but it is apparently undisputed that he was deported as a result of each of these hearings. Thus, to the extent these records are probative of anything, they would show that either the Defendant did not raise any claim to citizenship at these hearings, or that the I.N.S. refused to credit such a claim. At best then, the records would only demonstrate that the Defendant had previously (and unsuccessfully) asserted a claim of citizenship, but would not assist the Defendant in actually proving that claim. Thus, even considering the alleged errors by the trial court, this Court cannot find that the Defendant had adequately shown either prejudice as a result of his failure to directly appeal those errors, nor sufficiently shown "actual innocence" so as to excuse any untimeliness or procedural default. Accordingly, claims 2-5 are dismissed as both untimely and procedurally defaulted. B. Claim one The Court turns to the two remaining claims. Claim one is simply an assertion by the Defendant that his subsequent acquittal in California should warrant vacatur of his guilty plea here. No authority is cited for the proposition that a jury's acquittal of an individual on a similar subsequent crime calls into question that defendant's admission of guilt in a prior proceeding, and, not surprisingly, the Court's own research has not located any. Arguably, the acquittal in 12

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California might serve as collateral estoppel on the issue of the Defendant's alienage for purposes of future prosecutions, see U.S. v. Barragan-Cepedea, 29 F.3d 1378, 1382 (9th Cir. 1994), but addressing an identical factual situation, the court in Barragan-Cepdea gave no indication that it considered the defendant's subsequent acquittal to threaten his prior guilty pleas. Such a result is eminently logical, for reasons that require little explication. The jury trying the charges against the Defendant in California were rendering a verdict only as to those specific charges and based solely on the evidence presented there. One can draw many conclusions from the fact that the jury there reached a contrary conclusion than that expressly admitted by the Defendant in this proceeding, but none of those conclusions have the legal effect of upsetting the Defendant's prior plea here, which, by operation of the Defendant's failure to appeal, has hardened into what is effectively fixed, unalterable law. Simply put, there is no authority for the proposition that a subsequent acquittal on similar charges has any effect on a prior plea of guilt. Accordingly, claim one is without merit and denied. C. Claim six Finally, the Court turns to the Defendant's claim six, which alleges that the Government tendered a forged document at the suppression hearing. As discussed above, for purposes of this matter, the Court construes this claim in the light most favorable to the Defendant. Thus, the Court assumes that the Government initially proffered the "forged" first page (omitting the Defendant's answer to the question asking his legal name) of the Record of Sworn Statement at the December 14, 2001 suppression hearing, and it was only after Judgment had entered in this case and the time for the Defendant's appeal had run that he

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finally discovered the "authentic" version of the first page of that document (that included his answer). As best the Court can determine, this claim appears to assert something akin to a violation of Brady v. Maryland, 373 U.S. 83 (1963), insofar as the Defendant asserts that the Government failed to produce the "authentic" Record of Sworn Statement to him prior to the suppression hearing.5 When assessing a Brady claim asserted in a § 2255 motion, the Court determines whether the withheld information was "material" to the defense. U.S. v. Hernandez, 94 F.3d 606, 610 (10th Cir. 1996). In other words, the Court examines whether "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. The Court finds that, to the extent the Government presented a "forged" version of the Record of Sworn Statement at the suppression hearing, and failed to disclose to the Defendant the "authentic" version of that statement, the effect was immaterial. The only manner in which the Defendant contends that the "forged" version is inaccurate is that it omits his handwritten answer to the final question on the first page, which asks for his correct legal name. Notably, the Defendant does not allege that the second page of the document ­ the page on which he acknowledges having been born in Mexico ­ is in any way forged or inauthentic, nor does he allege that his initials and signature on those portions of the first page that recite his Constitutional rights are forged. Indeed, the same initials and signatures appear on the "authentic" version

To the extent the claim is cognizable in some other form ­ e.g. as a claim of prosecutorial misconduct in proffering a forged document to the trial court ­ the "materiality" analysis discussed herein would nevertheless apply, at least in pertinent part, and the outcome would be the same. 14

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attached to the Defendant's Motion. It is clear from the trial court's written order denying (# 56) the motion to suppress that the court relied on the undisputedly authentic initials and signature to indicate that the Defendant was advised of his rights before making his statements. By contrast, the fact that the Defendant's answer to the question about his legal name may have been omitted from the copy produced at the suppression hearing is utterly inconsequential to the trial court's ruling. Thus, because the Defendant cannot show that the Government's "forged" document, or its failure to produce the "authentic" document in discovery, was material to the outcome of the case, the Defendant's sixth claim is without merit. CONCLUSION For the foregoing reasons, the Defendant's Motion to Vacate Sentence (# 280) is DENIED in its entirety. Although not specifically requested by the Defendant, the Court has sua sponte considered the factors relevant to the question of whether to grant a Certificate of Appealability under 28 U.S.C. § 2253(c), Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), as it relates to this matter. The Court concludes that a Certificate of Appealability is not appropriate and is therefore DENIED. Dated this 1st day of April, 2008 BY THE COURT:

Marcia S. Krieger United States District Judge 15

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