Free Affidavit in Support of Motion - District Court of Arizona - Arizona

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CLYDE S. MUNSELL Attorney at Law (CA BAR 51213) 284A Third Avenue Chula Vista, CA 91910 Telephone: (619) 224-3151 Facsimile : (619) 224-6775 e-mail: [email protected] Attorney for Defendant, MANUEL A. GAMBOA Pro Hac Vice

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,) Plaintiff,

13 14 15 16 17 18 19 20 21 22 vs. MANUEL A. GAMBOA, Defendant.

CASE NO: CR04-1299-PHX-EHC ) ) DECLARATION OF CLYDE S. ) MUNSELL IN SUPPORT OF MOTION ) TO SET ASIDE PLEA AGREEMENT ) AND SENTENCE ) ) ) ) {Oral Argument Requested}

I, CLYDE S. MUNSELL, under penalty of perjury do hereby declare as follows: I was retained in the above-captioned matter on December 11, 2006 for matters unrelated to the Motion now before this Court. Prior to that date, I was not familiar with the Defendant, nor had I represented him in any capacity before this time.

23 24 25 26 27 28 The following day, December 12, 2006, I copied the entire Court file of the 1999 California state court conviction of Mr. Manuel A. Gamboa. In doing so, I noted that a like copy had previously been forwarded to the Arizona Probation Department, pursuant to Mr. Gamboa's plea in the instant case. It was immediately noted by me that the Count pled to in the San Diego

Case 2:04-cr-01299-EHC

Document 68

Filed 03/03/2007

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case was a misdemeanor "for all purposes" pursuant to California Penal Code Section 17(b). I would not expect an attorney from any jurisdiction other than California to be aware of

3 4 5 6 7 8 9 10 11 12 13 14 15 On January 18, 2007, I directed a settlement letter to Mr. Soloman, reiterating those 16 17 18 19 20 21 22 District Court, District of Arizona, Pro Hac Vice. 23 24 25 26 27 28 On February 5, 2007, I was informed by the Court's Clerk, Ms. Beth Stevenson, that my registration with the Court was complete. On February 9, 2007, the instant Motion was filed and served electronically. findings as it related to the San Diego conviction, proposing a potential solution, and urging cooperation. On January 23, 2007, after obtaining the requisite signature from Mr. Russo, my formal substitution in the matter was filed with the Court. On February 2, 2007, I received confirmation of my admission to the United States On January 1, 2007, I first met with my client (after normal lengthy admission clearance) at the Terminal Island prison facility. On January 9, 2007, pursuant to a prearranged meeting, I met with then Special A.U.S.A. Bill Soloman at his offices in Phoenix, Arizona and outlined what I had discovered concerning the lack of a prior "felony" on which the indictment could stand. that peculiar statutory nuance, and was therefore compelled to inquire further as to the basis for the conviction in this case. During December, 2006, I placed several telephone calls to Defendant's former defense attorney, Brian F. Russo, and the government's attorney of record, A.U.S.A. Bill C. Soloman. In each situation, none of those calls were returned.

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Before the occurrence of the foregoing events, no one, including the defendant, was aware of the "defect" which existed with this conviction by virtue of this lack of a prior felony

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Clyde S. Munsell Clyde S. Munsell Attorney for Defendant Gamboa of discovery. In view of the miscarriage of justice which would otherwise exist, equitable tolling of such statute would be appropriate and just so as to assure that a man innocent of the charge set forth in the indictment does not remain incarcerated. Executed this 1st day of March, 2007 at Chula Vista, California. upon which to support an indictment of "felon-in-possession". Since that discovery, no delay has been occasioned, and Defendant has acted with diligence in addressing this issue by way of the present Motion. The 1-year rule applicable to Motions under Section 2255 would not commence on the date of entry of the Judgment, as suggested by the government , but rather from this actual date

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