Free Reply to Response - 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 23 24 25 26 27 28 vs. MANUEL A. GAMBOA, Defendant.

CASE NO: CR04-1299-PHX-EHC ) ) DEFENDANT'S REPLY TO ) TO SET ASIDE PLEA; STRIKE IN) DICTMENT; ALTERNATIVELY TO ) CORRECT SENTENCE; WAIVE ) SUBSEQUENT AND SUPERCEDING ) INDICTMENT AND PLEA TO SUPER) CEDING INFORMATION; REQUEST ) FOR BAIL PENDING HEARING {Oral Argument Requested}

COMES NOW the Defendant, Manuel A. Gamboa, by and through undersigned counsel, and does hereby respond to the Opposition to Motion as filed by the Government on or about February 21, 2007. Respectfully Submitted this 1st day of March, 2007.

Clyde S. Munsell Attorney for Defendant Gamboa

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MEMORANDUM OF POINTS AND AUTHORITIES

LEGAL ARGUMENT A. A MOTION ADDRESSING AN INVALID JUDGEMENT IS NEVER TIMEBARRED, MAY BE BROUGHT AT ANY TIME, AND IS CLEARLY PROPER WHEN BROUGHT WITHIN ONE YEAR FROM THE DATE OF DISCOVERY OF THE DEFECT

In opposition to the Defendant's instant Motion to Set Aside, Vacate and/or Correct Judgment, the Government has raised only one argument contrary to Defendant's position; to wit; that the Motion is time-barred under Title 28 of the United States Code Section 2255. In that regard, the Government's citation of that Section conveniently failed to set forth the entirety of that statute, and omitted those portions which are relevant to the case at bar. Specifically, Section 2255 provides as follows: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-

23 24 25 26 27 28 1. 2. the date on which judgment of the conviction became 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, if the movant was prevented from making a motion by such governmental action;

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1 3. 2 3 4 5 6 7 456. The primary purpose for that Section is to provide an expeditious remedy for correcting 8 9 10 11 12 13 14 15 16 17 18 there has been such a denial or infringement of the constitutional rights of the prisoner as to 19 20 21 22 23 24 in that matter, and in this case, too, the district court had no option to resentence or correct the 25 26 27 28 sentence; "the prisoner must be discharged, or granted a new trial." As in that case, and in the instant matter, only by setting aside the plea does the district court have jurisdiction to vacate the conviction. render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. Much like the situation faced by the Court in United States v. Barron 172 F.3d 1153, there has been a legal defect in the procurement of the conviction. As appropriate." In that vein, if the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that erroneous sentences without resort to habeas corpus. Under these rules the person seeking relief from federal custody files a motion to vacate, set aside, or correct sentence, rather than a petition for habeas corpus. Since the motion remedy is in the criminal proceeding, this section affords the opportunity and expressly gives the broad powers to set aside the judgment and to "discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear 4. the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. (emphasis added.)

Title 28 U.S.C. § 2255 A motion for such relief may be made at any time. Mikolon v. United States 844 F.2d

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1 B. 2 3 4 5 6 basis existed for that plea. That mistaken belief was one harbored not only by the Defendant, but 7 8 9 10 11 12 13 was not aware of this fundamental and fatal lack of the prior felony conviction, which 14 15 16 17 18 19 States of America (USDC, NY) 1:05-CV1294 (August 15, 2006). Neither Defendant's prior 20 21 22 23 24 25 26 of the Plea and the Judgment, that the California conviction was a misdemeanor by sentence, it 27 28 had a duty to disclose that information to the Defendant. A failure to do so would amount to prosecutorial misconduct, and, in and of itself, serve as a basis for granting the Defendant a new Case 2:04-cr-01299-EHC Document 67 Filed 03/03/2007 4 Page 4 of 7 attorney, nor the government advised him the felony on which his present conviction was based was, in fact, a misdemeanor under California law "for all purposes". As the Court is aware, the government has the obligation to provide to the Defendant any and all information available to it, especially if that information is exculpatory in nature. Brady v. Maryland 373 U.S. 83, 87 (1963). As such, if the government was aware, at the time of entry unconditionally removes the entirety of the corpus which served as the basis for a conviction under Section 922(g). The one-year statute referred to in that Section did not begin to run until the actual date of discovery, so long as due diligence was pursued by the Defendant. Duarnis Perez v. United also by defense counsel, the United States Attorney and the Probation Department. This is not surprising in that the treatment of the California conviction as a misdemeanor by sentence is somewhat unique to that state's criminal justice system, and undoubtedly not something which was apparent to the parties and counsel to the underlying proceedings. In fact, even the Presentencing Report characterizes the California conviction as a felony. Resultingly, the Defendant THE LIMITATION PERIOD UNDER SECTION 2255 WOULD NOT COMMENCE UNTIL THE ACTUAL DATE OF DISCOVERY OF THOSE FACTS GIVING RISE TO THE CLAIMS PRESENTED In the matter now before the Court, the Defendant entered into a plea agreement based upon the mistaken belief that he was guilty of the charge in question, and that a real and factual

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trial. That knowledge, when first acquired, is the only triggering event which would commence the running of the one-year limitation period.

3 4 5 6 7 8 9 10 11 12 13 14 15 conviction. Until that time, Defendant was clearly justified in relying not only upon the 16 17 18 19 20 21 22 whichever one is proper under the circumstances and decide on its merits. Such a tolling of the 23 24 25 26 27 28 one-year statute is equitable for purposes of excusing compliance where actual innocence must be strongly considered. Holloway v. Jones (USDC, Eastern District of Michigan, Southern Division) Civ. 00-73864-DT (2001). representations of his own attorney, the Court, the Probation Department, and the United States government. Under the circumstances, the appropriate inquiry is "whether the claimed error of law was a fundamental defect which inherently results in a complete miscarriage of justice, and the movant should not be barred from an appropriate remedy because he has mis-styled his motion. United States v. Morgan, 346 U.S. 502, 505 (1954). The court should construe it as an assertion would be tantamount to outrageous government conduct, and yet another reason to set aside the plea and vacate the underlying sentence. As set forth in the Declaration of Clyde S. Munsell filed concurrently herewith, the discovery of this mischaracterization of that conviction did not come until December 12, 2006, when Defendant's present attorney of record first retrieved and reviewed the California Presumably, the government was, much like the Defendant, unaware of the existence of that fatal defect, and only discovered the same when first advised by Defendant's present attorney of record in December, 2006. It is that date of discovery which begins the running of the limitation period. For the government to assert that the time commenced at the time of entry of Judgment would imply its awareness at that time of the facts which give rise to the Motion. Such

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Toward that end, and when a defendant successfully attacks a plea as not knowing and intelligent, the proper remedy is to vacate or set aside the plea and grant a new trial. For

3 4 5 6 7 8 9 10 11 12 13 14 U.S.C. Sec. 2255, the validity of a prior sentence can be challenged on due process grounds, and 15 16 17 18 19 20 21 22 23 24 25 Government has filed no objection or opposition to the merits of the Motion itself, it must be 26 27 28 presumed, that if timely, the government agrees with the position put forth in that Motion. CONCLUSION Defendant's present Motion, having been filed within weeks of the discovery of the true characterization of the California conviction, is timely, and subject to review by this Court. The to prevail on this due process claim, Mr. Gamboa must demonstrate the sentence constituted either a fundamental defect which inherently resulted in a complete miscarriage of justice, or an omission inconsistent with the rudimentary demands of fair procedure. Can there be any doubt such is the situation at hand? Can there be any doubt both subsection 2 and subsection 4 find application in this instance? Rule 35 provides that an "illegal sentence" is correctable by a court "at any time" and that a sentence "imposed in an illegal manner" is correctable within 120 days after the sentence is imposed. In order to challenge jurisdiction, or other aspects of a conviction, the Defendant must raise his claims in a § 2255 Motion brought in the appropriate district court. Pursuant to 28 example, in United States v. Barker, 681 F.2d 589, 592-93 (9th Cir.1982), the court correctly held that the district court could reinstate the prisoner's indictment after a successful attack of the plea under § 2255 on the ground the plea was made in the absence of adequate information. When the district court sets aside the conviction that had resulted from a plea, there remained but one mechanism for proceeding, that is, going to trial on the original indictment.

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Therefore, it is respectfully submitted that the Motion be considered timely, and the lack of the proper and requisite felony prior is fatal to the indictment. Accordingly, the Court is

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 Clyde S. Munsell, Attorney for Defendant Dated: March 1, 2007 Respectfully submitted, warranted in setting aside the resulting Plea Agreement and Sentence and that bail be granted pending any hearing.

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