Free Response - District Court of Arizona - Arizona

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DANIEL G. KNAUSS United States Attorney District of Arizona ALISON S. BACHUS Assistant U.S. Attorney Arizona State Bar No. 023884 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, v. Jose Angel Romero-Lopez, Defendant/Movant. The United States of America, by and through undersigned counsel, hereby responds to the Defendant/Movant Jose Angel Romero-Lopez' construed Motion to Amend his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 for the reasons set forth in the attached Memorandum of Points and Authorities. Respectfully submitted this 16th day of April, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona /s/ Alison S. Bachus ALISON S. BACHUS Assistant U.S. Attorney RESPONSE TO DEFENDANT'S CONSTRUED MOTION TO AMEND No. CR-04-1008-PHX-JAT No. CV-06-1017-PHX-JAT (JI)

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MEMORANDUM OF POINTS AND AUTHORITIES Procedural History Defendant/Movant ("Defendant"), Jose Angel Romero-Lopez, is currently confined in Three

4 Rivers, Texas at a Federal Correctional Institution. On April 11, 2006, he filed a pro se motion 5 pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel. (CR1 24.) The United 6 States filed its timely Response on September 28, 2006 (CR 28), and Defendant filed a Reply 7 on October 16, 2006 (CR 29). In his Reply, however, Defendant listed seven new claims. In 8 an Order filed February 15, 2007, the Court provided Defendant with the opportunity to move 9 for leave to amend his Motion and ordered that any such motion for leave to amend be filed if 10 Defendant wanted to pursue the additional claims raised in his Reply. (CR 30.) Instead of filing 11 a motion for leave to amend, however, Defendant filed another Motion to Vacate, Set Aside, or 12 Correct Sentence pursuant to 28 U.S.C. § 2255 on March 2, 2007. (CR 31.) The Court, in an 13 Order filed April 3, 2007, construed Defendant's most recent § 2255 Motion as a motion for 14 leave to amend his original § 2255 Motion and provided the United States with 10 days in which 15 to file a Response. (CR 33.) 16 II. Defendant's Numerous Claims 17 In his original Motion, Defendant asserted two grounds for relief under § 2255: that his plea

18 was involuntary and that he received ineffective assistance of counsel. However, both claims 19 were grounded on the same complaint that his defense attorney did not explain the plea 20 agreement and would "guarantee" Defendant 120 months incarceration if he did not sign the plea 21 agreement. The United States timely responded to those assertions that Defendant's arguments 22 fail because he has not met the legal standard for demonstrating ineffective assistance of counsel; 23 that is, Defendant did not show that his attorney's performance fell below prevailing norms and 24 that his counsel's alleged deficient performance prejudiced the defendant. Strickland v. 25 Washington, 466 U.S. 668, 687-88 (1984). Additionally, the United States noted that this Court 26 27 28
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"CR" refers to the docket number in CR-04-1008-PHX-JAT.
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1 need not examine whether counsel's performance was deficient before considering whether 2 Defendant suffered prejudice because to satisfy the prejudice requirement, "the defendant must 3 show that there is a reasonable probability that, but for counsel's errors, he would not have 4 pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 5 (1985). Thus, the United States asserted, Defendant cannot establish an ineffective assistance 6 of counsel claim, and the Record clearly shows his plea was voluntary. 7 In his Reply, Defendant asserted a variety of new claims: (1) that he was denied the right

8 to prosecution on an Indictment by a grand jury; (2) that his waiver of that right was 9 unknowingly made and therefore he received ineffective assistance of counsel; (3) that he 10 received ineffective assistance of counsel because Defendant pled guilty to an Information and 11 therefore did not insist on an Indictment, and because his sentence exceeds the statutory 12 maximum under 8 U.S.C. § 1326(a); (4) that his counsel was ineffective because Defendant 13 waived his appeal rights; (5) that his waiver of his appeal rights was unknowingly made because 14 he received ineffective assistance of counsel; (6) that his sentence violated U.S. v. Booker, 543 15 U.S. 220 (2005) because his Guideline sentence offense level was based on facts not proven to 16 a jury or admitted by Defendant; and (7) that he was not advised of his right under Article 36 of 17 the Vienna Convention Treaty Act to report to his Embassy/Consular Office. 18 When given an opportunity to file for leave to amend his original Motion, Defendant instead

19 filed another § 2255 Motion. In this filing, Defendant asserts the following claims: (1) he was 20 denied his right to prosecution on a grand jury Indictment; (2) that any waiver of his right to 21 indictment was unknowingly made, that he received ineffective assistance of counsel when he 22 waived his right, and that his sentence exceeds the statutory maximum; (3) that his waiver of his 23 appeal rights was not knowingly made because of his ineffective assistance of counsel; and (4) 24 that he was improperly sentenced under U.S. v. Booker, 543 U.S. 220 (2005) and Blakely v. 25 Washington, 542 U.S. 296 (2004). 26 Therefore, in three different filings, Defendant asserts a total of nine different claims, and

27 each filing contains a different list of claims. 28
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1 III. Construed Motion for Leave to Amend: Legal Standard and Analysis 2 In an Order filed April 3, 2007, the Court construed Defendant's newest § 2255 Motion as

3 a Motion for Leave to Amend. 4 5 A. Legal standard for amendment Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend "shall be freely

6 given when justice so requires." Fed. R. Civ. P. 15(a). When considering a motion for leave to 7 amend, a courts often consider five factors: bad faith, undue delay, prejudice to the opposing 8 party, futility of the amendment, and whether the party has previously amended his pleadings. 9 Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). However, each factors is not given equal 10 weight, and futility of amendment alone is grounds for denial of leave to amend. Id.

11 Furthermore, if a movant "presents no new facts but only new theories and provides no 12 satisfactory explanation for his failure to fully develop his contentions originally," the court may 13 properly deny leave to amend. Id. 14 15 B. Analysis Defendant's construed motion for leave to amend should be denied because his amendment

16 is futile. At the heart of each of Defendant's grounds for relief are the same underlying facts, 17 and Defendant merely adds more grounds for why those facts demonstrate ineffective assistance 18 of counsel. All of Defendant's grounds boil down to the same argument: that his lawyer was 19 ineffective for whatever reason. The United States maintains that Defendant simply has not met 20 the standard for establishing a claim for ineffective assistance of counsel. As noted above, 21 Defendant has not shown that but for Mr. Yancey's alleged errors, he would not have pleaded 22 guilty and would have insisted on going to trial. Indeed, Defendant has not made that assertion 23 asserted one time in his numerous filings. Because Defendant cannot establish an ineffective 24 assistance of counsel claim, his construed motion for leave to amend on ineffective assistance 25 of counsel grounds should be denied. 26 In addition, Defendant's construed motion for leave to amend based on Booker or Blakely

27 grounds should be denied because any such amendment would be futile. Defendant takes issue 28
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1 with his offense level being increased without a jury finding facts that support that level increase. 2 However, his offense level increase was due to his recidivism, and in Almendarez-Torres v. 3 U.S., the Supreme Court held that facts related to a defendant's recidivism need not be presented 4 to a jury even though they could result in an increase in the penalty faced by the defendant. 523 5 U.S. 224, (1998). The Supreme Court favorably cited Almendarez-Torres in Shepard v. U.S., 6 544 U.S. 13, 25 (2005), and the Ninth Circuit has noted that Almendarez-Torres remains good 7 law. See U.S. v. Diaz-Argueta, 447 F.3d 1167, 1170 (9th Cir. 2006). Furthermore, Booker held 8 that any fact "necessary to support a sentence exceeding the maximum authorized by the facts 9 established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to 10 a jury beyond a reasonable doubt." 543 U.S. at 244 (emphasis added). Here, in his plea bargain 11 and plea colloquy, Defendant admitted all of the facts necessary to support the sentence imposed 12 on him, as well as the facts necessary to support the advisory guideline range applicable to his 13 case. Indeed, Defendant has not even attempted to identify any fact necessary to his sentence that 14 was not encompassed by his admissions.2 15 Alternatively, if the Court grants Defendant's construed motion for leave to amend, the

16 United States requests that the Court define which of Defendant's many claims are under 17 consideration by the Court and provide the United States an opportunity to respond to all of 18 them. In each of his filings, Defendant's list of claims changes and the United States cannot 19 adequately respond without notice of which claims Defendant is actually pursuing. 20 V. Conclusion 21 For all of the foregoing reasons, the United States requests that the Court deny the construed

22 motion for leave to amend. In the alternative, if the Court grants Defendant's construed motion, 23 24 In addition, the United States notes that another of Defendant's asserted claims (but not listed in his most recent filing), which deals with the Vienna Convention, would be 25 futile because federal law has not established that Article 36 creates a judicially enforceable right. See Breard v. Greene, 523 U.S. 371, 376 (1998) (leaving open the question as to Article 26 36 creates a judicially enforceable right); see also U.S. v. Lombera-Camorlinga, 206 F.3d 882, 884 (9th Cir. 2000) (en banc) (declining to "decide whether the treaty creates individual rights 27 that are judicially enforceable"). 28
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1 the United States requests that the Court define the issues to be decided, order that the list of 2 issues be the final list, and provide the United States an opportunity to respond to that final list. 3 4 5 6 7 8
Copy of the foregoing marked "Inmate's Legal Mail" mailed this date to:

Respectfully submitted this 16th day of April, 2007. DANIEL G. KNAUSS United States Attorney District of Arizona /s/ Alison S. Bachus ALISON S. BACHUS Assistant U.S. Attorney

9 Jose Angel Romero-Lopez, No. 64248-208, FCI-Three Rivers, PO Box 4200, Three Rivers, TX 78071 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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