Free Report and Recommendation - District Court of Arizona - Arizona

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States of America, Plaintiff/Respondent, v. Saul Bueno-Lopez, Defendant/Movant. ) ) ) ) ) ) ) ) )

CR 04-108-2 PHX MHM CV 05-4204 PHX MHM (VAM) REPORT AND RECOMMENDATION

TO THE HONORABLE MARY H. MURGUIA, UNITED STATES DISTRICT JUDGE. Saul Bueno-Lopez (movant), currently confined at the Federal Correction Complex, Victorville, CA, filed a pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §2255. Motion. (Doc. 95). Movant raises four grounds for relief in the

In response, respondent filed a Motion to Dismiss (Doc. 101). Movant has filed no

Defendant's § 2255 Motion.

response to the Motion to Dismiss. BACKGROUND On January 31, 2004, defendant/movant Bueno-Lopez was arrested and charged by Complaint with hostage taking, 18 U.S.C. § 1203. (Doc. 1). On February 4, 2004, an Indictment was

returned against defendant and his two co-defendants, also charging hostage taking in violation of 18 U.S.C. § 1203. 20). Counsel was appointed for defendant. (Doc. 22). (Doc. 19). An (Doc.

arraignment was conducted. Case 2:04-cr-00108-MHM

On June 3, 2004, a Motion Page 1 of 14

Document 102

Filed 11/02/2006

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for a Settlement Conference was filed by defendant's counsel. (Doc. 36). The Motion was granted and a settlement conference was (Docs. 37, 41).

held in front of Magistrate Judge Anderson.

On September 29, 2004, an Information was filed as to this defendant charging possession of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). 48). The Information was filed because defendant waived the (Doc.

Indictment and consented to the filing of the Information in furtherance of his plea. (Docs. 50, 52). The potential plea was

referred by Judge Murguia to Judge Anderson and defendant consented to proceed before the Magistrate Judge. 53). (Docs. 51, 52,

The change of plea took place on October 7, 2004 in front of

Magistrate Judge Anderson and defendant entered a guilty plea to the Information. (Doc. 52). On December 20, 2004, defendant was

sentenced to ninety months in prison, three months of supervised release, the fine was waived and a special assessment of $100 was ordered. (Doc. 57).

On December 22, 2005, defendant filed a timely Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (Doc. 95). Because the Motion to Vacate Sentence was

described by movant as a "bare bones motion" to be followed up with an amended motion, movant was granted thirty days to file an amended motion and provide specifics as to his claims. Mr. Bueno-

Lopez was advised that if he failed to file an amended motion, the "bare bones motion" would be served on plaintiff and the Court would proceed on the basis of the initial Motion to Vacate. 96). Defendant did not file an amended motion and the Court 2 Case 2:04-cr-00108-MHM Document 102 Filed 11/02/2006 Page 2 of 14 (Doc.

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proceeded with service of the original Motion to Vacate. 97).

(Doc.

On August 25, 2006, respondent filed a Motion to Dismiss the (Doc. 101).

Motion to Vacate, Set Aside, or Correct Sentence.

MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE The Motion to Vacate, Set Aside, or Correct Sentence filed by movant contains four claims. (Doc. 95 at pp. 5-6). In Ground

One, movant states his conviction violates the Constitution and laws of the United States because his trial attorney was ineffective in assisting him. Ground One also states "this

argument will be litigated in an amended motion since this is a 'bare bones 2255 motion.'" Since the Motion to Vacate has not been amended, the Court has no specifics in this ground as to why movant believes his trial attorney was ineffective. In Ground Two, movant alleges his conviction is in violation of Rule 32, F.R.Crim.P., and more specifically Rule 32(i) "since trial attorney was ineffective in rendering his assistance. This

first motion is a 'bare bones motion' and will be argued on Rule 15 amended motion, if granted." Since no amended motion to vacate

was filed, this is all the information the Court has on Ground Two. In Ground Three, movant states his sentence is based on inaccurate information. motion." He further states this is a "bare bones

He says his counsel committed error "by not objecting to

some of the information at sentencing violating Rule 32(c)(3)(D), F.R.Crim. P." In Ground Four, movant says his lawyer rendered ineffective assistance of counsel at all stages of the proceedings. 3 Case 2:04-cr-00108-MHM Document 102 Filed 11/02/2006 Page 3 of 14 More

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specifically, movant states his trial counsel never informed him of the elements of the offense, the essence of the plea agreement he was signing, did not explain "the situation to him" or "the consequences of his entering into a plea agreement." Later he

states that the change of plea proceeding was not knowing as his counsel did not fully explain things to him, the consequences of pleading guilty and what rights he would be losing. p. 6). Movant's plea agreement contained a waiver of the right to appeal or to collaterally attack his conviction and sentence. (Doc. 58 at pp. 3-4). Of course, this same plea agreement (Doc. 95 at

contains a recitation that movant understands all of the plea agreement, it has been explained to him by his counsel, he understands the rights he will be giving up, the elements of the offense, and that he wishes to give up these rights knowingly and plead guilty. Id. If knowing and voluntary, the waiver of the

right to appeal or collaterally attack a conviction and sentence is binding. United States v. Abarca, 985 F.2d 1012, 1014 (9th However, movant

Cir.), cert. denied, 508 U.S. 979 (1993).

contends that he did not know what he was giving up in the plea agreement and did not understand the plea agreement. In this

context, movant must be allowed to bring a motion to vacate, set aside, or correct sentence based on ineffective assistance of counsel that implicates the voluntariness of the waiver of collateral attack. Cir. 2005). held: 4 Case 2:04-cr-00108-MHM Document 102 Filed 11/02/2006 Page 4 of 14 Washington v. Lampert, 422 F.3d 864, 871 (9th

In addition, the United States Supreme Court has

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When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [not within the range of competence demanded of attorneys in criminal cases] . . . Tollett v. Henderson, 411 U.S. 258, 265 (1973); see also United

7 States v. Reyes-Platero, 224 F.3d 1112, 1115 (9th Cir. 2000). 8 Each of movant's grounds set forth in the Motion to Vacate 9 appear to imply that his guilty plea was not knowing, intelligent 10 and voluntary. 11 movant's Motion to Vacate and the United States' Motion to 12 Dismiss. 13 A. 14 Claims of ineffective assistance of counsel are analyzed 15 pursuant to Strickland v. Washington, 466 U.S. 668 (1984). 16 order to prevail on such a claim, the movant must show: 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:04-cr-00108-MHM Document 102 5 Filed 11/02/2006 Page 5 of 14 1. Counsel's representation fell below the objective standard of reasonableness and 2. There is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 694; see also United States v. Thornton, 23 F.3d 1532, 1533 (9th Cir. 1994)(per curiam); United States v. Solomon, 795 F.2d 747, 749 (9th Cir. 1986). This two-pronged test--deficient performance and prejudice-poses a mixed question of law and fact. Strickland, 466 U.S. at A In Standard to be applied Therefore, the Court will proceed to address

698; Thompson v. Calderon, 86 F.3d 1509, 1515 (9th Cir. 1996).

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court hearing an ineffective assistance claim must consider the totality of the evidence with an eye toward the ultimate issue of whether counsel's conduct so undermined the functioning of the adversarial process that the proceeding lacked fundamental fairness. Strickland, 466 U.S. at 686; Card v. Dugger, 911 F.2d

1494 (11th Cir. 1990)(observing that counsel cannot be labeled ineffective for failing to raise issues which have no merit). Reasonableness is judged from counsel's perspective at the time of the alleged error in light of all the circumstances. Kimmelman v.

Morrison, 477 U.S. 365, 381 (1986); Strickland, 466 U.S. at 689. Deficient performance is one in which counsel's errors were so great he or she was not functioning as the counsel guaranteed by the Sixth Amendment. 1986). Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.

To prove such ineffectiveness, movant must demonstrate

that counsel's errors were "outside the wide range of professionally competent assistance, and that the deficient performance prejudiced the defense." United States v. Houtchens,

926 F.2d 824, 828 (9th Cir. 1991)(quoting Strickland, 466 U.S. at 687-90). There is a strong presumption counsel's conduct might be United States v. Quinterro-

considered sound trial strategy.

Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995), cert. denied, 519 U.S. 848 (1996); United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991). When assessing prejudice within the context of an allegation that ineffective assistance of counsel rendered the guilty plea invalid, the second prong of the Strickland test is modified. In

addition to showing counsel's performance fell below the objective 6 Case 2:04-cr-00108-MHM Document 102 Filed 11/02/2006 Page 6 of 14

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standard of reasonableness, to establish prejudice, movant must show "that there is a reasonable probability that but for counsel's errors [he] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 58

(1985); see also United States v. Baramdyka, 95 F.3d 840, 844 (9th Cir. 1996), cert. denied, 520 U.S. 1132 (1997). In short, the court's scrutiny is highly deferential and every effort should be made to eliminate the distorting effects of hindsight. Kimmelman, 477 U.S. at 381; United States v. Natanel,

938 F.2d 302, 309-10 (1st Cir. 1991)("The performance standard is to be applied not in hindsight, but based on what the lawyer knew, or should have known, at the time his tactical choices were made and implemented."), cert. denied, 502 U.S. 1079 (1992); Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991). Moreover,

cursory allegations that are purely speculative cannot support a claim of ineffective assistance of counsel. Shah v. United

States, 878 F.2d 1156, 1161 (9th Cir.), cert. denied, 493 U.S. 869 (1989). B. Facts Pertaining to Movant's Claims

The transcript of movant's change of plea proceeding and sentencing are found in Document 100. That transcript reflects The

that movant's change of plea occurred on October 7, 2004.

transcript reflects that the Magistrate Judge informed movant that this was an important proceeding for him and that he needed to let the Judge know if he did not understand any of the information. (Doc. 100 at pp. 2-3). Movant was placed under oath and the Court (Id. at

explained to defendant what it meant to be under oath. 7 Case 2:04-cr-00108-MHM Document 102 Filed 11/02/2006

Page 7 of 14

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pp. 4, 5).

Movant indicated he wanted to plead guilty and that he He indicated

had no problem understanding his lawyer's Spanish.

he understood the rights he would be giving up as they were recited to him by the Court. (Id. at pp. 5, 8-10). He indicated

he understood that he would not be able to appeal or collaterally attack his conviction and sentence. (Id. at p. 10). Movant

indicated his lawyer went through the entire plea agreement with him in Spanish and that he understood the plea agreement. pp. 12-24). Movant indicated he understood under the plea (Id. at

agreement he would be sentenced to at least seven years and that he understood the sentencing guidelines and procedures as explained by his lawyer. (Id. at pp. 14, 17-19). The Court then

went through the elements of the crime which are also set out in the plea agreement. (Id. at p. 25). The Court went through and (Id. at pp. 26-28).

established a factual basis for the plea.

Movant entered a plea of guilty and said that he was pleading guilty because he was in fact guilty of the crime. 28). (Id. at p.

The Magistrate Judge entered findings with regard to the (Id. at p. 28 and Doc. 53). Movant then indicated

guilty plea.

he understood all of the Judge's questions during the change of plea and that he had no additional questions for the Court. at pp. 29-30). At his sentencing, movant stated he remembered the change of plea proceeding and that he had no questions for the district judge before his sentencing. (Id. at pp. 31-32). Movant (Id.

specifically indicated he had no questions of the district court judge regarding his plea agreement or the change of plea. 8 Case 2:04-cr-00108-MHM Document 102 Filed 11/02/2006 Page 8 of 14 (Id.).

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Movant indicated that the pre-sentence report was explained to him by his lawyer and defense counsel stated on the record that he read the entire pre-sentence report to the defendant. 32-33). (Id. at pp.

Defendant reiterated that he understood there was a (Id. at p.

statutory minimum mandatory sentence of seven years. 34).

Defense counsel then explained to the Court movant's

extenuating circumstances and how he became involved in the crime and made a plea for leniency. (Id. at pp. 34-36). When asked by

the Court, movant indicated he did wish to make a statement and apologized for his conduct. (Id. at p. 36). The attorney

representing the United States then stated on the record the substantial benefit that movant received from the plea agreement when the Government gave up (dismissed) the hostage taking charge. Counsel for the Government talked about how movant's co-defendants abused the aliens during the hostage taking and kidnaping. The

Court then sentenced movant to ninety months (seven and one-half years), waived the fine and required three years of supervised release and a $100 special assessment. (Id. at p. 38). The Court

then dismissed the Indictment which charged hostage taking as to this defendant. (Id. at p. 41). In short, the Court gave movant Further,

the full benefit of his bargain in the plea agreement.

movant received a sentence of only six months more than the minimum mandatory. C. Grounds One and Four Alleged by Movant

In Grounds One and Four, movant alleges ineffective assistance of counsel. Ground One contains no specifics. Ground

Four states that his trial counsel was ineffective because he did 9 Case 2:04-cr-00108-MHM Document 102 Filed 11/02/2006 Page 9 of 14

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not tell him of the elements of the offense, explain the plea agreement to him, explain his situation to him or the consequence of entering into a plea agreement. After that on page 6 of the

Motion to Vacate, movant states that his plea was not knowing because his counsel did not fully explain the consequences of pleading guilty and what rights he would be losing. allegations have any basis in fact or law. During the change of plea, the Court explained the elements, the plea agreement, the rights he would be giving up by entering into the guilty plea, established that he was competent and established that movant understood his lawyer's Spanish and understood the plea agreement. Under oath, movant indicated to None of these

the Court at the change of plea that he understood the plea agreement, understood his lawyer, had no questions, understood his rights, understood the sentencing range and had absolutely no questions for the Court. At sentencing, movant indicated he

understood the change of plea proceeding, the plea agreement and had absolutely no questions for the district court judge regarding his plea agreement or the change of plea. (Id. at pp. 31-32).

There is absolutely nothing in the record to support an allegation that the plea of guilty was not knowing, intelligent and voluntary. unsupported. Movant's "bare bones" allegations are completely There is nothing to show that defense counsel's

representation fell below the objective standard of reasonableness. In addition, movant does not allege and there is

nothing to support an inference that but for the allegations he would not have entered into the guilty plea. 10 Case 2:04-cr-00108-MHM Document 102 Filed 11/02/2006 Page 10 of 14 See United States v.

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Dominguez Benitez, 124 S.Ct. 2333 (2004) (defendant must show a reasonable probability that, but for error in the change of plea, he would not have entered into the guilty plea). In short, movant

has met neither requirement of Strickland v. Washington, 466 U.S. 668 (1984). D. Grounds One and Four should be denied.

Ground Two

In Ground Two, movant alleges that his conviction is based on a violation of Rule 32(i), F.R.Crim.P. He also throws in an However, Rule 32(i),

allegation that his lawyer was ineffective.

F.R.Crim.P., sets forth the requirements of the Court at sentencing. The first part of this Rule requires the Court to

establish that the defendant and his attorney have read and discussed the pre-sentence report, allow objections to the report and allow the parties to know any information that the Court is considering that is excluded from the report. Next, if there are

objections, the Rule requires that the Court allow the parties to introduce evidence on the objections. Then the Rule requires that

if there are objections to the report, the Court must resolve those objections. Finally, the Rule requires that the Court allow

counsel and defendant to speak at sentencing. The transcript from the sentencing establishes that all of these requirements have been met. was read to movant by his lawyer. The entire pre-sentence report (Doc. 101 at pp. 32, 33).

There were no objections to the pre-sentence report so there was no need to introduce evidence or resolve those objections. 100 at p. 33). (Doc.

Further, the transcript establishes that both

counsel and defendant were provided an opportunity to speak at 11 Case 2:04-cr-00108-MHM Document 102 Filed 11/02/2006 Page 11 of 14

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sentencing and did in fact make a statement to the Court. 100 at pp. 34-38).

(Doc.

The Court then sentenced movant within the The Court

sentencing range stipulated to in the plea agreement.

also dismissed the Indictment as required by the plea agreement. (Doc. 100 at pp. 38, 41). There is nothing in the record to support any variance from the requirements of Rule 32(i), F.R.Crim.P., and nothing to suggest that counsel did not fulfill his obligations. must be denied. E. Ground Three Ground Two

In Ground Three movant states he was sentenced on the basis of inaccurate information and that his counsel committed error by not objecting to some of the information at sentencing. at p. 5). (Doc. 95

Movant does not state what information was inaccurate This is

or in error and what his lawyer should have objected to. a "bare bones" motion.

As a result, movant has not set forth

sufficient information for the Court to analyze this allegation. There were no objections to the pre-sentence report. Movant

acknowledged that he knew what was in the pre-sentence report and his lawyer stated on the record that he read the entire report to him. In addition, defense counsel stated on the record at

sentencing that he and his client "never had a moment's problem." (Doc. 100 at p. 34). When movant was given an opportunity to (Doc.

speak, all he did was apologize for committing the crime. 100 at p. 36).

Movant indicated he had no questions about the

plea agreement or the change of plea or the pre-sentence report. As a result, there is no basis for granting a Motion to Vacate, 12 Case 2:04-cr-00108-MHM Document 102 Filed 11/02/2006 Page 12 of 14

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Set Aside, or Correct Sentence based on the allegations in Ground Three. Movant has not carried his burden of showing ineffective

assistance at any stage of the proceedings nor has he established any irregularity or violation of Rule 32 during sentencing. The

transcript of the change of plea and sentencing established no irregularities, no reason to suspect ineffective assistance of counsel and in fact established that movant understood his plea agreement, wanted to plead guilty and understood the information at sentencing. IT IS THEREFORE RECOMMENDED that the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 be denied. (Doc. 95). IT IS FURTHER RECOMMENDED that the Motion to Dismiss Defendant's Motion to Vacate, Set Aside, or Correct Sentence be denied and the Court rule on the merits of the Motion. 101). This recommendation is not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal filed (Doc.

pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's order and judgment. The parties shall have ten (10) days from the date of

service of this recommendation within which to file specific written objections with the Court. Thereafter, the parties shall

have ten (10) days within which to file a response to the objections. Failure to timely file objections to any factual

determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues 13 Case 2:04-cr-00108-MHM Document 102 Filed 11/02/2006 Page 13 of 14

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and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. DATED this 1st day of November, 2006.

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