Free Response to Motion - District Court of Arizona - Arizona

1 2 3 4 5

PAUL K. CHARLTON United States Attorney District of Arizona JOSEPH E. KOEHLER Assistant U.S. Attorney Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Arizona State Bar No. 13288 Telephone (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT 6 DISTRICT OF ARIZONA 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Rule 12 of the Federal Rules Governing Section 2255 Proceedings makes the Federal Rules of Civil and Criminal Procedure applicable in Section 2255 proceedings to the 21 extent that those rules are consistent with the Rules Governing Section 2255 Proceedings. 22 1
1

United States of America CR-04-00108-002-PHX-MHM Plaintiff, v. Saul Bueno-Lopez, Defendant. MOTION TO DISMISS DEFENDANT'S MOTION TO VACATE, SET-ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

The United States, through undersigned counsel, respectfully requests the Court enter an order dismissing Defendant's Motion to Vacate, Set-Aside, or Correct a sentence under 28 U.S.C. § 2255, for failure to state a claim upon which relief may be granted, as required in Rule 2(b)(2) of the Federal Rules Governing Section 2255 Proceedings. This motion is made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 The United States further requests the Court deny the Defendant's motion without an evidentiary hearing.

Case 2:04-cr-00108-MHM

Document 101

Filed 08/25/2006

Page 1 of 7

1 2 I. 3

MEMORANDUM OF POINTS AND AUTHORITIES Introduction Defendant moves to vacate his conviction for possession of a firearm during and in

4 relation to a crime of violence, a violation of 18 U.S.C. § 924(c). His timely2 § 2255 motion 5 raises four grounds for relief: (1) ineffective assistance of counsel constituting a violation of 6 Movant's Fifth and Sixth Amendment rights; (2) violation of Rule 32(i), Fed.R.Crim.P., in that 7 trial counsel was ineffective and the sentence was based on inaccurate information; (3) violation 8 of Rule 32(c)(3)(D), Fed.R.Crim.P., by trial counsel; and (4) ineffective assistance of trial 9 counsel at all stages of the proceedings. In his motion, the Defendant alleges only general or 10 "bare bones" grounds of defense attorney misconduct without the sufficient level of specificity 11 required to hold an evidentiary hearing or vacate his conviction. See Watts v. United States, 841 12 F.2d 275, 276 (9th Cir. 1988). 13 Although the Defendant refers to a forthcoming amended motion detailing the alleged

14 ineffective assistance of counsel, the Defendant failed to submit an amended motion within the 15 30 day time period provided by the Court. Given the absence of any specific facts in the motion, 16 17 18 The Defendant was indicted on March 4, 2004 for two counts of possession of a firearm during a crime of violence, a violation of 18 U.S.C. § 924(c). A superseding information 19 was filed on September 29, 2004 and the Defendant waived indictment. The Defendant entered a guilty plea to the information on October 7, 2004. The Defendant was sentenced on December 20 20, 2004 to 90 months in prison, followed by a three-year period of supervised release. The Defendant filed his motion under § 2255 on December 18, 2005. Because the Defendant filed 21 his motion within the one-year period of limitations, the motion is timely. 22 2
2

Case 2:04-cr-00108-MHM

Document 101

Filed 08/25/2006

Page 2 of 7

1 the United States requests the Court dismiss or deny the § 2255 motion for failure to state a 2 claim upon which relief may be granted, without an evidentiary hearing. 3 II. Legal Analysis 4 Assuming arguendo that the Court finds the unamended motion alleges sufficient facts

5 to warrant consideration on the merits, the Court must determine if the conduct of the 6 Defendant's attorney rose to the level of ineffectiveness of counsel. A court will find 7 ineffectiveness assistance of counsel only when counsel's conduct so "undermined the proper 8 functioning of the adversarial process that trial cannot be relied on as having produced a just 9 result." Strickland v. Washington, 466 U.S. 688, 685 (1984). To show ineffective assistance, a 10 defendant must show both inadequate performance by counsel and prejudice resulting from that 11 inadequate performance. Id. at 690. The Defendant also must overcome the judicial presumption 12 that counsel provided adequate assistance while utilizing "reasonable professional judgment," 13 and that the legal assistance fell within the "wide range of professional competent assistance." 14 Id. 15 When an ineffective assistance claim is used to attack a guilty plea, the defendant must

16 establish that the deficient performance, "affected the outcome of the plea process . . . [such] that 17 absent the erroneous advice, he would have insisted on going to trial." United States v. 18 Baramdyka, 95 F.3d 840 (9th Cir. 1996) (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). If 19 defense counsel fails to identify a particular defense, an ineffective assistance of counsel claim 20 is only viable upon a demonstration that but for the error, the defendant would have received a 21 better plea agreement. Id. at 848. 22 3

Case 2:04-cr-00108-MHM

Document 101

Filed 08/25/2006

Page 3 of 7

1 III. The Hearing Transcript Refutes the Defendant's Claim 2 In the instant case, the transcript of the plea hearing conclusively shows that the all four

3 grounds of the Defendant's §2255 motion are without merit. Notably, ground 3 is based on a 4 federal rule that has been replaced.3 With respect to grounds 1 and 2, the record offers no hint 5 of ineffectiveness of counsel by defense counsel, Baltazar Iniguez. On the contrary, the 6 transcripts show that Defendant's counsel effectively represented his client. In fact, the record 7 demonstrates Mr. Iniguez was diligent in ensuring that the Defendant fully understood his rights 8 when the Defendant entered his waiver of indictment. In ground 4, the Defendant claims he was 9 not informed of the elements of the offense and what agreement he was signing. The Defendant 10 further claims that counsel did not explain the situation or the consequences of the plea 11 agreement. The record unequivocally demonstrates all of the defendant's claims are without 12 merit. 13 The transcript of the Defendant's guilty plea hearing4 reveals that when he was asked if

14 his attorney had "gone over this plea agreement with you and explained it to you and answered 15 any questions you may have had to your satisfaction before you signed this document?", the 16 Defendant answered "Yes." RT 10/7/04 12. When asked by the United States Magistrate Judge, 17 "Is there anything in that plea agreement that you do not understand or agree with?", the 18 19 20 In the 1994 Amendments to Federal Rules of Criminal Procedure, Rule 32(c)(3)(D) was eliminated and replaced with a different provision
4 3

The transcripts reflect a conversation in English, but the record further shows the Defendant had the services of a Certified Court Interpreter throughout the proceedings. CR 52; 21 RT 10/7/04 2-3. 22 4

Case 2:04-cr-00108-MHM

Document 101

Filed 08/25/2006

Page 4 of 7

1 Defendant answered, "No everything's fine." RT 10/7/04 12-13. The Defendant also answered 2 affirmatively that he had discussed with Mr. Iniguez the sentencing guidelines, that Mr. Iniguez 3 had generally explained how the guidelines work in federal court, and that Iniguez explained the 4 application of the guidelines to the Defendant's plea agreement. RT 10/7/04 17-18. 5 The transcripts further reveal that Mr. Iniguez informed the Defendant that his guilty plea

6 under § 924(c) was punishable by a minimum of 7 years and that the prescribed range in the plea 7 agreement sentence was between 84 and 108 months. RT 10/7/04 18. The Defendant also was 8 informed that the consequences of his plea (if accepted by the District Court) would include a 9 sentence not less than 7 years and no more than 9 years. RT 10/7/04 21-22. 10 Finally, the record demonstrates that the Court explained to the Defendant that the law

11 required that he understand the nature of the offense. RT 10/7/04 24. The Court then detailed the 12 five elements of the § 924(c) offense. RT 10/7/04 25-26. Those elements likewise were set forth 13 in the written plea agreement, signed by the Defendant. CR 52. Taken together, the plea 14 agreement, along with the Defendant's responses to the Court during the plea colloquy and 15 counsel's conduct during the hearing thoroughly refute the Defendant's claim and otherwise 16 offer no evidence of deficient conduct that rises to the level of ineffective assistance of counsel. 17 18 19 20 21 22 5

Case 2:04-cr-00108-MHM

Document 101

Filed 08/25/2006

Page 5 of 7

1 IV. The Defense Attorney's Conduct Did Not Alter the Result of the Proceedings 2 Even assuming for the sake of argument that the defense attorney's conduct rose to the

3 level of ineffective assistance of counsel, the attorney's conduct must have "had some 4 conceivable effect on the outcome of the proceedings." Strickland, 466 U.S. at 694. In fact, the 5 Defendant must show "that there is a reasonable probability that, but for counsel's 6 unprofessional errors, the result of the proceedings would have been different." Id. In the instant 7 matter, the Defendant has offered no evidence that his attorney impact the result of his plea 8 agreement. The agreed upon plea agreement dictated a minimum of 7 years and a maximum of 9 9 years. The Court accepted the plea agreement, sentencing the Defendant to 90 months, just 10 six months above the minimum mandatory prison term available under the statute. The 11 Defendant has offered no evidence his attorney's allegedly deficient conduct materially affected 12 the sentence. In fact, the Defendant has offered no evidence of any kind that his attorney's 13 conduct had any negative impact on the outcome of the case. 14 V. An Evidentiary Hearing is Not Required 15 The record in this case unequivocally establishes the absence of both professional

16 incompetence by defense counsel and prejudice resulting from the representation. Because the 17 "motions, files , and records of the case conclusively show" that the defendant is entitled to no 18 relief, an evidentiary hearing is not required. United States v. Boniface, 601 F.2d 390, 393 (9th 19 Cir. 1979); see also United States v. McMullen, 98 F.3d 1155, 1158 (9th Cir. 1996) (evidentiary 20 hearing required when specific facts alleged that if true would entitle defendant to relief). In the 21 instant matter, the court transcript conclusively shows the Defendant received adequate counsel, 22 6

Case 2:04-cr-00108-MHM

Document 101

Filed 08/25/2006

Page 6 of 7

1 was aware of the elements and consequences of his crime, and was not prejudiced by defense 2 counsel's conduct. The Magistrate Judge explicitly stated to the Defendant that he would serve 3 a minimum of 7 years (84 months) and a maximum of life in prison for his guilty plea under 18 4 U.S.C. § 924(c). The Defendant's punishment of 90 months falls toward the low end of the 5 range provided in the plea agreement and discussed in the Defendant's colloquy with the court. 6 V. Conclusion 7 For the foregoing reasons, the United States respectfully requests the Court dismiss

8 defendant's § 2255 motion or deny it without a hearing. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 7
Copy of the foregoing served this date via United States mail to: Saul Bueno-Lopez #81598-008 FCC-Victorville Medium II PO Box 5700 Adelanto, CA 92301

Respectfully submitted via CM/ECF this 25 day of August, 2006. PAUL K. CHARLTON United States Attorney District of Arizona /s JOSEPH E. KOEHLER Assistant U.S. Attorney

Case 2:04-cr-00108-MHM

Document 101

Filed 08/25/2006

Page 7 of 7