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United States v. Arredondo-Meza

United States District Court, D. Idaho

September 29, 2016

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
IVAN ARREDONDO-MEZA, Defendant-Movant.

          MEMORANDUM DECISION & ORDER

          B. Lynn Winmill Chief Judge.

         INTRODUCTION

         Pending before the Court is the remaining claim of Ivan Arredondo-Meza's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1) and his Motion to Strike Testimony (Civ. Dkt. 25). Having reviewed the briefing and the record in this case, conducted an evidentiary hearing, and reviewed the post-hearing submissions, the Court enters the following Order granting the Motion to Strike and granting relief on the remaining claim of the § 2255 Motion for the reasons set forth below.

         BACKGROUND

         On April 24, 2008, Movant was convicted by a jury of conspiring to distribute 500 grams or more of methamphetamine and of continuing criminal enterprise. Special Verdict, Crim. Dkt. 209. Each of his eleven co-Defendants had previously pleaded guilty. On October 10, 2008, this Court sentenced him to a term of imprisonment of 480 months on each count, to be served concurrently. Judgment, Crim. Dkt. 276. The co-Defendants' sentences ranged from 18 to 151 months. Following completion of the appeals process, on November 16, 2012, Movant timely filed his § 2255 Motion claiming his conviction should be set aside because the drug amounts used at his sentencing were inconsistent with the jury verdict and that his counsel provided ineffective assistance during plea bargaining, trial, sentencing, and appeal stages of his case.

         After considering the § 2255 Motion as well as the Government's Motion to Dismiss (Civ. Dkt. 5), the Court dismissed all claims except Movant's claim of pretrial ineffective assistance of counsel and appointed CJA attorney Stevan Thompson to pursue that claim. See Mem. Dec. and Order, Civ. Dkt. 12. Ultimately, counsel for the parties jointly filed a status report advising of five factual issues that they were unable to resolve and requesting an evidentiary hearing. Joint Status Report, Civ. Dkt. 17. Following an evidentiary hearing, counsel filed their respective post-hearing arguments for the Court's consideration. Civ. Dkts. 23 and 26.

         MOTION TO STRIKE

         At the evidentiary hearing, Movant was represented by appointed counsel Stevan Thompson, and the Government was represented by AUSA Michael Fica who had prosecuted the case against Movant and his co-Defendants. As summarized more fully below, the Court heard testimony from defense counsel James Archibald, Movant, and case agent Sgt. Nathan Hansen. The testimony primarily focused on circumstances surrounding two plea offers, their communication to Movant, and Movant's rejection of the offers. The Government had first made a plea offer several weeks before trial and subsequently extended the same offer following jury selection. Mr. Archibald and Movant met in a holding cell near the courtroom to discuss the latter offer.

         AUSA Fica then recalled Sgt. Nathan Hansen to the stand to rebut Movant's claim that the re-extended plea offer was not communicated to him with the aid of an interpreter. Sgt. Hansen testified that Herman Garcia, one of the court interpreters assigned to the trial, had told him after the meeting in the holding cell that he had been present at that meeting. Mr. Thompson objected to the testimony on the grounds of hearsay. He also noted that Mr. Garcia had indicated to him and AUSA Fica the day before the evidentiary hearing (some eight years after the trial) that he did not remember whether he had been in the holding cell with Mr. Archibald and Movant. Discussion on the record ensued as to whether the Rules of Evidence apply at a § 2255 hearing. The Court then allowed the testimony subject to a motion to strike.

         AUSA Fica made an offer of proof regarding the context in which the conversation occurred. Mr. Garcia told Sgt. Hansen and him that after Mr. Archibald had presented and reviewed the plea offer with him, Movant shoved it back at Mr. Archibald and would not discuss the issue of a plea further. Although AUSA Fica was not offering that as evidence, the Court again stated that he would not consider Sgt. Hansen's testimony unless it was convinced the Rules of Evidence did not apply.

         At the outset, the Court notes that in his post-hearing submission, AUSA Fica did not raise or rely on Sgt. Hansen's rebuttal testimony. Mr. Thompson, however, filed the pending Motion to Strike urging the Court to strike and not consider that testimony on the grounds of hearsay and attorney/client privilege.

         Discussion at the hearing focused on Rule 1101 of the Federal Rules of Evidence which provides that the Rules of Evidence do not apply to a court's determination on preliminary questions of fact governing admissibility, grand jury proceedings, and certain enumerated miscellaneous proceedings such as sentencings and supervised release revocation hearings. Fed.R.Evid. 1101(d). Hearings in § 2255 proceedings are not referenced.

         Perhaps because the lack of mention of § 2255 proceedings leaves no room for argument that the Rules of Evidence do not apply, there is virtually no case law on the issue. However, reference to the Federal Habeas Manual (2014) states unequivocally and without case law citations that the Federal Rules of Evidence apply to § 2255 proceedings. See, Brian R. Means, Federal Habeas Manual, A Guide to Federal Habeas Corpus Litigation 286, § 4:29 (2014) (citing Fed.R.Evid. 1101(e) (now 1101(d)). See also Fed. R. Ev. 1101 advisory committee's notes to 1972proposed rules, note to subdivision (d) ("The rule does not exempt habeas corpus proceedings.")); Smith v. Brewer, 444 F.Supp. 482, 486 (S.D. Iowa 1978) (referring to Rule 606 and noting that Federal Rules of Evidence apply to habeas proceedings).

         While Rule 1101(e) states that a federal statute or Supreme Court rule may provide for admission or exclusion of evidence independently from the Federal Rules of Evidence, both 28 U.S.C. § 2255 and the Rules Governing Section 2255 Proceedings are silent on the issue. Accordingly, in the absence of authority to the contrary, the Court finds that the Federal Rules of Evidence apply to § 2255 evidentiary hearings and thus grants the Motion to Strike.

         STANDARD OF LAW

         The well-established two-prong test for evaluating ineffective assistance of counsel claims is deficient performance and resulting prejudice. See Strickland v. Washington, 466 U.S. 668 (1984).

         In order to establish deficient performance, a defendant must show that counsel's performance "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Under the performance prong, there is a strong presumption that counsel's performance falls "within the wide range of reasonable professional assistance." Id. at 689. This is so because for the defendant, "[i]t is all too tempting ... to second-guess counsel's assistance after conviction or adverse sentence. . . ." Id. For the court, "it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight." Bell v. Cone, 535 U.S. 685, 702 (2002) (discussing Strickland).

         In order to establish prejudice, a defendant must affirmatively prove by a reasonable degree of probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. The Strickland standard is "highly demanding." Kimmelman v. Morrision, 477 U.S. 365, 381-82; 386 (noting that the court should "assess counsel's overall performance throughout the case" when evaluating whether his assistance was reasonable).

         Both prongs of the Strickland test must be met "before it can be said that a conviction (or sentence) 'resulted from a breakdown in the adversary process that render[ed] the result [of the proceeding] unreliable' and thus in violation of the Sixth Amendment." United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005) (quoting Strickland, 466 U.S. at 687). Whether or not counsel's performance was deficient is irrelevant if there was no prejudice as both of Strickland's prongs must be met to be entitled to relief. In evaluating an ineffective assistance of counsel claim, a court may consider the performance and prejudice components of the Strickland test in either order. Strickland, 466 U.S. at 697. Application of the highly demanding Strickland standard to the plea bargaining context was recognized in Hill v. Lockhart, 474 U.S. 52 (1985).

         In his § 2255 Motion, Movant based his claim on Lafler v. Cooper, 132 S.Ct. 1376 (2012) and Missouri v. Frye, 132 S.Ct. 1399 (2012). Lafler and Frye applied the Strickland and Hill standards to the factual pretrial/plea bargaining circumstances of each of those cases. Frye is factually distinguishable from Movant's case and is irrelevant given that defense counsel Frye had not advised the defendant of an existing plea offer. Lafler is similar to Movant's case except in Lafler, counsel's deficient performance was conceded by the government. There, the defendant rejected a plea offer based on erroneous advice of counsel that he could not be convicted, was convicted at trial, and received a harsher sentence than that contemplated in the plea offer. Lafler explored the specific issue of prejudice where ineffective assistance of counsel causes a defendant to reject a plea offer followed by conviction at trial and a harsher sentence than he would have received under the plea offer. In other words, "[h]aving to stand trial... is the prejudice alleged." Lafler, 132 S.Ct. at 1385.

         "Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence." Id. at 1386. A fair trial does not excuse deficient performance during the plea stage. Id. at 1388. Rather, the focus becomes the "fairness and regularity of the processes that preceded [the trial]. Id.

         FACTUAL ISSUES

         The parties agreed that an evidentiary hearing was necessary to resolve certain issues identified in their joint Status Report (Civ. Dkt. 17), and the parties presented witnesses to address those issues. Certain background information will provide context for resolution of those issues.

         A. Background

         The Court initially appointed CJA attorney Kelly Kumm to represent Movant at his arraignment on November 16, 2007. Crim. Dkt. 95; Crim. Dkt. 100. Approximately three weeks later (four months before trial), James Archibald entered an appearance. Crim. Dkt. 108. At the time of the evidentiary hearing, Mr. Archibald had been practicing law for twenty-five (25) years and thus would have been practicing for sixteen (16) years at the time he undertook representation of Movant. Mr. Archibald testified that Movant's relatives contacted him advising that Mr. Kumm wanted Movant to plead guilty, but Movant wanted to go to trial. Mr. Archibald further testified that Movant never stated the he wanted to pursue a plea deal. Rather, Movant maintained the position that he wanted to go to trial throughout his representation.

         Trial was set for April 21, 2008. On April 18, 2008, Mr. Archibald filed a Motion in Limine (Crim. Dkt. 187) pertaining to the alleged late disclosure of certain witnesses and of a "sit-down" interview with Movant and the Government's intent to use the information in the interview against him. After jury selection and brief discussion off the record, the Court heard argument on the specific issue of the allegedly untimely disclosure of a statement, characterized as a confession, that made by Movant to law enforcement at the time of or shortly after his arrest. Trial Tr. at 104, Crim. Dkt. 404. Mr. Archibald apparently thought that the confession was part of the proffered testimony and would not be introduced. Trial Tr. at 106. Mr. Archibald stated that"... I try not to take confession cases to trial for obvious reasons." Trial Tr. at 108. He also stated that neither Mr. Kumm nor Movant had advised him of the post-arrest statements, "[a]nd so this was a complete surprise last week." Id. He continued "[a]nd I don't think we'd be here picking a jury if this is a legitimate confession." Trial Tr. at 109.

         After hearing AUSA Fica's assertions that he had discussed the statement contained in the police report at least twice in the preceding weeks with Mr. Archibald, the Court decided to allow the parties to reopen plea negotiations and to also hold a suppression hearing. The Court denied the Motion to Suppress. Trial Tr. at 106. As discussed below, Movant did not accept the Government's renewed plea offer.

         Movant never attended school and does not read or write in Spanish or in English. Therefore, part of the Court's inquiry is whether he received adequate interpretation of the evidence against him and of the terms and benefits of the plea offers. Although he can apparently understand and speak English on a limited basis, there is no indication that Movant would be able to comprehend the evidence and a plea offer without adequate interpretation. Movant testified on cross examination that he was able to speak some English but not enough to be in court or to understand legal matters and that he had told Mr. Archibald that he needed someone to translate for him.

         Mr. Archibald testified from memory. He had discarded his file along with other inactive files after he moved from his prior office a year ago. Mr. Archibald testified that he utilized the interpretive services of two individuals when visiting Movant in jail. One was his secretary/paralegal who was very fluent in Spanish having spent eighteen months in Ecuador. The other was bilingual having grown up in a Mexican-American home and whose sister was a court interpreter who was unavailable to accompany him on visits to Movant in jail.. The Court questions whether they were sufficiently versed in legal terminology to adequately explain the evidence, the plea offer, and the benefits of pleading guilty.

         Mr. Archibald did not recall reading any materials to Movant word for word. Rather, he summarized the documents and his discussions with AUSA Fica, and those summaries were interpreted. Mr. Archibald gave the documents to Movant, but he recognizes ...


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