United States District Court, D. Idaho
MEMORANDUM DECISION & ORDER
Lynn Winmill Chief Judge.
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
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.
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.
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.
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
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.
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
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
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).
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.
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).
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).
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).
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).
§ 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.
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.
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.
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.
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.
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
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
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.
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 ...