United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT A SENTENCE
MARK W. BENNETT, District Judge.
This case is before me on petitioner Daniel Saquil-Orozco's Motion For Vacation Of Sentence Pursuant To 28 U.S.C. § 2255 (§ 2255 Motion) (Civ. docket no. 1), which Saquil-Orozco filed pro se. Saquil-Orozco seeks relief from concurrent sentences of 100 months of imprisonment on a charge of possession of a firearm by a felon and illegal alien and a charge of illegal reentry, pursuant to a Rule 11(c)(1)(C) plea agreement, which included a stipulation to an upward variance from the advisory sentencing guidelines range of 63 to 78 months of imprisonment. Saquil-Orozco asserts two claims of ineffective assistance of his trial counsel and a Brady violation by the prosecution as grounds for § 2255 relief. The respondent denies that Saquil-Orozco is entitled to any relief on his claims.
A. Criminal Proceedings
On February 2, 2012, Saquil-Orozco was indicted as the sole defendant in a two-count Indictment. Count 1 of the Indictment charged that, on or about December 18, 2011, Saquil-Orozco was a felon and illegal alien in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and (5) and 924(a)(2). Count 2 of the Indictment charged that, on December 18, 2011, Saquil-Orozco was found illegally in the United States after removal to Guatemala subsequent to a conviction for a drug felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Counsel was appointed to represent Saquil-Orozco, and Saquil-Orozco entered pleas of not guilty to both charges on March 2, 2012.
Prior to trial, which was eventually set to begin on July 9, 2012, the court scheduled a change-of-plea hearing for July 3, 2012. See Order (Crim. docket no. 45). Saquil-Orozco's trial attorney had negotiated a Rule 11(c)(1)(C) plea agreement, including a stipulation to an upward variance from Saquil-Orozco's anticipated advisory sentencing guidelines range of 63 to 78 months of imprisonment to a range of 100 to 120 months of imprisonment. Trial counsel avers-and Saquil-Orozco does not dispute- that, prior to or in the course of negotiations of a plea agreement, trial counsel had questioned another defense attorney and had performed his own research concerning the likelihood that I would vary upward in a case involving domestic violence, use of firearms, and drug trafficking, and that he had concluded that such a variance was likely in Saquil-Orozco's case. See Respondent's Resistance, Trial Counsel's Affidavit (Civ. docket no. 17-1), 2-3. Saquil-Orozco refused to sign the negotiated plea agreement, however, so his case was returned to the active trial docket for trial on July 9, 2012. See Order (Crim. docket no. 50).
Saquil-Orozco's jury trial began as scheduled on July 9, 2012, and continued on July 10, 2012. See Trial Minutes (Crim. docket nos. 62 and 64). On July 10, 2012, both the prosecution and the defense rested, without the defense calling any witnesses or presenting any evidence. See Trial Minutes (Day 2) (Crim. docket no. 64). Rather, at the conclusion of the evidence, the defense moved for a mistrial on the ground that the prosecution had failed to disclose that an investigating officer would recant, in his trial testimony, a part of his police report of the incident giving rise to the charges against Saquil-Orozco. Specifically, the officer recanted the portion of his police report stating that the suspect was bald (but Saquil-Orozco was not), which the prosecution had apparently known for approximately two weeks prior to trial. See id.; Trial Transcript (Crim. docket no. 85), 323:12-19. The officer had explained, in his trial testimony, that the incorrect reference to the suspect being bald in his report was likely the result of either his misstatement or a faulty transcription of his recorded oral dictation. See Trial Transcript at 300:8-307:23. Trial counsel argued in support of his motion for a mistrial that the failure to disclose this information could have had an impact on Saquil-Orozco's decision not to accept the proposed plea agreement and, instead, go to trial. See id. at 323:15-325:13. Trial counsel argued that "the proper remedy is to put the defendant back in the same position that he was before he rejected the [plea] agreement and, you know, see if he still wants to accept the proposal that was on the table or even some other proposal." Id. at 325:10-13. The prosecution also suggested that less drastic remedies than a mistrial might be appropriate. Id. at 326:5-7.
At that point in the proceedings, I commented as follows:
THE COURT: Well, let me-let's explore this a little bit. Without ruling on the motion for mistrial-and I'm not saying anybody did anything wrong. I'm not at that point, or I may never be at that point. But the easiest resolution is-I mean, this trial, with all due respect to both sides, is really a slow guilty plea. I use that phrase jokingly in chambers with regard to some trials, but, you know, let's face it. Government has a very strong case. You had a thin re[e]d to rely on, you know, with the bald description, and the witness effectively kind of undermined your ability to argue that effectively in my limited judgment here.
Would the government-so without, you know, ruling on a mistrial, would the government-I'm just looking at a simple solution, but it may be too simple. Would the government be willing to put the defendant in the same position as he was last Thursday maybe or Friday when a plea was set up?
Trial Transcript at 326:8-23. After a recess of approximately half an hour, during which the parties discussed the matter, the parties notified me that they planned to enter into a Rule 11(c)(1)(C) plea agreement, and the proceedings morphed into a plea-taking hearing. Trial Minutes (Day 2). Saquil-Orozco signed essentially the same plea agreement that he had previously been offered, and I accepted his guilty plea to both charges in the Indictment. Plea Hearing Minutes (Crim. docket no. 65), 2.
Two portions of the plea agreement that Saquil-Orozco signed are of particular interest here. First, Saquil-Orozco struck out the following subparagraphs of the Stipulation Of Facts in the plea agreement:
J. Defendant used the firearm in connection with another felony offense when he pointed the firearm at others, threatened others with the firearm, and repeatedly discharged the firearm.
K. Defendant has physically abused his former paramour E.C.
L. After returning to Sioux City, Iowa, defendant
possessed, possessed with the intent to sell, sold, and otherwise trafficked and [sic] unknown amount of marijuana from his Sioux City, Iowa home.
Plea Agreement (Crim. docket no. 63), ¶ 10(J)-(L). Notwithstanding that Saquil-Orozco had struck out the quoted subparagraphs of the Stipulation Of Facts, he did agree to the following portion of the plea agreement concerning Sentencing Provisions:
12. Pursuant to Rule 11 (c)(1)(C) of the Federal Rules of Criminal Procedure, the Court shall be bound by the terms of this plea agreement, including the sentencing range as determined by the parties (i.e., 100-120 months' imprisonment). If the Court does not agree to be bound, neither party shall be bound by, or held to perform, the obligations imposed by this agreement, and the agreement shall be rendered null and void. In reaching this agreement the parties anticipated defendant would be placed in Criminal History Category III and have a total offense level (after application of USSG §§2K2.1 (a)(4)(a) and (b)(6)(B) (in connection with) and a two-level reduction pursuant to USSG §3E1.1 (acceptance or responsibility)) of 24, resulting in an advisory guideline range of 63-78 months' imprisonment. The United States believes, and defendant does not contest, that the upward departure and/or variance up to the range of 100-120 months' imprisonment captures defendant's use of the firearm, his physical abuse of his former paramour E. C., and his marijuana trafficking activities.
Plea Agreement, ¶ 12 (emphasis added).
By Order (Crim. docket no. 71), filed August 29, 2012, I set Saquil-Orozco's sentencing hearing for October 4, 2012, but I later reset his sentencing hearing for November 14, 2012. See Order (Crim. docket no. 80). On September 7, 2012, the Clerk of Court received and filed correspondence from Saquil-Orozco that I construed as a pro se Motion For New Attorney And To Withdraw Guilty Plea (Crim. docket no. 72). By Order (Crim. docket no. 75), filed after a hearing on September 7, 2012, a magistrate judge of this court denied Saquil-Orozco's Motion For New Attorney. The magistrate judge found that the supposed discrepancy between the calculation of Saquil-Orozco's advisory sentencing guidelines range as 63 to 78 months, in a draft presentence investigation report (PSIR), and his stipulation to a sentencing range of 100 to 120 months, in the plea agreement, did not indicate that his trial counsel had misjudged the case. Order at 4-5. Rather, the magistrate judge found that Saquil-Orozco had been adequately advised of the reason for and the stipulation to an upward variance and that the calculation of the advisory sentencing guidelines range in the draft PSIR was "not unexpected and certainly d[id] not indicate any error or failure on [trial counsel's] part." Id. at 5. On October 9, 2012, after discussions with trial counsel, Saquil-Orozco filed, through his trial counsel, a Motion To Withdraw Pro Se Motion (Crim. docket no. 81), seeking to withdraw his motion to withdraw his guilty plea. I granted that motion by Order (Crim. docket no. 82), filed on October 9, 2012.
Notwithstanding that Saquil-Orozco had agreed not to try to withdraw his guilty plea, Saquil-Orozco's trial counsel avers-and Saquil-Orozco does not dispute-that, in late September of 2012, Saquil-Orozco informed trial counsel that he wanted to breach the plea agreement as to the stipulated sentencing range and, instead, seek a sentence within the advisory sentencing guidelines range. See Respondent's Response, Affidavit Of Trial Counsel (Civ. docket no. 17-1), 4. Trial counsel avers-and Saquil-Orozco does not dispute-that trial counsel sent Saquil-Orozco a letter dated September 27, 2012, explaining the risks of withdrawing from the portion of the plea agreement stipulating to the sentencing range. See id., Affidavit Of Trial Counsel (Civ. docket no. 17-1), Exhibit B. Trial counsel avers-and Saquil-Orozco does not dispute-that trial counsel again advised Saquil-Orozco not to breach the plea agreement during a face-to-face meeting on October 4, 2012, and yet again during a telephonic conference on November 8, 2012, but Saquil-Orozco insisted on doing so. See id., Affidavit Of Trial Counsel at 4.
Consequently, trial counsel filed objections to certain factual statements and references to the stipulation to the sentencing range in drafts of the PSIR. Somewhat more specifically, the Second Amended And Final Presentence Investigation Report (2nd Amended PSIR) (Crim. docket no. 90) indicates that Saquil-Orozco objected to statements, in the Offense Conduct section and the Offense Level Computation section, that Saquil-Orozco beat or intended to physically hurt his paramour, E.C., or that he possessed or fired a firearm at any time. See 2nd Amended PSIR, ¶¶ 6, 8-9, 17. Also, on November 8, 2012, trial counsel filed a Sentencing Memorandum (Crim. docket no. 93), arguing for a sentence within the advisory sentencing guidelines range. The prosecution filed a Sentencing Memorandum And Memorandum In Support Of It's [sic] Motion For Upward Departure (Crim. docket no. 89) on November 7, 2012.
Trial counsel avers, I recall, and Saquil-Orozco does not dispute, that the following occurred prior to Saquil-Orozco's sentencing hearing:
On November 14, 2012, [trial] counsel appeared before the court for sentencing. During a conference in chambers, the court informed counsel for both parties that if the defendant persisted in abrogating the 11(c)(1)(C) agreement, the court's usual procedure would be to continue the hearing and refer the case to Chief Judge Reade for reassignment. The court also indicated that if the defendant elected to proceed with sentencing under the agreement, the court would be inclined to sentence the defendant to the bottom of the agreed-upon range.
Affidavit Of Trial Counsel at 4. Trial counsel avers-and Saquil-Orozco does not dispute-that after this conversation in chambers, the following occurred:
[Trial] [c]ounsel then met with the defendant and briefly explained the court's position, including the potential consequences of reassignment to a different judge for sentencing. I also explained the likelihood that the court would sentence the defendant to 100 months if we proceeded with sentencing that day. Mr. Saquil wanted to know if I could guarantee that the court would sentence him to 100 months, and I told him no, I could not give him a guarantee, but I was reasonably confident that the court would do so based on the court's statements in chambers. The defendant then elected to proceed with sentencing pursuant to the 11(c)(1)(C) plea agreement and I so informed the court.
Affidavit Of Trial Counsel at 5.
The Sentencing Hearing Minutes (Crim. docket no. 97), the Sentencing Hearing Transcript (Crim. docket no. 105), and the Judgment (Crim. docket no. 98) reflect that I did, indeed, accept the parties' Rule 11(c)(1)(C) plea agreement and sentenced Saquil-Orozco to 100 months of imprisonment on Counts 1 and 2, to run concurrently. I explained that, while a sentence of 100 months was "significantly higher than the actual guideline range in the case, " I agreed that it was a reasonable sentence in light of the 18 U.S.C. § 3553(a) aggravating and mitigating factors in the case. Sentencing Hearing Transcript at 4:14-5:1. Although I offered the parties the opportunity to do so, neither party requested a further explanation of my application of the § 3553(a) factors. Id. at 5:2-10.
On November 28, 2012, pursuant to Saquil-Orozco's request, trial counsel filed a Notice Of Appeal (Crim. docket no. 101). Saquil-Orozco asserts-and the respondent does not dispute-that trial counsel filed an Anders brief on appeal, so Saquil-Orozco filed a pro se supplemental brief asserting the following grounds: (1) trial counsel was ineffective; (2) the court erred in denying his motion for new counsel; (3) his guilty plea was coerced; (4) his sentence was enhanced based on false statements or evidence; (5) the court erred in sentencing him above the guidelines range; (6) the charges against him are false; and (7) the convictions were or are prejudicing his pending immigration ...