United States District Court, D. Arizona
CINDY K. JORGENSON, District Judge.
Pending before the Court is Movant's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (CR 08-1126, Doc. 155; CIV 13-1992, Doc. 7.) and Movant's Motion to Expedite Ruling of 28 U.S.C. 22 Proceedings (CIV 13-1992, Doc. 20). The Court will grant the motion to expedite, deny the motion to vacate, set aside, or correct sentence, and dismiss the claims. Additionally, a certificate of appealability shall not issue as to Lopez-Arroyo's claims.
On September 10, 2008, Raul Christian Lopez-Arroyo ("Lopez-Arroyo") was indicted on one count of Conspiracy to Possess with Intent to Distribute Marijuana, and one count of Possession with Intent to Distribute Over 1, 000 kilograms of Marijuana. (CR 08-1126, Doc. 5.) Lopez-Arroyo was appointed counsel.
After the initially appointed attorney and two subsequent attorneys were permitted to withdraw, attorney Rodolfo Valenzuela was appointed to represent Lopez-Arroyo on July 28, 2009. (Minute Entry, Doc. 50.) Subsequent motions to replace Valenzuela with new counsel were denied. (Docs. 55, 58-60.)
Mr. Valenzuela asserts prior to trial, in August 2009, the government offered a plea agreement with a stipulated range of 70-87 months imprisonment. (CIV 13-1992, Aff. of Rodolfo Valenzuela, Doc. 12-1, ¶ 12.) Valenzuela attests that at the time the plea was offered he explained to Lopez-Arroyo the elements of the charges against him. Id. Valenzuela also indicates he described the rights he would be giving up, the sentencing ranges, and the consequences of both entering a guilty plea and going to trial. Id. at ¶ 13. Valenzuela states after "extensive" conversation about the plea agreement, Lopez-Arroyo decided not to accept the plea offer and to proceed to trial. Id. at ¶ 14.
On the first day of jury trial, prior to the jury's presence in the courtroom, in front of Lopez-Arroyo and in open court, Valenzuela stated the following:
Just that, Your Honor, I went to see Mr. Lopez-Arroyo on Sunday. He was apparently transferred to FCI, so I didn't get to see him on that day, and so I met with him this morning just to talk about the case again. Clearly - and he understands that we had suggested he take the plea based on what I had at the time. ... In fact, prior to this, I met with my client and he wanted a speedy trial. He wanted a speedy trial. I'm not quite sure he understands, you know, the legal proceedings, and he is getting some advice from someone at CCA at the time. But now, after talking to him and explaining to him that, based on the conversation that I had, it certainly gives me something to work with, now I think he has a little more understanding of what I'm going to try to do for him.
(Tr. of Jury Trial - Day One, Doc. 134, p. 8-9) (emphasis added).
During trial, the prosecution called undercover ICE Agent Patrick McKenna and Special Agent Eric Feldman to testify.
On the second day of trial, Lopez-Arroyo indicated he wished to halt proceedings and enter a guilty plea. (Change of Plea, Doc. 131, p. 2.) Lopez-Arroyo asserts that prior to his change of plea, Valenzuela and the government told him they needed to atone for their error and offered him a reduced sentence with the guarantee his children would be returned to the United States. (Def.'s Amended Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct a Sentence by a Person in Fed. Custody Memorandum, Doc. 8, p. 3.) Valenzuela and government counsel, in contrast, assert that no agreement was made at that time; that prosecution had withdrawn the plea agreement at the commencement of trial, and there was no knowledge Lopez-Arroyo's children were ever deported, nor any promises for their return. (CIV 13-1992, Gov't Response to Def.'s Am. Mot. to Vacate, Doc. 12, p. 15; Valenzuela Aff., Doc. 12-1, ¶ 13.) On November 4, 2009, in the middle of the trial, Lopez-Arroyo pleaded guilty to Counts One and Two of the indictment. (Doc. 131, p. 14.)
The change of plea transcript indicates that Lopez-Arroyo understood there was no agreement with the government, that no one had forced, threatened, or coerced Lopez-Arroyo into pleading guilty, that Lopez-Arroyo voluntarily pleaded guilty and no promises had been made to Lopez-Arroyo. Id. at pp. 8-10. The review further reveals that the district court judge advised Lopez-Arroyo of the sentencing range and consequences, the mandatory minimum sentence, the discretion of the sentencing judge, and Lopez-Arroyo's constitutional rights. Id. at pp. 3-4, 6-8. Moreover, Lopez-Arroyo stated that he was satisfied with the services of his attorney. Id. at 10. Additionally, the proceedings were translated by court interpreters. See generally 11/4/2009 MEO, Doc. 71.
After the change of plea, Valenzuela filed a Motion to Withdraw. (Mot. to Withdraw Rodolfo Valenzuela, Doc. 102.) Lopez-Arroyo was assigned a fifth attorney, Jose Lerma, who was also subsequently permitted to withdraw while the matter was on appeal. (Mot. to Withdraw Jose Lerma, Doc. 112; Order of U.S.Ct. of App., Doc. 127.)
On December 2, 2010, all matters proceeded to sentencing before the Hon. John M. Roll. Lopez-Arroyo was sentenced to 192 months in prison followed by 60 months of supervised release for the drug convictions. (Tr. of Sentencing, Doc. 138, p. 26.) At sentencing, Lerma announced that while Lopez-Arroyo preferred an interpreter, he also spoke a bit of English. Id. at 2.
A Notice of Appeal was filed on December 8, 2010. (Doc. 12-4.) On April 19, 2012, the Ninth Circuit Court of Appeals affirmed Lopez-Arroyo's sentence in an unpublished opinion, holding that the sentence was not imposed in violation of the Sixth Amendment, there were no procedural errors, and the sentence imposed by the district court was substantively reasonable. (Doc. 146-1, p. 3.) The appellate court declined to consider Lopez-Arroyo's claim on direct appeal that the district court should have continued sentencing sua sponte. Id. The mandate was issued on May 11, 2012. (Mandate, Doc. 146.)
On December 2, 2013, Lopez-Arroyo filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (CIV 13-1992, Doc. 1.) On June 5, 2014, Lopez-Arroyo filed an Amended Motion and Memorandum of Law. (CIV 13-1992, Doc. 7.) The government has filed a response and Lopez-Arroyo has filed a reply.
II. Section 2255 Motion
In his § 2255 Motion, Lopez-Arroyo alleges three grounds for relief. In Ground One, he alleges he was denied effective assistance of counsel because he was induced to waive trial and plead guilty based on a promise for a more lenient sentence and other mitigating factors that were rejected by the court. In Ground Two, Lopez-Arroyo alleges counsel was ineffective because Valenzuela did not challenge the accuracy of the translation and interpretation of the plea colloquy. In Ground Three, Lopez-Arroyo asserts actual innocence of Count One, the violation of 21 U.S.C. § 846.
A. Statute of Limitations and Equitable Tolling
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established a one-year statute of limitations for 28 U.S.C. § 2255 motions. See 28 U.S.C. § 2255; United States v. Skurdal, 341 F.3d 921 (9th Cir. 2003). The limitations period runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through ...