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Ontiveros-Ponce v. Ryan

United States District Court, D. Arizona

June 10, 2019

Jorge Luis Ontiveros-Ponce, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          Honorable John Z. Boyle United States Magistrate Judge.

         Petitioner Jorge Luis Ontiveros-Ponce has filed a pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.)[1]

         I. Summary of Conclusion.

         Petitioner raises two grounds for relief in his timely Petition. Petitioner's claim in Ground One is meritless. Petitioner rejected the government's plea offer because he refused to accept a stipulation that required him to be sentenced within the final advisory guideline range. Petitioner's claim in Ground Two is procedurally defaulted and meritless. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.

         II. Background.

         a. Facts of the Crimes.

         The Reporter's Transcript of Proceedings from the July 24, 2017 plea hearing lays out the following agreed upon facts. On or about May 16, 2010, Petitioner was removed from the United States to Mexico through Nogales, Arizona. (Doc. 4-8 at 16-17.) Petitioner did not obtain permission from the Secretary of the Department of Homeland Security to return to the United States after that removal. (Id.) On or about November 22 of 2016, Petitioner was found in the United States at or near Phoenix. (Id.) Petitioner admits he was voluntarily present in the United States when he was found. (Id.) Petitioner is not a citizen or national of the United States, and there is no claim to dual citizenship. (Id.)

         b. Plea Proceedings.

         On January 17, 2017, Petitioner was indicted on charges of Reentry of a Removed Alien. (CR Doc. 8.) On June 2, 2017, the prosecution filed a notice that Petitioner rejected the plea offer and subsequently requested a Frye[2] hearing. (CR Docs. 17, 19.) On June 14, 2017, the court held a Frye hearing and confirmed that Petitioner understood the implications of continuing to trial. (CR Doc. 21.) At the Frye hearing, the government advised Petitioner and the Court that Petitioner's offense level was likely to be level 24 with a criminal history category of 5 or 6. (CR Doc. 61 at 3.)[3] Petitioner was told his sentence could be up to 10 years of imprisonment. (Id.) Petitioner's counsel advised the Court that Petitioner was “having a difficult time accepting any type of plea, especially one where, in certain circumstances within this plea agreement, it says that the -- where we would be stipulating that the sentence would fall within the guideline range and we would not have the opportunity to request a variance downward.” (CR Doc. 61 at 5.) The Court and counsel stated:

THE COURT: Understood. So Ms. Aguilar, at present, has your client made a decision with regard to accepting or rejecting the plea offer?
MS. AGUILAR: Not really, Your Honor. I mean, the discussions that we've had, he's indicated he doesn't want this plea if it means he does have to be, you know, bound to the guideline range and no variance downward which I can't guarantee that wouldn't happen at sentencing.
But he's also told me that he doesn't really want to go to trial either. He knows that at trial the offense level would be higher regardless of where ...

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