United States District Court, D. Arizona
ORDER
Honorable Jennifer G. ZIPPS United States District Judge
Pending
before the Court is Petitioner Ernesto Felix's Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255. (Doc. 1.[1]) The Government responded. (Doc. 13.)
Felix did not file a reply. Dispositive of this action is
whether Felix is entitled to equitable tolling of the statute
of limitations for filing a § 2255 Motion because of
alleged memory issues. Upon consideration of the record and
the parties' arguments, the Court will deny Felix's
§ 2255 Motion as untimely filed.
I.
Background
In
September 2011, a grand jury indicted Felix and co-defendants
Luis Corral, Gerardo Cota-Soto, Jesus Bautista-Sanchez, and
Carmen Valdivia-Salazar charging one count of Conspiracy to
Possess with Intent to Distribute Methamphetamine and Cocaine
in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. §
841(b)(1)(A)(viii) and 21 U.S.C. §841(b)(1)(A)(ii)(II);
two counts of Possession with Intent to Distribute
Methamphetamine in violation of 21 U.S.C. §841(a)(1) and
21 U.S.C. §841(b)(1)(A)(viii); and one count of
Possession with Intent to Distribute Cocaine in violation of
21 U.S.C. §841(a)(1) and 21 U.S.C.
§841(b)(1)(A)(ii)(II). (CR 11-3280-TUC-JGZ (CR 11-3280),
Doc. 12.) The charges arose from events occurring on August
24 and 25, 2011. (Id.) During the course of this
action, Felix was represented by a succession of appointed
counsel.
In
January 2013, Felix, during first representation, pleaded
guilty to Count 3 of the indictment alleging possession with
intent to distribute methamphetamine. (CR 11-3280, Docs. 131,
220.) During the colloquy, Felix stated that he did
“not remember what happened” regarding the events
leading to his arrest, he understood the charges against him,
and he agreed that the government could prove the factual
basis set forth in the plea agreement. (CR 11-3280, Doc. 220,
pp. 6, 13, 15-20.[2]) The plea agreement provided for a range
of 63 to 108 months of imprisonment. (Id. at 19.)
On May
7, 2013, Felix's counsel notified the Court that Felix
was not safety valve eligible and that counsel needed to
confer with Felix about continuing with his guilty plea or
withdrawing from it.[3] (Doc. 13, p. 4.) On that same date, Felix
filed a request for new counsel, claiming that current
counsel was ineffective because he did not “adequately
explain[] facts regarding papers he aggressively expects me
to sign” or answer Felix's questions, and counsel
lacked interest demonstrated by his disregard of Felix's
“objections and assertions with regard[] to my
case.” (Id.; CR 11-3280, Doc. 180.) The Court
granted Felix's request and appointed new counsel. (Doc.
13, p. 4.)
At a
June 12, 2013 status conference, Felix's second counsel
requested additional time to consider matters pertinent to
sentencing and to have Felix examined to determine
competency, indicating that Felix “may have a
diminished capacity to understand things.” (CR 11-3280,
Doc. 372, p. 4.) On June 15, 2013, Felix's counsel filed
a Motion to Determine Competency stating “that there is
a good faith question as to Mr. Felix's present
competency, based on a mental disease or defect, to either
assist in his own defense at trial or be competent at
sentencing. There were issues of comprehension that arose at
the change of plea hearing in January, 2013. Also, mental
health questions are mentioned in the PSR. Finally, Mr. Felix
has always been in special education classes, and he has used
and abused many types of drugs to self-medicate.” (CR
11-3280, Doc. 215, p. 2.) The Court granted the requested
evaluation.
Psychologist
James P. Sullivan, Ph.D., evaluated Felix on September 2013
and January 2014 to determine competency. (CR 11-3280, Docs.
255, 256.) Felix's performance on cognitive testing was
“consistent with feigning of competency related
impairment.” (CR 11-3280, Doc. 256, p. 2.) Dr.
Sullivan's testing also indicated that Felix was feigning
or exaggerating a mental disorder. (Id. at 3.) Since
the tests showed Felix was “clearly feigning, ”
Dr. Sullivan was unable to complete the evaluation because
any further testing would have been invalid and unreliable.
(Id.) Dr. Sullivan concluded that “it is
essentially impossible to determine whether Mr. Felix does
indeed suffer from authentic impairment in . . . [cognitive
and mental] areas. Obtained results indicate that Mr. Felix
is either wholly fabricating impairment (malingering) or
exaggerating authentic impairment (symptom embellishment). It
is not possible to definitely determine which.”
(Id.)
Dr.
Sullivan also noted that Felix's school transcripts from
1988 to 1998 showed “poor to failing performance which
appears to have worsened over time.” (Id. at
4.) Although Dr. Sullivan could not “definitely
determine the etiology of this poor school performance[,
]” he stated that “authentic cognitive impairment
is certainly a possibility.” (Id.)
At a
January 27, 2014 status conference, defense counsel stated
that in light of Dr. Sullivan's report, it appeared that
Felix was competent to be sentenced. The Court agreed that
based on Dr. Sullivan's report, Felix did not appear to
have a competency issue that would prevent going forward.
At a
March 17, 2014 status conference, Felix's counsel advised
that Felix wanted to withdraw from the plea agreement because
when the plea was entered, the parties thought Felix was
safety valve eligible and they have since determined he was
not. (CR 11-3280, Doc. 366, p. 2.) Defense counsel also
acknowledged Dr. Sullivan's opinion that Felix “was
exaggerating or fabricating and . . . [the Doctor]
couldn't come to good conclusions about the origins of
his mental health issues because I guess his testing was
clouded by what he thought was malingering.”
(Id. at 3.) Defense counsel also stated that whether
Felix was “exaggerating or malingering, I think Mr.
Felix has some mental problems, so I have a hard time
explaining things to him and a hard time getting him to
understand.” (Id. at 6-8.) The matter was
continued to give Felix time to confer with counsel
concerning whether he should withdraw from the plea
agreement. (Id. at 7-8.) On that same date, the
Court set a sentencing hearing, which was later continued to
April 16, 2014.[4] (Doc. 13, pp. 5-6.)
At
sentencing on April 16, 2014, Felix's counsel stated that
Felix did not want to go forward with the plea agreement and
sentencing because “he didn't understand what was
going on and he did not validly plead guilty.” (CR
11-3280, Doc. 367, pp. 7-8.) Pertinent to the instant §
2255 Motion, Felix stated that he thought his girlfriend and
co-defendant “Carmen drugged me, and if I committed
this crime-because I think I didn't commit this crime at
all.” (Id. at p. 8.) The Court discussed with
Felix his signed plea agreement and the factual basis he
admitted when he had pleaded guilty. (Id. at 9-12.)
The Court informed Felix that his attorney could request that
Felix be allowed to withdraw from the guilty plea, and if he
made that request, the Court would be required to assess
whether the plea was involuntarily made. (Id. at
13.) In a sidebar with counsel, the Court expressed concern
whether Felix had a good understanding of the potential
sentence he faced. (Id. at 14.) Felix's counsel
stated that “Dr. Sullivan says he's exaggerating,
but Dr Sullivan says he can't tell if there's an
underlying mental health issue because he's exaggerating
so much. So, you know, he doesn't have a full deck, as
far as I'm concerned.” (Id. at 15.)
Felix's counsel also stated that “what he tells me
is he was told by . . . [first defense counsel] just to say
yes or admit it and he didn't really know what he was
doing.” (Id. at 16.)
Following
the sidebar, the Court asked Felix about his discussions with
his prior counsel concerning the mandatory sentencing range
and reminded Felix “that was part of the reason for his
discontinuing representation. You were unhappy with him and
unhappy with that, and he asked to withdraw.”
(Id. at 19.) Felix responded that he didn't
remember. (Id. at 20.)
Counsel
then addressed sentencing. In doing so, the prosecutor set
forth the basis for the government's decision to charge
Felix with a crime that provided for a minimum mandatory
sentence. (Id. at 20-23.) When Felix was asked
whether he wanted to say something for the Court to consider
before sentencing him, Felix stated that he did not remember
what happened concerning the crime, he did not do
“this”, and “I think these people set me up
to whatever happened, honestly.” (Id. at 24.)
The
Court found Felix guilty of possession with intent to
distribute approximately 7.1 kilograms of methamphetamine by
virtue of his guilty plea to that charge. (Id. at
24.) The Court sentenced Felix to ten years' imprisonment
followed by five years of supervised release. (Id.
at 27.) During the sentencing, Felix stated that his first
attorney did not tell him “about the stash house”
and he told his attorney he “did not know anything . .
. about that.” (Id. at 26.) He stated that it
was not “fair that everybody got 63, 60-something
months and I'm getting more time if I didn't do
anything. . . . Like I said, I don't remember a lot of
things.” (Id. at 28.) Felix also stated that
he “didn't commit this crime.” (Id.
at 29.) Felix asserted that he did not agree to his sentence.
(Id. at 29.)
The
Court next explained that under the terms of the plea
agreement, Felix had the option to withdraw from the
agreement because he received a sentence greater than that
contemplated in the agreement. (Id. at 30.) The
Court also advised: “If you did withdraw, then you have
the right to appeal your sentence if you chose to do
so.” (Id.) Felix stated that he wished to
appeal. (Id.) The Court considered Felix to have
withdrawn from the plea ...