United States v. Felix

          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 ...