Madrigal-Lopez v. United States ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Fany Madrigal-Lopez, No. CV-19-05366-PHX-DLR No. CR-17-01110-001-PHX-DLR 10 Petitioner, ORDER 11 v. 12 United States of America, 13 Respondent. 14 15 16 Before the Court is the Report and Recommendation (“R&R) of Magistrate Judge 17 Camille D. Bibles (CV Doc. 31),1 which recommends that Petitioner’s 28 U.S.C. § 2255 18 petition be denied. The Magistrate Judge advised the parties that they had fourteen days 19 from the date of service to file specific written objections with the Court. (Id.) Petitioner 20 filed an objection to the R&R on January 19, 2021 (CV Doc. 32) and Respondents filed a 21 response on February 10, 2021 (CV Doc. 37). The Court has considered the objections 22 and reviewed the R&R de novo. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). The 23 Court will overrule Petitioner’s objections and adopt the R&R in its entirety for the 24 following reasons. 25 I. Background 26 On December 6, 2017, the United States indicted Petitioner for (1) Conspiracy to 27 Possess with Intent to Distribute a Controlled Substance, (2) Maintaining a Drug Involved 28 1 “CV” refers to the civil case docket and “CR” refers to the criminal case docket, 2:17-cr-01110-DLR-1. 1 Premises, (3) Distribution of a Controlled Substance Resulting in Death and Serious Bodily 2 Injury, (4) Unlawful Use of a Communications Facility, and (5) Possession with Intent to 3 Distribute a Controlled Substance. (CR Doc. 24.) On April 17, 2018, Petitioner entered 4 into a plea agreement to plead guilty to (1) Conspiracy to Possess with Intent to Distribute 5 a Controlled Substance and (2) Distribution of a Controlled Substance Resulting in Death 6 and Serious Bodily Injury. (CR Doc. 88.) In the agreement, Petitioner admitted that she 7 “knowingly and intentionally sold and distributed several pills to P.L. that [] looked like 8 oxycodone. These pills in fact contained fentanyl and other substances. P.L. then 9 consumed these pills and the fentanyl in these pulls caused P.L. to overdose and die that 10 same night.” (CR. Doc. 138 at 10.) 11 In the plea agreement, Petitioner further waived “any and all motions, defenses, 12 probable cause determinations, and objections that [she] could assert to the Indictment, 13 First Superseding Indictment, or information” and waived the “right to file an appeal, any 14 collateral attack, and any other writ or motion that challenges the conviction, an order of 15 restitution or forfeiture . . . or any aspect of [her] sentence,” including a motion under § 16 2255 and any motion for modification of her sentence,” other than to assert “an otherwise- 17 preserved claim of ineffective assistance of counsel or of ‘prosecutorial misconduct.’” (Id. 18 at 5.) The agreement also contained a provision in which Petitioner agreed to forfeit all 19 interest in any asset that she owned, including her residence in Peoria, Arizona. (Id. at 5- 20 7.)2 In entering the agreement, Petitioner averred that she had carefully reviewed every 21 part of the agreement with her counsel, understood the agreement, voluntarily entered into 22 the agreement, and was satisfied that counsel had represented her competently. (Id. at 11- 23 12.) 24 On April 18, 2018, at the conclusion of a plea colloquy before a magistrate judge, 25 Petitioner entered her guilty plea and the government filed a motion for forfeiture the same 26 day. (CR Docs. 89, 90.) On October 4, 2018, Petitioner was sentenced to concurrent terms 27 2 The agreement noted that the government would accept $35,000 “no later than 45- 28 days before [her] scheduled sentencing hearing” in lieu of the Peoria property. (CR Doc. 138 at 9.) 1 of 144 months’ imprisonment on each count of conviction, followed by an aggregate term 2 of five years’ supervised release.3 (CR Doc. 139.) Notwithstanding the waivers in her 3 agreement, Petitioner appealed her convictions and sentences. (CR Doc. 147.) The Ninth 4 Circuit concluded that Petitioner had waived her right to appeal her conviction and 5 sentence, found no issue with the validity of the waiver, declined to address Petitioner’s 6 claims of ineffective assistance of counsel, and dismissed the relevant appeal. United 7 States v. Madrigal-Lopez, 770 F. App’x 827, 828 (9th Cir. May 23, 2019). On October 10, 8 2019, Petitioner filed her motion to vacate, set aside, or correct sentence under 28 U.S.C. 9 § 2255. (CV Doc. 1.) 10 II. Discussion 11 Petitioner’s first four objections generally fall into the “ineffective assistance of 12 counsel” category. First, Petitioner objects that the plea agreement was not read or 13 explained to her, and claims that she only represented at the Rule 11 hearing that she 14 understood the agreement because her counsel told her if she did not sign the agreement, 15 she would likely receive a sentence of 20 years to life. (CV Doc. 32 at 2.) The R&R 16 addressed this issue, and explained that, contrary to her current representations, Petitioner 17 averred that she had reviewed the plea agreement with her counsel and a Spanish language 18 interpreter, understood each provision, and had not been threatened or forced into signing 19 the agreement. (CV Doc. 31 at 10-11.) The R&R elucidates, 20 Madrigal-Lopez’s solemn declaration made in open court carries a strong presumption of verity, notwithstanding her 21 later disavowal of her own statements. See Lee v. United States, 137 S. Ct. 1958, 1967 (2017) (“Courts should not upset a plea 22 solely because of post hoc assertions from a defendant [.]”); United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008) 23 (“Statements made by a defendant during a guilty plea hearing carry a strong presumption of veracity in subsequent 24 25 3 At the onset of the hearing, Petitioner asked the Court for a third continuance of the sentencing to have additional time to raise $35,000 to prevent the forfeiture of the 26 Peoria residence. (CR Doc. 158 at 4.) The Court denied that request but recessed the 27 hearing so Petitioner could review the Presentence Investigation Report (“PSR”) with counsel. (Id.) At the conclusion of the recess, she told the Court that she had sufficiently 28 reviewed the PSR with counsel. (Id. at 5.) 1 proceedings attacking the plea.”). 2 (Id. at 9-10 (citations omitted)). Petitioner’s first objection is overruled. 3 Similarly, Petitioner complains that her attorney never informed her that, by signing 4 the plea, she agreed to waive her right to appeal. (CV. Doc. 32 at 3.) Once more, the R&R 5 considered this argument and noted that, at her change of plea hearing, 6 Madrigal-Lopez averred she understood the rights she was 7 waiving by pleading guilty, including her right to appeal or collaterally attack her conviction and statement . . . Madrigal- 8 Lopez was adequately informed of the consequences of her plea both in the written plea agreement and during the Rule 11 9 hearing, therefore, her guilty plea is considered voluntary and knowing. 10 11 (CV Doc. 31 at 10-12 (citation omitted).) Petitioner’s second objection is overruled. 12 Relatedly, Petitioner alleges that no one read her PSR to her. To the contrary, the 13 R&R explained that the Court deliberately recessed during Petitioner’s October 4, 2018 14 sentencing hearing so she could further review the PSR with counsel. (CV Doc. 31 at 5 n. 15 3.) And, when Petitioner returned from the recess, she confirmed that she had sufficiently 16 reviewed the PSR with counsel. (CR Doc. 158 at 5.) Petitioner’s third objection is 17 overruled. 18 Finally, Petitioner argues that the loss of her home is attributable to counsel’s subpar 19 performance. Particularly, she blames her attorney for the ultimate forfeiture of her home 20 because he did not inform her that her extension request had been denied until six days 21 before her sentencing. (CV Doc. 32 at 4.) Petitioner cannot credibly divert the blame for 22 her own failure to secure the necessary funds to her attorney. The plea agreement gave 23 Petitioner until “no later than 45-days before [her] scheduled sentencing hearing” to 24 provide $35,000 to the government in lieu of the Peoria property. (CR Doc. 138 at 9.) At 25 the time, Petitioner’s sentencing was scheduled for July 2, 2018. (CR Doc. 87.) Therefore, 26 Petitioner was required to produce the funds by May 18, 2018. Three days before that 27 deadline, the Court granted Petitioner’s first motion to continue, and reset sentencing for 28 October 1, 2018, giving Petitioner a three-month extension to come up with the $35,000. 1 (CR Docs. 108, 109.) On September 14, 2018, Petitioner filed a second motion to continue 2 (CR Doc. 131), which the Court, in its discretion, denied (CR Doc. 132). Even if counsel 3 waited until 6 days before the sentencing to inform Petitioner of the denial, Petitioner had 4 already received a significant prior extension, which Petitioner has not shown brought her 5 any closer to securing the funds. More importantly, she cannot show that, but for counsel’s 6 failure to inform her of the denial at an earlier date, there is a reasonable probability she 7 would have secured the funding and prevented the forfeiture of her home. And, even if she 8 could, Petitioner has not shown that counsel’s representation fell below an objective 9 standard of reasonableness. See Strickland v. Washington, 466 U.S. 668 (1984). 10 Petitioner’s fourth and final counsel-related objection is overruled. 11 Next, Petitioner objects that the necessary elements of the charged offenses were 12 not met, because “[n]ot once did I admit or comment that I gave him pills that ‘I knew’ 13 contained fentanyl.” (CV Doc. 32 at 4.) Even if Petitioner had not waived the right to raise 14 this argument, the R&R addressed this contention and rejected it. (CV Doc. 31 at 11.) 15 Contrary to Petitioner’s current representations, in her plea agreement, Petitioner clearly 16 admitted, “[t]he defendant knew that [the substance she knowingly and intentionally 17 distributed] was fentanyl[.]” (CR Doc. 138 at 9.) This objection is overruled. 18 Finally, Petitioner asserts that, because she included the words “without prejudice” 19 above her name when she signed the plea agreement, the plea agreement is invalid. (Id. at 20 12.) The R&R addressed this argument, noting that the magistrate judge drew Petitioner’s 21 attention to the “without prejudice” language during the change of plea hearing, and 22 Petitioner agreed that, despite the language, she was pleading guilty because she was guilty 23 of the relevant crimes. (CV Doc. 31 at 12 (citing CV Doc. 157 at 17).) Even if Petitioner 24 had not made this admission, a petitioner may not hoodwink the Court and invalidate a plea 25 agreement by surreptitiously including the phrase “without prejudice” above the signature. 26 Petitioner’s final objection is overruled. 27 IT IS ORDERED that Petitioner’s Objections to the R&R (CV Doc. 32) are 28 OVERRULED. 1 IT IS FURTHER ORDERED that the R&R (CV Doc. 31) is ACCEPTED. 2 IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2255 (CV Doc. 1) is DISMISSED with prejudice. 4 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 5 || proceed in forma pauperis on appeal are DENIED because the dismissal of the Petition is 6 || justified, for reasonable jurists would not find the ruling debatable and Petitioner has not || made a substantial showing of the denial of a constitutional right. The Clerk of the Court || shall enter judgment denying and dismissing Petitioner’s Petition for Writ of Habeas □□ Corpus filed pursuant to 28 U.S.C. § 2255 (CV Doc. 1) with prejudice and shall terminate 10 || this action. 11 Dated this 22nd day of April, 2021. 12 13 14 {Z, 16 Upited States Dictria Judge 17 18 19 20 21 22 23 24 25 26 27 28 -6-