United States v. Saenz ( 2007 )


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  •                                                                       F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    July 25, 2007
    TENTH CIRCUIT                      Elisabeth A. Shumaker
    Clerk of Court
    U N ITED STA TES O F A M ER ICA,
    Respondent-Appellee,
    No. 06-1071
    v.                                                (District of Colorado)
    (D.C. Nos. 99-CR-317-RPM and
    AB EL SAENZ,                                        03-CV-980-RPM )
    Petitioner-A ppellant.
    OR D ER AND JUDGM ENT *
    Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
    Abel Saenz, a federal prisoner proceeding pro se, appeals the district
    court’s order denying his habeas corpus petition under 
    28 U.S.C. § 2255
    .
    Because we find that the district court abused its discretion in denying M r. Saenz
    an evidentiary hearing, we reverse and remand.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination
    of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
    therefore submitted without oral argument. This order and judgment is not
    binding precedent, except under the doctrines of law of the case, res judicata, and
    collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    BACKGROUND
    M r. Saenz pled guilty to conspiracy to distribute or possess with intent to
    distribute 500 or more grams of cocaine. The plea agreement indicated that,
    under a tentative computation of M r. Saenz’s criminal history, his Guidelines
    sentence would be between 46 and 115 months incarceration, and that the career
    criminal offender adjustment did not apply. See U.S. Sentencing Guidelines
    M anual § 4B1.1 (2002). The agreement specified, however, that it was not
    conditioned on a particular criminal history category and that the U.S. Probation
    Office would further investigate this issue. Upon completion of its investigation,
    the Probation Office discovered an additional felony drug conviction, which
    triggered the career-offender enhancement and qualified M r. Saenz for a
    sentencing range of 188 to 235 months incarceration.
    After a series of hearings and continuances, during which M r. Saenz
    requested and received new counsel, M r. Saenz moved to withdraw his guilty
    plea. The district court denied the motion and sentenced M r. Saenz to 159
    months imprisonment, a term that included a downward departure for substantial
    assistance.
    On direct appeal, this Court affirmed the denial of M r. Saenz’s request to
    withdraw his plea. See United States v. Saenz, 10 F. App’x. 701, 707–08 (10th
    Cir. M ay 8, 2001) (unpublished). M r. Saenz then filed a motion under 
    28 U.S.C. § 2255
     to vacate his sentence. He alleged that his guilty plea was involuntary,
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    that his attorney was ineffective, and that a prior state conviction that factored
    into his criminal history score should be set aside. The district court denied the
    motion on procedural grounds, finding that M r. Saenz merely repeated claims he
    had already raised on direct appeal. See United States v. Warner, 
    23 F.3d 287
    ,
    291 (10th Cir. 1994).
    M r. Saenz appealed from the district court’s order. This Court affirmed the
    dismissal of M r. Saenz’s challenges to the state convictions and his claims “to the
    extent that they rely on allegations of misleading statements and ineffective
    assistance of counsel related to the length of Saenz’s sentence upon entry of the
    guilty plea.” United States v. Saenz, 97 F. App’x 836, 840 (10th Cir. M ay 12,
    2004) (unpublished). The Court remanded for reconsideration of his claims to the
    extent they raised issues that were not dealt with on direct appeal— namely, that
    M r. Saenz’s difficulty with the English language prevented his understanding of
    the proceedings against him, and that his counsel was constitutionally ineffective
    in ways unrelated to the length of sentence. Id. at 839. W e directed the district
    court to allow “further development of the record” and to make a “determination
    on the merits” of M r. Saenz’s claims. Id. at 840.
    On remand, the district court entered an order directing M r. Saenz to file all
    exhibits, affidavits, and other factual support for his claims by September 20,
    2004. On August 30, 2004, M r. Saenz filed a motion for an emergency restraining
    order, asserting that he could not comply with the court’s order because he had
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    been denied access to his records. M r. Saenz also filed a motion for extension of
    time to comply. On September 7, 2004, he filed a motion for appointment of
    counsel and a motion for leave to conduct discovery. On September 21, 2004, he
    filed a memorandum of law that set out additional facts and points of law to
    support his claim of ineffective assistance of counsel. On October 4, 2004, the
    court appointed counsel to represent M r. Saenz.
    On August 5, 2005, M r. Saenz submitted a letter to the district court
    expressing dissatisfaction with his appointed counsel. On August 24, 2005, M r.
    Saenz’s counsel filed a motion for an evidentiary hearing, which the court
    scheduled for November 8, 2005. On that date, M r. Saenz was brought to the
    court to testify. At the hearing, he stated that he had not had enough time to
    consult with his counsel, that he disagreed with counsel on how best to proceed,
    and that he did not have in his possession necessary papers because he had sent
    them to his family. Upon M r. Saenz’s insistence, the court ordered a continuance.
    In its order, the court stated that “the hearing is continued and will be rescheduled
    for a teleconference hearing when arrangements can be made and the C ourt’s
    calendar permits.” Appellant’s App. Ex. J. at 2. 1
    1
    The order also explained that “[t]he Court informed M r. Saenz that he had
    been brought to the court for the purpose of an evidentiary hearing and that if a
    continuance is to be granted, the hearing would then be conducted by video
    conference and he would not be returned to the court.” Id. at 1–2.
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    The district court later decided, however, not to conduct the hearing.
    Instead, on January 26, 2006, the court issued an order denying M r. Saenz’s
    remanded § 2255 claims. The court explained that M r. Saenz’s protestations at
    the November 8, 2005, hearing had “frustrated the effort to comply with the
    M andate to determine whether there is any basis for relief from the judgment and
    sentence,” and that “[r]ather than again scheduling a hearing,” the court had
    decided to review all “papers that have been filed in this matter . . . to determine
    whether Abel Saenz has set forth any factual basis to support the generalized
    contentions he has made that he did not have effective assistance of counsel.” R.
    Vol. I, Doc. 239, at 3. The court concluded that he had not. First, the court
    found that M r. Saenz did not claim factual innocence. Instead, “[a]ll of his
    contentions relate to the fact that because of his prior record of criminal
    convictions, his initially expected sentence . . . was not an option . . . .” Id.
    Second, the court found that the allegations concerning attorney conflict of
    interest all related to effective assistance at trial, and since a different attorney
    represented M r. Saenz at sentencing, these concerns were “irrelevant.” Id. Third,
    the district court found that this Court had previously affirmed M r. Saenz’s
    sentence and “denied his contentions that the plea was not knowing and
    voluntary.” Id. at 4. Last, the court noted that “[d]espite having had ample
    opportunity to submit support for these vague claims of ineffective assistance of
    counsel and despite the full opportunity to proceed with the evidentiary hearing,
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    M r. Saenz simply has refused to proceed in this matter w ith providing any support
    for his claims.” Id.
    M r. Saenz sought from this Court a certificate of appealability (“COA”),
    see 
    28 U.S.C. § 2253
    (c)(1)(B), arguing that the district court’s failure to
    reschedule the evidentiary hearing denied him the ability to present evidence on
    the remanded claims. W e granted the COA and directed the government to file an
    answer brief. The government complied, and M r. Saenz has submitted two filings
    in response to the government’s brief.
    D ISC USSIO N
    M r. Saenz contends that the district court abused its discretion in refusing
    to hold the continued evidentiary hearing and that it wrongly decided the merits
    of his constitutional claims. Because we find that the district court abused its
    discretion in denying the evidentiary hearing, we need not reach the m erits of M r.
    Saenz’s claims.
    W hen a prisoner files a petition under § 2255, “[u]nless the motion and the
    files and records of the case conclusively show that the prisoner is entitled to no
    relief,” the district court “shall . . . grant a prompt hearing thereon.” 
    28 U.S.C. § 2255
    . W hen a district court refuses to grant an evidentiary hearing and denies a §
    2255 petition, our review proceeds in two steps. First we ask “whether the
    petitioner’s allegations, if proved, would entitle him to relief.” United States v.
    Barboa, 
    777 F.2d 1420
    , 1422 (10th Cir. 1985). If so, we determine whether the
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    denial of the evidentiary hearing constituted an abuse of discretion. Id.; United
    States v. Nichols, 
    169 F.3d 1255
    , 1263 (10th Cir. 1999); see Schiro v. Landrigan,
    
    127 S. Ct. 1933
    , 1939-40 (2007) (reaffirming abuse of discretion standard for
    review of the district court’s decision not to grant an evidentiary hearing).
    M r. Saenz alleges that he entered into an involuntary guilty plea as a result
    of (1) his inability to understand the English language, (2) ineffective assistance
    of counsel due to incorrect guidance on the reversibility of the plea agreement,
    (3) ineffective assistance of counsel due to failure to investigate, and (4)
    ineffective assistance of counsel due to conflict of interest. Although his
    allegations remain vague, if M r. Saenz could establish facts showing that his plea
    was involuntary for one of the reasons listed above, he would indeed be entitled
    to relief. See Cervantes v. Cox, 
    350 F.2d 855
    , 855 (10th Cir. 1965) (“[W]e have
    no doubt that under extreme circumstances the inability of an accused to
    comm unicate with his counsel may deny to him the right to effective
    representation and actually result in the entry of a plea without understanding . . .
    .”) 2 ; Hill v. Lockhart, 
    474 U.S. 52
    , 56 (1985) (“W here . . . a defendant is
    represented by counsel during the plea process and enters his plea upon the advice
    2
    The government argues that this Court’s finding on direct appeal that M r.
    Saenz “read and understood” his plea agreement bars his claim that he had trouble
    communicating with counsel. See Saenz, 10 F. App’x at 708. Given that our
    order of M ay 12, 2004, characterized this claim as one that had not been raised on
    direct appeal, we are not free to conclude that the panel on direct appeal passed
    on this issue.
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    of counsel, the voluntariness of the plea depends on whether counsel’s advice
    ‘was w ithin the range of competence demanded of attorneys in criminal cases.’”
    (quoting M cM ann v. Richardson, 
    397 U.S. 759
    , 771 (1970)); id. at 59 (noting that
    a defendant who pleaded guilty could “allege[] . . . a failure to investigate or
    discover potentially exculpatory evidence”); Ham mon v. Ward, 
    466 F.3d 919
    ,
    929–30 & n.11 (10th Cir. 2006) (noting that active representation of conflicting
    interests constitutes a denial of the right to effective assistance of counsel).
    W e turn, then, to the question of whether the district court abused its
    discretion in denying M r. Saenz an evidentiary hearing. The answer turns on
    whether “the motion and the files and records of the case conclusively show that
    the prisoner is entitled to no relief.” 
    28 U.S.C. § 2255
    . The district court did not
    make such a finding in dismissing this case on the m erits. Instead, the court
    noted that “the inability to proceed with [the evidentiary] hearing because of the
    defendant’s insistence upon a continuance has frustrated the effort to comply with
    the M andate to determine whether there is any basis for relief from the judgment
    and sentence.” R. Doc. 239 at 3.
    The district court’s frustration with M r. Saenz is understandable. In our
    remand order of M ay 12, 2004, we called for “further development of the record
    and a determination on the merits” of M r. Saenz’s constitutional claims. 97 F.
    App’x at 840. The district court went to pains to give M r. Saenz the opportunity
    to develop the record. Initially, the court afforded him several months to submit
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    factual support for his claim. After M r. Saenz protested that prison officials were
    inhibiting his ability to comply with that deadline, the court appointed counsel to
    represent him and scheduled an evidentiary hearing. That hearing began on
    November 8, 2005. From the time of remand, then, M r. Saenz had almost
    eighteen months to put his case before the district court, both through submissions
    to the court and through live testimony at an evidentiary hearing with the
    assistance of appointed counsel. Yet when M r. Saenz finally appeared before the
    court, he was still not prepared to present his case. He no longer alleged that
    prison officials were the cause of his unpreparedness. Instead, he claimed that (1)
    he had insufficient time to consult with his counsel; (2) he disagreed with his
    counsel about his intended testimony; and, (3) he did not have relevant paperw ork
    with him because he had sent it to his family in advance of the hearing (even
    though, by his own admission, his family was present at the hearing and could
    have brought the evidence). See Appellant’s Br. 7; Appellee’s Br., Attach. 3, at
    3–5.
    In light of all this, it would not have constituted an abuse of discretion for
    the court to have denied a continuance on November 8. The court could have
    taken whatever evidence M r. Saenz w as prepared to present and decided the case
    based on that record. Instead of proceeding with the hearing, however, the court
    responded to M r. Saenz’s protests by granting a continuance and agreeing to
    proceed via videoconference at a later date. At this point, M r. Saenz had no
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    reason to believe he faced a now-or-never scenario— the court promised him a
    further opportunity to present witness testimony. In our prior order, we stated
    that “[n]one of the[] issues [M r. Saenz raises] could have been resolved upon the
    record compiled on direct appeal.” Saenz, 97 F. App’x at 839. Because the state
    of the record remains virtually unchanged since the time of that order, we still
    cannot conclude that “the motion and the files and records of the case
    conclusively show that the prisoner is entitled to no relief.” 
    28 U.S.C. § 2255
    .
    Accordingly, we Reverse the order of the district court and Remand with
    instructions to grant M r. Saenz one more opportunity to present his evidence at an
    evidentiary hearing, even if by video conference. For his part, M r. Saenz should
    be prepared to present his case. If he is not, the district court will be justified in
    deciding the merits of his claims based on whatever record exists at that point.
    W e reiterate that M r. Saenz is limited to the issues identified in this Court’s order
    and judgment of M ay 12, 2004— namely, that M r. Saenz’s difficulty with the
    English language prevented his understanding of the proceedings against him, and
    that his counsel was constitutionally ineffective in ways unrelated to the length of
    sentence. All other pending motions are denied.
    Entered for the Court,
    M ichael W . M cConnell
    Circuit Judge
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