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United States of America v. Nicolas Rosas-Gutierrez

April 4, 2013

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
NICOLAS ROSAS-GUTIERREZ, DEFENDANT.



The opinion of the court was delivered by: Patrick J. Schiltz United States District Judge

ORDER

Defendant Nicolas Rosas-Gutierrez ("Rosas") pleaded guilty to conspiracy to distribute methamphetamine and was sentenced to 135 months in prison. Rosas now moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, on the grounds that he was denied effective assistance of counsel and coerced into pleading guilty. For the reasons set forth below, Rosas's motion is denied.

I. BACKGROUND

Rosas was indicted on February 19, 2009 on one count of conspiracy to distribute methamphetamine and one count of distribution of methamphetamine.*fn1 He was represented at his August 11, 2009 arraignment by Assistant Federal Defender Caroline Durham. On August 19, 2009, retained attorney Charles L. Hawkins filed a notice of appearance on Rosas's behalf, and Durham's representation was terminated. ECF No. 8. Shortly thereafter, attorneys Nelson L. Peralta and Lisa Lodin Peralta filed a notice of appearance informing the Court that they would be serving as co-counsel with Hawkins on behalf of Rosas. ECF No. 35.

Rosas pleaded guilty on November 23, 2009 to conspiring to distribute 50 grams or more of actual methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Both Hawkins and Nelson Peralta represented Rosas at the plea hearing. Plea Tr. at 2 [ECF No. 77] ("Plea Tr."). Both Hawkins and Nelson Peralta again appeared on Rosas's behalf at the sentencing hearing on September 10, 2010. Sent'g Tr. at 2 [ECF No. 71] ("Sent'g Tr."). As noted, Rosas was sentenced to 135 months in prison.

Rosas now collaterally attacks his sentence on three grounds. First, Rosas alleges that he was denied effective assistance of counsel because, he claims, Hawkins had a conflict of interest stemming from his prior representation of one of Rosas's co-conspirators. Second, Rosas alleges that his guilty plea was invalid because he was pressured by Hawkins into pleading guilty, and because Hawkins failed to give him all of the information that he needed to make an informed decision. And third, Rosas alleges that Hawkins was ineffective in failing to pursue "safety valve" relief under 18 U.S.C. § 3553(f).

The Court held an evidentiary hearing on Rosas's motion and heard testimony from Rosas, Hawkins, and Nelson Peralta. Based on that testimony and the other evidence in the record, the Court finds that Rosas's challenges are meritless.

II. ANALYSIS

Under 28 U.S.C. § 2255(a), "[a] prisoner in custody under sentence of a [federal] court . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." Rosas argues that his sentence was

(1) imposed in violation of the Sixth Amendment because he was denied effective assistance of counsel and (2) imposed in violation of the Due Process Clause of the Fifth Amendment because his guilty plea was involuntary and uninformed.

A. Hawkins's Successive Representation of Lucio and Rosas Rosas alleges that he received ineffective assistance of counsel because, before representing Rosas in this case, Hawkins represented Jose Luis Lucio, a co-conspirator of Rosas, in a related case. See United States v. Lucio, No. 09-CR-0049(2) (D. Minn. filed February 19, 2009). Rosas argues that, had his case proceeded to trial, one of the government's main witnesses against him - perhaps the government's only witness against him - would have been Lucio. Rosas further argues that, because Hawkins had previously represented Lucio,Hawkins would not have been able to effectively cross-examine him. Because of this conflict of interest, Rosas argues, Hawkins failed to provide effective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, Rosas must show that

(1) Hawkins's performance fell below an objective standard of reasonableness, see Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and (2) there is a reasonable probability that, but for Hawkins's errors, the result of Rosas's proceeding would have been different, id. at 694. Rosas "faces a heavy burden." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).

As an initial matter, the Court notes that Hawkins did not represent Lucio and Rosas simultaneously. Hawkins moved to withdraw as Lucio's counsel on June 8, 2009, and that motion was granted on June 17, 2009. Hawkins did not file a notice of appearance on behalf of Rosas until August 19, 2009. In cases in which the successive representation of a prosecution witness and a defendant is alleged to have created a conflict of interest, "[t]he mere fact that a trial lawyer had previously represented a prosecution witness does not entitle a defendant to relief." United States v. Flynn, 87 F.3d 996, 1001 (8th Cir. 1996). Instead, "[t]he ...


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