United States District Court, E.D. Michigan, Southern Division
Steven Whalen United States Magistrate Judge.
OPINION AND ORDER SUPPLEMENTING THE COURT'S
JANUARY 5, 2018 OPINION AND ORDER DENYING IN PART
DEFENDANT'S MOTION TO VACATE SENTENCE
Gershwin A. Drain United States District Court Judge.
15, 2016, Defendant Miguel Angel Vergara was sentenced to a
term of 108 months in the Bureau of Prisons after pleading
guilty to a Conspiracy to Distribute 500 Grams or More of a
Controlled Substance, in violation of 21 U.S.C. §§
841(a) and 846. Roughly one year later, Defendant moved to
vacate his sentence pursuant to 28 U.S.C. § 2255. Dkt.
No. 128. Defendant's Motion raised two ineffective
assistance of counsel claims, the first of which the Court
Denied in an Opinion and Order entered on January 5, 2018.
Dkt. No. 140. Defendant's second claim -- that defense
counsel failed to file a timely appeal of his sentence upon
request -- required the Court to hold an evidentiary hearing,
which it did on June 27 and June 28, 2018. See Dkt.
Nos. 148 & 149. For the reasons set forth below, the
Court will DENY that claim, and consequently, DENY
Defendant's Motion to Vacate Sentence [#128] in full.
November 9, 2015, Defendant entered a guilty plea to the
charge of Conspiracy to Distribute 500 Grams or More of a
Controlled Substance, in violation of 21 U.S.C. §§
841(a) and 846. At the plea hearing, and in Defendant's
presence, both parties agreed that Defendant faced a
mandatory minimum sentence of 60 months; that the most he
could receive under the Plea Agreement was 120 months; and
that if the sentence imposed did not exceed 120 months, he
would waive any right he had to appeal his sentence.
See Dkt. No. 145, pp. 4, 6, 8 (Pg. ID 603, 605,
607). The Court then informed Defendant, specifically, that
at the time of sentencing, it would not only be looking at
the mandatory minimum, but also the Sentencing Guidelines
range and other statutory provisions. See Id. at p.
16 (Pg. ID 615). When asked if he understood, Defendant
replied, “Yes.” See id.
sentencing took place on June 15, 2016. See Dkt. No.
126. At the hearing, and again in Defendant's presence,
both parties agreed that the Sentencing Guidelines range for
Defendant's conviction was 87 to 108 months. See
Id. at pp. 37-38 (Pg. ID 527-28). The Court imposed a
sentence at the top of that range. See Id. at p. 48
(Pg. ID 538). Before going off the record, the Court advised
Defendant that while he had effectively waived the right to
challenge his sentence, he did retain a limited right to
appeal. See Id. at pp. 49-50 (Pg. ID 539-40). The
Court then instructed Defendant that if he chose to pursue
such an appeal, he would need to take the necessary steps
within 10 or 14 days. See id.
Motion to Vacate Sentence, Defendant alleges his trial
counsel -- Elias Escobedo -- failed to file a timely notice
of appeal after being instructed to do so. Dkt. No. 128, p. 5
(Pg. ID 546). At the evidentiary hearing on his Motion,
Defendant clarified that he never spoke with Mr. Escobedo
directly about filing an appeal. See Dkt. No. 148,
pp. 25-26 (Pg. ID 649-50). Rather, he had his wife call Mr.
Escobedo roughly one week after sentencing, and counsel
allegedly told her there was no basis to appeal. See
Id. at pp. 13, 25-26 (Pg. ID 637, 649-50). Mr. Escobedo
offered a different account, emphasizing that immediately
after sentencing, he asked Defendant if he wanted to file an
appeal and Defendant replied, “there's no reason
to.” See Dkt. No. 149, p. 17 (Pg. ID 675).
When questioned about whether Defendant's wife called him
following the sentencing hearing, Mr. Escobedo testified that
he had no recollection of such a call. See id.
U.S.C. § 2255 provides prisoners with a mechanism to
raise collateral attacks on their sentence. See 28
U.S.C. § 2255(a). Unless the prisoner's motion
conclusively shows that they are entitled to no relief, the
court shall notify and serve the United States attorney,
grant a prompt hearing, and determine the issues -- making
findings of fact and conclusions of law. See 28
U.S.C. § 225(b). If the court finds that a judgment was
rendered without jurisdiction, or that the sentence imposed
was not authorized by law or otherwise open to collateral
attack, or that there has been a denial or infringement of
the constitutional rights of the prisoner such as to render
the judgment vulnerable to collateral attack, the court shall
vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate. See id.
matter currently before the Court ultimately boils down to a
question of credibility. Defendant maintains that he
expressed a desire to appeal his sentence while Mr. Escobedo
contends the opposite. Under such circumstances, “[t]he
question of credibility is one for the determination of the
trier of facts.” Bayken v. United States, 272
F.2d 186 (6th Cir. 1959). And importantly, the burden of
proof is on Defendant. Id. Here, Defendant has
failed to meet his burden.
Defendant's claim rests on the credibility of his wife,
who he insists reached out to Mr. Escobedo and informed him
of Defendant's desire to file an appeal. But Defendant
failed to call his wife as a witness, thereby preventing her
from attesting to this conversation under oath. To believe
Defendant's testimony would necessarily require the Court
to find his wife credible. The Court has no basis for such a
contrast, Mr. Escobedo testified that immediately after
Defendant was sentenced, he asked Defendant whether he wanted
to file an appeal. This makes sense considering that moments
earlier, the Court had apprised Defendant of his limited
right to appeal. According to Mr. Escobedo, Defendant said he
saw no reason to file an appeal. See Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000) (“[A]
defendant who explicitly tells his attorney not to
file an appeal plainly cannot later complain that, by
following his instructions, his counsel performed
deficiently.”). Mr. Escobedo also testified that he had
no recollection of Defendant's wife calling his office
following the sentencing hearing. Having observed his
testimony firsthand, the Court finds Mr. Escobedo credible.
See Lovesay v. Hurley, 2005 WL 2277441, at *15 (S.D.
Ohio Sept. 19, 2005) ...