Opinion
5:20-CR-00263-OLG
07-24-2024
UNITED STATES OF AMERICA, Plaintiff, v. (1) ROBERTO IGNACIO SANCHEZ BENITEZ, Defendant.
TO THE HONORABLE ORLANDO GARCIA UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation concerns Movant Roberto Ignacio Sanchez Benitez's Motion to Vacate under 28 U.S.C. § 2255. See Dkt. No. 68. This motion was referred for resolution pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the Western District of Texas. See January 9, 2024, text order. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the Motion to Vacate, Dkt. No. 68, should be DISMISSED WITHOUT PREJUDICE. The Movant should be GRANTED an out-of-time appeal, and the Clerk of Court should be ordered to re-enter the criminal judgment on the docket, thereby restarting the time for appeal under Federal Rule of Appellate Procedure 4(b)(1)(A). See United States v. Gaytan-Ortiz, 308 Fed.Appx. 798, 800 (5th Cir. 2009) (citations omitted). The Court further recommends appointment of counsel for the direct appeal as described below.
Factual and Procedural Background
The present motion concerns Movant Sanchez Benitez's claim that his appointed attorney, Edgardo Rafael Baez, provided ineffective assistance of counsel in his criminal case by failing to file a notice of appeal. See Dkt. No. 68. The government filed its complaint against Sanchez Benitez on April 8, 2020. Dkt. No. 1. Two days later, Baez was appointed as counsel for Sanchez Benitez. See Dkt. No. 8. Baez handled Sanchez Benitez's entire case, which included a plea agreement and sentencing. See generally Dkt. No. 68.
On May 21, 2024, the Court held an evidentiary hearing on the Motion to Vacate at which counsel for both parties appeared, Sanchez Benitez appeared personally, and Baez testified as a witness. Dkt. No. 88.
In his witness testimony, Baez recalled discussions he had with Sanchez Benitez during his plea agreement negotiations as well as before and after sentencing. Id. Baez testified that he thoroughly discussed the translated plea agreement with Sanchez Benitez and explained each page of the agreement, including the appellate waiver. Id. Baez testified that “it was [his] understanding that [Sanchez Benitez] understood” the plea agreement's waiver of his right to appeal. Id. Moreover, Baez testified that Sanchez Benitez did not express a desire to appeal at that time. Id.
Prior to sentencing, Baez discussed potential sentences and, at least “somewhat,” the appellate process with his client. Id. Baez told Sanchez Benitez that he would not represent him on appeal, but nevertheless explained the potential advantages and disadvantages of appealing. Id. Baez testified that Sanchez Benitez also did not express a desire to appeal at the pre-sentencing stage. Id. At the hearing, Baez explained that his refusal to file any appellate documents in Sanchez Benitez's case was due to a “moral conflict.” Id.
According to Baez, after the sentencing, Sanchez Benitez expressed dissatisfaction with his sentence and that he had hoped for a lower sentence. Id. Baez testified that it is normal for criminal defendants to be dissatisfied with their sentence and to wish they had received a lower sentence. Id. Baez further testified that he told Sanchez Benitez, again, that he would not do any appellate work in his case. Id. Baez did not specifically ask Sanchez Benitez whether he wanted to appeal, but instead “was very clear” that Baez would not do any appellate work on the case. Id. According to Baez's testimony, Sanchez Benitez again did not express a desire to appeal. Id.
Baez met with Sanchez Benitez's family at least twice after the sentencing: once immediately afterward, outside of the courtroom, and again approximately three months later. Id. Baez testified that he told Sanchez Benitez's family that they should hire an appellate lawyer because Baez would not act as Sanchez Benitez's lawyer for any appellate filing. Id. According to Baez, Sanchez Benitez's family did not express at either meeting any desire to appeal. Id. Baez testified that, throughout all stages of the case, neither Sanchez Benitez nor his family asked about appealing or indicated any interest in appealing the case. Id. In addition to his testimony at the hearing, Baez also submitted an affidavit in which he swore that “[t]he Defendant's [sic] and his family were told to hire a new appellate lawyer and both Defendant and family were assured that No Appellate [sic] filings will be done by pre-trial/sentencing counsel.” Dkt. No. 76-2. Baez's affidavit further stated that “[m]ultiple meetings with family took place after sentencing where they were told that [Baez] did not file any appellate documents.” Id.
Analysis
Baez's failure to file a notice of appeal was ineffective assistance of counsel that prejudiced Sanchez Benitez. “To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant.” U.S. v. Tighe, 91 F.4th 771, 774 (5th Cir. 2024) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). Baez's failure to thoroughly consult with his client about appeal, including ascertaining Sanchez Benitez's wishes, constituted ineffective assistance of counsel. Sanchez Benitez was prejudiced by Baez's conduct because he demonstrated a reasonable probability that but for counsel's conduct, he would have appealed.
A. Counsel's Performance Was Deficient.
Counsel has a “constitutionally imposed duty to consult with the defendant about an appeal when there is a reason to think either (1) that a rational defendant would want to appeal .... or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). To “consult” in this context means two things: (1) “advising the defendant about the advantages and disadvantages of taking an appeal” and, importantly for present purposes, (2) “making a reasonable effort to discover the defendant's wishes.” Id. at 478.
Tighe informs the Court's conclusion that Baez's performance as Sanchez Benitez's counsel was deficient. 91 F.4th at 771-776. In Tighe, the defendant's attorney did not directly ask the defendant after sentencing if he wanted to appeal. Id. at 775. Instead, the attorney put the onus on the defendant, later telling the court that the defendant never called her from jail to ask about appealing. Id. The Fifth Circuit found that the attorney's failure to consult with the defendant was unreasonable because a rational defendant would have wanted to appeal, and the defendant reasonably demonstrated his interest in appealing. Id. The court explained that one indication that the defendant would be interested in appealing was the fact that he was “shocked” by his sentence. Id. The court concluded that the attorney did not sufficiently consult with the defendant about appeal and failed to make “any effort to obtain his wishes about an appeal after sentencing.” Id. at 776.
Here, Sanchez Benitez and his family reasonably demonstrated to counsel an interest in appealing. After the sentencing, Sanchez Benitez expressed to Baez that he was dissatisfied with his sentence. That may be “normal” for a criminal defendant, but-as in Tighe-it also demonstrates an interest in appeal. When a defendant expresses dissatisfaction with his sentence to counsel, as Sanchez Benitez did, counsel can infer that the defendant may be interested in appealing. See Flores-Ortega, 528 U.S. at 480. Thus, Sanchez Benitez reasonably demonstrated to Baez an interest in appealing. Instead of following up on Sanchez Benitez's interest, Baez did not ask if Sanchez Benitez wanted to appeal, but instead “was very clear” that he would not file any appellate documents on Sanchez Benitez's behalf. By proactively refusing to file any appellate documents, Baez effectively shut off any further discussion about an appeal with his client.
Baez acknowledged on the record at the hearing that if Sanchez Benitez or his family had asked Baez to file a notice of appeal, he would have been obligated to do so. But Baez also had a duty to consult with his client-including “making a reasonable effort to discover [his] wishes.” See id. at 478. Once it became clear to Baez that Sanchez Benitez was interested in appealing, Baez was obligated to ask Sanchez Benitez if he wanted to appeal, notwithstanding Baez's “moral conflict.” Baez did not do so.
Sanchez Benitez's family also demonstrated an interest in appealing when they met with Baez after the sentencing. Baez testified that the family did not expressly tell him that they wanted to appeal, but Baez instead told them to hire an appellate lawyer because Baez would no longer represent Sanchez Benitez in any appellate filing due to a “moral conflict.” If Baez found it necessary to tell Sanchez Benitez's family to hire an appellate lawyer, it follows that the issue of an appeal was raised, and that the family reasonably demonstrated an interest in appeal. Although Sanchez Benitez was the client, not his family, the family's wishes here further confirm the Court's conclusion with respect to the client. Baez, to fully satisfy his duty to discover his client's wishes in these circumstances, ought to have asked the client's family directly if they knew whether Sanchez Benitez wanted to appeal.
Baez's testimony that a “moral conflict” prevented him from filing a notice of appeal in Sanchez Benitez's case does not convince the Court that his legal assistance was effective. Baez admitted that had his client expressly asked him to appeal, he would have had an obligation to file a notice of appeal. See Dkt. No. 88. Even in the absence of an explicit request to appeal, Baez still had a duty to consult with his client, including asking him whether he wanted to appeal. Filing a notice of appeal would not force Baez to continue representing Sanchez Benitez; it would simply preserve Sanchez Benitez's right to appeal. Baez could have filed the notice of appeal and then immediately filed a motion to withdraw. At the very least, Baez should have filed a motion to withdraw when the “moral conflict” arose, so the Court would have been alerted that Sanchez Benitez was unrepresented during the time period in which he could file a notice of appeal. The fact that Baez had a “moral conflict” with continuing to represent Sanchez Benitez on appeal does not excuse his failure to consult with his client, make a reasonable effort to ascertain his client's wishes, and file a notice of appeal.
B. Sanchez Benitez Was Prejudiced by Counsel's Deficient Performance.
To show prejudice when counsel fails to consult with a defendant about an appeal, “a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed.” Tighe, 91 F.4th at 776 (citing Flores-Ortega, 528 U.S. at 484). Importantly, a defendant is not required to “demonstrate his hypothetical appeal has merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal.” Id. (citing Flores-Ortega, 528 U.S. at 486).
Sanchez Benitez was prejudiced by Attorney Baez's failure to provide effective assistance of counsel because Sanchez Benitez can demonstrate that, “but for [Baez's] deficient conduct, he would have appealed.” See id; see also United States v. Cong Van Pham, 722 F.3d 320, 327 (5th Cir. 2013) (“In the absence of any self-evident reason why Pham would not have filed a direct appeal, and without any regard to the potential merits of such an appeal, we conclude that he has established prejudice under Flores-Ortega.”). As explained above, Sanchez Benitez and his family reasonably expressed an interest in appealing. Sanchez Benitez has demonstrated that he was prejudiced by Baez's deficient failure to file a notice of appeal.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that Movant Sanchez Benitez's Motion to Vacate, Dkt. No. 68, be DISMISSED WITHOUT PREJUDICE. The Movant should be GRANTED an out-of-time appeal, and the Clerk of Court should be ordered to re-enter the criminal judgment on the docket, thereby restarting the time for appeal under Federal Rule of Appellate Procedure 4(b)(1)(A). See Gaytan-Ortiz, 308 Fed.Appx. at 800.
The Court also recommends appointment of counsel for the movant's direct appeal. The following counsel should be APPOINTED to represent Sanchez Benitez in his appeal:
George William Aristotelidis
(210) 277 - 1906
jgaristo67@gmail.com
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59. The objecting party shall file the objections with the Clerk of the Court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.