UNITED STATES of America, Appellee, v. Elvin TORRES-ESTRADA, a/k/a Munecon, a/k/a Irvin, a/k/a Irving, Defendant, Appellant.
Nos. 15-1324, 15-1325.
United States Court of Appeals, First Circuit.
March 25, 2016.
817 F.3d 376
IV. Conclusion
For the aforementioned reasons, we affirm the bankruptcy court‘s decision to extend the filing deadline and accept Bowles‘s claim as timely. We deny Bowles‘s motion for costs, fees, and sanctions.
AFFIRMED
Ezekiel E. Cortez, for appellant.
Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, with whom Nelson Perez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodriguez-Velez, United States Attorney, were on brief, for appellee.
Before LYNCH, SELYA, and LIPEZ, Circuit Judges.
LYNCH, Circuit Judge.
Elvin Torres-Estrada pleaded guilty on March 21, 2011, to two conspiracies. One was a conspiracy to possess with intent to distribute controlled substances within 1,000 feet of public housing, between about 1995 and 2009. That conspiracy was charged on September 28, 2009, with a second superseding indictment filed on April 15, 2010. The second conspiracy was to import five kilograms or more of cocaine and one kilogram or more of heroin from the Dominican Republic, between about March 2005 and July 2009. That conspiracy was charged later, on February 9, 2011.
There is no need for an extensive discussion of facts. We give only a brief overview to explain the context for the issues of law. At the time of the 2009 indictment and 2010 second superseding indictment,
After Granger and Sapone received a plea offer on September 20, 2010, from Assistant United States Attorney Timothy Henwood, plea negotiations ensued with Granger, Sapone, and Garcia representing Torres-Estrada. According to Granger, Garcia interfered with negotiations by, in-ter alia, making a counteroffer for a sentence lower than what Torres-Estrada had authorized, and communicating with the government without consulting with Granger or Sapone. On October 26, 2010, Granger, Sapone, and Davila Carrasquillo withdrew from representing Torres-Estrada. Granger and Sapone‘s motion to withdraw stated that they were “lead counsel” and that “Torres-Estrada has advised us that he no longer wishes to utilize the services of our respective firms and has requested that we move to withdraw as counsel of record.”
Plea negotiations over the indictment as to the first conspiracy failed, with negotiations being cut off by the government when it realized Torres-Estrada was involved with the second conspiracy to import drugs from the Dominican Republic.
I.
Torres-Estrada makes two arguments here on direct appeal. The first is that he is entitled to the benefit of the government‘s plea offer made in the first round of negotiations, though he had not accepted that offer. In his brief, Torres-Estrada argues that he is the victim of ineffective assistance from Garcia during plea negotiations and that Granger and Sapone had a conflict of interest. Cf. Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 1408, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 1384-85, 182 L.Ed.2d 398 (2012). The latter part of this argument was modified at oral argument. See infra note 2. The other argument is that the district court judge was required to recuse himself.
A. Ineffective Assistance of Counsel
Torres-Estrada executed a waiver of appeal as part of his March 21, 2011, plea agreement. The waiver states: “The defendant hereby agrees that if this Honorable Court accepts this agreement and sentences [him] according to its terms and conditions, defendant waives and surrenders [his] right to appeal the conviction and sentence in this case.” We find that he has waived his appeal of the ineffective assistance of counsel (“IAC“) claim.2
As an initial matter, Torres-Estrada failed to address the waiver of appeal clause in his opening brief, which would ordinarily be enough to enforce that waiver. See United States v. Arroyo-Blas, 783 F.3d 361, 367 (1st Cir.2015). In his reply brief, Torres-Estrada first implies that he was caught by surprise in learning that the government would attempt to enforce the waiver.3 That was because as of October 14, 2014, it was the written policy of the Department of Justice (“DOJ“) not to enforce waivers of appeal involving IAC claims under certain conditions. The memorandum to which Torres-Estrada refers states, in relevant part, that “[f]or cases in which a defendant‘s ineffective assistance claim would be barred by a previously executed waiver, prosecutors should decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant‘s ineffective assistance claim raises a serious debatable issue that a court should resolve.”
The government, in turn, correctly reminds us that such a policy, promulgated after the plea agreement in this case, creates no rights in defendants and that courts typically play no role in the prosecutorial choices made by the DOJ. See,
Torres-Estrada next points to the district court‘s statement at sentencing that he could appeal the IAC issue. Torres-Estrada does not argue that he was not fully advised of the waiver of appeal clause when entering his plea. The district court “judge‘s statement at sentencing,” made nearly four years after Torres-Estrada‘s guilty plea, “does not serve to invalidate [Torres-Estrada]‘s earlier waiver.” Sotirion v. United States, 617 F.3d 27, 35 (1st Cir.2010). Interpretation of the waiver of appeal clause is for the court of appeals, and the district court‘s comments, at least under these circumstances, do not excuse Torres-Estrada from compliance with the agreement he signed. See United States v. Gil-Quezada, 445 F.3d 33, 36-37 (1st Cir.2006); United States v. Teeter, 257 F.3d 14, 25 (1st Cir.2001).
Torres-Estrada attempts to use Sotirion to argue that the government waived any argument that the waiver of appeal clause can be enforced, based on the government‘s failure to respond to the district court‘s statement at sentencing. We reject the argument. In Sotirion, the court‘s discussion of government waiver related to the government‘s failure to raise a procedural default defense to a
And so, Torres-Estrada is left with an argument that his assertions meet the “miscarriage of justice” exception to enforcement of waivers of appeal, as discussed in Teeter, 257 F.3d at 25-26 & n. 9. However, Torres-Estrada explicitly says that he “is not challenging his sentence or his guilty plea or the Rule 11 [of the Federal Rules of Criminal Procedure] inquiry at all,” and that he “is not seeking to vacate his guilty plea.” Further, other than pointing to the DOJ policy and the district court‘s statements at sentencing—arguments that we have just rejected—Torres-Estrada develops no argument explaining how a “miscarriage of justice” would result from enforcing the waiver of appeal clause.
In any event, we cannot conclude that there would be a “miscarriage of justice” from enforcing the waiver of appeal clause because even if we did not enforce the waiver of appeal clause, we would decline to hear Torres-Estrada‘s claims on direct appeal. The record underlying Torres-Estrada‘s arguments “is ... not sufficiently developed to allow reasoned consideration of an ineffective assistance claim,” and this is not the “rare case” where we will “review an ineffective assistance claim on direct appeal.” United States v. LaPlante, 714 F.3d 641, 648 (1st Cir.2013); see United States v. Santiago-Rivera, 805 F.3d 396, 398 (1st Cir.2015) (explaining that “our general rule” is that IAC “claims must originally be presented to the district court as a collateral attack under
B. Recusal
Finally, we reject the argument that the district court judge erred when he
Under
While “‘in close cases doubts ordinarily ought to be resolved in favor of recusal[,] ... [t]his is not a close case.‘” Pulido, 566 F.3d at 62 (quoting United States v. Snyder, 235 F.3d 42, 46 (1st Cir.2000)). Our review of the record leads us to conclude that any communication the district court had with the government witness‘s attorney did not call the district court‘s impartiality into question, and the district court did not abuse its discretion in deciding not to recuse itself.
II.
We affirm the court‘s decision not to recuse itself and otherwise dismiss the appeal.