The opinion of the court was delivered by: MATHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Felix Vasquez-Ruiz, a medical doctor, was convicted by a jury of
multiple counts of mail fraud and health care fraud. In September 2002,
he was sentenced to 168 months in prison. He did not file a notice of
appeal. Vasquez-Ruiz has now filed a pro se motion pursuant to
28 U.S.C. § 2255 in which he asserts that his attorney was
responsible for filing a timely notice of appeal but failed to do so. As
a result, Vasquez-Ruiz contends, he received ineffective assistance of
counsel. For the reasons set forth below, the Court denies Vasquez-Ruiz's
Vasquez-Ruiz was represented by attorney Joseph Lopez at sentencing.
With his motion, Vasquez-Ruiz submitted an affidavit in which he stated
that prior to sentencing, Lopez advised him that he was likely to receive
a sentence of 60 months or less. Vasquez-Ruiz Affid. ¶ 2. Immediately
after the sentencing, according to Vasquez-Ruiz, Lopez promised to come
see him at the Metropolitan Correctional Center, but he never did so.
Id. ¶¶ 4-5. Vasquez-Ruiz assumed based on conversations with
family members that a notice of appeal had been filed. Id. ¶
5. After hearing nothing for several months, Vasquez-Ruiz wrote to Lopez
and asked if a notice of
appeal had been filed. Id. ¶ 7; Motion, Ex. 4, Lopez
wrote back and said no notice of appeal had been filed "since you did not
want to appeal because the government planned to cross-appeal your
sentence," Vasquez-Ruiz Affid. ¶ 8; Motion, Ex. 6. In his affidavit,
Vasquez-Ruiz stated that Lopez had never discussed his appeal rights with
him. Vasquez-Ruiz Affid. ¶ 9. Vasquez-Ruiz also submitted affidavits
from several family members who stated that after the sentencing, Lopez
assured them that he would file a notice of appeal (in context, it
appears that these conversations occurred in or outside the courtroom,
immediately after the sentencing hearing). See Affids. of Joseph
Krabel, Marcela Krabel, Betty Moone, and Emperatriz Barnett.
In its response to Vasquez-Ruiz's motion, the government submitted
affidavits from Lopez and his associate, Carlos Gonzalez. Both stated
that Gonzalez was originally retained to represent Vasquez-Ruiz at
sentencing and brought Lopez in as lead counsel. Lopez Affid. ¶ 2;
Gonzalez Affid. ¶ 2, Lopez stated that he discussed with Vasquez-Ruiz
prior to sentencing the fact that the presentence report had recommended
a Sentencing Guideline calculation yielding a sentence range of 324 to
405 months and told Vasquez-Ruiz that it was likely he would receive a
sentence in excess often years. Lopez Affid. ¶ 3. Lopez stated that
he did not recall ever telling Vasquez-Ruiz that he would receive a
sentence of 60 months. Id. ¶ 8.
Following the sentencing hearing, Lopez said, he directed Gonzalez to
go to the MCC to speak with Vasquez-Ruiz about filing a notice of
appeal. Id. ¶ 12. Gonzalez stated that he visited
Vasquez-Ruiz "within the 10 day time period in which to file the Notice
of Appeal" and discussed with him the possibility of an appeal as well as
the possibility that the government would cross-appeal to challenge
rulings by the Court that had the effect of reducing Vasquez-Ruiz's
sentence from the much higher sentence the government had sought.
Gonzalez Affid. ¶ 8.
According to Gonzalez, Vasquez-Ruiz "stated that he did not want
to appeal due to the fact that there was a chance that the government
could file a counter appeal and the defendant may be sentence[d] in
excess of 168 months," Id. Gonzalez reported this to Lopez,
along with the fact that Vasquez-Ruiz "desired to continue to cooperate
[with the government's ongoing investigation] rather than appeal and risk
a higher sentence." Id. In his affidavit, Lopez confirmed that
Gonzalez had reported these facts to him. Lopez Affid. ¶ 12.
Vasquez-Ruiz was interviewed by the government on October 25, 2002.
Gonzalez Affid. ¶ 9, Gonzalez was present; he stated that at no time
during the interview (or at any other time) did Vasquez-Ruiz ask that an
appeal be filed. Id. ¶¶ 9, 10. Lopez likewise stated that
Vasquez-Ruiz had never directed him to file a notice of appeal; he also
stated that he had never committed to Vasquez-Ruiz's relatives to do so
without Vasquez-Ruiz's approval, which was never given. Lopez Affid.
Prior to filing his reply to the government's response, Vasquez-Ruiz
obtained via the Freedom of Information Act the excerpts of attorney
visit logs from the MCC reflecting attorney visits that he had received
in September and October 2002. The material produced in response to the
FOIA request, which Vasquez-Ruiz attached in its entirety to his reply,
reflected two visits: one by Lopez on September 10, 2002 and one by
Gonzalez on October 25, 2002. Reply, Ex. E. Vasquez-Ruiz maintains that
these records confirm that he was not visited "within ten (10) days of
his sentencing," as he claims Gonzalez had represented, and he contends
that Gonzalez's purportedly contrary statement was a lie. Reply, p. 4.
Vasquez-Ruiz's belief that the attorney logs refute Gonzalez's
statement is mistaken, It is true that the sentencing hearing was held on
September 11, 2002, and that the logs do not reflect any attorney visits
within ten days after that date, But that is not what Gonzalez
his affidavit. Rather, Gonzalez stated that he visited Vasquez-Ruiz
"within the 10 day time period in which to file the Notice of Appeal."
The time for filing a notice of appeal docs not begin to run until the
judgment is entered on the docket. See, e.g., United States v.
Cantero, 995 F.2d 1407, 1408 n.1 (7th Cir. 1993); Fed.R.App.P.
4(b)(1)(A)(i). Due to clerical delays, the judgment in Vasquez-Ruiz's
case was not entered on the docket until October 21, 2002. The MCC
attorney logs confirm that Gonzalez visited Vasquez-Ruiz on October
25, 2002, which was, as Gonzalez stated in his affidavit, within the ten
day period in which to file a notice of appeal. In short, contrary to
Vasquez-Ruiz's claim that the attorney logs refute Gonzalez's statement,
the logs actually corroborate Gonzalez's statement.
The Court has carefully reviewed the affidavits that Vasquez-Ruiz
submitted along with his petition. The affidavits of his family members
do not support a claim that Vasquez-Ruiz himself directed counsel to
file a notice of appeal; Vasquez-Ruiz was in custody at the time these
conversations occurred and thus was not present when the family members
spoke with counsel. It was Vasquez-Ruiz's decision, not counsel's,
whether to appeal. In his own affidavit submitted with his § 2255
motion, Vasquez-Ruiz does not contend that he directed either Lopez or
Gonzalez to file a notice of appeal, nor does deny that he later told
Gonzalez that he did not wish to appeal because of his; assessment of the
risk of a cross-appeal by the government. Moreover, after receiving Lopez
and Gonzalez's affidavits submitted along with the government's response,
Vasquez-Ruiz did not provide a further affidavit denying Gonzalez's
rendition of their October meeting at the MCC or Gonzalez's statement
that Vasquez-Ruiz told him not to appeal. Rather, Vasquez-Ruiz's reply
relies entirely on the purported inconsistency between the attorney log
and Gonzalez's statements. See Reply, p.4. As the Court has
explained, however, no such
An attorney who fails to follow a client's direction to file a notice
of appeal "acts in a manner that is professionally unreasonable." Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Rodriquez v.
United States, 395 U.S. 327 (1969) and Peguero v. United
States, 526 U.S. 23, 28 (1999)). Indeed, "when counsel fails to file
a requested appeal, a defendant is entitled to [a new] appeal without
showing that his appeal would likely have had merit." Peguero,
526 U.S. at 28. But "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." Flores-Ortega,
528 U.S. at 477 (citing Jones v. Barnes, 463 U.S. 745, 751
(1983)). Such is the case here. Because Vasquez-Ruiz has failed properly
to support a claim that he directed counsel to tile a notice of appeal,
and has failed to dispute counsel's assertion that they were specifically
told not to appeal, the Court denies his § 2255 motion. The Clerk is
directed to enter judgment in favor of respondent United States of
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