Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Matthew F. Kennelly than Assigned Judge
For the reasons stated below, the Court directs the Clerk to enter judgment dismissing Mr. Cruz-Enriquez's motion under 28 U.S.C. § 2255.
O [For further details see text below.] Docketing to mail notices.
Juan Cruz-Enriquez has filed a pro se motion under 28 U.S.C. § 2255 seeking to vacate his conviction and sentence. Pursuant to Rule 4(b) of the Rules Governing Section2255 Proceedings, the Court preliminarily reviews the motion and, for the reasons stated below, dismisses it.
Mr. Cruz-Enriquez's case was set for trial on November 5, 2007. The case was reassigned to this judge's calendar from that of Judge Rebecca Pallmeyer because she had conflicting trial responsibilities. On November 1, 2007, the undersigned judge moved the trial date to November 6 and scheduled for hearing on November 5 a motion to suppress evidence that Mr. Cruz-Enriquez had filed. The Court also denied an oral motion by Mr. Cruz-Enriquez's counsel to continue the trial.
At the outset of the scheduled hearing on November 5, Mr. Cruz-Enriquez's attorney advised the Court that Mr. Cruz-Enriquez wished to withdraw his motion to suppress and enter a guilty plea to Count 1 of the indictment, a charge of conspiracy to possess heroin with intent to distribute. The Court began a standard guilty plea colloquy as required by Federal Rule of Criminal Procedure 11(b). See Nov. 5, 2007 Tr. 4. When the Court asked Mr. Cruz-Enriquez whether he had had enough time to talk to his lawyer about the case and his decision to plead guilty, Mr. Cruz-Enriquez said no. Id. 9. The Court recessed the proceedings to give Mr. Cruz-Enriquez an opportunity to confer privately with counsel. After that, the Court asked: "So, Mr. Enriquez [sic], have you now had enough time to talk to your lawyer about the case and about your decision to plead guilty?" Id. Mr. Cruz-Enriquez replied that he had.
During the remainder of the colloquy, Mr. Cruz-Enriquez stated that he had no complaints about his lawyer's work and that "I do believe he did his job"; no promises had been made to him by the government or anyone else; he had not been forced or threatened to plead guilty; and he was pleading guilty of his own free will because he was in fact guilty. Id. 11. Mr. Cruz-Enriquez also affirmed that he understood the nature of the charges and what the government had to prove to convict him; all the rights he was giving up by pleading guilty; and how the Court would go about determining the sentence. Id. 12-20. The Court made it clear to Mr. Cruz-Enriquez that the charge carried a ten year mandatory minimum prison term. Id. 14-15. Finally, Mr. Cruz-Enriquez agreed to the government's recitation of the facts that proved his guilt. Id. 21-24.
The Court set a sentencing date of February 20, 2008. On that date, the Court began the sentencing hearing and continued the matter to April 4, 2008. On March 7, 2008, the Court entered an order stating:
The Court has received a letter from defendant Juan Cruz-Enriquez in which he asks to terminate his current counsel and to withdraw his guilty plea. The case is set for a status hearing on 3/18/2008 at 01:30 PM. Both sides' counsel are directed to appear. Defense counsel is directed to contact the Federal Defender Program to ensure that a possible replacement counsel is also present at the hearing, in the event the Court determines to grant Mr. Cruz-Enriquez's request to terminate his current counsel. Copies of the letter will be available for each side to pick up at Judge Kennelly's chambers.
On March 18, the Court granted Mr. Cruz-Enriquez's request to appoint new counsel. The Court appointed Charles Aron to represent Mr. Cruz-Enriquez and gave Mr. Petro leave to withdraw. The Court vacated the sentencing hearing date of April 4, 2008 and set the matter for a status hearing on May 6, 2008.
On May 6, Mr. Cruz-Enriquez's new counsel, Mr. Aron, reported to the Court that he had conferred with Mr. Cruz-Enriquez and that it was his desire to withdraw his request to withdraw his guilty plea. May 6, 2008 Tr. 2-3. The Court then confirmed this directly with Mr. Cruz-Enriquez:
THE COURT: Okay. I'm going to ask him directly since I got the letter from him originally. Mr. Cruz-Enriquez, you had sent me a letter back in late February or early March in which you asked to -- you asked for a new lawyer, and at least I understood that you were asking to withdraw your guilty plea, in other words, you were changing your mind about pleading guilty. Mr. Aron has just told me that it's your desire not to withdraw your guilty plea, that you want to keep your guilty plea that you already ...