United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, United States District Judge
case is before the court on defendant Rogelio Amada
Lamas’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody
(Doc. 214) alleging trial counsel was ineffective when he
failed to properly advise him about the importance of
entering a guilty plea before a certain deadline (Ground
III). The court held an evidentiary hearing on August 2,
2017, and for the reasons set forth below, the court finds
that defendant is entitled to relief on Ground III.
September 6, 2012, a grand jury indicted defendant with
conspiracy to distribute and possess with intent to
distribute more than 50 grams of methamphetamine (Count One);
distributing more than 50 grams of methamphetamine (Count
Three); and possessing with intent to distribute more than 50
grams of methamphetamine (Count Four).
government initially proposed a plea agreement dated October
31, 2012, with a plea-entry deadline of December 3, 2012.
Trial counsel did not remember discussing this deadline with
defendant, however, defendant did not accept this initial
February 27, 2013, the government offered a second plea
agreement with a plea-entry deadline of March 8, 2013. Once
again, trial counsel did not remember discussing the deadline
with defendant, and defendant did not plead guilty by March
8, 2013. The court subsequently scheduled defendant’s
jury trial for July 22, 2013.
15, 2013, the parties appeared before the court for
defendant’s change of plea. The plea paperwork was
prepared and defendant was ready to enter a guilty plea.
However, trial counsel stopped the hearing mid-way through
because he had not fully explained the plea agreement to
defendant. Trial counsel stated that it was his fault, and
asked for additional time to speak with defendant. Following
a short recess, trial counsel requested additional time to
consult with the other prosecutor assigned to
defendant’s case who was unavailable that day.
17, 2013, trial counsel filed a motion to continue the jury
trial. Trial counsel referenced the fact that the July 15,
2013 plea did not go through, and stated that he had
suspended trial preparation because he believed the parties
had reached an agreement. Trial counsel also noted that he
had another trial scheduled for July 22, 2013, in state
court. The court granted defendant’s motion to continue
his jury trial, and scheduled the trial for September 16,
point after the July 15, 2013 plea hearing, the government
gave a third proposed plea agreement to trial counsel. The
evidence is unclear about when or in what form the third
proposed plea agreement was transmitted, and neither party
produced any written record regarding the negotiations. Trial
counsel testified that he does not remember whether there was
a deadline for accepting the third proposed plea agreement.
Trial counsel also could not recall when the government
withdrew its previous recommendation for a third-level
acceptance-of responsibility reduction.
September 10, 2013, defendant filed a notice of intent to
assert an affirmative defense; but later that same day,
defendant communicated his intent to plead guilty.
September 11, 2013, defendant pleaded guilty to Count One of
the indictment. Among others agreements, the parties agreed
that the government would recommend a sentence within the
applicable guideline range and for defendant to receive a
two-level reduction to his applicable offense level for
acceptance of responsibility under U.S.S.G. § 3E1.1(a).
The parties’ plea agreement did not mention a
third-level reduction under § 3E1.1(b).
total offense level was 39, with a criminal history category
of II, and the court ultimately imposed a 204-month sentence.
Defendant filed his § 2255 motion on March 3, 2016. In a
Memorandum and Order dated May 17, 2017, the court denied two
claims, but granted an evidentiary hearing on
defendant’s claim that trial counsel failed to explain
the plea-agreement deadlines (Doc. 228).
28 U.S.C. § 2255(a), a prisoner in custody has the right
to challenge a sentence imposed by the district court if it
is in violation of the Constitution or other law of the
United States, or if the sentence imposed was in excess of
the maximum authorized by law. If the court finds that
defendant is being held in violation of federal law, the
court “shall vacate and set the judgment aside and
shall discharge ...