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Martinez v. United States

United States District Court, S.D. Mississippi, Southern Division

June 5, 2019

ALEJANDRO MENERA MARTINEZ
v.
UNITED STATES OF AMERICA

          MEMORANDUM OPINION AND ORDER GRANTING ALEJANDRO MENERA MARTINEZ'S MOTION [981 TO AMEND AND GRANTING IN PART AND DISMISSING IN PART WITHOUT PREJUDICE ALEJANDRO MENERA MARTINEZ'S MOTION [89] TO VACATE, SET ASIDE, OR CORRECT SENTENCE FILED PURSUANT TO 28 U.S.C. § 2255

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE.

          BEFORE THE COURT are Defendant Alejandro Menera Martinez's Motion [89] to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed pursuant to 28 U.S.C. § 2255, and his Motion [98] to Amend. Defendant seeks to set aside his June 11, 2018, Judgment of Conviction. Menera Martinez's former counsel has filed an Affidavit [95] in response to the Motion [89]. The Government has filed a Response [96], and Menera Martinez a Reply [99] and a Motion to Amend [98]. Having considered the issues presented, the record, and relevant legal authority, the Court is of the opinion that the Motion [98] to Amend should be granted, and that the Motion [89] to Vacate should be granted in part to allow Menera Martinez to file an out-of-time direct appeal, and dismissed without prejudice in all other respects.

         I. BACKGROUND

A. Factual background

         On October 2, 2017, the Government filed a Criminal Complaint [1], charging that Defendant Alejandro Menera Martinez ("Defendant" or "Menera Martinez") brokered the sale of approximately two kilograms of suspected Fentanyl to a confidential informant from an Atlanta, Georgia, based "fentanyl organization." Compl. [1]. A grand jury subsequently returned a two-count Indictment [3] charging Menera Martinez with violations of 21 U.S.C. § 841(a)(1). Redacted Indictment [21]. The Government later filed a three-count Superseding Indictment [42] charging Defendant: (a) with knowingly and intentionally conspiring to possess with intent to distribute, and possessing with intent to distribute, one kilogram or more of a detectable amount of heroin, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (b) with traveling in interstate commerce with the intent to carry out unlawful activity, in violation of 18 U.S.C. § 1952(a)(3). Redacted Superseding Indictment [42].

         Menera Martinez retained Lee C. Russell as counsel, and on February 23, 2018, Defendant pled guilty to Count Two of the Superseding Indictment [42], which charged him with "knowingly and intentionally possessing] with intent to distribute a mixture or substance containing 1 kilogram or more of a detectable amount of heroin." Id.; Am. Plea Agreement [59]. Pursuant to a written Plea Agreement with the Government, Defendant reserved "the right to raise ineffective assistance of counsel claims," but otherwise expressly waived "the right to appeal the conviction and sentence imposed in this case" and "the right to contest the conviction and sentence or the manner in which the sentence was imposed in any post-conviction proceeding." Am. Plea Agreement [59] at 5.

         On June 5, 2018, the Court sentenced Defendant to the statutory minimum term of one-hundred-and-twenty (120) months imprisonment with respect to Count Two, and dismissed Counts One and Three of the Superseding Indictment [42] on the Government's Motion. Minute Entry, June 5, 2018; *Sealed* PSR [76]. The Court also sentenced Defendant to five (5) years of supervised release and ordered him to pay a $5, 000.00 fine and a $100.00 special assessment. J. [83]. The Court executed and filed the Judgment of Conviction [83] on June 11, 2018. Neither Defendant nor his counsel filed an appeal of the Judgment within the time afforded by the Federal Rules of Appellate Procedure.

         B. Procedural background

         Proceeding pro se, Defendant timely filed the instant Motion [89] to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 on October 9, 2018, along with a Memorandum in Support [90].[1] Defendant asserts that his attorney rendered ineffective assistance of counsel because, among other things, he failed to "communicate" regarding an appeal. Specifically, Defendant states that:

this issue the Counsel did Not Submitted Objections or Submitted his Right of Direct Appeal-did Not Was Commonicate the Movant's of his Right of Appeal Direct- Counsel Aggregios Misconducted.

Mot. [89] at 6 (misspellings and grammatical errors in original). He appears to also advance claims that: the Government failed to prove that the substance was heroin or to establish the underlying mens rea; counsel failed to seek a departure for a first-time offender; and counsel failed to object to a leader or organizer enhancement applied at sentencing. See Mot. [89]; Mem. in Support [90].

         With the help of an inmate, Menera Martinez has also submitted a Motion [98] to Amend his Motion [89] to Vacate and an Affidavit [98-1] signed under penalty of perjury. Mot. [98] to Am. at 1-2; Menera Martinez Aff. [98-1]. Defendant states that he "tried to reach his former counsel via phone calls and letter to express that he was not satisfied with his sentence . . . and he wished to appeal, [but that counsel] did not remain reasonably available." Mot. [98] to Am. At 4. In his attached Affidavit, Menera Martinez avers: "I recall telling my attorney after sentencing that I wished to appeal and, just to make sure I tried to contact him but to no avail." Menera Martinez Aff. [98-1] at 2. Defendant further states that counsel told him that he would receive no more than 70 or 80 months if he signed the Plea Agreement. Id.

         Menera Martinez's former counsel, Lee C. Russell, has supplied an Affidavit [95] in which he argues that Menera Martinez's claims are without merit and that the Court made Defendant aware of his right to appeal. Russell Aff. [95]. The Government has also filed a Response [135] in opposition to Defendant's Motion [89] to Vacate, taking the position that Menera ...


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