The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge
MEMORANDUM DECISION AND ORDER GRANTING PETITIONER'S MOTION TO VACATE CONVICTION AND SENTENCE PURSUANT TO 28 U.S.C. § 2255 [Doc. No. 38]
Presently before the Court is Petitioner Carlos Soto-Lopez ("Petitioner")'s motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. [Doc. No. 38.] On April 10, 2012, the Ninth Circuit reversed this Court's denial of Petitioner's motion and remanded the case with instructions for the Court to hold an evidentiary hearing and make findings of fact concerning Petitioner's allegations. [Doc. No. 57.] United States v. Soto-Lopez, 2012 U.S. App. LEXIS 7242 (9th Cir. Apr. 10, 2012). The Court held an evidentiary hearing on Friday, July 20, 2012 and on Tuesday, July 24, 2012.
This memorandum decision constitutes the Court's findings of fact and conclusions of law. On October 17, 2007, the Government filed a complaint in this District alleging Petitioner illegally re-entered the United States in violation of 8 U.S.C. § 1326. [Doc. No. 45-1, Ex. 1 [Doc. No. 1].]*fn1 The case was assigned case number 07-cr-3119-IEG. [Id.] Federal Defenders, Petitioner's court-appointed counsel, assigned the case to Amber Baylor. [Id. [Doc. No. 3]; Doc. No. 58-1, Declaration of Amber A. Baylor ("Baylor Decl.") ¶ 3.]
On October 29, 2007, the Government, through U.S. Attorney Joseph Orabona, offered Petitioner a fast-track plea deal. [Doc. No. 58-1 at 3-9.] Among other things, acceptance of the deal would require Petitioner to waive indictment and enter a guilty plea on or before December 17, 2007. [Id.] In exchange, the Government would give Petitioner a "charge bargain," meaning he would plead guilty to an information charging him with three counts of illegal entry, in violation of 8 U.S.C. § 1325(a), and the Government would recommend to the Court that Petitioner receive a sentence of no greater than 48 months. [Id.] Thereafter, Ms. Baylor advised Petitioner that she believed the 48-month deal was the best offer the Government would give him and that if he did not accept this offer, he would face higher penalties.*fn2 Petitioner agreed to accept the fast track plea offer.
On November 15, 2007, Petitioner waived indictment. [Doc. No. 45-1, Ex. 1 [Doc. No. 8]; Def.'s Tr. Ex. A .] The same day, pursuant to the anticipated plea agreement, an information was filed charging Petitioner with three counts of illegal entry in violation of 8 U.S.C. § 1325. [Id. [Doc. No. 6].] Petitioner entered a not guilty plea, and the change of plea hearing was continued to November 29, 2007. [Id. [Doc. No. 7].]
Sometime after signing the above waiver of indictment form, Petitioner heard from another inmate that an attorney named Christian De Olivas could possibly get him a better deal. Petitioner met with Mr. De Olivas after Mr. De Olivas approached him at the MCC. Mr. De Olivas told Petitioner that he was agreeing to a lot of time in custody and told Petitioner that he could obtain for him a 24-month offer or at most a 30-month offer from the Government. During this conversation, Petitioner informed Mr. De Olivas that he had a prior state court conviction for drug trafficking and had served two years in prison for that offense. Mr. De Olivas told Petitioner that his prior state court conviction would not count in federal court. Petitioner was happy with what Mr. De Olivas told him because the offer Mr. De Olivas said he could obtain was for half the time of the 48-month fast track plea offer.
On November 26, 2007, Petitioner met with Ms. Baylor and told her that he thought the 48-month plea offer was too much time and he wanted new counsel. [Doc. No. 58-1, Baylor Decl. ¶ 6.] The amount of time in the offer was the only reason Petitioner said he wanted new representation. [Id. ¶ 7.] On November 29, 2007, the Magistrate Judge continued the change of plea hearing to December 6, 2007. [Doc. No. 45-1, Ex. 1 [Doc. No. 9].]
On December 3, 2007, Petitioner signed a substitution of attorney form naming Mr. De Olivas as his new attorney of record. [Def.'s Tr. Ex. B.] Mr. De Olivas requested from Petitioner a retainer of $4,000. Petitioner gave Mr. De Olivas his siblings' phone number, but Mr. De Olivas was never paid for his services. Petitioner hired Mr. De Olivas because he said he could obtain a 24- or 30-month offer and because he believed Mr. De Olivas was a good lawyer.
Mr. De Olivas emailed the signed substitution of attorney form to Ms. Baylor on December 4, 2007, [Doc. No. 58-1 at 10], and Ms. Baylor signed the form on December 6, 2007. [Def.'s Tr. Ex. B.] On December 6, 2007, the Magistrate Judge substituted in Mr. De Olivas as Petitioner's attorney of record and continued the plea hearing to December 18, 2007. [Doc. No. 45-1, Ex. 1 [Doc. No. 11].] After Petitioner retained Mr. De Olivas, they had a meeting where Mr. De Olivas told him to reject the fast track plea offer. Based on this advice and Mr. De Olivas's representation that he could obtain a 24- or 30-month offer from the Government, Petitioner rejected the fast track plea deal.
On December 27, 2007, Petitioner was indicted in the present case, 07-cr-3475-IEG, on a single count of being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. [Doc. No. 1.] On January 11, 2008, the information in case 07-cr-3119-IEG was dismissed, and Petitioner pleaded not guilty to the indictment in the present case. [Doc. No. 45-1, Ex. 1 [Doc. No. 14]; Doc. No. 4.] During this time, Mr. De Olivas continued to represent to Petitioner that he was working towards obtaining a 24- or 30-month offer from the Government. On January 14, 2008, Mr. De Olivas sent attorney Stephen Miller--the U.S. Attorney now assigned to Petitioner's case--an email stating that Petitioner wanted to try the case unless he received a 30-month offer from the Government. [Def.'s Tr. Ex. I.]
On June 16, 2008, Petitioner pleaded guilty to the indictment in 07-cr-3475 without a plea agreement. [Doc. No. 10.] The Court set a sentencing hearing for September 15, 2008. [Id.] Petitioner never saw Mr. De Olivas again after this change of plea hearing.
On August 27, 2008, the Standing Committee on Discipline for the Southern District of California filed a petition requiring Mr. De Olivas to show cause why he should not be suspended or disbarred from practicing in the district due to unprofessional conduct. See In re Attorney Christian De Olivas, 08-cv-1575 (S.D. Cal. Aug. 27, 2008 [Doc. No. 1]). On September 18, 2008, an amended petition was filed. [Doc. No. 38 Ex. B.] One of the allegations in the amended petition was that Mr. De Olivas had been barred for 30 days from entry into the MCC as a result of disruptive behavior, including refusing to cooperate with the security screening process. [Id. ¶¶ 20-22.] Other allegations accused Mr. De Olivas of making false statements to the court and to the disciplinary committee. [Id. ¶¶ 23-25, 33-38.] On September 24, 2008, Mr. De Olivas was disciplined and suspended from practice within this District for a year. [See id.]
On October 5, 2008, Mr. De Olivas filed an ex-parte motion to withdraw as Petitioner's attorney. [Doc. No. 13.] On October 9, 2008, this Court granted Petitioner's motion to substitute counsel and reappointed Federal Defenders, specifically attorney Timothy Garrison. [Doc. Nos. 15-17.]
On January 7, 2009, Petitioner filed a sentencing memorandum requesting that the Court impose a sentence of time served. [Doc. No. 21.] He also requested that, if the Court did not impose a time served sentence, the Court impose a sentence of no more than 48 months because Petitioner had been offered a ...