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Moya v. United States

United States District Court, N.D. Texas, Lubbock Division

May 30, 2018

ROY MOYA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          D. GORDON BRYANT, JR UNITED STATES MAGISTRATE JUDGE

         Movant Roy Moya, a federal prisoner, brings this Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. ECF No. 1. The respondent is the United States of America (Government). On December 7, 2017, the United States District Judge referred the matter to the undersigned magistrate judge for the limited purpose of conducting an evidentiary hearing and filing findings of fact and conclusions of law regarding "Movant's claim that his trial counsel failed to file a notice of appeal as [Movant] instructed." See ECF No. 19. The district judge also authorized the magistrate judge to appoint counsel "only for the limited purposes of representing Movant at the evidentiary hearing and, if necessary, filing any objections to the Report and Recommendation." Id. at n.2.

         I. Procedural History

         On August 12, 2015, the United States of America indicted Moya on one count of Convicted Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and (2). The indictment also contained a forfeiture count. On August 21, 2015, the court appointed Travis Sandoval as counsel for Moya, and on August 25, 2015, Mr. Sandoval filed a notice of appearance.

         Moya entered into a plea agreement with the Government on September 30, 2015, in which he pleaded guilty to being a felon in possession of a firearm. On January 8, 2016, Senior United States District Judge Sam R. Cummings sentenced Moya to serve a term of 120 months in prison. Moya did not file a direct appeal; however, on January 23, 2017, Moya filed the instant § 2255 motion. Through his motion, Moya alleges, among other things, that Mr. Sandoval provided ineffective assistance of counsel by failing to file a notice of appeal. Specifically, Moya contends that he "asked [his] attorney to file an appeal cause I felt I was give[n] to [sic] much time for my crime." ECF No. 6, at 7. On October 30, 2017, the Government filed its response in opposition to Moya's motion. ECF No. 14. With respect to Moya's allegation that Mr. Sandoval failed to file a requested notice of appeal, the Government requested an evidentiary hearing. ECF No. 14, at 7. Accordingly, on December 7, 2017, the district judge referred this matter to the undersigned United States Magistrate Judge for the limited purpose of conducting an evidentiary hearing and filing findings of fact and conclusions of law in regard to Movant's claim. ECF No. 19.

         In accordance with the order of reference, the magistrate judge appointed counsel for the limited purpose of representing Moya on his claim that Mr. Sandoval failed to file a notice of appeal as instructed, and conducted a hearing on February 27, 2018. ECF Nos. 20, 28, 31. Both parties were represented by counsel at the hearing. Based upon the testimony at the hearing, a review of court records related to this matter, and the applicable law, the undersigned submits the following findings of fact and conclusions of law.

         II. Summary of Testimony

         While Mr. Sandoval testified at the hearing, Moya did not. Mr. Sandoval stated that he reviewed the plea agreement, which contained a waiver of appeal provision, with Moya prior to Moya signing it. Mr. Sandoval testified that after Moya pleaded guilty, he reviewed the presentence report (PSR) with Moya sometime in late December 2017. The PSR contained a sentencing recommendation of 130-162 months, but noted that the statutory maximum was 120 months. Mr. Sandoval affirmed that Moya was aware, prior to the actual sentencing date, that the district judge would likely sentence him to 120 months. Mr. Sandoval also testified that he did not recall Moya raising any specific concerns or objections regarding the contents of the PSR. Mr. Sandoval stated that after reviewing the facts and guideline computations contained in the PSR, Moya signed a document reflecting his adoption of the PSR.

         Mr. Sandoval further testified that at sentencing, the district court advised Moya he had fourteen days to file a notice of appeal, and that Moya did not ask him to file any such notice during the fourteen-day period. Mr. Sandoval did confirm, however, that had Moya asked him to file an appeal, he would have done so. Mr. Sandoval did not remember meeting with Moya after his sentencing, but explained that his general practice is to meet with his clients post-sentencing. Mr. Sandoval stated that he had no reason to believe Moya would want to appeal because Moya had signed a waiver of appeal and the 120-month sentence was less than the applicable guideline range, had he not pleaded guilty. In addition, Mr. Sandoval attested that he did not hear anything from Moya regarding a desire to appeal until four months after sentencing, on May 11, 2016, when he received a letter from Moya indicating he wanted to appeal. Mr. Sandoval testified he did not respond to Moya's letter because the time to appeal, or seek an enlargement of time to appeal, had expired.

         III. Findings of Fact

         Based on the testimony elicited at the hearing, the court finds the following:

A. Travis Sandoval has been licensed to practice law in Texas since November 1995, and admitted to practice in the Northern District of Texas since May 1996. Save for a three- year period, Mr. Sandoval has accepted criminal appointments under the Criminal Justice Act since his admission to the Northern District in 1996.
B. Mr. Sandoval primarily practices criminal law, handling a mixture of state and federal criminal cases.
C. On August 21, 2015, a grand jury indicted Moya on one count of Convicted Felon in Possession of a Firearm, in violation of 18 U.S.C. ยงยง 922(g)(1), 924(a)(2), and ...

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