Filed: Sep. 09, 2015
Latest Update: Sep. 09, 2015
Summary: REPORT AND RECOMMENDATION G.R. SMITH , Magistrate Judge . Over a year and a half after receiving a life sentence for conspiracy to engage in sex trafficking, doc. 775, and sixteen months after the Court first denied his request for additional time to appeal, doc. 799 (filed April 9, 2014), defendant Joaquin Mendez-Hernandez (now pro se) moves for reconsideration 1 of that denial. Doc. 865. He contends that the Court's earlier order "is based on alleged statements of [counsel]" that "are
Summary: REPORT AND RECOMMENDATION G.R. SMITH , Magistrate Judge . Over a year and a half after receiving a life sentence for conspiracy to engage in sex trafficking, doc. 775, and sixteen months after the Court first denied his request for additional time to appeal, doc. 799 (filed April 9, 2014), defendant Joaquin Mendez-Hernandez (now pro se) moves for reconsideration 1 of that denial. Doc. 865. He contends that the Court's earlier order "is based on alleged statements of [counsel]" that "are ..
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REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Over a year and a half after receiving a life sentence for conspiracy to engage in sex trafficking, doc. 775, and sixteen months after the Court first denied his request for additional time to appeal, doc. 799 (filed April 9, 2014), defendant Joaquin Mendez-Hernandez (now pro se) moves for reconsideration1 of that denial. Doc. 865. He contends that the Court's earlier order "is based on alleged statements of [counsel]" that "are contradicted by [docs.] 785 and 786." Doc. 865 at 1. That's just not true, much less a good reason to reconsider the previous denial.
The Court sentenced Mendez-Hernandez on February 19, 2014. Doc. 772. Twelve days later, his attorney, Jonathan Hunt, filed a Notice of Post-Conviction Consultation Certification (Notice) — the document that allegedly contradicts Hunt's statements in the motion for extension — indicating that he discussed appellate rights with Mendez-Hernandez who then decided to appeal Doc. 785. Mendez-Hernandez, however, never thereafter appealed.
The motion for extension explains that somewhat odd sequence of events. In the motion, Hunt represents that "[p]rior to entry of judgment . . . [he] met with [Mendez-Hernandez] to discuss" appeal options. Id. at 1. "At [Hunt]'s request, [Mendez-Hernandez] . . . signed two opposing versions of the Notice. . . one requesting an appeal and one not." Id. Hunt says he intended after sentencing to file whichever version Mendez-Hernandez selected. Id.
Consistent with that intention, "moments after sentencing, [Hunt] met with . . . Mendez-Hernandez [again] . . . to discuss his appellate rights," but Mendez-Hernandez "was undecided what to do." Id. at 2. On March 3, 2014, Hunt asked him for at least the third time if he wanted to file an appeal, but again he was undecided. Id. In order to preserve Mendez-Hernandez's right to appeal, and without knowing what his client wished to do, Hunt filed the Notice indicating that Mendez-Hernandez would appeal. Id. at 2.
The Notice contradicts nothing in the motion for extension Hunt filed. Indeed, the motion, and Hunt's statements, give context to and explain why he filed a Notice selecting an appeal, yet never actually appealed. Not only is Mendez-Hernandez's present motion a tad late (sixteen months post-original decision),2 but he offers no good reason — much less a clear error, new evidence, or a change in law, see Wilkerson, 2010 WL 3585189 at * 1 — to reconsider the Court's denial of additional time to appeal. His motion for reconsideration (doc. 865) should be DENIED.
SO REPORTED AND RECOMMENDED.
