United States District Court, W.D. Virginia, Big Stone Gap Division
Rick A. Mountcastle, Assistant United States Attorney, Roanoke, Virginia, for United States.
Dale A. Baich and Robin C. Konrad, Assistant Federal Public Defenders, Office of the Federal Public Defender, Phoenix, Arizona, and Fay F. Spence and Brian J. Beck, Assistant Federal Public Defenders, Roanoke and Abingdon, Virginia, for Defendant.
James P. Jones, United States District Judge.
Defendant Carlos Caro filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, alleging that ineffective assistance of counsel caused him to enter an invalid guilty plea. The United States filed a Motion to Dismiss the § 2255 motion as untimely filed, and Caro responded, arguing that he is entitled to equitable tolling. After review of the record, I find that the Motion to Dismiss must be granted.
A Superseding Indictment was returned in this court on December 11, 2003, charged Caro, a federal inmate, and six others with conspiracy to commit murder and unlawful possession of a weapon arising from the stabbing of fellow inmate Ricardo Benavidez at the United States Penitentiary-Lee County (" USP Lee" ) on August 29, 2003. Caro and codefendant Juan Moreno-Marquez, the only inmates who actually stabbed the victim, were also charged with assault with intent to commit murder.
In May 2004, five of Caro's codefendants in the stabbing case each pleaded guilty to the unlawful weapon charge in exchange for dismissal of the conspiracy charge. The charges against Caro and Moreno-Marquez were set for a jury trial in August 2004.
Caro and Moreno-Marquez, through their respective attorneys, proposed a joint plea bargain, with Caro pleading guilty to conspiracy to commit murder in exchange for Moreno-Marquez being allowed to plead guilty to the lesser unlawful weapon charge. Caro's attorney, Louis Dene, advised Caro that the agreement did not benefit him and would result in a lengthy prison sentence. Caro told Dene that " 'he wasn't going anywhere,' so the long sentence did not matter to him." (2255 Motion, Ex. 3, Dene Decl., ¶ 6, ECF No. 189-1.) Nevertheless, Caro instructed Dene to pursue the linked plea agreements in order to mitigate the sentence of Moreno-Marquez, Caro's fellow Texas Syndicate gang member.
I accepted the plea arrangement, found both defendants' guilty pleas to be valid, sentenced Caro to 327 months for conspiracy to commit murder, and sentenced Moreno-Marquez to 57 months for unlawful weapon possession. Judgment was entered on November 1, 2004, and Caro did not appeal.
Months before Caro entered his guilty plea to the conspiracy to commit murder charge in this case, on December 17, 2003, USP Lee officials found Caro's cellmate, Robert Sandoval, murdered in his cell, and Caro admitted killing him. The United States notified Caro in December 2004 of its intention to charge him with capital murder and seek the death penalty, and the court appointed counsel for Caro in January 2005 as to the potential capital charge. In January 2006, Caro was indicted for the capital murder of Sandoval. United States v. Caro, Case No. 1:06CR00001 (W.D. Va.).
At the time that Dene negotiated the Plea Agreement for Caro in the conspiracy to commit murder case, in June 2004, Dene knew that Caro had been implicated in the death of another inmate in December 2003. Dene understood that the government intended to proceed with a death penalty case against Caro after the conspiracy case concluded. Dene also knew that Caro had never completed high school, had limited ability to understand legal proceedings without counsel, and trusted Dene to advise him which legal choices were in Caro's best interest. Dene never advised Caro that he should reject the Plea Agreement and proceed to trial on the conspiracy to commit murder conviction, because this conviction, and the inevitable, lengthy sentence to be imposed for it, would likely be used against him in the looming capital case.
Caro was tried and convicted for capital murder in early 2007. The government listed Caro's conspiracy to commit murder conviction as an aggravating factor in its Notice of Intent to Seek the Death Penalty. In addition, the government pointed out during the penalty phase of the trial that Caro's prior federal prison sentences, totaling more than 57 years, constituted a life sentence for him. Based on that fact, the government argued, Caro would receive no punishment in the capital case unless death was imposed. The trial ended with a death sentence for Caro.
Caro's § 2255 motion here alleges one claim of ineffective assistance: that Dene knew and should have advised Caro in June 2004 to reject the plea agreement and proceed to trial. Habeas counsel for Caro assert that during their interview of Dene on March 9, 2012, related to the capital case, Dene stated that he knew, but did not advise Caro, that his conspiracy conviction and sentence would likely be used against him in a capital murder prosecution. On March 11, 2013, less than a year after this interview, counsel filed Caro's § 2255 motion alleging that Dene's actions deprived ...