Denis v. United States

Background

Jose Heberto Alvarez-Denis pleaded guilty to participating in a narcotics conspiracy involving five kilograms or more of cocaine. His plea agreement waived his rights to directly appeal or bring a later challenge to a sentence within or below the agreed guideline range of 188 to 235 months. At the plea hearing, the court explained that waiver, and Alvarez-Denis confirmed that he understood it.

The court later appointed Marlon G. Kirton as new counsel after finding irreconcilable differences between Alvarez-Denis and his first lawyer, Matthew D. Myers. Alvarez-Denis chose not to move to withdraw his guilty plea. On April 11, 2019, the court sentenced him principally to 148 months in prison and five years of supervised release. At sentencing, the court explained the general right to appeal, the appeal deadline, and the parties’ position that Alvarez-Denis had waived his right to appeal. Alvarez-Denis confirmed that he understood.

Alvarez-Denis did not file a direct appeal. He later filed a motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence. He also asked the court to appoint counsel. He initially alleged that Kirton waited until after the appeal deadline to meet with him and then told him that he could not appeal and should not file an appeal himself. After Kirton submitted a sworn statement, Alvarez-Denis accepted that the meeting occurred on April 23, 2019, twelve days after sentencing, but continued to dispute what was said during the meeting. He separately alleged that the court failed to advise him of his appeal rights as required by Federal Rule of Criminal Procedure 32(j)(1)(B).

Ineffective-assistance claim

To prove ineffective assistance of counsel, Alvarez-Denis had to show both that Kirton’s performance was objectively unreasonable and that the alleged error likely affected the result. The court concluded that the claim based on a delayed meeting was unsupported because Kirton met with Alvarez-Denis before the appeal deadline. A voucher for a Spanish-language interpreter supported Kirton’s account of the April 23 meeting.

The court recognized a factual dispute about whether Alvarez-Denis asked about filing an appeal and whether Kirton said that he could not appeal or should not file an appeal himself. It nevertheless found that Kirton’s detailed sworn statement was sufficient to resolve the motion without an evidentiary hearing. The court credited Kirton’s account and declined to credit Alvarez-Denis’s allegations, noting that Alvarez-Denis had earlier misstated the meeting date and had not provided corroborating facts.

The court found that Kirton accurately advised Alvarez-Denis that the plea agreement waived his right to appeal because the sentence was below the agreed guideline range, while preserving claims of ineffective assistance and actual innocence. The court also found no allegation or evidence that Alvarez-Denis instructed Kirton to file a notice of appeal on his behalf. It therefore concluded that Kirton was not ineffective and that Alvarez-Denis failed to show either deficient performance or prejudice.

Appeal-rights claim

The court rejected the claim under Rule 32(j)(1)(B). It explained that the court had already fully described the appeal waiver during the plea hearing. Because an unqualified statement at sentencing that Alvarez-Denis had a right to appeal would have been misleading, the court stated that its sentencing explanation—discussing the general appeal right and the waiver—was proper. Alvarez-Denis did not explain why the sentencing instructions were improper.

Disposition

Judge Koeltl denied Alvarez-Denis’s motion to vacate, set aside, or correct his sentence under Section 2255. The court declined to appoint counsel because no evidentiary hearing was warranted, the claims were not unusually complex, and Alvarez-Denis was capable of presenting them himself. The Clerk was directed to close the pending motions and the civil case. The court also declined to issue a certificate of appealability because Alvarez-Denis had not made the required substantial showing that a constitutional right had been denied.