United States District Court, D. Colorado
UNITED STATES, Plaintiff/Respondent.
STYLIOS ALTON TRACHANAS, Defendant/Movant. Crim. Case No. 11-cr-00445-RBJ-1
R. BROOKE JACKSON, District Judge.
This matter comes before the Court on a motion to reconsider pursuant to 28 U.S.C. § 2255 [ECF No. 160]. For the following reasons, the motion is denied.
On March 23, 2012 Mr. Trachanas pled guilty to three federal crimes. [ECF Nos. 35 & 36]. The Court sentenced him to 110 months in prison as to each count, to run concurrently. [ECF No. 60]. On October 30, 2013 Mr. Trachanas filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. In the motion, Mr. Trachanas contended that he had suffered from ineffective assistance of counsel during the plea bargaining process, the pre-trial process, the sentencing process, and the direct appeal process, in violation of the Fifth and Sixth Amendments. Id. at 4-6.
The Court set a hearing on the motion on April 23, 2014. [ECF No. 118]. On March 25, 2014 Mr. Trachanas moved for the appointment of counsel [ECF No. 121], which this Court granted [ECF No. 129]. CJA attorney Robert Berger was appointed on April 3, 2014, and he filed an entry of appearance a few days later. [ECF Nos. 129 & 130]. On behalf of Mr. Trachanas, Mr. Berger immediately moved to continue the hearing in order to give himself an adequate opportunity to prepare. [ECF No. 131]. The Court granted the motion to continue, and the hearing was rescheduled for July 22, 2014. [ECF Nos. 133 & 134].
On July 1, 2014 the Court received an ex parte letter from Mr. Trachanas indicating that a "conflict ha[d] arisen" between him and Mr. Berger. [ECF No. 140]. Mr. Trachanas was frustrated with the legal strategy that Mr. Berger wished to pursue and requested "that new counsel be appointed, or in the alternative that [he] be allowed to proceed with a hybrid form of representation, or lastly, to proceed pro se with advisory counsel to assist in the preparation of witness lists, subpoenas, document preparation, copies, etc." Id. In a minute order issued on July 8, 2014 the Court advised Mr. Trachanas that he could discharge Mr. Berger and represent himself if he wished, but that "in the context and history of this case and the defendant's disagreement with the manner in which a succession of lawyers have represented him, the Court declines to appoint another lawyer to represent him in this matter." [ECF No. 141].
On the same day, after receiving the minute order and discussing the situation with Mr. Trachanas, Mr. Berger filed a motion to withdraw, indicating that Mr. Trachanas had "decided that he wanted to, again, represent himself and he authorized counsel to file this motion to withdraw." [ECF No. 142]. The Court granted the motion to withdraw on July 10, 2014. [ECF No. 143]. Mr. Trachanas then sought "clarification" as to whether the Court would permit him to proceed pro se with co-counsel or advisory counsel. [ECF No. 146]. The Court again indicated that it would not appoint another lawyer to represent Mr. Trachanas at government expense, whether the representation would be direct or advisory. [ECF No. 155].
Mr. Berger was the fifth lawyer to represent Mr. Trachanas in his case. The first, Douglas Richards, represented Mr. Trachanas through his motion to suppress and his eventual plea bargain. Mr. Trachanas then hired James Kennedy and Kent Schaffer, partners in the same law firm, to represent him (in addition to Mr. Richards) at sentencing. At some point after being sentenced Mr. Trachanas filed a motion for leave to appeal in forma pauperis, which the Court granted. The Court appointed CJA attorney Robert Fishman to represent Mr. Trachanas during his appeal. Because Mr. Trachanas had chosen to appeal solely on the grounds of ineffective assistance of counsel' Mr. Fishman apparently advised him that the issue was more appropriately raised in a collateral proceeding. Mr. Trachanas then voluntarily dismissed his direct appeal. It is unclear what caused the relationship between Mr. Trachanas and Mr. Fishman to sour, but by the time of his motion to vacate, Mr. Trachanas was representing himself.
Between the withdrawal of Mr. Berger on July 10, 2014 and the hearing on July 22, 2014 Mr. Trachanas filed three motions, a response to a government motion, a status report, a witness list, and an ex parte letter with the court. [ECF Nos. 145-149, 153-154]. Meanwhile, he filed no applications for the issuance of subpoenas. It is worth noting that Mr. Trachanas had previously filed such applications with the Court while representing himself. See [ECF Nos. 100 & 123]. Because no subpoena requests had been filed, none of Mr. Trachanas' witnesses had been subpoenaed to appear at his hearing, and none of them was otherwise present.
At the hearing, Mr. Trachanas explained that he had filed a preliminary witness list, and that in his status report he had asked the Court to order the government to subpoena those witnesses. Transcript of July 22, 2014 Hearing [ECF No. 163] at 28:6, 9-12. I explained that it was his obligation to subpoena the witnesses he wished to call, not the responsibility of the government. Id. at 28:13-14. I added that I would have approved some of the subpoena requests, especially the one for Mr. Richards, the initial attorney who is the primary (but not only) focus of the motion. Id. at 28:14-16. Mr. Trachanas then asked for a continuance of his hearing so that he could subpoena his witnesses, id. at 29:4-5, a request that the Court denied.
In denying the request, I noted that I did not find it reasonable to prepare for and convene for a hearing that had been scheduled for months only to have Mr. Trachanas ask for more time to subpoena witnesses. Id. at 54:13-20. Mr. Trachanas had ample time to file numerous other motions and documents between the time he discharged his attorney and the date of the hearing. No good reason was given why he was unable to subpoena witnesses. The only explanation given was that the Court had previously denied other subpoena requests. Id. at 12:17-18. First, those requests had been for documents-personnel records to be exact-not for the appearance of witnesses. See [ECF Nos. 100 & 123]. Second, Mr. Trachanas has never been shy about seeking explanation or reconsideration of this Court's rulings. See, e.g., [ECF Nos. 120, 145, & 146]. Finally, Mr. Trachanas did ask the Court to order the government to subpoena the witnesses but, for whatever reason, he chose not to file the subpoena request himself.
After hearing argument from both Mr. Trachanas and the government's attorney, I made findings of fact and issued a ruling. I concluded that under the standards set out in Strickland v. Washington, 466 U.S. 668 (1984), there were no grounds to find that Mr. Richards had been ineffective. As such, Mr. Trachanas' motion to vacate pursuant to 28 U.S.C. § 2255 was denied.
On August 1, 2014 Mr. Trachanas filed the present motion to reconsider the denial of his motion to vacate. Mr. Trachanas alleges that the Court made three errors, each of which demands a new ...