United States v. Tristan

          ORDER ON HABEAS PETITION

          R. BROOKE JACKSON, UNITED STATES DISTRICT JUDGE

         Priscilla Olivia Tristan, through counsel, moves to vacate her conviction and sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth in this order, the motion is denied.

         I. BACKGROUND.

         Plea and Sentence

         On May 3, 2017 Ms. Tristin pled guilty to Count 1 of the Superseding Indictment, Conspiracy to Distribute and Possess with Intent to Distribute 500 Grams or More of a Mixture and Substance Containing Methamphetamine, contrary to 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A)(viii). She was represented by counsel and was fully advised as to her rights and potential consequences by the Court at the Change of Plea hearing and in writing. See ECF Nos. 116 (Plea Agreement) and 117 (Statement by Defendant in Advance of Plea of Guilty).^[1]Notably, she stipulated to participating with co-defendant Mike Ortiz and others in a large-scale methamphetamine distribution conspiracy, both before her arrest and continuing after she was taken into custody. ECF No. 116 at 4-10.

         The statutory imprisonment range applicable to Ms. Tristin's offense was 20 years to life. Based on an Offense Level of 39 and a Criminal History Category IV, the recommended guideline range would have been 360 months to life. However, the government moved for, and the Court granted, a departure pursuant to guideline § 5k1.1. ECF Nos. 141 and 159. The defendant moved for, and the Court granted, a downward variance in addition to the departure. On July 14, 2017 the Court sentenced Ms. Tristin to 240 months of incarceration, 10 years of supervised release, and a $100 Special Assessment Fee. ECF No. 159 (minute entry). Judgment entered on July 17, 2017. ECF No. 160.

         Motion to Vacate

         On September 5, 2017 Ms. Tristin informed the Court by letter that she wished to appeal but was unable to communicate with her attorney, Jeffrey Edelman, and wished to have a different lawyer. See ECF No. 162. On September 8, 2017 the Court, noting that Mr. Edelman was no longer a member of the CJA panel, appointed counsel from the panel to represent Ms. Tristin. ECF Nos. 163-65. Attorney Jane Holse Fisher-Byrialsen entered an appearance on behalf of Ms. Tristin on September 15, 2017. ECF No. 166.

         The pending motion to vacate was filed by Ms. Fisher-Byrialsen on behalf of Ms. Tristin on July 13, 2018. ECF No. 168. It asserts ineffective assistance by attorney Edelman before and after sentencing. This included inefficient communication, failure to explain her appellate waiver, failure to explain her appellate rights including her right to assert ineffective assistance counsel, failure to notify her of her appeal deadline until sending her a letter on July 21, 2017 which she did not receive until after the deadline had passed, and failure to protect her appellate rights by filing a timely notice of appeal. Id. at 1-3; ECF No. 168-1 (Edelman letter).

         Response

         The Court ordered the government to respond to the motion to vacate. ECF No. 169. In its response the government argues that Ms. Tristin fails to show that Mr. Edelman's performance was deficient or that the alleged deficiencies prejudiced the defendant. ECF No. 173 at 5.

         Reply

         Ms. Tristin reemphasizes Mr. Edelman's failure to preserve her appellate rights. She asked the Court to hold a hearing and, ultimately, to reinstate her right to appeal. ECF No. 174.

         II. ANALYSIS ...