United States District Court, D. Colorado
ORDER ON HABEAS PETITION
BROOKE JACKSON, UNITED STATES DISTRICT JUDGE
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
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).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.
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.
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.
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
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.
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.