Mendoza-Prado
United States v. Mendoza-Prado
Opinion
Concurrence in Part
Rymer, J.
concurring in part and dissenting in part.
Given that the testimony at most shows that counsel did not bring up the possibility of a superseding indictment at their last meeting, her experience, the hours she spent discussing the case with Mendoza-Prado, his own wish to go to trial and not to accept a five-year plea bargain, and testimony that Mendoza-Prado knew about the different minimum sentences and had been warned about the greater exposure of going to trial, I don’t think counsel’s performance was deficient. Nor does Mendoza-Prado indicate where he even said that he would have accepted the deal if he had known about the possibility of a superseding indictment — or explain how the district court, which did not find him credible at all, would have believed him had he said it. And he was actually subject to the same mandatory minimum sentence he would have been subject to had he taken it. I think the district court got it right across the board, and would, therefore, affirm.
Lead Opinion
MEMORANDUM **
Defendant Francisco Mendoza-Prado appeals the district court’s denial of his 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel during the plea bargaining process. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 , 2253, and 2255. We affirm in part, reverse in part, and remand in part.
I. Findings of Fact
The district court’s findings of fact were proper and certainly not clearly erroneous. 1 First, Mendoza-Prado’s attorney’s account of the facts supported the district court’s conclusion that she had consistently predicted that Mendoza-Prado’s probable sentence after trial would be “substantially more” than the five year plea offer. 2 Second, testimony established that Mendoza-Prado never indicated that he could not understand his attorneys when they communicated with him in English. In addition, Mendoza-Prado admitted that he read the briefs his attorneys sent him in English and, until the trial, he never asked for an interpreter. Thus, the court’s finding regarding Mendoza-Prado’s comprehension of his attorney’s advice was proper as well.