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United States v. Delemus

United States District Court, D. Nevada

July 12, 2019



          Gloria M. Navarro, Chief Judge

         Pending before the Court is Petitioner Gerald Delemus's (“Petitioner's”) Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“2255 Motion”), (ECF No. 3365). The Government filed a Response, (ECF No. 3386), and Petitioner filed a Reply, (ECF No. 3419). For the reasons stated below, the Court DENIES Petitioner's 2255 Motion.

         I. BACKGROUND

         This case centers on an April 12, 2014 confrontation involving Bureau of Land Management (“BLM”) Officers in Bunkerville, Nevada. (See Superseding Indictment 2:4-10, ECF No. 27). Petitioner's connection to that confrontation began on April 8, 2014, when he spoke to Cliven Bundy over the phone about actions by BLM officers supposedly affecting Mr. Bundy's ranch, family, and cattle. (2255 Motion 31:26-32:1, ECF No. 3365). From that call, Petitioner sought to assist Mr. Bundy. (Id. 20:1-21:4, 31:26-32:1). Petitioner accordingly drove to Nevada from his residence in New Hampshire, and he arrived in Nevada on April 13, 2014-one day after the confrontation in Bunkerville. (Id.); (Reply 6:5-11). According to the Superseding Indictment, when Petitioner arrived in Nevada, he “established armed checkpoints and security patrols to prevent and deter law enforcement actions against the conspirators [named in the Indictment, such as Mr. Bundy], including recovering the extorted cattle.” (Superseding Indictment 36:7-20).

         A federal grand jury issued the Superseding Indictment against Petitioner on March 2, 2016; and he appeared before the United States District Court for the District of New Hampshire on March 7, 2016, for a detention hearing. (Order Detention at 112, ECF No. 104-1). The New Hampshire Court ordered Petitioner detained pending trial and transferred to the District of Nevada. (Id. at 124). This Court then appointed Brian J. Smith, Esq. as his counsel. (Mins. Proceedings, ECF No. 222).

         A. Petitioner Pleads Guilty

         Roughly five months after being transferred to Nevada, Petitioner appeared before the Court for a change of plea hearing. (Min. Order, ECF No. 634); (Mins. Proceedings, ECF No. 646). At that hearing, Petitioner pleaded guilty to two counts of the Superseding Indictment: Count 1, Conspiracy to Commit an Offense Against the United States, in violation of 18 U.S.C. § 371; and Count 16, Interstate Travel in Aid of Extortion, in violation of 18 U.S.C. § 1952(a)(2). (Mins. Proceedings, ECF No. 646) (describing the change of plea hearing that occurred on August 25, 2016); (Plea Agreement, ECF No. 649).

         B. Petitioner Attempts to Withdraw His Guilty Plea

          On November 1, 2016, Brian J. Smith moved to withdraw as Petitioner's counsel, citing conflicts based on Petitioner's intent to withdraw his guilty plea. (Mot. Withdraw 3:1-10, ECF No. 919). The Court granted Smith's motion to withdraw on November 16, 2016, and then appointed Petitioner's current counsel, Dustin R. Marcello, Esq. (Order, ECF No. 988).

         About two months later, Petitioner filed a motion to withdraw his guilty plea on the grounds that he was threatened with additional counts if he did not plead guilty, that he did not “knowingly and voluntarily” plead guilty, and that he was “factually and legally innocent of the charges.” (Mot. Withdraw Plea 8:7-9:18, 15:13-14, 20:1-3, ECF No. 1298). The Court denied Petitioner's motion on May 9, 2017, based on, among other things, the following: there was no factual basis to believe that the Government threatened additional counts if Petitioner did not plead guilty; and Petitioner's statements during the change of plea hearing showed that he knowingly and voluntarily admitted to facts that support a finding of guilt as to both of the offenses listed in his plea agreement. (Order 3:22-11:9, ECF No. 1953). On May 17, 2017, Petitioner moved the Court to reconsider its Order denying withdrawal of the guilty plea, which the Court later denied. (Mot. Reconsider, ECF No. 1974); (Mins. Proceedings, ECF No. 2031).

         C. The Court Sentences Petitioner, and He Appeals

          On May 31, 2017, the Court sentenced Petitioner to sixty months imprisonment for Count 1 of the Superseding Indictment and twenty-seven months as to Count 16, consecutive to one another, for a total of eighty-seven months.[1] (J., ECF No. 2068). The day after sentencing, Petitioner appealed his sentence to the Ninth Circuit Court of Appeals. (Not. Appeal, ECF No. 2033). The Ninth Circuit dismissed that appeal on October 27, 2017, because of the “valid appeal waiver” in Petitioner's plea agreement. (Orders, ECF Nos. 2794, 3226).

         D. Failure to Disclose Evidence

          On December 20, 2017, the Court declared a mistrial with regard to certain “Tier 1” defendants named in the Superseding Indictment due to the Government's failure to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963), and related case law. (Trial Tr. 16-3 to 16-24, ECF No. 3049); (see Order 25:14-18, ECF No. 1098) (defining the “Tier 1” defendants as: “Cliven Bundy, Ryan Bundy, Ammon Bundy, Peter Santilli, and Ryan Payne”). On January 8, 2018, the Court further declared that the Government's actions warranted dismissal of the Superseding Indictment with prejudice as to Cliven Bundy, Ryan Bundy, Ammon Bundy, and Ryan Payne. (Mins. Proceedings, ECF No. 3116); (Trial Tr. 21-22, ECF No. 3122); (J., ECF No. 3117).

         E. Petitioner Files the Instant Motion

         On July 13, 2018, Petitioner again moved the Court to reconsider its Order denying withdrawal of his guilty plea, and he also sought a determination of whether his current counsel could pursue a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Mot. Reconsider, ECF No. 3287).[2] However, before the Court addressed that motion, Petitioner filed the instant 2255 Motion, (ECF No. 3365). The Court thereafter denied Petitioner's motion for reconsideration, and the Court did not opine on any potential conflicts with his counsel. (Order 2:20-4:3, ECF No. 3369).

         In the instant 2255 Motion, Petitioner seeks to vacate his sentence largely on the ground that the Government's Brady violations regarding Tier 1 defendants involved evidence that should have been disclosed to him. (2255 Motion 14:1-32:24, 35:1-38:5, ECF No. 3365). Petitioner therefore argues that he lacked the ability to voluntarily and intelligently plead ...

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