United States District Court, D. Nevada
M. Navarro, Chief Judge
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.
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
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).
Petitioner Pleads Guilty
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).
Petitioner Attempts to Withdraw His Guilty Plea
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).
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).
The Court Sentences Petitioner, and He Appeals
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. (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).
Failure to Disclose Evidence
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).
Petitioner Files the Instant Motion
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). 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
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 ...