APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Ezekiel E. Cortez for appellant.
Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, with whom Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States Attorney, were on brief, for appellee.
Before Lynch, Selya, and Lipez, Circuit Judges.
LYNCH, CIRCUIT JUDGE
Elvin Torres-Estrada pleaded guilty on March 21, 2011, to two conspiracies. One was a conspiracy to possess with intent to distribute controlled substances within 1, 000 feet of public housing, between about 1995 and 2009. That conspiracy was charged on September 28, 2009, with a second superseding indictment filed on April 15, 2010. The second conspiracy was to import five kilograms or more of cocaine and one kilogram or more of heroin from the Dominican Republic, between about March 2005 and July 2009. That conspiracy was charged later, on February 9, 2011.
There is no need for an extensive discussion of facts. We give only a brief overview to explain the context for the issues of law. At the time of the 2009 indictment and 2010 second superseding indictment, Torres-Estrada was a fugitive. On June 7, 2010, Torres-Estrada was arrested and ordered temporarily detained. Attorneys Raymond R. Granger and Edward V. Sapone filed a motion to appear pro hac vice on behalf of Torres-Estrada and represented him at a July 27, 2012, bail hearing along with local counsel Zelma Dávila Carrasquillo. On July 29, 2010, a local Puerto Rico attorney, Ramón García García ("García"), filed a notice to appear as counsel on behalf of Torres-Estrada along with Dávila Carrasquillo, Granger, and Sapone. Torres-Estrada says that his counsel did not actually coordinate their representation.
After Granger and Sapone received a plea offer on September 20, 2010, from Assistant United States Attorney Timothy Henwood, plea negotiations ensued with Granger, Sapone, and García representing Torres-Estrada. According to Granger, García interfered with negotiations by, inter alia, making a counteroffer for a sentence lower than what Torres-Estrada had authorized, and communicating with the government without consulting with Granger or Sapone. On October 26, 2010, Granger, Sapone, and Dávila Carrasquillo withdrew from representing Torres-Estrada. Granger and Sapone's motion to withdraw stated that they were "lead counsel" and that "Torres-Estrada has advised us that he no longer wishes to utilize the services of our respective firms and has requested that we move to withdraw as counsel of record."
Plea negotiations over the indictment as to the first conspiracy failed, with negotiations being cut off by the government when it realized Torres-Estrada was involved with the second conspiracy to import drugs from the Dominican Republic. That conspiracy had been charged on February 9, 2011, and it is clear the government cut off negotiations sometime before then. The March 2011 plea agreement, which led to this appeal, covered both conspiracies. Torres-Estrada was sentenced to 288 months of imprisonment for the conspiracy to possess with intent to distribute various controlled substances, concurrent with a sentence of 120 months of imprisonment imposed for the importation conspiracy.
Torres-Estrada makes two arguments here on direct appeal. The first is that he is entitled to the benefit of the government's plea offer made in the first round of negotiations, though he had not accepted that offer. In his brief, Torres-Estrada argues that he is the victim of ineffective assistance from García during plea negotiations and that Granger and Sapone had a conflict of interest. Cf. Missouri v. Frye, 132 S.Ct. 1399, 1408 (2012); Lafler v. Cooper, 132 S.Ct. 1376, 1384–85 (2012). The latter part of this argument was modified at oral argument. See infra note 2. The other argument is that the district court judge was required to recuse himself. A. Ineffective Assistance of Counsel
Torres-Estrada executed a waiver of appeal as part of his March 21, 2011, plea agreement. The waiver states: "The defendant hereby agrees that if this Honorable Court accepts this agreement and sentences [him] according to its terms and conditions, defendant waives and surrenders [his] right to appeal the conviction and sentence in this case." We find that he has waived his appeal of the ineffective assistance of counsel ("IAC") claim.
As an initial matter, Torres-Estrada failed to address the waiver of appeal clause in his opening brief, which would ordinarily be enough to enforce that waiver. See United States v. Arroyo-Blas, 783 F.3d 361, 367 (1st Cir. 2015). In his reply brief, Torres-Estrada first implies that he was caught by surprise in learning that the government would attempt to enforce the waiver. That was because as of October 14, 2014, it was the written policy of the Department of Justice ("DOJ") not to enforce waivers of appeal involving IAC claims under certain conditions. The memorandum to which Torres-Estrada refers states, in relevant part, that "[f]or cases in which a defendant's ineffective assistance claim would be barred by a previously executed waiver, prosecutors should decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant's ineffective assistance claim raises a serious debatable issue that a court should resolve."
The government, in turn, correctly reminds us that such a policy, promulgated after the plea agreement in this case, creates no rights in defendants and that courts typically play no role in the prosecutorial choices made by the DOJ. See, e.g., Unite ...