United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
24, 2018, defendant Abraham Martinez, a federal prisoner
appearing pro se, filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255
(Dkt. # 65). Section 2255 provides that “a prisoner in
custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground
that the sentence was imposed in violation of the
Constitution or law of the United States . . . may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.”
November 2, 2015, a grand jury returned a one-count
indictment charging defendant with possession of a
destructive device, without registering the device in the
National Firearms Registration and Transfer Record, in
violation of 26 U.S.C. §§ 5861(d), 5871. Dkt. # 4.
Defendant was arrested and made his initial appearance on
November 4, 2015. Dkt. # 11. Defendant was found to be
indigent, and the Court appointed Julie Lynn O’Connell,
Federal Public Defender, to represent him. Dkt. # 12.
December 3, 2015, defense counsel filed an unopposed motion
for determination of competency due to serious concerns about
defendant’s mental health. Dkt. # 20. Plaintiff did not
object to defense counsel’s motion. Id. The
magistrate judge found that the matter should be set for
hearing, and in the meantime, referred defendant for
psychiatric and/or psychological treatment and an
examination. Dkt. ## 22, 23. Defendant was sent to
FCI-Englewood for an examination by Jessica Micono, Psy. D.,
and she submitted a sealed medical evaluation report, Dkt. #
26, opining that there is “a mental disorder that
substantially impairs his present ability to understand the
nature and consequences of the court proceedings against him,
and his ability to properly assist counsel in his
defense.” Id. at 1. On February 17, 2016,
based on the sealed medical evaluation report and without
objection, the magistrate judge found that defendant was
incompetent to stand trial and was (then) presently suffering
from a mental disease or defect rendering him mentally
incompetent. Dkt. # 30. The magistrate judge committed
defendant to the custody of the Attorney General for care and
treatment for the purpose of restoration to competency.
Id. On August 12, 2016, a second sealed medical
evaluation report was filed, opining that defendant still
remained incompetent to proceed in his criminal case. Dkt. #
36. It was recommended that an additional reasonable period
of time would be sufficient to restore defendant to
competency. Id. at 2. The magistrate judge granted a
120-day continuance for additional restoration of competence,
and reset the competency hearing. Dkt. # 38. On February 23,
2017, a third sealed medical evaluation report was filed,
Dkt. # 46, which opined that defendant was mentally competent
to stand trial, and had the mental capacity to understand the
legal proceedings against him. Id. On March 1, 2017,
a competency hearing was held. Dkt. # 47. Based on the third
sealed medical evaluation report and without objection, the
magistrate judge found defendant competent to stand trial.
Dkt. ## 47, 51.
1, 2017, defendant pleaded guilty pursuant to a Rule
(c)(1)(C) plea agreement with plaintiff, which included an
agreed sentence of seventy-two months imprisonment. Dkt. #
56. The plea agreement contained an appellate and
post-conviction waiver, wherein defendant agreed,
inter alia, to knowingly and voluntarily
waive the right to “collaterally attack the conviction
and sentence pursuant to 28 U.S.C. § 2255, except for
claims of ineffective assistance of counsel.”
Id., at 3. He “expressly acknowledge[d] that
counsel ha[d] explained his appellate and post-conviction
rights; that the defendant underst[ood] his rights; and that
the defendant knowingly and voluntarily waive[d] those rights
as set forth above.” Id. at 4. Additionally,
defendant admitted in the plea agreement to committing the
offense charged in the indictment. Id. at 7.
I, ABRAHAM MARTINEZ, admit that on August 11, 2015, in the
Northern District of Oklahoma, I knowingly possessed a
destructive device that was not registered with the National
Firearms Registration and Transfer Record. On that day, I
possessed a “Molotov cocktail, ” made of a bottle
that contain[ed] gasoline and a rag, which I knew would burn
when lit. My attorney informed me that a “Molotov
cocktail” is a destructive device under the law. I did
not register it with the National Firearms Registration and
Id. at 7. In the plea agreement, defendant signed
and acknowledged that
[I have] read this agreement and carefully reviewed every
part of it with my attorney. I understand it, and I
voluntarily agree to it. Further, I have consulted with my
attorney and fully understand my rights with respect to
sentencing which may apply to my case. No. other promises or
inducements have been made to me, other than those contained
in this pleading. In addition, no one has threatened or
forced me in any way to enter into this agreement. Finally, I
am satisfied with the representation of my attorney in this
Id. at 15. Defendant also signed a petition to enter
a plea of guilty, which states that, “I believe that my
attorney has done all that anyone could do to counsel and
assist me, AND I AM SATISFIED WITH THE ADVICE AND HELP [S]HE
HAS GIVEN ME.” Dkt. # 58, at 4 (emphasis in original).
In addition, defendant admitted the elements of the offense
to which he was pleading guilty and the facts related
thereto. Id. at 2.
change of plea hearing, the Court asked defendant if he had
been treated recently for mental illness, and defendant
acknowledged that he had been. Dkt. # 71, at 8. However,
defendant acknowledged that counseling without psychotropic
medications helped change his behavior. Id. at 8-9.
Defendant admitted that there was nothing in his mental state
that would hinder his ability to understand the nature of the
proceedings against him. Id. at 10. The Court then
found that defendant understood the nature of the proceedings
and had been able to assist in his own defense. Id.
at 10-11. In addition, counsel for defendant acknowledged
that defendant had assisted her in his defense since
returning from the Bureau of Prisons. Id. Defendant
stated that he was fully satisfied with the counsel,
representation, and advice given to him by defense counsel,
and that his willingness to plead guilty was the result of
his discussions with defense counsel and the United States.
Id. at 12-13. Defendant acknowledged that “no
one forced [him] or threatened [him to plead guilty], ”
and that he was “pleading guilty of [his] own free will
because [he is] guilty.” Id. at 15. Defendant
acknowledged that he was waiving his right to collaterally
attack his conviction and sentence pursuant to 28 U.S.C.
§ 2255, except for claims of ineffective assistance of
counsel. Id. at 22. Defendant was advised of the
charge against him, and he admitted that he understood the
charge to which he was pleading guilty. Id. at 27.
In his own words, defendant told the Court what it is that he
did to commit the offense. Id. at 28. The Court
twice informed defendant of the charge against him, and
defendant acknowledged that he had committed the offense.
Id. at 27, 34-35. One exchange went as follows:
THE COURT: Mr. Martinez, have you had a chance to talk to
THE DEFENDANT: Yes, ma’am.
THE COURT: Did you or did you not throw that device from your
THE DEFENDANT: As I spoke it earlier when I read out that
thing, on August 11th, 2015, that I threw it out, that I
THE COURT: The incendiary device?
THE DEFENDANT: Yes, ma’am.
THE COURT: And you understand that that is both a destructive
device and a firearm under the statute?
THE DEFENDANT: Yes, ma’am.
THE COURT: And it wasn’t registered to you; ...