Opinion
CIVIL 20-cv-03487-CMA-SKC
08-17-2021
VICTOR HERNANDEZ, Plaintiff, v. RONALD GAINOR, Defendant.
RECOMMENDATION OF U.S. MAGISTRATE JUDGE RE: DEFENDANT'S MOTION TO DISMISS [#14]
S. Kato Crews, U.S. Magistrate Judge.
This Recommendation addresses Defendant Ronald Gainor's Motion to Dismiss [#17.] Judge Arguello referred the Motion to the Magistrate Judge. [#18.] The Court has considered the Motion and the related briefing. No. hearing is necessary. For the reasons stated herein, the Court recommends granting the Motion.
The Court uses “[#]” to refer to entries in the CM/ECF court filing system.
The Court accepts the following well-pleaded facts as true and views the allegations in the light most favorable to the non-movant. Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010). Also, the Court takes judicial notice of matters from the docket in 1:17-cr-00134-CMA-10. See Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006).
When Hernandez entered his guilty plea on June 17, 2018 in the criminal matter United States v. Victor Hernandez, et al., District Judge Christine Arguello asked him, under oath, whether he was satisfied with his attorney's representation. [1:17-cr-00134-CMA-10 (“Criminal Case”) at #1214, p.29-30.] Hernandez responded, “[a]bsolutely, Your Honor.” [Id. at #1214, p.27.] When Judge Arguello asked him whether anyone had forced him to plead guilty, he stated, “[i]n no way whatsoever, Your Honor.” [Id.] Likewise, when asked whether anyone attempted to threaten him, his family, or anyone close to him in order to force his guilty plea, Hernandez again responded, “[i]n no way whatsoever, Your Honor.” [Id.] And when the court asked whether Hernandez's lawyers told him “how . . . to answer” the court's questions at the hearing, Hernandez said, “[i]n no way, Your Honor.” [Id. at 30.]
Based on Hernandez's responses to the court's questions and its observations of his demeanor during the change of plea hearing, Judge Arguello accepted his guilty plea as having been voluntary, knowingly, and intelligently entered, and expressly found his plea was “not the result of . . . fear, coercion or undue influence.” [Id. at 34.] Now, three years later, Hernandez brings a legal malpractice claim against his attorney from the Criminal Case, Defendant Ronald Gainor, alleging Gainor breached the duty of care owed to Hernandez by “coercing [him] to plead guilty.” [#1, ¶24.] Hernadez alleges, but for Gainor's coercion forcing Hernandez to plead guilty, Hernandez would have gone to trial and been acquitted. [Id. ¶26.]
In the Criminal Case, Hernandez initially pleaded not guilty to the multiple charges against him, but he then accepted a plea agreement a few weeks before trial. [Id. at #976.] Under the terms of the plea agreement, he pleaded guilty to one count of distribution and possession with the intent to distribute a mixture and substance containing a detectable amount of cocaine, and aiding and abetting the same. [Id. at #983, p.2.] In exchange, the government agreed to dismiss the remaining counts and recommend a sentence no greater than 37 months. [Id.]
In the written plea agreement, Hernandez acknowledged there was a factual basis for his guilty plea, and he expressly admitted: (1) he lent money to Estrada-Cortes (one of his 21 co-defendants) which he knew would further Estrada-Cortes's “distribution activities;” (2) his claimed ignorance of what Estrada-Cortes was using the money for did not “negate his culpability;” and (3) “he is guilty of the elements of” the offense. [Id. at #983 ¶17 n.2.]
On November 26, 2018, Hernandez appeared at the sentencing hearing in front of Judge Arguello. There, his attorney (the Defendant here) objected to the government attributing the amount of cocaine in the co-defendant's possession to Hernandez. [Id. at #1215, pp. 7-8.] In sustaining the objection, Judge Arguello stated:
I don't know that [the government has] any evidence that [Plaintiff] actually distributed any cocaine. . . When I looked into it more thoroughly, for purposes of the sentencing if he had gone to trial, I don't think that you could have convicted him.[Criminal Case at #1215, p.12.]
Hernandez now asserts this statement by Judge Arguello is evidence he would have been acquitted but for his guilty plea. [#1, p.9 and #17, p.5.] Judge Arguello sentenced Hernandez to 12 months' probation, stating:
[I]n this case, I didn't find there was evidence to show that you were ever involved in drug dealing, but you did lend the money to a friend knowing that that is probably what it was going to be used for. So you are to some degree culpable, but you are not directly involved in distributing drugs, as far as I could tell from the evidence. And, therefore, I do believe that the sentence I gave you of 12 months of probation does reflect the seriousness of your participation in this offense, and it is a sufficient, but not greater than necessary, sentence to achieve the objectives of sentencing.[Id. p.33.]
On December 8, 2018, Plaintiff filed an appeal with the Tenth Circuit challenging his conviction and sentence on the ground he received ineffective assistance of counsel. [Id. at #1205.] There, he claimed he was not guilty of any offense and for the first time asserted his attorney instructed him to lie to the district court at the change of plea hearing. [Id. at #1232, p.4.] The government moved to enforce the appeal waiver in Hernandez's plea agreement, which the Tenth Circuit granted. [Id. p.1.]
Appellate Case No. 18-1472, United States v. Hernandez (10th Cir. Jan. 16, 2019).
Hernandez now brings the present against Gainor, his former attorney, for legal malpractice. The Motion seeks dismissal under Fed.R.Civ.P. 12(b)(6) arguing the doctrine of judicial estoppel and the two-year statute of limitations preclude the claim. [#14, pp.1, 7.]
B. LEGAL PRINCIPLES
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). The Twombly-Iqbal pleading standard requires that courts take a two-prong approach to evaluating the sufficiency of a complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007).
The first prong requires the court to identify which allegations “are not entitled to the assumption of truth” because, for example, they state legal conclusions or are mere “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. The second prong requires the court to assume the truth of the well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. “Accordingly, in examining a complaint under Rule 12(b)(6), [courts] will disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). This standard requires more than the sheer possibility that a defendant has acted unlawfully. Id. If the allegations “are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1252 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). The standard is a liberal one, however, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.” Dias v. City & Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009).
C. ANALYSIS
1. Judicial Estoppel
Defendant argues the doctrine of judicial estoppel precludes Plaintiff from relitigating positions Plaintiff took or admitted to when pleading guilty in the Criminal Case, including legal malpractice. [#14, p.4.] The Court agrees.
“[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)); accord Johnson v. Lindon City Corp., 405 F.3d 1065, 1069 (10th Cir. 2005). Judicial estoppel “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” New Hampshire, 532 U.S. at 749 (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000)); see also 18 Moore's Federal Practice § 134.30, pp.134-62 (3d ed. 2000) (“The doctrine of judicial estoppel prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.”). Its purpose is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment. New Hampshire, 532 at 749-50. Although judicial estoppel is “probably not reducible to any general formulation of principle, ” the Supreme Court has identified several factors other courts have typically used to determine when to apply the doctrine. Johnson, 405 F.3d at 1069 (citing New Hampshire, 532 U.S. at 750).
“First, a party's later position must be ‘clearly inconsistent' with its earlier position.” Id. (internal citations omitted). Moreover, the position to be estopped must generally be one of fact rather than of law or legal theory. Id. (citing Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir.1996)). Second, the party must have “succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled.” Id. (quoting New Hampshire, 532 U.S. at 750) (internal citations omitted). This “ensures that judicial estoppel is applied in the narrowest of circumstances.” Id. (quoting Lowery, 92 F.3d at 224). And third, courts examine “whether the party seeking to assert an inconsistent position would derive an unfair advantage . . . if not estopped.” Id. (quoting New Hampshire, 532 U.S. at 751).
Judicial estoppel is an equitable doctrine invoked by the court at its discretion. Queen v. TA Operating, LLC, 734 F.3d 1081, 1087 (10th Cir. 2013). The Tenth Circuit applies the doctrine “both narrowly and cautiously.” Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1227 (10th Cir. 2011).
a. Inconsistent Position
Regarding the first factor, the record confirms Plaintiff's current factual position regarding his guilt is diametrically opposed to the one he took in the Criminal Case. There, Plaintiff admitted there was a factual basis for his guilty plea. But he now claims he was in fact innocent. Moreover, at the June 7, 2018 hearing in the Criminal Case, Plaintiff asserted, under oath, that his guilty plea was knowing and voluntarily made, and he denied anyone threatened or forced him to plead guilty. But he now alleges Defendant coerced his guilty plea by “threatening [his] liberty, [his] wife's immigration status and [his] daughter's physical health.” [#17, p.8.] Plaintiff also previously stated under oath he was satisfied with Defendant's representation. But he now claims Defendant's representation was “deficient.” [Id. p.1.]
Plaintiff's positions between the Criminal Case and this case are diametrically opposed. Indeed, if Plaintiff had asserted the same positions in his plea hearing as he does now, Judge Arguello would have been precluded from accepting his guilty plea. See Fed. R. Crim. P. 11(b)(1)-(3); see also Brady v. United States, 397 U.S. 742, 755 (1970) (a guilty plea is involuntary if it is induced by threats of physical harm, improper promises, or by psychological coercion overbearing the defendant's will). Because the allegations in the Complaint conflict with Plaintiff's positions asserted when making his guilty plea, the first requirement for judicial estoppel is met.
Plaintiff argues his current position is consistent because he has always maintained his innocence, and it was only due to Defendant's coercion that he pleaded guilty. This argument is circular, however, and it only confirms the Court's conclusion that the present lawsuit is based on positions inconsistent with that taken by Plaintiff in the Criminal Case.
b. Judicial Acceptance of the Inconsistent Position
Turning to the second factor, the Court considers whether the judicial officer accepted the inconsistent position. Judicial acceptance means only that the first court adopted the position urged by the party as part of a final disposition. Lowery, 92 F.3d at 224. That is what occurred here. Judge Arguello accepted the statements Plaintiff made during the June 7, 2018 hearing in the Criminal Case. Rule 11(b)(2) requires judicial officers to confirm guilty pleas are “voluntary and did not result from force, threats, or promises (other than promise in a plea agreement).” Judge Arguello thoroughly carried out this mandate securing Plaintiff's under-oath affirmation that his guilty plea was voluntary and not the result of force or threats. Moreover, Plaintiff admitted to the factual basis for the guilty plea and signed the plea agreement. Relying on Plaintiff's under-oath statements in open court, and his admission to the factual basis for the charge, Judge Arguello accepted his plea and adjudged him guilty. [Criminal Case at #1214, p.34-5.] Accepting Plaintiff's current position that his plea was coerced would necessarily create “the perception that either the first or the second court was misled.” Johnson, 405 F.3d at 1069 (citing New Hampshire, 532 U.S. at 750) (internal quotation and citation omitted). Therefore, the second factor is met.
c. Unfair Advantage
Finally, the Court considers whether Plaintiff would derive an unfair advantage if not estopped. Plaintiff argues he received no benefit from the guilty plea, but the Court in unpersuaded. In Johnson, supra, the Tenth Circuit held the plaintiff received a substantial benefit by entering a plea of abeyance instead of being charged with a misdemeanor punishable up to six months' imprisonment. 405 F.3d at 1070. The same is true here. Plaintiff was charged with multiple counts and faced the possibility of five to forty years' imprisonment, a fine of no more than $5,000,000.00, or both, and a minimum of four years' supervised release with the possibility of lifetime supervised release. [Criminal Case at #922-2, p.1.] Instead of risking these significant penalties, in exchange for his guilty plea, the government agreed to recommend no more than 37 months' incarceration. [Id. at #983, pp.2-3.] And Plaintiff received the additional psychological benefit of pleading guilty to a reduced charge guaranteeing him less jail time than what was otherwise at stake. Having received such benefits, Plaintiff now asserts his plea was coerced. It would be unfair and “clearly undermine the integrity of the judicial system” were the Court to allow Plaintiff to accept the benefits of the guilty plea and, in the next breath, sue for civil damages stemming from the same transaction. Johnson, 405 F.3d at 1170. Thus, the third factor is met.
Plaintiff argues judicial estoppel is inapplicable under the circumstances of this case and admonishes Defendant for not citing authority for the proposition that judicial estoppel applies where guilty pleas were compelled through duress. [#17, pp. 6-7.] In response, Defendant cites to Bottesi v. Carlson, No. 327906, 2016 WL 6395617, at *9 (Mich. App. Oct. 27, 2016).
In Bottesi, the plaintiff pleaded no contest to third-degree criminal sexual conduct and other charges. 2016 WL 6395617, at *1. He subsequently filed a civil suit asserting claims for legal malpractice and other state claims in connection with his court-appointed attorney's representation of him in the underlying criminal matter. Id. at *3. In upholding the lower court's application of judicial estoppel, the Bottesi Court stated the plaintiff was “estopped to assert, contrary to his testimony at the plea hearing, his no contest plea was coerced” and “not his free, voluntary, and understanding choice.” Id. at *8. It further found that by voluntarily and unconditionally pleading no contest to certain offenses under the plea bargain, plaintiff waived all claims related to ineffective assistance of counsel because he was unable to show his damages (being incarcerated) were proximately caused by the defendant-attorney's alleged malpractice. Id.
Although this is an appellate decision from Michigan, the Court finds the reasoning in Bottesi persuasive since it involved allegations of a coerced guilty plea. Moreover, the reasoning in Bottesi is further supported by the Tenth Circuit's proclivity to apply judicial estoppel to preclude Section 1983 actions where the plaintiff takes a position inconsistent with their prior plea in an underlying criminal matter. See Johnson, 405 F.3d at 1069; Bradford v. Wiggins, 516 F.3d 1189, 1195 (10th Cir. 2008). Besides, Plaintiff fails to cite any authority supporting his argument that judicial estoppel does not apply in situations where individuals are allegedly coerced into pleading guilty. Instead, Plaintiff relies on stray statements made in the course of a detailed sentencing hearing and attempts to imbue them with more significance than is warranted under the circumstances of his guilty plea and plea bargain. See Blackledge v. Allison, 431 U.S. 63, 71 (1977) (observing the benefits of the guilty plea and plea bargain are only secured if dispositions by guilty plea “are accorded a great measure of finality.”)
Both Plaintiff and Defendant cite Allen v. Martin in support of their respective positions. 203 P.3d 546, 565 (Colo.App. 2008). But the Court finds this case is distinguishable from the facts here. Specifically, the court in Allen relied on the doctrine of issue preclusion and not judicial estoppel in holding the plaintiff's guilty plea meets the “actually litigated” factor for determining issue preclusion. Id.
If, indeed, Plaintiff was coerced into pleading guilty, other recourse was available to him in his Criminal Case. See United States v. Graves, 106 F.3d 342, 343 (10th Cir. 1997) (“Rule 32(d) of the Federal Rules of Criminal Procedure provides that a district court may allow a defendant to withdraw his or her guilty plea before sentencing “upon a showing ... of any fair and just reason.”) But Plaintiff instead filed a civil lawsuit three years after the final disposition of his criminal case claiming legal malpractice. This is exactly the sort of “improper use of the judicial machinery” the doctrine is meant to prevent. Johnson, 405 F.3d at 1068 (quoting New Hampshire, 532 U.S. at750).
D. RECOMMENDATION
For the above-stated reasons, the Court recommends Defendant's Motion be GRANTED.
Because the Court recommends dismissal under the doctrine of judicial estoppel, it does not address Defendant's statute of limitations argument.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).