Opinion
Case No. 11-cr-00199-DME Case No. 12-cv-00178-DME Related Case: 11-cr-00022-DME Related Case: 12-cv-00177-DME
02-19-2013
UNITED STATES OF AMERICA, Plaintiff v. MARTIN HERRERA-CRUZ, Defendant-Movant.
ORDER SUPPLEMENTING THE COURT'S ORDER (DOC. NO. 30)
On February 1, 2013, this Court issued an Order Appointing Counsel and Setting Evidentiary Hearing (Doc. No. 30). The hearing is scheduled for March 20, 2013, at 10:00 a.m., and the record reflects that on February 7, 2013, Robert Seldis Berger was appointed to represent Mr. Herrera-Cruz in this matter.
Upon the Court's review of the record, the Court wishes to add two points of clarification to its previous Order. First, the Court is satisfied that Mr. Herrerra-Cruz has adequately complied with the procedural requirements of 28 U.S.C. § 2255 Rule 2(b). Second, the Evidentiary Hearing on March 20, 2013, will be limited to resolving the disputed questions of what Mr. Pluss told Mr. Herrera-Cruz at sentencing, what efforts Mr. Herrera-Cruz made to contact Mr. Pluss about his appeal, the nature of any post-sentencing phone contact between Mr. Herrera-Cruz and Mr. Pluss or his representatives, and all other communications or attempts at communication between Mr. Herrera-Cruz and Mr. Pluss regarding an appeal or possible appeal of his conviction and/or sentence. Mr. Herrera-Cruz will bear the burden of proving these facts by a preponderance of the evidence. See Young v. Sirmons, 486 F.3d 655, 680 (10th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 688, 693-94 (1984)).
BY THE COURT:
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David M. Ebel
United States Circuit Judge