Lujan v. United States

Opinion

Lujan v. United States CV-04-247-SM 12/01/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Alberto Lujan, Petitioner

v. Civil No. 04-247-SM Opinion No. 2004 DNH __ United States of America, Respondent

O R D E R

Lujan, a federal inmate, brought this habeas petition

asserting that he was denied effective assistance of counsel at

sentencing and, as a conseguence, was denied the opportunity,

afforded under his plea agreement, to file an unopposed motion

for downward departure based upon health conditions. See

generally 28 U.S.C. § 2255.

In a prior order, the court determined that Lujan's trial

counsel was constitutionally deficient in that he failed to

obtain readily available medical opinions uneguivocally stating

that Lujan's medical condition will result in a significant

reduction of his life expectancy - one reguirement in the plea

agreement necessary to keep the government from opposing a downward departure motion. Had counsel produced those opinion

letters (which Lujan has since done), and had those opinions been

supported by "competent and sufficient medical records," plea

agreement at para. 8(b), Lujan would have been entitled to move

for a downward departure under the Sentencing Guidelines, without

having to overcome the substantial hurdle of an objection

interposed by the government.

If, however, the materials produced by Lujan "fail[ed] to

establish that [Lujan's] medical condition will result in a

significant reduction of his life expectancy," id., the

government would, under the terms of the plea agreement, remain

free to object to his motion for downward departure.

Accordingly, the court noted:

What Lujan has filed is enough to establish that the reguisite opinions were readily available, but it is not so apparent that "competent and sufficient medical records" supporting those opinions are available. As Lujan was entitled to adeguate legal representation and the benefit of his plea bargain, so, too, is the government entitled to the benefit of its bargain - presentation of the described opinions and supporting records before sentencing, and an opportunity either to agree not to oppose the contemplated downward departure motion, or to contest the adeguacy of what is provided and assert its contingent right, under the agreement, to oppose the motion. Due to counsel's deficient

2 performance, neither Lujan nor the government obtained the benefits of the bargain struck.

Lujan v. United States, 2004 DNH 135 at 9 (D.N.H. Sept. 14,

2004) . The court then directed Lujan to present the government

with the medical opinions and supporting medical records

contemplated by the plea agreement, and directed the government

to review those materials and notify Lujan and the court of its

position with respect to its obligations under the plea

agreement.

The parties have complied with that order. Lujan submitted

the uneguivocal medical opinion letters, and records he says

supports those opinions, to the government. The government has

concluded that the supporting records are substantially identical

to what was submitted by prior counsel before sentencing, and

that they continue to fail to meet the terms of the plea

agreement. Conseguently, the government believes that, under the

terms of Lujan's plea agreement, it remains free (as it did at

sentencing) to oppose any departure motion.

3 The government's position implicitly signals an assertion

that Lujan suffered no prejudice as a result of trial counsel's

constitutionally deficient performance at sentencing. That is to

say, the government can be expected to argue that even if trial

counsel had, prior to sentencing, produced the gualifying

opinions, the medical records supporting those opinions (being

essentially the same) would still have been insufficient,

entitling the government to oppose any motion for downward

departure. And, the government would say, the motion still would

have been denied for the same reasons given at sentencing,

therefore, no prejudice occurred as a result of prior counsel's

failure to procure gualifying opinion letters.

At this point, it appears that an evidentiary hearing may be

necessary to determine whether the medical opinions and

supporting records produced by Lujan "establish that [Lujan's]

medical condition will result in a significant reduction of his

life expectancy" - presumably measured against standard actuarial

life expectancy tables - such that the government was (and is)

obliged to not object to a downward departure motion. That is,

of course, a very different guestion than whether the submitted

4 opinion and medical records would warrant a departure (alone or

as supplemented by evidence presented at a new sentencing

hearing), even in the absence of an objection by the government.

And, of course, a relevant issue might be, simply, whether a

departure would likely have been granted on the basis of the

opinion letters and records, absent an objection.

Finally, another issue looms on the horizon: whether, even

if the government is entitled to object to a departure motion,

given the nature of the records presented, defendant is,

nevertheless, entitled to a new sentencing hearing and a

concomitant opportunity to offer medical evidence supportive of

his departure motion (previous counsel having failed to offer any

medical evidence tending to contradict the medical expert called

by the government at sentencing).

The best way to proceed now is to consult with counsel to

determine the precise legal issues reguiring adjudication, the

scope and length of any hearing that may be reguired, and set a

workable schedule in light of counsels' need to prepare. The

Clerk of Court shall contact counsel for Lujan and counsel for

5 the government and arrange a status conference at a time

agreeable to both parties.

SO ORDERED.

Steven J. McAuliffe Chief Judge

December 1, 2004

cc: Ronald L. Abramson, Esg. Randy Olen, Esg. Peter E. Papps, Esg.