Wrongly Convicted May Sue Lawyerhttp://www.courthousenews.com/2014/10/03/72115.htm
(CN) - A Salvadoran imprisoned for three years and ultimately deported after he pleaded guilty to sexual assault of a minor may amend a malpractice claim against his former lawyer, a federal judge ruled.
Carlos Lopez-Siguenza, a native of El Salvador was living in Northfield, N.J. as a legal resident when Melissa Aguilar Cruz reported to authorities on Jan. 24, 2003, that she had sex with him multiple times in 2002, according to the opinion written by Chief U.S. District Judge Jerome Simandle .
Cruz or her guardian gave police a handwritten Honduran birth certificate for an individual named Melissa Gabriela Aguilar Guerrero with a Spanish language inscription for the birth date, March 3, 1987. Based on this information, the police assumed that Cruz was 14 and Lopez-Siguenza, 21, when they had sex.
Detectives arrested Lopez-Siguenza for child abuse and other charges on March 12, 2003.
Though his attorney, Mark Roddy, asked prosecutors for a "certified and/or notarized copy of the alleged victim's birth certificate" on at subsequent hearing, that request was denied, the opinion says..
Lopez-Siguenza was later indicted on one count each of second degree sexual assault, third degree endangering child welfare, and fourth degree child abuse.
After Roddy allegedly said that Lopez-Siguenza had no chance of prevailing at trial, the man pleaded guilty on March 12, 2004, to sexual assault, and served three years in state prison.
Once Lopez-Siguenza was deported, his mother's lawyer, Jorge Coombs, allegedly received a letter from Honduras' consul general on Aug. 2, 2011, stating that the accuracy of the birth certificate or the name "Melissa Gabriela Aguilar Guerrero" could not be verified.
Lopez-Siguenza says the consulate's attorney found a Honduran birth certificate for "Melissa Gabriela Andino Munoz" born on March 3, 1984 - not 1987 - so she was 18 in 2002.
As the woman was registered as living in New Jersey, Coombs spoke with one of Cruz's ex-boyfriends, who said that her age was well known in the community, Lopez-Siguenza claims.
While prosecutors moved to dismiss his indictment on Aug. 17, 2012, they allegedly said prosecuting the case would give Cruz and her family mental and emotional distress.
Lopez-Siguenza sued his former criminal defense lawyer, Roddy, on March 28, 2013, alleging malpractice, breach of fiduciary duty, and breach of contract. The court later dismissed Lopez-Siguenza's claims against the Atlantic City Police Department and several officials.
Roddy moved to dismiss, and Lopez-Siguenza cross-moved to amend. Judge Simandle granted Roddy's motion Tuesday, finding that neither Lopez-Siguenza's complaint nor amended complaint identify "with any specificity" how Roddy breached a fiduciary duty.
"If plaintiff contends that defendant Roddy's failure to follow-up on requests for a verified birth certificate of the alleged victim or otherwise verify the alleged victim's age constitutes a breach of fiduciary duty, plaintiff's breach of fiduciary duty claim is merely duplicative of, and no more egregious than, his legal malpractice claim," Simandle wrote.
The breach of contract and malpractice claims also lacked specifics, the ruling states.
"The pleadings do not allege that plaintiff told Roddy that the victim was actually over 16 years old, so Roddy is not alleged to have neglected evidence provided by plaintiff about the victim's age," Simandle wrote. "Given the complaint's recitation of multiple direct causes of conviction, beginning with fabrication of evidence by the victim and/or her family and the prosecutor's reliance upon such evidence, the complaint's lack of grounds for causation attributable to attorney Roddy's actionable conduct needs to be remedied if this count is to state a claim."
Judge Simandle dismissed Lopez-Siguenza's breach of contract and breach of fiduciary duty claims with prejudice, concluding that to amend them would be futile. However, he granted the Salvadoran leave to file a second amended complaint on his legal malpractice claim within 21 days.