United States v. Dozal , 442 F. App'x 388 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
October 19, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-3203
v. (D. Kansas)
JAVIER DOZAL, (D.C. Nos. 2:10-CV-02468-KHV
and 2:09-CR-20005-KHV-8)
Defendant - Appellant.
------------------------------------------
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-3230
v. (D. Kansas)
CARLOS DOZAL-ALVAREZ, (D.C. 2:10-CV-02674-KHV and
2:09-CR-20005-KHV-25)
Defendant - Appellant.
ORDER DENYING
CERTIFICATES OF APPEALABILITY *
Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of these matters. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases
are therefore ordered submitted without oral argument.
In these companioned appeals, brothers Javier Dozal and Carlos Dozal-
Alvarez, proceeding pro se, seek certificates of appealability (“COA”s) to enable
them to appeal the dismissal of their 28 U.S.C. § 2255 petitions. Concluding that
they have not satisfied the requirements for the issuance of a COA, we deny their
requests for COAs and dismiss these matters.
BACKGROUND
Both Mr. Dozal and Mr. Dozal-Alvarez pled guilty to one count of
knowingly and intentionally conspiring to distribute and possess with intent to
distribute more than five hundred grams of a mixture and substance containing
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii). Their
plea agreements included the following waiver of appellate rights:
10. Waiver of Appeal and Collateral Attack. The
defendant knowingly and voluntarily waives any right to appeal or
collaterally attack any matter in connection with this prosecution, the
defendant’s conviction, or the components of the sentence to be
imposed (including the length and conditions of supervised release,
as well as any sentence imposed upon a revocation of supervised
release). The defendant is aware that Title 18, U.S.C. § 3742 affords
a defendant the right to appeal the conviction and sentence imposed.
By entering into this agreement, the defendant knowingly waives any
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right to appeal a sentence imposed which is within the guideline
range determined appropriate by the court. The defendant also
waives any right to challenge a sentence or otherwise attempt to
modify or change his sentence or manner in which it was determined
in any collateral attack, including, but not limited to, a motion
brought under Title 28, U.S.C. § 2255 [except as limited by United
States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)] and a
motion brought under Title 18, U.S.C. § 3582(c)(2). In other words,
the defendant waives the right to appeal the sentence imposed except
to the extent, if any, the court departs upwards from the applicable
sentencing guideline range determined by the court. However, if the
United States exercises its right to appeal the sentence imposed as
authorized by Title 18, U.S.C. 3742(b), the defendant is released
from this waiver and may appeal the sentence as authorized by Title
18, U.S.C. § 3742(a).
Non-Cooperation Plea Agreement ¶ 10, R. Vol. 1 at 52. The exception to
appellate waiver contained in Cockerham provides that “a plea agreement waiver
of postconviction rights does not waive the right to bring a § 2255 petition based
on ineffective assistance of counsel claims challenging the validity of the plea or
the waiver,” but that “collateral attacks based on ineffective assistance of counsel
claims that are characterized as falling outside that category are waivable.”
Cockerham, 237 F.3d at 1187.
Mr. Dozal-Alvarez was sentenced to 188 months’ imprisonment, followed
by five years of supervised release. Mr. Dozal was sentenced to 151 months’
imprisonment, followed by five years of supervised release.
Both men filed 28 U.S.C. § 2255 petitions seeking to vacate, set aside or
correct their sentences. Both argued the same issues: their counsel was
ineffective in that (1) he did not file a motion to suppress evidence from certain
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wiretaps; (2) he did not file a motion to suppress and to dismiss because a
“Mexican Spanish” interpreter was not used to translate the wiretaps; and (3) he
did not hire a “Mexican speaking interpreter with the same dialect” as the
defendants to translate documents and court proceedings.
The district court directed all parties to file briefs on the issue of potential
procedural bars to the defendants’ motions—i.e., whether their claims were barred
because of the appellate waiver in their plea agreements. After receiving briefing,
the court denied both § 2255 petitions, concluding that: the defendants’
ineffectiveness claims fell squarely within the scope of the waivers and therefore
could not be appealed; the defendants knowingly and voluntarily entered into the
plea agreements; enforcement of the waivers would not cause a miscarriage of
justice; and, examining the merits, counsel was not ineffective. Mr. Dozal and
Mr. Dozal-Alvarez seek COAs to enable them to appeal these decisions.
DISCUSSION
Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make
“a substantial showing of the denial of a constitutional right.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). In order to make such a showing, a prisoner
must demonstrate “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
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further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation and internal
quotation marks omitted). Where the district court denies a habeas petition on
procedural grounds, as well as on the merits of the underlying constitutional
claim, a petitioner must show that reasonable jurists would find debatable both (1)
whether the petition states a valid claim of the denial of a constitutional right, and
(2) whether the district court was correct in its procedural ruling. Cf. Slack, 529
U.S. at 484 (holding that, where district court reached only the procedural issue,
petitioner must establish that the court’s rulings on both that issue and the merits
are reasonably debatable). “Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further. In such a circumstance,
no appeal would be warranted.” Id.
Having reviewed the record, we agree with the district court that the
appellate waivers bar the particular ineffectiveness claims the brothers attempt to
raise in these cases. We also agree that their waivers of their appellate rights
were knowing and voluntary, and that enforcement of the waivers would not
result in a miscarriage of justice. Additionally, the district court correctly held
that, on the merits, the defendants failed to establish ineffectiveness by their
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counsel. 1 No reasonable jurist could debate the propriety of the district court’s
rulings on those issues.
The requests for COAs are denied and these matters are dismissed. We
also deny the defendants’ motions for release pending disposition of these cases.
CONCLUSION
For the foregoing reasons, the requests for COAs are denied and these
matters are DISMISSED. Appellants’ motions for bail and motions for leave to
proceed in forma pauperis are DENIED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
1
Defendants were represented by different counsel.
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