United States v. Ordaz ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 29, 2015
FOR THE TENTH CIRCUIT
_________________________________ Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-8035
(D.C. Nos. 2:15-CV-00004-NDF and
MIGUEL ANGEL ORDAZ, 1:10-CR-329-NDF-3)
(D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER DENYING A CERTIFICATE OF APPEALABILITY
AND DISMISSING THE APPEAL
_________________________________
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
_________________________________
This case grew out of the government’s investigation of a suspected drug
dealer, Mr. Miguel Ordaz. The investigation led to a search of Mr. Ordaz’s house,
where agents found a black bag containing a chemical substance and a machine
gun. This discovery led to a conviction on multiple charges, including (1)
possession of methamphetamine with intent to distribute and (2) possession of a
machine gun in furtherance of a drug trafficking crime.
After unsuccessfully appealing, Mr. Ordaz moved for vacatur of the
conviction under 28 U.S.C. § 2255, arguing that
! on the methamphetamine charge, his trial counsel was ineffective for
failing to request a sample of the drug so that he could test it and
! on the machine-gun charge, the evidence was insufficient because the
machine gun was inoperable and could not have been used to further
a drug trafficking crime.
The district court denied relief, and Mr. Ordaz wants to appeal. To do so, he
needs a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). The district
court declined to issue the certificate. Like the district court, we decline to issue
the certificate. As a result, we dismiss the appeal.
Mr. Ordaz’s Burden
We can issue a certificate of appealability only if Mr. Ordaz has made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2) (2012). To satisfy this requirement, Mr. Ordaz must show “that the
district court’s resolution of the constitutional claim was either ‘debatable or
wrong.’” Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (quoting Slack
v. McDaniel, 529 U.S. 473, 484 (2000)).
The Methamphetamine Charge
The first claim involves ineffective assistance of counsel on the charge
involving possession of methamphetamine with intent to distribute. This
conviction was based on the substance found in Mr. Ordaz’s bag. The government
ran tests, which identified the substance as a combination of methamphetamine
and a cutting agent (called “M.S.M.”). Mr. Ordaz believes that independent tests
would have showed that the substance consisted solely of the cutting agent.
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If we were to entertain an appeal, Mr. Ordaz would need to show (1)
deficiency in his legal representation and (2) prejudice from that deficiency.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Applying this test, the district court concluded that the claim fails under
United States v. Baca, 687 F.2d 1356, 1361 (10th Cir. 1982). There we rejected a
similar claim, reasoning that the attorney could have made a strategic decision to
bypass further testing because of uncertainty regarding the eventual results. 687
F.2d at 1360. If the results ended up positive, they would have strengthened the
government’s case. Id.
Under Baca, Mr. Ordaz’s claim is not reasonably debatable. At trial, his
attorney vigorously attacked the government’s tests. If the attorney were to obtain
his own tests, a positive result would have prevented this line of attack. Thus, our
precedent in Baca would lead any reasonable jurist to reject Mr. Ordaz’s claim.
The Machine-Gun Charge
Mr. Ordaz also argues that because the machine gun was inoperable, it
could not have been used to further a drug crime. But Mr. Ordaz raised the same
argument in his direct appeal, and a panel of our court rejected this argument.
United States v. Renteria, 720 F.3d 1245, 1255 (10th Cir. 2013). 1 Because we
1
Mr. Ordaz states that his appellate counsel failed to raise this issue in the
direct appeal. Appellant’s Br. at 17. Mr. Ordaz is mistaken, for his appellate
attorney challenged the sufficiency of the evidence in part because the machine
gun was inoperable:
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rejected the claim on the merits, Mr. Ordaz cannot renew the claim through a
§ 2255 motion. See United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994).
Thus, no reasonable jurist could credit Mr. Ordaz’s reassertion of his argument
that the gun was inoperable.
Conclusion
In these circumstances, we conclude that Mr. Ordaz’s claims are not
In addition, testimony clearly shows that the weapon when seized
was found in “pieces.” Despite the government’s attempt to show that
the weapon could be reassembled quickly-by the way, by an expert, the
gun was nevertheless found in parts in a black duffel bag. In fact
testimony shows that a pin to connect the stock to the gun was missing.
ATF Agent Knapp testified that he supplied a pin to connect the stock
to the rest of the gun. Tr. Vol. XVI p. 40. He also testified that he
“experienced quite a few jams and misfires.” Id. p. 45.
Agent Knapp further testified that he had “to take a punch to the
extractor spring and basically straighten it out.” Id. Although he softens
the faults of the weapon with the statement that the gun still was potent
because he “still managed to fire one ten round automatic burst.” Id. at
45.
Miguel Angel Ordaz’ Opening Br. at 19-20, United States v. Renteria, 720 F.3d
1245 (10th Cir. 2013) (No. 12-8019). In rejecting the argument, we noted Mr.
Ordaz’s emphasis “on the fact that a missing pin [was] needed to assemble the
gun.” Renteria, 720 F.3d at 1255.
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reasonably debatable. With this conclusion, we (1) decline to issue a certificate of
appealability and (2) dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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