United States v. Burciaga , 66 F. App'x 812 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 3 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-8011
(D. Wyo.)
SERGIO BURCIAGA, (D.Ct. Nos. 00-CV-194-D and
99-CR-36-D)
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-8012
(D. Wyo.)
HECTOR GOMEZ-MEDINA, (D.Ct. Nos. 01-CV-1019-D and
99-CR-36-D)
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-8013
(D. Wyo.)
HUGO ANAYA MONDRAGON, (D.Ct. Nos. 00-CV-222-D and
99-CR-36-D)
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-8020
(D. Wyo.)
UBALDO BARAJAS-ESTOPIN, a/k/a (D.Ct. Nos. 00-CV-202-D and
CRESCENCIO MEDINA-ZENDEJAS, 99-CR-36-D)
a/k/a UVA,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-8025
(D. Wyo.)
FREDI GOMEZ-PEREZ, (D.Ct. Nos. 00-CV-207-D and
99-CR-36-D)
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-8034
(D. Wyo.)
VICTOR MANUEL GOMEZ- (D.Ct. Nos. 01-CV-1009-D and
FERNANDEZ, 99-CR-36-D)
Defendant-Appellant.
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ORDER AND JUDGMENT *
G. Mark Garrison, Cody, Wyoming, for Defendant-Appellant in No. 02-8011;
John D. Fadala, Casper, Wyoming, for Defendant-Appellant in No. 02-8012;
Ronald G. Pretty, Cheyenne, Wyoming, for Defendant-Appellant in No. 02-8013;
Dion J. Custis, Cheyenne, Wyoming, for Defendant-Appellant in No. 02-8020;
Joseph Saint-Veltri, for Defendant-Appellant in No. 02-8025; Nicholas H. Carter
of Carter Law Office, Gillette, Wyoming, filed a brief for Defendant-Appellant in
No. 02-8034.
David A. Kubichek, Assistant United States Attorney (Matthew H. Mead, United
States Attorney; Pat Crank, Assistant United States Attorney, on the briefs),
Cheyenne, Wyoming, for Plaintiff-Appellees.
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
McCONNELL, Circuit Judge.
The above named six defendants appeal the district court’s dismissal of
their federal habeas petitions brought under 28 U.S.C. § 2255. 1 In the interest of
judicial efficiency, we combine the appeals because they involve the same issues
and arise from the same facts. Exercising jurisdiction under 28 U.S.C. §§ 1291and 2253, we affirm.
*
This order and judgment is not binding precedent except under the doctrines of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.
1
A certificate of appealability was issued to each defendant.
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The essential facts are undisputed. After gathering evidence pursuant to
state court ordered wiretaps, the government filed a twenty-one-count superceding
indictment charging the defendants with, among other things, conspiracy to
possess with the intent to distribute, and to distribute, methamphetamine and
cocaine. Each defendant entered a plea agreement with the government and pled
guilty to charges in the indictment. The district court entered judgment against
each of the defendants and sentenced them to various terms of imprisonment.
None of the defendants directly appealed their conviction or sentence.
Some time thereafter, the defendants learned the Wyoming wiretap statute,
under which the government obtained the wiretap warrants in this case, had
expired pursuant to a sunset provision in the statute prior to the state court’s
issuance and the government’s execution of the wiretap warrants. Each defendant
subsequently moved to vacate or set aside his conviction and sentence under 28
U.S.C. § 2255. The district court denied the motions and the defendants appeal.
Each of the six defendants asserts on appeal that his indictment and
conviction were based on illegally obtained evidence. Some of the defendants
also assert they received ineffective assistance of counsel as their individual
counsels failed to discover the expiration of the wiretap statute.
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The issues and facts presented these cases are virtually indistinguishable
from those presented in our recent decision United States v. Salazar, 323 F.3d 852(10th Cir. 2003). In Salazar, the defendant appealed a district court decision
denying his motion to vacate his conviction and sentence under 28 U.S.C. § 2255,
arguing the indictment and conviction were based on illegally obtained evidence
(gathered pursuant to the expired Wyoming wiretap statute) which should be
suppressed. Id. at 855. The defendant also argued he did not receive effective
assistance of counsel because his counsel failed to discover the statute had
expired. Id. at 855, 857. We held in Salazar the defendant’s “suppression claim
is procedurally barred [for failure to raise it prior to trial] or, in the alternative,
his unconditional guilty plea effectively waived any challenge to the legality of
the wiretaps.” Id. at 855. We also held the defendant’s counsel “was not
ineffective so as to deprive [the defendant] of his Sixth Amendment rights.” Id.
at 857.
Our decision in Salazar controls our resolution of these cases. See United
States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000) (“Under the doctrine of stare
decisis, this panel cannot overturn the decision of another panel of this court.”).
We therefore affirm the district court’s decision in these six cases for the same
reasons set forth in Salazar. The defendants’ claims are procedurally barred or,
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in the alternative, their unconditional guilty pleas waived their challenges to the
legality of the wiretaps. 2 Salazar, 323 F.3d at 855. Furthermore, the defendants
received effective assistance of counsel. 3 Id. at 857.
For the reasons set forth above, we AFFIRM the district court.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
2
By entering guilty pleas, the defendants waived all non-jurisdictional defenses,
see United States v. Wright, 43 F.3d 491, 494 (10th Cir. 1994), including their arguments
the wiretap warrants were illegal under the Omnibus Crime Control and Safe Streets Act,
18 U.S.C. §§ 2510 - 2522, the indictment was defective, see United States v. Cotton, 535
U.S. 625, 630-31 (2002); Salazar, 323 F.3d at 856, and their guilty pleas lacked a factual
basis, see United States v. Willis, 992 F.2d 489, 490-91 (4th Cir. 1993). Some of the
defendants argue, however, their guilty pleas were involuntary or unknowing because
they did not know the wiretap statute had expired. We reject this argument. Although the
defendants may have misjudged the admissibility of the wiretap evidence, this alone does
not render their guilty pleas involuntary or unknowing. See McMann v. Richardson, 397
U.S. 759, 770 (1970).
3
Consequently, we also conclude the district court did not err in denying Mr.
Burciaga’s motion to substitute counsel in order to pursue a claim of ineffective
assistance of counsel. Under the circumstances of this case, his counsel did not render
ineffective assistance by failing to “raise the issue of the invalidity of the wiretaps during
the trial proceedings.”
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