United States v. Rocha ( 1997 )

REVISED
United States Court of Appeals,
Fifth Circuit.
No. 95-11229.
UNITED STATES of America, Plaintiff-Appellee,
v.
Ruben ROCHA, Defendant-Appellant.
April 3, 1997.
Appeal from the United States District Court for the Northern
District of Texas.
Before DAVIS, SMITH and DUHÉ, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ruben Rocha appeals the denial of his 28 U.S.C. § 2255 motion
for habeas corpus relief. We affirm.
I.
In the fall of 1988, a drug dealer named Thomas Padilla agreed
to sell cocaine on consignment: He was to give Tony Rodriguez
thirty kilos of the drug, and Rodriguez was to sell it, paying
Padilla later from the proceeds. The plan went awry when Rodriguez
proved unable to sell the cocaine at a price sufficient to cover
his obligation. Fearing Padilla, Rodriguez disappeared.
Desperate to enforce his illegal contract, Padilla conspired
with Johnny Hinojosa to kidnap Rodriguez's nephew, Michael Baker.
The two abducted Baker and drove him from River Rouge, Michigan, to
Dallas, Texas, stopping briefly along the way to telephone Baker's
mother and inform her that Baker would be killed if Rodriguez
failed to pay his debt.
Upon arriving in Dallas, they enlisted the help of Rocha, who
variously guarded Baker, negotiated with Rodriguez, and otherwise
assisted Padilla in arranging the payoff. The FBI eventually
arrested Rocha and an accomplice as they drove away from a phone
where they had been attempting to contact Rodriguez. A search of
the vehicle in which the two were captured revealed a loaded
revolver under Rocha's seat.
II.
Rocha was convicted of aiding and abetting kidnapping in
violation of 18 U.S.C. §§ 1201(a)(1)-(2), conspiracy to commit
extortion in violation of 18 U.S.C. § 1951, aiding and abetting
extortion in violation of 18 U.S.C. §§ 1951-1952, and using or
carrying a firearm during the commission of a crime of violence in
violation of 18 U.S.C. § 924(c). We affirmed his conviction and
sentence on direct appeal. See United States v. Rocha, 916 F.2d
219 (5th Cir.1990), cert. denied, 500 U.S. 934, 111 S. Ct. 2057, 114
L. Ed. 2d 462 (1991).
In 1995, Rocha filed a pro se motion for habeas relief under
§ 2255, alleging that (1) his counsel was ineffective; (2) the
evidence was insufficient to support his conviction on the "use or
carry" firearms offense; (3) the evidence was insufficient to
support his convictions for conspiracy to extort and kidnapping;
and (4) the district court committed numerous errors in sentencing.
On November 30, 1995, the district court adopted the magistrate
judge's recommendation that the petition be denied on the merits.
On December 6, 1995, the Supreme Court decided Bailey v. United
States, --- U.S. ----, 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995),
reinterpreting the "use" prong of 18 U.S.C. § 924(c); on December
18, 1995, Rocha entered his notice of appeal; and on April 24,
1996, the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), went into
effect.
III.
As no published decision of this court has addressed the
issue, we must first decide whether 28 U.S.C. § 2253, as recently
amended by the AEDPA, requires that Rocha receive a certificate of
appealability ("COA") before we may hear his appeal.1 The statute
now provides:
Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals from—
(A) the final order in a habeas corpus proceeding in
which the detention complained of arises out of process
issued by a State court; or
(B) the final order in a proceeding under section 2255.
28 U.S.C. § 2253(c)(1). Prior to the enactment of the AEDPA, no
COA was required; a timely notice of appeal was sufficient to vest
jurisdiction in this court. As Rocha's appeal was pending on the
AEDPA's effective date, and he has never received a COA, the
retroactivity of § 2253(c)(1)(B) is squarely before us.2
1
In United States v. Orozco, 103 F.3d 389, 392 (5th
Cir.1996), we concluded that the COA requirement does apply to §
2255 appeals in which both the final judgment and the notice of
appeal were entered after the act's effective date. Id. at 392.
Rocha's situation is different, however: The final judgment and
notice of appeal were entered before the effective date, and the
issue is thus the applicability of the AEDPA to a pending appeal
rather than to a pending district court proceeding.
2
We decline to pretermit this question by granting a COA,
for to do so would fly in the face of what the AEDPA is intended
Our retroactivity analysis follows the test of Landgraf v. USI
Film Prod., 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).
There, the Court reaffirmed the longstanding presumption against
statutory retroactivity but noted that "procedural" rules—the COA
requirement being a good example—in some circumstances may be
applied retroactively to pending cases. Id. at 275, 114 S.Ct. at
1502.
The threshold inquiry under Landgraf is whether Congress "has
expressly prescribed the statute's proper reach," for if it has,
that legislative command must be obeyed. Id. at 280, 114 S.Ct. at
1505. If Congress has not spoken to retroactivity, however, we
must consider whether the new statute "would impair rights a party
possessed when he acted, increase a party's liability for past
conduct, or impose new duties with respect to transactions already
completed." Id. When the new rule implicates these concerns, the
traditional presumption of non-retroactivity applies. Id.
Landgraf, then, requires us (1) to ask whether Congress has
spoken expressly to the retroactivity of the COA requirement, and
if it has not, (2) to analyze the requirement's effects on the
to accomplish. The COA requirement makes us a gatekeeper and is
designed to prevent judicial resources from being squandered by
searching for the "merits" of meritless appeals. Certainly, we
recognize that the showing for obtaining a COA is lower than that
required to prevail on the merits, as a COA may be granted
whenever reasonable jurists could differ as to whether there has
been "denial of a constitutional right." See 28 U.S.C. §
2253(c)(2); see also Drinkard v. Johnson, 97 F.3d 751, 756 (5th
Cir.1996), cert. denied, 1997 WL 10415 (U.S. Mar.3, 1997). In
any event, reasonable jurists could not differ as to Rocha's
appeal, for none of his claims even approaches the § 2253
standard. See Hohn v. United States, 99 F.3d 892, 893 (8th
Cir.1996) (declining to issue a COA because Bailey affected
statutory, not constitutional, rights).
parties as described above. As nothing in the text of the AEDPA
expressly speaks to its retroactivity in non-capital cases, we may
proceed immediately to the second prong of the test. Fortunately,
much of our work in this regard has already been accomplished by
previous decisions of this court.
In Drinkard, we held that an application for a certificate of
probable cause ("CPC") in a § 2254 appeal could be treated as an
application for a COA without violating Landgraf 's dictates, as
the difference between a CPC and a COA is one of mere nomenclature.
Id. at 756. That is, " "[b]ecause the standard governing the
issuance of a [COA] requires the same showing as that for obtaining
a [CPC], application of § 102 of the [AEDPA] to Petitioner's
request for a [CPC] would not constitute retroactive application of
a statute under Landgraf.... ' " Id. (quoting Lennox v. Evans, 87
F.3d 431, 434 (10th Cir.1996), cert. denied, --- U.S. ----, 117
S. Ct. 746, 136 L. Ed. 2d 684 (1997)).
Citing Drinkard, we extended this analysis from applications
for certificates to the certificates themselves in Brown v. Cain,
104 F.3d 744, 748-49 (5th Cir.1997). Because Brown's CPC had given
him a " "settled expectation' [ ] that he had successfully passed
all procedural hurdles" to consideration of his claims, however, we
held that "[a]pplying the AEDPA's COA requirement to Brown in a
technical fashion would clearly raise retroactivity concerns." Id.
at 749. Thus, we concluded, the COA requirement does not apply
retroactively to § 2254 appellants who obtained CPC's before the
AEDPA's effective date. Id.
Straightforward application of our reasoning in Drinkard and
Brown leads us similarly to conclude that the COA requirement does
not apply retroactively to § 2255 appeals that were pending on the
AEDPA's effective date. Before the AEDPA took effect, appeals in
§ 2255 cases were as of right, and neither a COA nor a CPC was
required. Application of the COA requirement to Rocha thus would
work an even greater retroactive effect than that which we rejected
in Brown, where the AEDPA merely would have required the
petitioner-appellant to obtain a COA under the same standard as he
previously had obtained a CPC. That is, because Landgraf mandates
that the COA requirement not be retroactive in § 2254 cases, it
follows that it must also not be retroactive in § 2255 cases, where
retroactivity would have a more dramatic effect.
Rocha did everything necessary to invoke the jurisdiction of
this court at the time he filed his notice of appeal. Nothing in
the AEDPA suggests that Congress meant us to dismiss appeals that
were properly filed and pending as of the act's effective date, or
otherwise to restrict an appellant's right of review after it has
been properly invoked.
We therefore conclude that the AEDPA's COA requirement does
not retroactively apply to § 2255 appeals in which the final
judgment and notice of appeal were entered before the AEDPA's
effective date. This conclusion brings us into accord with the
other federal circuits that have considered the issue.3
3
See Thye v. United States, 96 F.3d 635, 637 (2d Cir.1996)
(holding that the COA requirement does not apply retroactively to
§ 2255 cases in which the notice of appeal was filed before the
AEDPA's effective date); Herrera v. United States, 96 F.3d 1010,
1011 (7th Cir.1996) (same); United States v. Lopez, 100 F.3d
113, 117 (10th Cir.1996) (same); Hunter v. United States, 101
F.3d 1565, 1573 (11th Cir.1996) (en banc) (same).
IV.
We now proceed to the merits. For the first time on appeal,
Rocha raises a claim that the evidence presented at trial was
insufficient to support his 18 U.S.C. § 924(c) "use or carry"
conviction in light of the reinterpretation of "use" in Bailey.
His failure to raise this highly fact-dependent claim in the
district court prevents us from considering it for the first time
on appeal.4 Rocha, of course, could hardly be expected to have
raised a Bailey claim before Bailey was decided, but his proper
course of action is to file a successive § 2255 motion, not to
raise the issue for the first time here.5
Rocha also contends that the district court erred in
rejecting his claim of ineffective assistance of counsel. The
district court, adopting the recommendation of the magistrate
judge, found that Rocha's only serious argument for ineffective
assistance was that his counsel had failed to obtain a separate
trial. Noting that the court that heard Rocha's direct appeal
correctly rejected his claim that he should have received a
severance, the district court held that his counsel's failure to
obtain something to which he was not entitled could not constitute
ineffective assistance. See Rocha, 916 F.2d at 227-32.
4
See, e.g., United States v. Madkins, 14 F.3d 277, 279 (5th
Cir.1994); United States v. Cates, 952 F.2d 149, 152 (5th Cir.),
cert. denied, 504 U.S. 962, 112 S. Ct. 2319, 119 L. Ed. 2d 238
(1992).
5
We express no view on the merits of such a successive
motion. We also note that our conclusion obviates the need to
consider either whether Bailey applies retroactively to
proceedings for collateral relief or the government's contention
that the evidence presented at trial was sufficient to sustain
Rocha's conviction under the "carry" prong of § 924(c).
As Rocha has failed to adduce any additional arguments his
counsel could have raised in support of the severance motion, he
falls far short of meeting the deficiency-plus-prejudice standard
of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674 (1984). The ineffective assistance claim was
properly denied.
Rocha further argues that his conviction for conspiracy to
commit extortion is invalid because it was based on the same overt
act as a count of conspiracy to commit kidnapping, of which he was
acquitted. Because he did not raise this claim in his direct
appeal, however, we may not consider it unless he demonstrates
"cause and prejudice" for his procedural default. See United
States v. Frady, 456 U.S. 152, 168, 102 S. Ct. 1584, 1594-95, 71
L. Ed. 2d 816 (1982). The district court, again adopting the
recommendation of the magistrate judge, correctly held that Rocha
had failed to demonstrate either element of this test. As to
cause, he has alleged nothing that would justify his failure to
raise the issue on direct appeal. As to prejudice, it was
perfectly consistent for the jury to find that Rocha conspired to
commit extortion but not to commit kidnapping.
Rocha next offers a series of arguments that the district
court misapplied the sentencing guidelines by increasing his
offense level for making a ransom demand, increasing his offense
level for vulnerability of the victim, failing to grant a downward
departure based on his family circumstances, and failing to grant
a downward departure for his minor role in the offense. Each of
these claims was raised and rejected in Rocha's direct appeal.
Rocha, 916 F.2d at 242-45. They are therefore barred from
collateral review. E.g., United States v. Kalish, 780 F.2d 506,
508 (5th Cir.), cert. denied, 476 U.S. 1118, 106 S. Ct. 1977, 90
L. Ed. 2d 660 (1986).
Finally, at various points Rocha's brief suggests that the
district court (1) erred in failing to grant him a severance; (2)
erred in interpreting 18 U.S.C. § 924(c); and (3) improperly
commented on the weight of the evidence. As with his sentencing
claims, each of these arguments was addressed and rejected by the
court that considered his direct appeal. Rocha, 916 F.2d at 227-29
(severance); id. at 236-38 (interpretation of § 924(c)); id. at
232-33 (comments by the trial court). Like the sentencing claims,
then, they are procedurally barred from collateral review. Kalish,
780 F.2d at 508.
The denial of § 2255 relief is AFFIRMED.