United States v. Jaramillo

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 18, 2014
___________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-1340
MATTHEW DEWAYNE JARAMILLO, (D.C. No. 1:12-CR-00210-REB-1)
(D. Colo.)
Defendant - Appellant.
____________________________________
ORDER AND JUDGMENT*
____________________________________
Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.**
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A jury convicted Defendant Matthew Dewayne Jaramillo of various charges
including assault with intent to commit murder in violation of 18 U.S.C. § 113(a)(1). Ten
minutes before his sentencing hearing began Defendant fired his counsel. Defendant
believed his counsel was acting under a conflict of interest. At the beginning of the
sentencing Defendant filed a motion entitled “Motion to Vacate Sentence.” Because
Defendant had not yet been sentenced, the district court construed this motion as
“quintessentially . . . a motion to terminate the existing attorney client-relationship . . .
*
This order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument under Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case therefore is
ordered submitted without oral argument.
between [Defendant] and his attorneys . . . .” In arguing his motion, Defendant asserted
his counsel had labored under a conflict of interest and should have, but failed to, raise a
defense of voluntary intoxication at trial. The district court disagreed, responding: “First,
there was no professional error. . . . And even if there was, under Strickland,” there was
no prejudice. (referencing Strickland v. Washington, 466 U.S. 668 (1984)). The court
also pointed out that this issue should have been raised much earlier and there was “no
good faith effort by [Defendant] to bring these matters to the attention of his counsel, the
Court, or the Government.” The district court thus stated it would not vacate or continue
Defendant’s sentencing proceedings. It did, however, allow Defendant to fire his counsel
because counsel had been retained not appointed. The court then sentenced Defendant to
660 months imprisonment plus five years supervised release.
Defendant now attempts to reassert his ineffective assistance of counsel claim on
direct appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the disposition
of Defendant’s post-trial motion, but for a different reason, and remand for the district
court to vacate its ruling on the merits of Defendant’s ineffective assistance of counsel
claim so he may assert this claim in a collateral proceeding under 28 U.S.C. § 2255.
Also, because Defendant does not appeal his sentence, we affirm his sentence as well.
“Ineffective assistance of counsel claims should be brought in collateral
proceedings, not on direct appeal.” United States v. Galloway, 56 F.3d 1239, 1240 (10th
Cir. 1995). True, “this court has considered ineffective assistance of counsel claims on
direct appeal in limited circumstances, but only where the issue was raised before and
ruled upon by the district court and a sufficient factual record exists.” United States v.
2
Flood, 635 F.3d 1255, 1260 (10th Cir. 2011) (emphasis in original). As we reasoned in
Galloway:
A factual record must be developed in and addressed by the district court in
the first instance for effective review. Even if evidence is not necessary, at
the very least counsel accused of deficient performance can explain their
reasoning and actions, and the district court can render its opinion on the
merits of the claim.
Galloway, 56 F.3d at 1240 (emphasis added) (footnote omitted). In Flood, the defendant
filed a post-trial motion to vacate her convictions asserting that she received ineffective
assistance of counsel because her trial counsel labored under conflicts of interest. Flood,
635 F.3d at 1256. The district court denied the motion to vacate her convictions
reasoning (1) the motion was untimely and (2) no conflict existed, and even if a conflict
existed, her representation was not adversely impacted. Id. at 1260. We affirmed the
court’s denial of the motion to vacate the defendant’s convictions, but not for the same
reasons. Id. Rather, we concluded the district court should not have considered the
merits of the ineffective assistance of counsel claim due to the insufficiency of the record.
Id.Flood controls this appeal. Defendant here did not assert ineffective assistance of
counsel until the start of his sentencing hearing. Further, as in Flood, the district court
reasoned that counsel was not deficient and even if they were, Defendant was not
prejudiced. But Defendant’s allegedly deficient counsel was never given the opportunity
to explain their reasoning and actions below. Cf. Galloway, 56 F.3d at 1240. Therefore,
3
the factual record on direct appeal is lacking.1 Accordingly, as in Flood, “We affirm
because the district court should not have reached the issue, and not because the district
court correctly ruled on the merits of the claim.” Flood, 635 F.3d at 1261. Defendant
can still bring his ineffective assistance of counsel claim in a collateral proceeding, but he
cannot do so on direct appeal.
We therefore AFFIRM the district court’s disposition of Defendant’s “Motion to
Vacate Sentence,” which it construed as a motion to terminate his attorney-client
relationship, and REMAND for the district court to vacate its ruling on the merits of
Defendant’s ineffective assistance of counsel claim so that he will not be prejudiced in a
collateral proceeding, should he choose to initiate one. Furthermore, because Defendant
does not appeal his sentence, his sentence is AFFIRMED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
1
Defendant claims his trial transcript, which he included in the record, is rife with
evidence supporting his claim that counsel should have raised a voluntary intoxication
defense at trial, but the record nowhere shows that his allegedly deficient counsel was
given the opportunity to explain their reasoning or actions.
4