United States v. Velasquez

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 1, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-8025
(D.C. Nos. 2:13-CV-00059-NDF and
ROBERT VELASQUEZ, 1:10-CR-00329-NDF-1 )
(D. Wyo.)
Defendant - Appellant.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
Petitioner and Appellant, Robert Velasquez, proceeding pro se, seeks a
certificate of appealability (“COA”) to enable him to appeal the denial of his
petition pursuant to 28 U.S.C. § 2255. Finding that he has failed to establish
entitlement to the issuance of a COA, we deny his request and dismiss this matter.
*
This order is not binding precedent, except under the doctrines of law of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.
BACKGROUND
On January 12, 2011, a federal grand jury returned a Superseding
Indictment charging Mr. Velasquez and several others with: conspiracy to traffic
in methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and
846 (Count one); conspiracy to engage in money laundering, in violation of 18
U.S.C. §§ 1956(a)(1)(A)(I) and 1956(h) (Count two); unlawful distribution of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C)
(Count three); and possession of a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c) (Counts five and six). Mr. Velasquez
pled not guilty and proceeded to trial, along with co-defendants, Alex Garcia,
Daniel Renteria and Miguel Ordaz.
After a lengthy trial (some five weeks) involving the testimony of thirty
witnesses, the jury found him guilty of all counts. On November 16, 2011,
Mr. Velasquez filed a motion for a judgment of acquittal pursuant to Fed. R.
Crim. P. 29 (subsequently supplemented). On March 2, 2012, the district court
entered an order granting the Rule 29 motion with respect to his convictions on
Counts five and six (the firearms counts). Mr. Velasquez was then sentenced to
240 months’ imprisonment on all counts, to run concurrently, followed by five
years of supervised release.
Mr. Velasquez did not appeal his conviction or sentence. His co-
defendants did appeal, and our court affirmed their convictions. United States v.
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Renteria, 720 F.3d 1245 (10th Cir. 2013). That decision provides the essential
facts describing the three-year methamphetamine conspiracy at issue in this case:
Information compiled by law enforcement suggested that
several members of a gang from Fresno, California—the Fresno
Bulldogs—were living in northern Wyoming and distributing
methamphetamine from 2007-2010. This opinion concerns the trial
of four members—Mr. Renteria, Mr. Garcia, Mr. Ordaz, and Robert
Velasquez, Jr. (who has not appealed here). Over the course of five
weeks, the jury considered the testimony of thirty witnesses.
Special Agent Michael Hall of the Wyoming Division of
Criminal Investigation testified as to how the operation worked.
Mr. Ordaz, Mr. Renteria, and Mr. Velasquez would periodically
receive methamphetamine from Fresno Bulldog members in
California, including Mr. Garcia. Mr. Velasquez operated mainly out
of Cody and Basin, Wyoming while Mr. Ordaz and Mr. Renteria
operated mainly around Sheridan. After selling the drugs,
Mr. Velasquez, Mr. Ordaz and Mr. Renteria would wire proceeds to
Fresno. Financial records from Money Gram, Western Union, and
Green Dot supported some of these transactions.
California police Detective Ricardo Gonzalez provided
identification testimony and explained certain characteristics of the
Fresno Bulldogs, having investigated the organization for nine years.
He specifically identified Mr. Ordaz as a member of the Fresno
Bulldogs, identified photographs of Mr. Renteria, Mr. Ordaz,
Mr. Velasquez, and Mr. Garcia, and pointed out various gang-related
features in these photographs, including special tattoos, clothing, and
hand signals.
Multiple cooperating witnesses testified to their purchases of
methamphetamine from Mr. Renteria, Mr. Ordaz, and Mr. Velasquez.
[citing testimony from Lisa Riggs, Juan Marquez, Amber Bear and
Cilia Downes, all implicating Mr. Velasquez].
The testimony of one cooperating witness was particularly
helpful to the prosecution of all Defendants. Melissa Morgan, one of
Mr. Velasquez’s girlfriends, explained that Mr. Garcia would
periodically send Mr. Velasquez packages that contained candles.
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The bottoms of the candles were dug out and contained at least an
ounce of methamphetamine each. She described how Mr. Velasquez
would remove the methamphetamine, cut it, and then repackage it for
sale. She also testified about multiple trips she took with
Mr. Velasquez to meet with Mr. Ordaz and Mr. Renteria and pick up
methamphetamine. Mr. Ordaz and Mr. Renteria likewise traveled on
multiple occasions to visit Mr. Velasquez in Basin and Cody and
deliver methamphetamine. Ms. Morgan also once accompanied Mr.
Velasquez to Fresno where she met Mr. Garcia, and she once wired
drug proceeds to him and his girlfriend.
Ms. Morgan’s brother, John Morgan, testified that Mr.
Velasquez supplied him with methamphetamine and that Mr.
Velasquez told him that one of his sources was Mr. Garcia. Mr.
Morgan also testified that once Mr. Velasquez was incarcerated,
Mr. Renteria became his supplier. Originally, Mr. Renteria provided
the methamphetamine in ounce quantities, but when Mr. Morgan
could not move it quickly enough, Mr. Morgan began purchasing it in
quarter-ounce and half-ounce quantities.
Two of Mr. Renteria’s girlfriends corroborated much of Ms.
Morgan’s testimony regarding Mr. Velasquez and Mr. Renteria’s
relationship. Candice Kysar testified that Mr. Renteria’s only source
of income was from drug sales and that she saw Mr. Renteria cut,
repackage, and sell methamphetamine, usually in 3.5 gram amounts,
nearly every day. Danni Fox testified that she saw Mr. Renteria
receive packages of methamphetamine and cut it before selling it,
and that she helped wire large amounts of money to California,
money which Mr. Renteria claimed was for his children.
Renteria, 720 F.3d at 1249-50 (record citations omitted).
Mr. Velasquez timely filed the instant 28 U.S.C. § 2255 petition, asserting
two issues: (1) the prosecution engaged in misconduct relating to the testimony at
trial of Melissa and John Morgan regarding their anticipated sentences as
compared with the sentences they actually received; and (2) his trial counsel was
ineffective because he failed to do an independent investigation, was unprepared,
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and failed to identify a viable defense; he failed to properly cross-examine
witnesses at trial; and he deliberately undermined the case in order to form a
strategic alliance with the Government. The district court rejected each argument
on its merits, after a careful and thorough examination of the record and
applicable legal authority. The court also denied Mr. Velasquez’s request for an
evidentiary hearing, finding that the “files and record in this case conclusively
establish that Velasquez is not entitled to any relief.” Order at 22-23; R. Vol. 1 at
112-13. The court then denied Mr. Velasquez a COA. This request for a COA
followed.
DISCUSSION
The denial of a motion for relief under § 2255 can be appealed only if a
COA is issued. 28 U.S.C. § 2253(c)(1)(B). A COA may not issue under
§ 2253(c)(1) unless “the applicant has made a substantial showing of the denial of
a constitutional right.” Id.§ 2253(c)(2). This standard requires “a demonstration
that . . . includes showing 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 further.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation
marks omitted).
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Furthermore, “[s]ection 2255 motions are not available to test the legality
of matters which should have been raised on direct appeal.” United States v.
Warner, 23 F.3d 287, 291 (10th Cir. 1994). “A defendant’s failure to present an
issue on direct appeal bars him from raising the issues in his § 2255 motion,
unless he can show cause excusing his procedural default and actual prejudice
resulting from the errors of which he complains, or can show that a fundamental
miscarriage of justice will occur if his claim is not addressed.” Id. Additionally,
we “may raise this procedural bar sua sponte but must afford the movant an
opportunity to respond to the defense.” Id. Nonetheless, even where the court
has the power to raise such procedural bar defenses, we have counseled that it
“does not mean that it must raise them sua sponte,” or that it “ordinarily should
raise” them sua sponte. Hines v. United States, 971 F.2d 506, 509 (10th Cir.
1992).
As indicated above, Mr. Velasquez filed no direct appeal at all. The
district court evidently determined it unnecessary to afford Mr. Velasquez the
opportunity to respond to a procedural bar defense, and instead addressed (and
rejected) his arguments on their merits. We therefore consider that decision, in
light of our COA standards.
As stated, Mr. Velasquez raised two broad issues: prosecutorial
misconduct and ineffective assistance of trial counsel. We consider them in turn.
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I. Prosecutorial Misconduct
Mr. Velasquez claims that the Government failed to disclose alleged secret
deals between the Government and Melissa Morgan (“M. Morgan”) and John
Morgan (“J. Morgan”) regarding the term of punishment they would ultimately
receive at sentencing. The district court found this argument “without support in
the record.” Order at 8; R. Vol. 1 at 98.
A review of the record shows that the district court’s denial of Mr.
Velasquez’s § 2255 motion on this point is not reasonably debatable. As the
court noted, a claim that the Government has purposely suppressed significant
impeachment evidence concerning its witnesses invokes the principles of Brady v.
Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).
Mr. Velasquez’s co-defendants made this same argument in their direct
appeal. We described the argument as follows:
Mr. Renteria maintains that the government made two
undisclosed promises of leniency to witnesses Melissa Morgan and
John Morgan in return for their testimony. He argues that the
government’s failure to disclose these alleged subrosa agreements
violates Giglio and warrants a new trial. . . .
Ms. Morgan testified that she would receive a sentence of
eight to ten years’ incarceration pursuant to a plea in Wyoming state
court and that her testimony against Mr. Renteria would not change
that sentence. Mr. Renteria’s brief indicates, without record support,
that instead Ms. Morgan has received a sentence of four to six years.
Mr. Morgan testified that he would receive a sentence of
fifteen years pursuant to a plea in federal court and that he was not
going to receive a downward departure or any additional
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consideration for his testimony at trial. Again in briefing and again
without record support, Mr. Renteria alleges that Mr. Morgan’s
sentence was also reduced from fifteen to ten years.
These lower-than-expected sentences might indicate that the
government had an agreement with the witnesses that went
undisclosed.
Renteria, 720 F.3d at 1251-52.
We resolved this issue in Mr. Velasquez’s co-defendants’ case by deeming
it waived because it was not raised in the district court, and there were “no factual
or legal determinations on the matter for us to review.” Id. at 1252. That is not
the case here, as Mr. Velasquez raised this issue before the district court and the
court rejected it on its merits, after an extensive examination of the record.
The district court began by examining the plea agreement signed by J.
Morgan prior to the trial of Mr. Velasquez and his co-defendants. That plea
agreement provided that J. Morgan understood that “the United States does not
intend on making any motions for a downward departure pursuant to U.S.S.G.
§ 5K1.1 (or 18 U.S.C. § 3553(e), or [Fed. R. Crim. P.]35(b)); and, as a result, the
minimum statutory sentence he would receive would be 15 years.” Order at 9; R.
Vol. 1 at 99 (quoting John Morgan Plea Agreement, Doc. 205). The agreement
further provided that it “does not prevent the Defendant from asking the court for
a further downward departure at the time of sentencing.” Id. Accordingly, J.
Morgan testified at Mr. Velasquez’s trial that he “understood there would be no
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downward departure filed on his behalf and his sentence would be fifteen years.”
Id.
When J. Morgan appeared for his sentencing, after completion of the trial
of Mr. Velasquez and his co-defendants, J. Morgan’s counsel asked for a sentence
below the mandatory minimum of fifteen years. After lengthy discussion, and a
continuance, the Government ultimately did file a motion for a downward
departure, but only to fifteen years. The court ultimately sentenced J. Morgan to
a sentence of 120 months. The district court below stated:
There is nothing in the record to suggest the Government had
any secret deal with J. Morgan. Rather the Government was initially
adamant it would not consider any motion for sentence reduction
because of concerns that it would contradict statements both the
Government and J. Morgan made at the trial in this case. The Court
itself noted that there was no secret deal at the December 7, 2011
hearing [on J. Morgan’s sentencing].
Additionally, the purpose of the Government’s motion for
downward departure was to allow the Court to depart down from the
guideline sentencing range of 210-262 months, to the 180 months
contemplated by the Plea Agreement. The Government continued
through its motion and through sentencing to argue for a sentence of
180 months as contemplated by the Plea Agreement.
There is nothing in the record to suggest the Government
engaged in any Brady/Giglio violations related to J. Morgan’s
testimony and later reduction in sentencing. The Court finds this
claim lacks merit.
Order at 14; R. Vol. 1 at 104 (emphasis added). No reasonable jurist could debate
the propriety of that analysis and discussion. While Mr. Velasquez continues (in
his application for a COA and Opening Brief on appeal) to assert that he has
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identified witnesses who would testify at an evidentiary hearing, he still fails to
specifically identify any person or record item to support his claim that secret
deals existed. He does not name particular persons or evidentiary materials to be
unveiled at an evidentiary hearing.
The district court then considered whether there was any Brady/Giglio
violation in connection with the testimony of J. Morgan’s sister, M. Morgan (who
was also a girlfriend of Mr. Velasquez). It again concluded “there is no evidence
the Government had a secret agreement with M. Morgan.” Order at 15; R. Vol. 1
at 105. As it explained:
According to M. Morgan’s testimony at trial, her state plea
agreement required her to cooperate with the United States at trial
and that in exchange she would avoid federal prosecution and serve a
state prison sentence of eight to ten years.
According to attachments to Velasquez’s co-defendant
Renteria’s appellate filings, M. Morgan was ultimately sentenced to a
term of four to six years, [as] opposed to eight to ten years. There is
nothing in the record to indicate why the state prosecutor
recommended a lower sentence or that M. Morgan’s lower than
expected sentence was a product of improper Government conduct.
There does not appear to be any explanation for the reduction of the
sentence, making it impossible for this Court to know why the state
court imposed the sentence it did. However, there is no evidence the
lower sentence was the product of any improper, secret deal on
behalf of the Government regarding her cooperation.
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Id. We similarly discern no basis on which a reasonable jurist could debate the
propriety of that decision. We will issue no COA on the claimed prosecutorial
misconduct relating to Brady/Giglio. 1
II. Ineffective Assistance of Counsel
Mr. Velasquez’s second claim involves several instances of claimed
ineffective assistance of his trial counsel. He asserts three specific claims of
ineffectiveness: failure to conduct an independent investigation and develop a
viable defense; failure to effectively cross-examine witnesses; and pursuit of an
unlawful alliance or conspiracy with the Government to frame him. The district
court rejected these claims on their merits.
As has been repeatedly stated, under the Supreme Court’s two-part test set
forth in Strickland v. Washington, 466 U.S. 668 (1984), an ineffective assistance
of counsel claim requires a showing (1) “that counsel’s representation fell below
an objective standard of reasonableness” and (2) “that the deficient performance
1
The district court further noted that:
even if Velasquez had some evidence of a Brady/Giglio violation,
Velasquez could not show that it materially compromised his
defense. Both the Morgans were subject to withering cross
examination. Both had significant prior felonies and they were both
accused of concocting their testimony to cover up their distribution
activities. Additionally, there was significant other testimony to
convict Velasquez provided by other witnesses . . . . Therefore, any
suppression of the alleged ‘side deals’ would not have materially
affected the outcome of Velasquez’s case.
Order at16; R. Vol. 1 at 106.
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prejudiced the defense.” Id. at 687-88. “[R]eview of counsel’s performance”
under Strickland’s first prong is “highly deferential.” Byrd v. Workman, 645
F.3d 1159, 1168 (10th Cir. 2011).
The district court applied those standards to Mr. Velasquez’s claims of
ineffectiveness. The court stated that he “fails to state what viable defense his
counsel could have raised” and he “fails to provide any names of people who his
counsel would have contacted to provide a viable defense.” Order at 16; R. Vol.
1 at 106. And aside from the Morgans, Mr. Velasquez identifies no witnesses
who should have been more vigorously cross-examined; with regard to the
Morgans, the district court points out that Mr. Velasquez’s counsel “extensively
cross-examined J. Morgan” and that “[t]here are no facts to support Velasquez’s
claim that his counsel was ineffective in cross-examining M. Morgan.” Id. at 20-
21; R. Vol. 1 at 110-11. Mr. Velasquez states nothing in his application for a
COA and his Opening Brief to refute the district court’s conclusions, or explain
why an evidentiary hearing would help his cause.
In short, no reasonable jurist could debate the correctness of the district
court’s analysis and conclusions. Additionally, the court did not abuse its
discretion in denying an evidentiary hearing. See United States v. Flood, 713
F.3d 1281, 1290 (10th Cir. 2013) (“We review the district court’s denial of an
evidentiary hearing for abuse of discretion.”); United States v. Marr, 856 F.2d
1471, 1472 (10th Cir. 1988) (“We do not agree that an evidentiary hearing is
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required where the district court finds the case record conclusively shows the
prisoner is entitled to no relief.”).
CONCLUSION
For the foregoing reasons, we DENY Mr. Velasquez a COA and DISMISS
this matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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