United States v. Quinonez-Quintero , 573 F. App'x 674 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT July 24, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 14-3001
v. (D.C. Nos. 2:13-CV-02477-KHV and
2:08-CR-20106-KHV-6)
ROBERTO QUINONEZ-QUINTERO, (D. Kan.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
Roberto Quinonez-Quintero seeks a certificate of appealability (“COA”) to appeal
the district court’s denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss
the appeal.
I
In March 2010, Quinonez-Quintero was charged in the United States District
Court for the District of Nebraska with conspiracy to distribute methamphetamine. The
*
This order is not binding precedent except under the doctrines of law of the case,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.
indictment alleged that Quinonez-Quintero (who was proceeding under the alias “Jesus
Hernandez-Lopez”), conspired with Bryan Cota, Alberto Heredia-Castro, and “other
persons, both known and unknown to the grand jury, to distribute and possess with intent
to distribute 500 grams or more of a mixture or substance containing a detectable amount
of methamphetamine.” The indictment alleged that the conspiracy ran “[f]rom an
unknown date but at least as early as January, 2008” and continued “through on or about
February 11, 2010, in the District of Nebraska.” Quinonez-Quintero was also charged
with possession of methamphetamine with intent to distribute and possession of cocaine
with intent to distribute. He entered into a plea agreement in July 2010, under which he
agreed to plead guilty to the conspiracy charge in exchange for dismissal of the remaining
counts. The federal district court in Nebraska imposed a sentence of 108 months’
imprisonment.
Prior to the initiation of the Nebraska case, Quinonez-Quintero was charged under
his true name in the district of Kansas with conspiracy to distribute methamphetamine
and possession of methamphetamine with intent to distribute. A second superseding
indictment filed in March 2009 alleged that Quinonez-Quintero, Carlos Guadalupe
Beltran-Aguilar, Jose Torres-Garcia, Jose Viera, Perla Flores, Jose Antonio Beltran-
Salazar, and “other persons, both known and unknown” conspired to distribute
methamphetamine “[c]ommencing on or about January 1, 2008, and continuing to on or
about September 24, 2008, the exact dates being unknown . . . in the District of Kansas
and elsewhere.” Quinonez-Quintero entered into a plea agreement in the Kansas case in
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November 2011. He agreed to plead guilty to the conspiracy charge and provided a
lengthy factual basis for his plea, describing methamphetamine-distribution activities that
occurred at two addresses in Kansas City, Kansas. He was sentenced to 292 months’
imprisonment.
Quinonez-Quintero filed a § 2255 motion in the Kansas case, claiming that he
received ineffective assistance of counsel because his attorney did not raise potential
double jeopardy issues during the plea process. The district court denied relief,
concluding that Quinonez-Quintero failed to allege specific facts showing that the
Nebraska and Kansas convictions constituted a single conspiracy. It also declined to
grant a COA. Quinonez-Quintero now seeks a COA from this court.
II
A prisoner may not appeal the denial of habeas relief under § 2255 without a
COA. § 2253(c)(1)(B). We will issue a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). This requires
Quinonez-Quintero to show “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.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).
Quinonez-Quintero contends that his counsel was ineffective for failing to advise
him that the Kansas and Nebraska charges raised double jeopardy concerns. To prevail
on an ineffective assistance claim, a prisoner must demonstrate “that counsel made errors
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so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment” and that “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a
“defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
“[I]f two charges of conspiracy are in fact based on a defendant’s participation in a
single conspiracy, the [Double Jeopardy Clause] bars the second prosecution.” United
States v. Daniels, 857 F.2d 1392, 1393 (10th Cir. 1988). A criminal defendant “must
prove in fact and in law that only one conspiracy existed in order to prevail on [his]
double jeopardy claim.” United States v. Mintz, 16 F.3d 1101, 1104 (10th Cir. 1994)
(quotation omitted). To show a single conspiracy, Quinonez-Quintero must establish that
the two sets of conspirators shared a “single criminal objective, not just similar or parallel
objectives between similarly situated people” and that the “coconspirators were
interdependent” in that their actions “facilitate[d] the endeavors of other alleged
coconspirators or facilitate[d] the venture as a whole.” United States v. Carnagie, 533
F.3d 1231, 1238-39 (10th Cir. 2008) (quotations omitted).
We agree with the district court that Quinonez-Quintero has not offered specific
allegations showing interdependence between the two conspiracies. He relies principally
on his own assertion that the two were identical. But “conclusory allegations
unsupported by specifics” are insufficient to avoid dismissal. United States v. Weeks,
653 F.3d 1188, 1205 (10th Cir. 2011) (quotation omitted). Quinonez-Quintero also notes
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that both indictments refer to unknown participants in arguing that uncertainty exists as to
the membership of each conspiracy. But uncertainty is insufficient given that Quinonez-
Quintero bears the burden of proof. See Mintz, 16 F.3d at 1104. And Quinonez-
Quintero is the sole individual identified as being a member of both conspiracies. The
only specific fact alleged by Quinonez-Quintero purporting to tie the conspiracies
together is his notation that at least one of the Kansas coconspirators had connections to
the state of Nebraska. This falls well short of showing that the Kansas coconspirators
facilitated the Nebraska conspiracy. Carnagie, 533 F.3d at 1238.
III
For the foregoing reasons, Quinonez-Quintero’s request for a COA is DENIED
and this appeal is DISMISSED. We GRANT his motion to proceed in forma pauperis.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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