United States v. Espinoza , 392 F. App'x 666 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 20, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v. No. 09-2206
(D.C. Nos. 1:08-CV-00479-RB-WDS and
ALEJANDRO ESPINOZA, a/k/a Miguel 2:04-CR-00852-RB)
Angel Manzo, (D. N.M.)
Defendant–Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, EBEL, and LUCERO, Circuit Judges.
Alejandro Espinoza a/k/a Miguel Angel Manzo, a federal prisoner proceeding pro
se, seeks a certificate of appealability (“COA”) to appeal the district court’s dismissal of
his 28 U.S.C. § 2255 habeas petition. We deny a COA and dismiss the appeal.
I
In 2004, Espinoza was indicted for conspiracy to possess with intent to distribute
methamphetamine. At trial, Espinoza’s counsel posited that that he had not sold
*
This order is not binding precedent except under the doctrines of law of the case,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.
methamphetamine but rather marijuana and perhaps cocaine. However, counsel made his
case only through cross-examination of government witnesses, his opening statement,
and his closing argument; the defense did not call any witnesses. At the close of the
government’s case, the defense moved for a mistrial. After the court denied Espinoza’s
motion, the jury re-entered the courtroom for instructions and to hear closing arguments.
Before the court could instruct the jury, Espinoza interjected:
You’re going to give me life without the possibility of parole, and you’re
not going to allow my side to be heard. . . . I have some issues that have to
be preserved for appeal. This is my life you’re talking about. You’re going
to give me life without the possibility of parole . . . without allowing me to
preserve these issues for appeal?
The court had the jury leave the room and admonished Espinoza for his outburst. After
being instructed to raise any concerns through his attorney, Espinoza contended that his
attorney was not following his instructions and addressed the court directly. Espinoza
raised a number of complaints both orally and in a note to the court. Defense counsel
then moved to re-open the case and present a law enforcement officer as a witness, but
the court denied the motion.
Counsel for each side then made their closing arguments. Defense counsel
referred to a recorded telephone call between Espinoza and an informant in which the two
discussed drugs using coded language:
[T]hat tape is clearly talking about two drugs. Although [the informant]
insisted that, no, the only thing that that tape was talking about was one
drug.. . .
[W]hen you go back there, if you want to listen to the tape, listen to it
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yourself—you’ll come to the conclusion that, yes, [the informant] was
talking about meth on that tape or trying to talk about only meth on that
tape, but [Espinoza] was talking about at least one other drug and maybe
two other drugs.
After deliberation, the jury convicted Espinoza. We affirmed on direct appeal.
United States v. Espinoza, 211 Fed. App’x 795 (10th Cir. 2007) (unpublished).
In a timely filed § 2255 petition, Espinoza asserted that his trial counsel was
ineffective for preventing him from testifying on his own behalf, for failing to adequately
investigate and present evidence related to the defense theory, and for allegedly admitting
that Espinoza was guilty during closing argument. He also contended that appellate
counsel was ineffective for failing to raise these issues on appeal.
Without holding an evidentiary hearing, the district court dismissed Espinoza’s
petition and denied him a COA. Espinoza then concurrently filed a notice of appeal and
a motion to alter or amend the judgment below. We abated the appeal pending the
district court’s resolution of the motion alter or amend. Espinoza’s motion to alter or
amend was then denied by the district court. With the district court proceedings
concluded, we now consider whether Espinoza may proceed on appeal. Because he
proceeds pro se, we will liberally construe his pleadings. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972).
II
A petitioner may not appeal the denial of habeas relief under § 2255 without a
COA. § 2253(c)(1)(A). Espinoza may not obtain a COA unless he demonstrates “that
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jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). He has
failed to make such a showing.
A
Counsel provides ineffective assistance when his representation does not meet “an
objective standard of reasonableness” and “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). We will consider
each of Espinoza’s ineffective assistance claims in turn.
1
The district court rejected Espinoza’s claim that his attorney was ineffective for
denying him the right to testify on the grounds that Espinoza never indicated a wish to
testify, even after an invitation by the court to state his concerns, and that his waiver of
the right to testify was a tactical decision made jointly with his attorney. On appeal,
Espinoza does not argue that he informed the court he wished to testify. Instead, he
contends that his silence on the matter was insufficient to waive his right to testify, and
that both his attorney and the court prevented him from asserting the right.
A waiver of the right to testify in one’s defense must be voluntary, knowing, and
intelligent. Harvey v. Shillinger, 76 F.3d 1528, 1536 (10th Cir. 1996). Because the
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choice whether to testify is often made in consultation with an attorney, violations of the
right to testify are “best treated” as ineffective assistance of counsel claims. Cannon v.
Mullin, 383 F.3d 1152, 1170 (10th Cir. 2004). The Supreme Court has long held that we
may not infer attorney misconduct simply because, in retrospect, a tactical decision
appears to have been misguided. See, e.g., Strickland, 466 U.S. at 689. However, the
ultimate decision whether to testify rests with the defendant, and counsel must not
prevent a determined defendant from testifying. See Cannon, 383 F.3d at 1171. In
evaluating when persuasion by counsel becomes coercion, we consider: (1) whether the
defendant knew of his right to testify or was informed of the right by counsel; (2) whether
counsel gave sound tactical advice regarding the choice not to testify; and (3) any threats
or intimidation used to influence the defendant. Wimberly v. McKune, No. 97-3133,
1998 WL 115953, at *3 (10th Cir. Mar. 16, 1998) (unpublished) (citing Lema v. United
States, 987 F.2d 48, 52-53 (1st Cir. 1993)). We will not overturn a district court’s finding
on the question without sufficiently detailed affidavits describing the manner in which
counsel coerced the defendant not to testify. See United States v. Meacham, 567 F.3d
1184, 1188 (10th Cir. 2009).
Espinoza argues that trial counsel “refus[ed] to let him testify.” Specifically, he
alleges that, after his outburst, counsel advised Espinoza that if he sought to testify, the
judge might remove him from the courtroom. However, after this alleged coercion
occurred, Espinoza was invited to write down his objections to counsel’s handling of the
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case. Although Espinoza did not hesitate to raise myriad concerns, his purported wish to
testify was conspicuously absent from this list.
Applying the factors from Wimberly, Espinoza has conceded he was aware of his
right to testify and has provided no evidence of threat or intimidation. Even if counsel’s
warning against insisting on testifying was poor advice, it does not rise to the level of a
threat. Additionally, any tension between his right to testify and his preference to remain
in the courtroom (which Espinoza refers to as a “Hobson’s choice”—a choice that is no
choice at all) was remedied when the court invited Espinoza to raise any concerns he had
with counsel in a note to the court. Consequently, no reasonable jurist would conclude
that Espinoza has adequately demonstrated that his attorney rendered ineffective
assistance with respect to waiver of the right to testify.
2
Espinoza also asserts the district court erred in determining that his attorney did
not render ineffective assistance by failing to adequately investigate the case. The district
court determined that Espinoza’s petition did not explain how, but for counsel’s alleged
error, the result of the proceeding would have been different. Notwithstanding this
pleading error, the district court persuasively explained that, in the absence of Espinoza’s
testimony, all of the evidence Espinoza wished his attorney to investigate and introduce
would have been inadmissible for lack of foundation. Espinoza makes no argument that
this evidence would have been admissible without laying a foundation with his own
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testimony, nor could reasonable jurists debate the district court’s conclusion. Because—
as is discussed supra—Espinoza waived his right to testify, Strickland’s prejudice prong
cannot be met. See 466 U.S. at 694.
3
The district court also rejected Espinoza’s claim that counsel was ineffective for
conceding his guilt during closing arguments. While acknowledging that counsel
conceded Espinoza dealt drugs of some sort, the district court made a factual
determination that counsel did not concede Espinoza dealt methamphetamine.
A lawyer’s admission of his client’s guilt can fall below an objective standard of
reasonableness. See United States v. Williamson, 53 F.3d 1500, 1510-11 (10th Cir.
1995). Further, a complete admission by counsel of his client’s guilt triggers a
presumption that the defendant was prejudiced. United States v. Gonzalez, 596 F.3d
1228, 1239 (10th Cir. 2010) (citing the presumption of prejudice established in United
States v. Cronic, 466 U.S. 648, 659 (1984)). “Whether a complete admission of guilt
actually occurred is necessarily fact-intensive.” Id. (quotation omitted). In making this
determination, “[t]he focus must be on whether, in light of the entire record, the attorney
remained a legal advocate of the defendant who acted with undivided allegiance and
faithful, devoted service to the defendant.” Williamson, 53 F.3d at 1511(quotation
omitted). If an admission of guilt is not complete, however, a defendant must
demonstrate prejudice. Gonzalez, 596 F.3d at 1239. If the prejudice prong is unmet, a
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court need not investigate Strickland’s performance prong. Id. at 1233.
No reasonable jurist would read counsel’s closing argument as a complete
admission of guilt. Although counsel’s statements were ambiguous, his closing argument
when read as a whole was clearly intended to convey to the jury that Espinoza was
involved in the marijuana trade, not the methamphetamine trade. Counsel therefore did
not abandon his role as the defendant’s advocate, and we may not presume prejudice
under Cronic. Nor does Espinoza demonstrate prejudice. Given the “overwhelming
evidence of guilt” presented by the government, omission of his counsel’s ambiguous
statements during closing would not have had any effect on the outcome. Gardner v.
Galetka, 568 F.3d 862, 874 (10th Cir. 2009). Espinoza, therefore, is not entitled to a
COA on this ground.
4
Espinoza argues that appellate counsel was ineffective for failing to argue any of
the above-mentioned issues on appeal. Because he conceded below that this argument is
without merit, we will not consider it on appeal. See O’Connor v. City & County of
Denver, 894 F.2d 1210, 1214 (10th Cir. 1990).
B
Espinoza raises two additional arguments unrelated to the effectiveness of counsel.
First, he argues that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by
failing to disclose material, exculpatory evidence in advance of trial. A Brady violation
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occurs when the government suppresses evidence favorable to the defense and, due to the
materiality of the evidence, prejudice ensues. Douglas v. Workman, 560 F.3d 1156, 1173
(10th Cir. 2009). Duplicative impeachment evidence is not material. Id. at 1174.
The United States has conceded that it suppressed evidence that would have
impeached the credibility of its chief witness. Specifically, contrary to her protestations
on the stand that she had given up the drug, the government’s primary witness tested
positive for methamphetamine use mere weeks before testifying. In view of the
government’s admissions, the only remaining issue is whether the suppressed evidence
was material, and thus prejudicial. Given additional impeachment evidence offered
against the witness at trial and Espinoza’s own damning statements recorded by the
government, no reasonable jurist could find that the impeachment evidence here was
material. See id.Second, Espinoza alleges that the district court committed procedural error by
denying him an evidentiary hearing. We review a district court’s decision to deny an
evidentiary hearing for abuse of discretion. Hooks v. Workman, 606 F.3d 715, 731 (10th
Cir. 2010). As our discussion above indicates, each of Espinoza’s claims is “resolvable
solely on the basis of the existing record.” Id. Consequently, the district court did not
abuse its discretion in denying Espinoza’s request for an evidentiary hearing. See id.III
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For the forgoing reasons, we DENY a COA and DISMISS the appeal. All
pending motions are DENIED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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