United States v. Garcia

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 31, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-1160 (D.C. Nos. 1:19-CV-001518-RM and MIGUEL ANTONIO GARCIA, 1:18-CR-00363-RM-1) (D. Colo.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges. _________________________________

Miguel Garcia, a prisoner proceeding pro se,1 seeks a certificate of appealability

(COA) to appeal the district court’s order denying his 28 U.S.C. § 2255 motion.2 For the

reasons explained below, we deny his request and dismiss this matter.

A jury found Garcia guilty of possession of a firearm and ammunition by a

prohibited person in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); possession of a

firearm in furtherance of a drug-trafficking crime in violation of § 924(c)(1)(A)(i); and

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 We liberally construe Garcia’s pro se filings. But we will not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). 2 Garcia supplemented his original COA application with a second brief within the original filing deadline. We now consider both briefs as Garcia’s application. possession with intent to distribute 50 grams or more of methamphetamine in violation of

21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii). After trial, the district court granted two

successive counsel’s motions to withdraw and allowed Garcia to represent himself.

Garcia then filed post-trial motions claiming, among other things, that he received

ineffective assistance of counsel (IAC), that the government secured his indictment and

conviction using fabricated evidence and perjured testimony, among other government

misconduct; that the jury was erroneously instructed; and that his rights under the

Confrontation Clause were violated. The district court denied all motions and entered

judgment sentencing Garcia to 280 months in prison.

Garcia did not file a direct appeal. Instead, before the time to appeal expired, he

filed a § 2255 motion, largely reasserting the same claims as the post-trial motions. He

later supplemented his motion, adding two new claims: one based on Rehaif v. United

States, 139 S. Ct. 2191 (2019), and another based on United States v. Davis, 139 S. Ct.

2319 (2019). After concluding that all of Garcia’s claims were both procedurally barred

and lacked merit, the district court dismissed Garcia’s § 2255 motion and denied him a

COA.

Garcia seeks to appeal, but he must first obtain a COA. 18 U.S.C. § 2253(c).

Because the district court dismissed his habeas claims on procedural grounds, Garcia can

obtain a COA by showing that reasonable jurists could debate both the district court’s

procedural ruling and the validity of his constitutional claims. Slack v. McDaniel, 529

U.S. 473, 484 (2000). We may rule on whichever basis “is more apparent from the record

and arguments.” Id. at 485.

2 In his application for a COA, Garcia now asserts the same categories of claims

that he raised in his § 2255 motion. First, his IAC claims are based largely on his

assertion that his counsel failed to prevent the government from infecting his trial with

errors. Specifically, Garcia claims his counsel allowed the government to use allegedly

fabricated evidence presented to the grand jury and at trial; failed to object to certain jury

instructions; and failed to properly investigate and present mitigating evidence. Next,

Garcia claims he was denied due process because the government violated Rehaif. He

then asks to appeal the errors underlying his IAC claims themselves, including that the

government violated due process by using fabricated evidence and improperly instructing

the jury. Further, he claims that the government violated his constitutional rights by using

perjured testimony, committing Brady violations, and failing to produce a 911 caller.

We begin by assessing Garcia’s IAC claims. Garcia did not assert these claims in a

direct appeal, and a § 2255 motion generally “is not an appropriate vehicle to raise issues

that should have been raised on direct appeal.” United States v. Bolden, 472 F.3d 750,

751 (10th Cir. 2006). We typically excuse IAC claims from that general direct-appeal

requirement. United States v. Erickson, 561 F.3d 1150, 1170 (10th Cir. 2009). But the

district court concluded this exception did not apply to Garcia’s IAC claims because they

were fully briefed and decided in post-trial motions. We do not need to decide if the

district court was correct in its procedural decision because we can consider whichever

component of the COA threshold inquiry is “more apparent from the record and

arguments.” Slack, 529 U.S. at 485. We therefore consider whether reasonable jurists

could debate the district court’s dismissal of the IAC claims on the merits. See id.

3 To state an IAC claim, Garcia must show that counsel’s performance both “fell

below an objective standard of reasonableness,” and prejudiced him, creating “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694

(1982). Our review is “highly deferential” to counsel. Id. at 689. And, because we are

engaging in a COA inquiry, not a complete merits analysis, we do so “without ‘full

consideration of the factual or legal bases adduced in support of the claims.’” Buck v.

Davis, 137 S. Ct. 759, 773 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 336

(2003)).

First, Garcia claims that his counsel was ineffective for failing to challenge the use

of allegedly fabricated evidence as the basis for his indictment and at trial. Specifically,

Garcia points to two categories of fabricated evidence: (1) evidence found in Garcia’s

pocket that matched evidence found in a backpack containing firearms and

methamphetamine and (2) a lab report analyzing those drugs. The district court addressed

these claims and found them without merit. But Garcia ignores the district court’s

findings in his COA application, reasserting his arguments from his habeas motion

instead of challenging the district court’s conclusions. By not addressing the district

court’s order, Garcia has waived this challenge to it. See Grant v. Trammell, 727 F.3d

1006, 1025 (10th Cir. 2013).

Even if Garcia had not waived these claims, they fail on the merits. See id. Garcia

cites no evidence in support of his belief that the evidence was falsified. And Garcia has

4 not shown that the lab report was presented to the grand jury or the trial jury.3 Further, his

counsel attempted to suppress all the contents of the backpack and then cross-examined

detectives about the evidence found in the backpack. Garcia has not demonstrated that

these efforts were objectively unreasonable. Next, Garcia argues that his counsel should

have objected to instructing the jury on actual possession of the backpack and instead

should have sought a constructive-possession instruction. But as the district court pointed

out, the government’s theory of the case was that Garcia was in actual possession of the

backpack. And we agree with the district court that it is not objectively unreasonable to

decline to request an instruction that is unrelated to the government’s theory. Finally,

Garcia argues that his counsel did not investigate his case, contact alibi witnesses, or

present any mitigating evidence.4 Again, we agree with the district court that these

conclusory allegations do not suffice to state a constitutional claim. See United States v.

Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994). Accordingly, reasonable jurists could not

debate that Garcia has failed to state an IAC claim.

Next, we turn to the merits of Garcia’s Rehaif claim. Like his IAC claims, Garcia

fails to challenge the district court’s reasons for rejecting his Rehaif argument. Again, by

not addressing that ruling, Garcia has waived his challenge to it. See Grant, 727 F.3d at

3 At trial, Garcia and the government stipulated to the weight and purity of the methamphetamine seized from the backpack. He does not address this stipulation in his application for a COA. 4 To the extent that Garcia’s argument is based on the fact that counsel did not call as a witness or compel the government to call as a witness the 911 caller who later identified Garcia out of court, we also agree with the district court that reasonable counsel would avoid calling a witness who could make an in-court identification of a criminal defendant. Hawkins v. Hannigan, 185 F.3d 1146, 1155 (10th Cir. 1999). 5 1025. But the claim also fails on the merits. In Rehaif, the Court held that in prosecutions

under § 922(g) and § 924(a)(2) , “the [g]overnment must prove both that the defendant

knew he possessed a firearm and that he knew he belonged to the relevant category of

persons barred from possessing a firearm.” 139 S. Ct. at 2200. Garcia stipulated to his

prior felony conviction at trial. Nevertheless, he now argues that he was denied due

process because the stipulation “did not establish [his] knowledge of his status,” and the

jury was not instructed on the additional knowledge requirement. Aplt. Supp. Br. 7.

Specifically, he argues that his Rehaif challenge is based on his misunderstanding of the

law and belief that he had a “constitutional right to bear arm[]s and protect his family.”

Id. But Rehaif did not create a “plausible ignorance defense.” United States v. Williams,

946 F.3d 968, 974 (7th Cir. 2020). Nor does Rehaif offer relief based on a “philosophical

objection[]” to the law. United States v. Daniels, 804 F. App’x 944, 946 (10th Cir. 2020)

(unpublished) (denying COA where knowledge of fact of prior conviction was not at

issue). As such, reasonable jurists could not disagree that Garcia has failed to state a valid

constitutional claim based on Rehaif.5

5 Garcia also claims that his conviction under § 924(c), which heightens penalties for possessing a firearm during a “crime of violence or drug[-]trafficking crime,” is invalid. § 924(c)(1)(A). In support, he cites United States v. Davis, 139 S. Ct. 2319 (2019), where the Court found the phrase “crime of violence” in 924(c) unconstitutionally vague. But Garcia’s §924(c) conviction was based on a drug- trafficking crime, not a crime of violence. Because he does not explain how the invalidation of a different statutory term impacts his conviction, we do not address this claim. See Palma-Salazar v. Davis, 677 F.3d 1031, 1037 (10th Cir. 2012) (declining to consider conclusory statement unsupported by legal authority or record evidence). 6 We end by assessing whether reasonable jurists could debate the district court’s

application of the procedural bar for the remaining claims.6 Each of these claims “should

have been raised on direct appeal.” Bolden, 472 F.3d at 751. Because Garcia did not file a

direct appeal, he may raise these claims in his § 2255 motion only if “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. at 752 (quoting United States v. Cook, 997 F.2d 131, 1320 (10th Cir.

1993)). Garcia bears the burden of showing cause and prejudice. See Daniels v. United

States, 254 F.3d 1180, 1190 n.3 (10th Cir. 2001) (en banc). And establishing a

fundamental miscarriage of justice or his actual innocence requires showing “‘that it is

more likely than not that no reasonable juror would have found [him] guilty beyond a

reasonable doubt’ absent a constitutional error.” Black v. Workman, 682 F.3d 880, 915

(10th Cir. 2012) (alteration in original) (quoting Schlup v. Delo, 513 U.S. 298, 327

(1995)).

In concluding that Garcia did not show cause to overcome the procedural default,

the district court noted that although Garcia’s § 2255 motion stated that he did not file a

direct appeal because he had discovered new evidence, he did not present new evidence.

Instead, he repeated the arguments he made in his post-trial motions. Next, the district

6 We separately address two of these claims: Garcia seeks a COA to appeal the denial of his motion to appoint counsel for his habeas proceeding and the denial of his motion to have the government produce documents. His brief merely identifies these claims without further argument. Because he does not argue in support of these conclusory claims, we do not consider them. See Palma-Salazar, 677 F.3d at 1037. 7 court found that Garcia would not suffer prejudice from barring his § 2255 motion

because Garcia raised and argued these issues and the court rejected them prior to

sentencing. Nor could he show that a reasonable jury would reach a different verdict but

for his alleged errors. For example, although he argued that the government fabricated

evidence connecting Garcia to the backpack, the government presented other evidence

sufficient to convict Garcia without the allegedly fabricated evidence: video footage, a

911 call, and a cellphone in the backpack that matched a cellphone backplate in his

pocket.

In his application for a COA, Garcia does not challenge or acknowledge any of

these findings by the district court. That is, he fails to point to any “objective factor

external to [his] defense” that “impeded” his ability to raise his claims on direct appeal.

Daniels v. United States, 254 F.3d 1180, 1190 (10th Cir. 2001) (quoting McCleskey v.

Zant, 499 U.S 467, 493 (1991), abrogated by statute on other grounds). Nor does he

acknowledge the other evidence used to convict him. He thus has not shown that

notwithstanding the constitutional errors he asserts, the jury would be reasonably likely to

change its guilty verdict. Accordingly, Garcia has not shown actual innocence or that a

fundamental miscarriage of justice would result from procedurally barring these claims.

Because reasonable jurists could neither debate whether Garcia stated a

constitutional claim regarding IAC or Rehaif, nor “whether the district court was correct”

in determining his remaining claims are procedurally defaulted, we deny Garcia’s request

for a COA and dismiss this matter. Slack, 529 U.S. at 484. As a final matter, we grant

8 Garcia’s motion to proceed in forma pauperis.

Entered for the Court

Nancy L. Moritz Circuit Judge