FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 21, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-5071 (D.C. Nos. 4:20-CV-00042-GKF-FHM & JUAN GARCIA, 4:17-CR-00021-GKF-1) (N.D. Okla.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges. _________________________________
Juan Garcia, a federal prisoner proceeding pro se, 1 seeks a certificate of
appealability (COA) to challenge the district court’s order denying his Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. For the following
reasons, we deny Sanchez’s request for a COA 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Garcia appears pro se, we liberally construe his pleadings but will not act as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). BACKGROUND
I. Factual Background
While investigating Antonio Martinez—a suspected drug dealer—Drug
Enforcement Administration (DEA) officers learned that a vehicle would be
transporting methamphetamine from Oklahoma City to Tulsa on January 26, 2017.
After locating the vehicle, a Chevrolet Cruze, Oklahoma police observed the car pull
into a Phillips 66 gas station in Oklahoma City. The driver of the Cruze got out of the
car and walked over to a parked pickup truck, opened the passenger-side door, and
then returned to the Cruze. Police followed as both cars left the gas station and
traveled to Tulsa, the truck following the Cruze.
Once the Cruze and the truck arrived in Tulsa, Tulsa police officers stopped
each vehicle separately. A drug dog alerted to the Cruze, and officers searched the
car; they found a cardboard box containing three pounds of methamphetamine. The
officers then arrested the driver, Gustavo Flores, and his passenger. Both men said
they had received the drugs from the men in the truck, who were traveling with them
to ensure the drug deal was completed.
The same drug dog alerted to the truck at the front passenger-side door where
defendant Garcia had been sitting. The officers arrested both Garcia and the driver of
the truck, Roberto Dominguez. An officer searched Garcia and found several “wads
of cash” totaling nearly $20,000, a wallet, and a cell phone. App. vol. 1 at 794.
Garcia explained he was en route to Tulsa to buy a car with the cash he had.
2 Because he didn’t speak or understand English, the officers didn’t interview
Dominguez. Federal authorities initially brought charges against Dominguez but later
dropped them. Dominguez was eventually deported without ever having been
interviewed by law enforcement or Garcia’s attorney.
At trial, Flores testified that “Shorty” (Garcia’s nickname) gave him the three
pounds of methamphetamine found in the Cruze that the Tulsa police ultimately
seized. Id. at 795. Flores told the jury that Garcia had arranged for them to meet at
the Phillips 66 and that, when Flores went to the truck, Garcia pointed to the box
containing the drugs and said, “it was there.” Id. Flores further testified that,
beginning in November 2016, Garcia had on several occasions supplied him with
drugs to distribute. Trial testimony from Martinez and several text message
exchanges supported Flores’s testimony.
Garcia testified that he was not involved in drug trafficking. He explained he
had gone to Tulsa to buy a Dodge Viper from a man named Bryan Smith. Although
the court admitted text messages between Garcia and Smith about the possible sale of
the car, Smith didn’t testify at the trial.
II. Procedural History
In August 2017, a jury convicted Garcia of participating in a
methamphetamine-distribution conspiracy. The district court sentenced him to 170
months’ imprisonment. Garcia appealed both his conviction and sentence, but this
court affirmed on both grounds.
3 He then filed the present § 2255 Motion, arguing that he was denied his Sixth
Amendment right to effective assistance of counsel. Because the district court
concluded that Garcia had failed to establish that any allegedly deficient performance
by his counsel prejudiced his defense, it denied the Motion and denied a COA. Garcia
now seeks a COA to challenge the denial of his § 2255 Motion.
DISCUSSION
Under 28 U.S.C. § 2253(c)(1)(A), Sanchez may appeal the district court’s
decision only if we issue a COA. To be entitled to a COA, he must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When, as here, the district court rejected the constitutional claims on the merits, “the
showing required . . . is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We conclude the district court
correctly decided Garcia’s Motion.
Garcia argues that he was denied his Sixth Amendment right to effective
assistance of counsel. Specifically, Garcia maintains that his attorney’s failure to
subpoena and interview Roberto Dominguez and Bryan Smith prejudiced his defense.
Because those two witnesses allegedly would have corroborated Garcia’s claim that
he was travelling to Tulsa to buy a Dodge Viper, Garcia asserts that their combined
4 testimony would have raised serious doubts in the jurors’ minds about his guilt. 2 We
disagree.
The Sixth Amendment guarantees a criminal defendant “the right . . . to have
Assistance of Counsel for his defense.” U.S. Const. amend. VI. To prevail on a claim
for ineffective-assistance-of-counsel, Garcia must satisfy a two-prong test. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). “First, the defendant must show
that counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. “Second, the defendant must show that the
deficient performance prejudiced the defense.” Id. He may do this by showing that,
“but for counsel’s deficient performance, there is a reasonable probability the result
of the proceeding would have been different.” Smith v.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 21, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-5071 (D.C. Nos. 4:20-CV-00042-GKF-FHM & JUAN GARCIA, 4:17-CR-00021-GKF-1) (N.D. Okla.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges. _________________________________
Juan Garcia, a federal prisoner proceeding pro se, 1 seeks a certificate of
appealability (COA) to challenge the district court’s order denying his Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. For the following
reasons, we deny Sanchez’s request for a COA 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. 1 Because Garcia appears pro se, we liberally construe his pleadings but will not act as his advocate. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). BACKGROUND
I. Factual Background
While investigating Antonio Martinez—a suspected drug dealer—Drug
Enforcement Administration (DEA) officers learned that a vehicle would be
transporting methamphetamine from Oklahoma City to Tulsa on January 26, 2017.
After locating the vehicle, a Chevrolet Cruze, Oklahoma police observed the car pull
into a Phillips 66 gas station in Oklahoma City. The driver of the Cruze got out of the
car and walked over to a parked pickup truck, opened the passenger-side door, and
then returned to the Cruze. Police followed as both cars left the gas station and
traveled to Tulsa, the truck following the Cruze.
Once the Cruze and the truck arrived in Tulsa, Tulsa police officers stopped
each vehicle separately. A drug dog alerted to the Cruze, and officers searched the
car; they found a cardboard box containing three pounds of methamphetamine. The
officers then arrested the driver, Gustavo Flores, and his passenger. Both men said
they had received the drugs from the men in the truck, who were traveling with them
to ensure the drug deal was completed.
The same drug dog alerted to the truck at the front passenger-side door where
defendant Garcia had been sitting. The officers arrested both Garcia and the driver of
the truck, Roberto Dominguez. An officer searched Garcia and found several “wads
of cash” totaling nearly $20,000, a wallet, and a cell phone. App. vol. 1 at 794.
Garcia explained he was en route to Tulsa to buy a car with the cash he had.
2 Because he didn’t speak or understand English, the officers didn’t interview
Dominguez. Federal authorities initially brought charges against Dominguez but later
dropped them. Dominguez was eventually deported without ever having been
interviewed by law enforcement or Garcia’s attorney.
At trial, Flores testified that “Shorty” (Garcia’s nickname) gave him the three
pounds of methamphetamine found in the Cruze that the Tulsa police ultimately
seized. Id. at 795. Flores told the jury that Garcia had arranged for them to meet at
the Phillips 66 and that, when Flores went to the truck, Garcia pointed to the box
containing the drugs and said, “it was there.” Id. Flores further testified that,
beginning in November 2016, Garcia had on several occasions supplied him with
drugs to distribute. Trial testimony from Martinez and several text message
exchanges supported Flores’s testimony.
Garcia testified that he was not involved in drug trafficking. He explained he
had gone to Tulsa to buy a Dodge Viper from a man named Bryan Smith. Although
the court admitted text messages between Garcia and Smith about the possible sale of
the car, Smith didn’t testify at the trial.
II. Procedural History
In August 2017, a jury convicted Garcia of participating in a
methamphetamine-distribution conspiracy. The district court sentenced him to 170
months’ imprisonment. Garcia appealed both his conviction and sentence, but this
court affirmed on both grounds.
3 He then filed the present § 2255 Motion, arguing that he was denied his Sixth
Amendment right to effective assistance of counsel. Because the district court
concluded that Garcia had failed to establish that any allegedly deficient performance
by his counsel prejudiced his defense, it denied the Motion and denied a COA. Garcia
now seeks a COA to challenge the denial of his § 2255 Motion.
DISCUSSION
Under 28 U.S.C. § 2253(c)(1)(A), Sanchez may appeal the district court’s
decision only if we issue a COA. To be entitled to a COA, he must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When, as here, the district court rejected the constitutional claims on the merits, “the
showing required . . . is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We conclude the district court
correctly decided Garcia’s Motion.
Garcia argues that he was denied his Sixth Amendment right to effective
assistance of counsel. Specifically, Garcia maintains that his attorney’s failure to
subpoena and interview Roberto Dominguez and Bryan Smith prejudiced his defense.
Because those two witnesses allegedly would have corroborated Garcia’s claim that
he was travelling to Tulsa to buy a Dodge Viper, Garcia asserts that their combined
4 testimony would have raised serious doubts in the jurors’ minds about his guilt. 2 We
disagree.
The Sixth Amendment guarantees a criminal defendant “the right . . . to have
Assistance of Counsel for his defense.” U.S. Const. amend. VI. To prevail on a claim
for ineffective-assistance-of-counsel, Garcia must satisfy a two-prong test. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). “First, the defendant must show
that counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. “Second, the defendant must show that the
deficient performance prejudiced the defense.” Id. He may do this by showing that,
“but for counsel’s deficient performance, there is a reasonable probability the result
of the proceeding would have been different.” Smith v. Duckworth, 824 F.3d 1233,
1249 (10th Cir. 2016) (citing Strickland, 466 U.S. at 694). Garcia must satisfy both
prongs to succeed on his claim, and we may begin with either prong. Hooks v.
Workman, 689 F.3d 1148, 1186 (10th Cir. 2012). We first consider the “prejudice”
prong.
2 Garcia also faults his attorney for not adequately “attacking the credibility of Martinez’s and Flores’ testimony.” Opening Br. 3. For example, Garcia argues effective counsel would have highlighted that Martinez and Flores are cousins, they were part of the “Martinez Organization,” and that Martinez was the DEA’s main target. Id. But Garcia raises this argument for the first time on appeal. Finding no reason “to deviate from the general rule that we do not address arguments presented for the first time on appeal,” United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002) (citation omitted), we decline to consider these arguments. 5 Garcia’s argument is simple: the result of the proceeding would have been
different if his attorney had secured Dominguez’s and Smith’s testimony at trial.
They allegedly would have testified that Garcia was traveling to Tulsa to buy a
Dodge Viper, corroborating Garcia’s version of events. But even accepting that
Dominguez and Smith would have testified accordingly, 3 Garcia’s argument fails for
at least two reasons. First, the court allowed Garcia to introduce text messages he
exchanged with Smith that supported Garcia’s explanation for his trip to Tulsa. So
additional testimony supporting his claim would likely have had little impact on the
jury. Second, even if the jury believed that part of Garcia’s reason for going to Tulsa
was to buy the Dodge Viper, it could easily have concluded that the car purchase was
in addition to Garcia’s drug-trafficking plans. Indeed, that’s exactly what the
government argued to the jury.
Moreover, in considering Garcia’s prior appeal, this court determined that “the
evidence that Garcia distributed methamphetamine was overwhelming.” United
States v. Garcia, 761 F. App’x 815, 819 (10th Cir. 2019). We cited, among other
things, Flores’s and Martinez’s testimony that Garcia regularly supplied them with
methamphetamine to distribute, including the day Garcia was arrested; text messages
between Flores and Garcia discussing drug-distribution logistics, one of which
contained a picture of drugs; the drug dog’s alert to the area of the truck where
3 Garcia included with his § 2255 Motion an affidavit from Dominguez, “verify[ing] that [he] was taking [Garcia] to purchase a vehicle (Dodge Viper) on January 26, 2017 in Tulsa, Oklahoma.” App. vol. 1 at 705. 6 Garcia had been sitting; video surveillance corroborating the witnesses’ testimony;
and other evidence on Garcia’s phone. See id.
In sum, additional testimony that Garcia was going to Tulsa to buy a car would
have had little impact on jurors. And the incriminating evidence was extensive. We
therefore hold that Garcia has failed to show that “but for counsel’s deficient
performance, there is a reasonable probability that the result of the proceeding would
have been different.” Duckworth, 824 F.3d at 1249 (citing Strickland, 466 U.S. at
694). Because Garcia cannot show his attorney’s performance prejudiced his defense,
we decline to consider whether his counsel performed deficiently.
CONCLUSION
For the foregoing reasons, we conclude reasonable jurists wouldn’t find the
district court’s assessment of the constitutional claims debatable or wrong.
Accordingly, we DENY Sanchez’s request for a COA and DISMISS this matter.
Entered for the Court
Gregory A. Phillips Circuit Judge