United States v. Garrison

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 10, 2022
• Docket: 20-1168
• Status: Unpublished

Opinion

Appellate Case: 20-1168 Document: 010110643576 Date Filed: 02/10/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 10, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-1168 (D.C. Nos. 1:19-CV-03125-WJM & RICKY GARRISON, 1:14-CR-00231-WJM-1) (D. Colo.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before HARTZ, BACHARACH, and CARSON, Circuit Judges. _________________________________

Petitioner Ricky Garrison, a federal prisoner proceeding pro se,1 seeks a certificate

of appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2255

motion. See 28 U.S.C. § 2253(c)(1)(B). Because reasonable jurists would not debate the

correctness of the district court’s rulings on the issues he presents, Miller-El v. Cockrell,

537 U.S. 322, 336 (2003), we deny the 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 “Although we liberally construe pro se filings, we do not assume the role of advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (internal quotation marks omitted). Appellate Case: 20-1168 Document: 010110643576 Date Filed: 02/10/2022 Page: 2

BACKGROUND

A grand jury indicted Garrison, along with fifteen others, for drug trafficking and

other offenses related to a large-scale conspiracy to distribute cocaine, heroin, and

methamphetamines. The evidence against Garrison included evidence from a wiretap

that targeted a criminal organization known as the Gangster Disciples. The government’s

application for the wiretap did not disclose that one of the confidential informants used in

its probable cause statement, “CHS,” was the girlfriend of one of his codefendants,

“Ramirez.” Garrison, through counsel, filed a motion to suppress the wiretap evidence

but did not file a timely request for a hearing under Franks v. Delaware,

43 U.S. 154 (1978), so the district court denied the motion.

At trial, a jury convicted Garrison of one count of conspiracy and nineteen counts

of using a communication device to facilitate a drug offense. The district court sentenced

him to 156 months’ imprisonment on the conspiracy count with a concurrent 48-month

sentence on the remaining nineteen counts, and we affirmed the conviction on direct

appeal. See United States v. Garrison, 761 F. App’x 808, 809 (10th Cir. 2019). Garrison

filed a motion to vacate his conviction under 28 U.S.C. § 2255. Nearly three months

later, he filed a motion to amend his § 2255 motion to add additional claims of ineffective

assistance of counsel. The district court denied both motions and, sua sponte, declined to

issue a COA, so Garrison requests one from this court.

DISCUSSION

To obtain a COA, Garrison must “show[] that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in a

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different manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks

omitted). Garrison seeks to raise five issues on appeal.2 First, he argues the court erred

in rejecting his argument that counsel was ineffective for not timely requesting a Franks

hearing in connection with his motion to suppress the wiretap evidence. Second, he

argues the court abused its discretion in declining to hold a hearing before resolving his

claim of ineffective assistance of counsel at the plea negotiation stage. Third, he argues

the court erroneously rejected his claim of ineffective assistance of appellate counsel for

failure to challenge his sentence as exceeding the jury’s findings as to drug quantity.

Fourth, he argues the district court used an incorrect drug quantity in calculating his base

offense level. Fifth, he argues the district court erred in denying his motion for leave to

amend his § 2255 motion.

1. Franks Argument

In Garrison’s § 2255 motion, he argued trial counsel was constitutionally

ineffective for failing to timely request a Franks hearing in connection with his challenge

to the application for the wiretap. To prevail on a claim of ineffective assistance of

counsel, Garrison needed to demonstrate, inter alia, “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

2 In what Garrison labels as “Issue 6,” he sets forth the standards applicable to a COA application. See Aplt. Opening Br. at 10. We do not discuss these arguments as a separate issue, but we incorporate this standard in our discussion of the specific five challenges he raises to the district court’s order denying his § 2255 motion. 3 Appellate Case: 20-1168 Document: 010110643576 Date Filed: 02/10/2022 Page: 4

outcome.” Strickland v. Washington, 466 U.S. 668, 694 (1984). In the context of his

challenge to counsel’s performance on the wiretap suppression motion, that means

Garrison “must prove that his Fourth Amendment claim is meritorious and that there is a

reasonable probability that the verdict would have been different, absent the excludable

evidence, to demonstrate actual prejudice.” United States v. Owens, 882 F.2d 1493, 1498

(10th Cir. 1989).

The district court concluded Garrison could not make this showing. Under

18 U.S.C. § 2518(1)(c), a wiretap application must include “a full and complete statement

as to whether or not other investigative procedures have been tried and failed or why they

reasonably appear to be unlikely to succeed if tried or to be too dangerous.” However,

this statute does not require law enforcement officials “to exhaust all other conceivable

investigative procedures before resorting to wiretapping.” United States v. Edwards,

69 F.3d 419, 429 (10th Cir. 1995) (internal quotation marks omitted). And a judge’s

determination whether a wiretap is necessary is a matter of discretion. See United States

v. Ramirez-Encarnacion, 291 F.3d 1219, 1222 (10th Cir. 2002).

The district court concluded the reviewing court still would have granted the

application for the wiretap even if it expressly specified CHS was Ramirez’s girlfriend.

This was so because the wiretap investigation targeted the activities of the Gangster

Disciples organization broadly, and so it was unlikely traditional investigatory techniques

directed at CHS would have achieved the investigation’s goals. Further, although the

application for the wiretap did not state CHS was Ramirez’s girlfriend, it included

sufficient details such that “it would have been very difficult for any reviewing judicial

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officer not to already readily infer that Ramirez and [CHS] had a close social

relationship.” R. vol. I at 279. Accordingly, Garrison could not show prejudice to

sustain his Strickland claim related to counsel’s failure to timely request a Franks

hearing.

Garrison does not address either of these reasons for the district court’s denial of

his motion in his COA application. We therefore conclude no reasonable jurist could

debate the correctness of the district court’s ruling on this issue and deny the motion for a

COA.

2. Request for a Hearing

In Garrison’s second challenge to the effectiveness of trial counsel, he alleged

counsel failed to adequately represent his interests during plea negotiations with the

government. Garrison’s attorney presented him with the government’s offer of a plea

deal that would result in 70 months’ imprisonment. Garrison initially declined this offer,

but in his § 2255 motion he argued that, days later, he changed his mind and attempted to

contact his attorney, but that his attorney had already filed a motion to withdraw and

failed to communicate his willingness to accept the agreement to the government.

Garrison alleged this failure was objectively unreasonable and prejudicial because he is

now serving a 156-month sentence.

In response, the government stated it never withdrew the 70-month offer and, in

fact, communicated that offer to Garrison’s new attorney. The government produced a

letter it sent to Garrison’s new attorney in April 2016 that extended the 70-month offer.

Garrison then argued in his reply brief that he still suffered prejudice because the offer

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presented to his second attorney, unlike the offer presented to his first attorney, required

him to provide substantial assistance to the government in the investigation of his

codefendants.3 He attached a declaration to his reply brief stating: “The only numbers

that counsel mentioned that didn’t require [him] to give the government substantial

assistance [were] for 84–105 months.” R. vol. I at 270 (emphasis added). The court

rejected this argument for two reasons. First, there was no mention of a substantial-

assistance condition in the April 2016 letter, so the record before the district court

“show[ed] only that [Garrison] was offered the same plea proposal he had been offered

through his previous lawyer.” Id. at 281. Alternatively, the court concluded the

requirement of substantial assistance under the circumstances of Garrison’s case could

not constitute prejudice for an ineffective-assistance claim.

Garrison now seeks a COA to argue the district court should not have decided this

claim without first holding an evidentiary hearing to determine whether his second

attorney conveyed the 70-month offer to him. But § 2255 “recognizes that there are

times when allegations of facts outside the record can be fully investigated without

requiring the personal presence of the prisoner.” Machibroda v. United States, 368 U.S.

487, 495 (1962). Here, Garrison’s declaration did not contradict the government’s

assertion that the 70-month offer was still available. It merely added his understanding

3 Garrison did not argue in his § 2255 motion that his second attorney was ineffective, so he has waived any such argument for purposes of appeal. See United States v. Lee Vang Lor, 706 F.3d 1252, 1256 (10th Cir. 2013). 6 Appellate Case: 20-1168 Document: 010110643576 Date Filed: 02/10/2022 Page: 7

that the offer also required substantial assistance, so the district court did not need to hold

an evidentiary hearing to resolve the ineffective-assistance claim.

Further, Garrison did not address the court’s alternative conclusion that, assuming

the offer had changed, the substantial assistance requirement was not prejudicial. “If the

district court states multiple alternative grounds for its ruling and the appellant does not

challenge all those grounds in the opening brief, then we may affirm the ruling.” Rivero

v. Bd. of Regents, 950 F.3d 754, 763 (10th Cir. 2020). Under these circumstances, no

reasonable jurists could debate the correctness of the court’s ruling, so we deny a COA

on this issue.

3. Calculation of Sentence

Garrison seeks a COA to challenge his sentence based on a drug quantity

calculation of at least 1232 grams of cocaine because the jury, in a special verdict, found

him guilty of conspiracy to distribute less than 500 grams of cocaine and not guilty of

conspiracy to distribute more than that amount. Specifically, Garrison argues his

appellate counsel was ineffective for failure to raise this issue on direct appeal.

“Ineffective assistance of appellate counsel claims are governed by the standards

of Strickland.” Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir. 1999) (internal citation

omitted). Consistent with the second prong of the Strickland test, “[i]f the omitted issue

is without merit, counsel’s failure to raise it does not constitute constitutionally

ineffective assistance of counsel.” Id. (internal quotation marks omitted). A habeas

petitioner attempting to establish ineffective assistance of appellate counsel “bears a

heavy burden” to overcome a “strong presumption” that appellate counsel rendered

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adequate assistance. United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009)

(internal quotation marks omitted); see also Smith v. Murray, 477 U.S. 527, 536 (1986)

(“Th[e] process of winnowing out weaker arguments on appeal and focusing on those

more likely to prevail, far from being evidence of incompetence, is the hallmark of

effective appellate advocacy.” (internal quotation marks omitted)).

The district court rejected Garrison’s argument because its findings as to drug

quantity needed only be supported by a preponderance of the evidence, whereas a jury

must find the government proved facts giving rise to guilt beyond a reasonable doubt.

See United States v. Magallanez, 408 F.3d 672, 684 (10th Cir. 2005) (“A jury verdict of

acquittal on related conduct . . . does not prevent the sentencing court from considering

conduct underlying the acquitted charge, so long as that conduct has been proved by a

preponderance of the evidence.” (internal quotation marks omitted)). Garrison asserts

Magallanez does not foreclose but instead supports his argument because “the jury didn’t

merely acquit defendant of possessing 500 grams or more, it made an affirmative finding

‘beyond a reasonable doubt’ that the amount attributable to petitioner was ‘less than

500 grams.’” Aplt. Opening Br. and App. for COA at 8.

But under 18 U.S.C. § 3661, “[n]o limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted of an offense

which a court of the United States may receive and consider for the purpose of imposing

an appropriate sentence.” Accordingly, the district court “maintained the power to

consider the broad context of [Garrison’s] conduct, even when [its] view of the conduct

conflicted with the jury’s verdict.” Magallanez, 408 F.3d at 684. Under these

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circumstances, no reasonable jurist would conclude Garrison’s appellate counsel was

constitutionally ineffective for failure to raise the issue, see Hooks, 184 F.3d at 1221, so

we deny a COA on this issue.

4. Drug Amount

Garrison seeks a COA to argue appellate counsel was ineffective for failing to

argue the district court erred in calculating his sentence based on a drug amount of

1268.27 kg of marijuana on a converted basis, which corresponds with a base offense

level of 30. The pre-sentence report adopted this calculation, and the district court

overruled Garrison’s objections to it, concluding “the argument and the calculations and

analysis that the Government has done with respect to the testimony at trial . . . support[]

a minimum finding of the amount of the drugs attributable to this defendant sufficient to

trigger a base offense level of 30 . . . .” R. vol. III at 43–44. Later in the sentencing

hearing, when discussing relevant conduct, the court stated the drug quantity attributable

to Garrison was only 373.957 kg, which corresponds with a base offense level of 24.

The district court characterized this latter remark as an “inadvertent

misstatement,” R. vol. I at 284, and noted its other findings were consistent with the

larger amount. Further, the court concluded that, because trial counsel did not object to

this alleged miscalculation at sentencing, any appellate review would only have been for

plain error. See United States v. Chavez-Morales, 894 F.3d 1206, 1213 & n.4 (10th Cir.

2018). Garrison does not meaningfully address the court’s analysis regarding plain error

in his COA application. He therefore fails both to show prejudice under Strickland and

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that the issue was reasonably debatable in the context of his habeas petition, so he is not

entitled to a COA.

5. Motion for Leave to Amend

Garrison also seeks a COA to challenge the district court’s denial of his motion to

amend his § 2255 motion. We would review such a ruling for abuse of discretion.

See Gillette v. Tansy, 17 F.3d 308, 312 (10th Cir. 1994). He filed the § 2255 motion on

October 31, 2019. After the government filed a response, he filed his motion to amend

along with his reply brief on January 27, 2020. Under Federal Rule of Civil Procedure

15(a)(2), “a party may amend its pleading only with the opposing party’s written consent

or the court’s leave. The court should freely give leave when justice so requires.” Here,

the district court declined to grant leave because Garrison failed to explain his nearly

three-month delay in bringing the amendment. See Minter v. Prime Equip. Co., 451 F.3d

1196, 1206 (10th Cir. 2006) (“[D]enial of leave to amend is appropriate when the party

filing the motion has no adequate explanation for the delay.” (internal quotation marks

omitted)).

Garrison argues the court erred because his proposed amended § 2255 motion

related back to his original ineffective assistance of counsel claims. See United States v.

Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000) (“An untimely amendment to a

§ 2255 motion which, by way of additional facts, clarifies or amplifies a claim or theory

in the original motion may, in the District Court’s discretion, relate back to the date of the

original motion if and only if the original motion was timely filed and the proposed

amendment does not seek to add a new claim or to insert a new theory into the case.”

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(internal quotation marks, brackets, and alterations omitted)). But the issue with

Garrison’s proposed amendment was not whether it related back to his original claims,

but whether he provided an adequate explanation for the delay in bringing it. Because he

did not provide any such explanation, no reasonable jurist could conclude the district

court abused its discretion in denying the motion for leave to amend.

CONCLUSION

We deny Garrison’s request for a COA and dismiss this matter. We deny

Garrison’s motion to proceed in forma pauperis.

Entered for the Court

Joel M. Carson III Circuit Judge