USCA4 Appeal: 22-6888 Doc: 48 Filed: 06/22/2023 Pg: 1 of 13
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-6888
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LELIS EZEQUIEL TREMINIO-TOBAR, a/k/a Scooby, a/k/a Decente,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, Senior District Judge. (1:16-cr-00209-LO-5; 1:22-cv-00186- LO)
Submitted: February 24, 2023 Decided: June 22, 2023
Before DIAZ, THACKER, and HARRIS, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Thacker and Judge Harris joined.
ON BRIEF: Elizabeth L. Van Pelt, LIBBEY VAN PELT LAW, PLLC, Arlington, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Aidan Taft Grano- Mickelsen, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6888 Doc: 48 Filed: 06/22/2023 Pg: 2 of 13
DIAZ, Circuit Judge:
Lelis Ezequiel Treminio-Tobar appeals the district court’s denial of his motion for
postconviction relief under 28 U.S.C. § 2255. He argues his trial counsel were
constitutionally ineffective in not objecting to a duress jury instruction that didn’t contain
verdict-directing language. But his argument is foreclosed by our decision on his direct
appeal, so we affirm.
I.
A.
A jury convicted Treminio-Tobar of conspiracy to commit kidnapping, conspiracy
to commit kidnapping and murder in aid of racketeering, and kidnapping resulting in death,
all based on his involvement in the brutal killing of Carlos Otero-Henriquez. Otero-
Henriquez was murdered by members of MS-13 who lured him to a remote location and
stabbed him to death.
Treminio-Tobar admitted to participating in the murder but said he acted under
duress. He testified that he didn’t want to join MS-13, actively resisted its recruitment
efforts, was unaware of the plot until it was too late to escape, and participated only because
he believed he would be killed if he refused. He admitted that he held Otero-Henriquez
down during the murder but claimed that he merely pretended to stab him—and only after
Otero-Henriquez had been fatally wounded by another gang member.
Government witnesses, including MS-13 leaders who directed the killing, provided
a sharply different account. They described Treminio-Tobar as an enthusiastic member of
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MS-13 who was eager to increase his standing in the gang and willingly participated in the
murder. They said he was aware of the plot and could have left, but instead provided the
knife used to kill Otero-Henriquez, stabbed him multiple times, and slashed him across the
neck. They also testified that Treminio-Tobar helped cover up the killing.
Treminio-Tobar sought a jury instruction on duress, and the district court agreed
one was warranted. The court’s instruction, however, omitted Treminio-Tobar’s proposed
language, which would have informed jurors that they had a “duty to find him not guilty”
if they found he acted under duress. Compare J.A. 994, with J.A. 1353–54. Treminio-
Tobar’s attorneys made a general objection to the final instruction but didn’t specifically
object to its lack of verdict-directing language. 1
The jury found Treminio-Tobar guilty. The district court sentenced him to 120
months’ imprisonment on the racketeering count and imposed life sentences on the
kidnapping conspiracy and kidnapping-resulting-in-death counts, all to run concurrently.
B.
Treminio-Tobar and several codefendants filed a direct appeal. They argued the
district court’s duress instruction deprived them of a fair trial because it “lacked necessary
verdict-directing language informing the jury that it had to find defendants not guilty if
they determined defendants acted under duress.” United States v. Lazo, 816 F. App’x 752,
1 The government objected to the court giving any duress instruction, but argued that if it did, it should use a four-element instruction based on our decision in United States v. Perrin, 45 F.3d 869 (4th Cir. 1995), rather than the two-element version the defense proposed. The court’s final instruction largely tracked the government’s proposal.
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763 (4th Cir. 2020). They also challenged the court’s omission of definitions for “reckless”
and “reasonable legal alternative,” terms which appeared in the duress instruction. Id.
We applied plain-error review because Treminio-Tobar’s attorneys had only
“generally objected” to the duress instruction at trial; they didn’t “make the district court
aware that they believed the instruction was faulty because it lacked verdict-directing
language and contained undefined terms.” Id.
We reviewed the jury instructions “as a whole and in [] context” and determined
that “the jury was well aware it should acquit if it found Appellants acted under duress.”
Id. at 763–64. We observed that we had never held that verdict-directing language “is an
essential component of an affirmative defense instruction.” Id. at 764. And we emphasized
that the district court accurately informed the jury (1) “that Appellants were entitled to the
presumption of innocence,” (2) that “it must acquit” if it “has a reasonable doubt that a
defendant is guilty,” (3) that “coercion or duress may provide a legal justification or excuse
for the charged offense,” and (4) “that the defendants only needed to establish the
justification defense by a preponderance of evidence.” Id. In a footnote, we stated that
“[e]ven if we were to conclude that the omission of verdict-directing language was error,
any error would not be ‘plain.’” Id. at 764 n.3.
We also found that “the terms ‘recklessly’ and ‘reasonable legal alternative’ made
sense in context.” Id. at 765. Separately, we concluded that the Appellants couldn’t show
the prejudice necessary for plain error because the failure to define the terms didn’t affect
their substantial rights. Id. We found that “the Government presented the jury with
overwhelming evidence that Appellants knowingly, not just recklessly, placed themselves
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in the vehicle” used to drive Otero-Henriquez to his death. Id. And we determined there
was “overwhelming evidence that Appellants were well aware of the gang’s intentions and
yet continued participating in [its] activities.” Id. This evidence, we held, foreclosed the
possibility that the jury would have acquitted the defendants had the court defined the terms
in question. Id.
Treminio-Tobar sought, and we denied, rehearing and rehearing en banc on issues
related to the lack of verdict-directing language. He also petitioned for a writ of certiorari
on the sole issue of “[w]hether the Fifth Amendment Due Process right to present a defense
requires the trial court to instruct the jury that it has a duty to acquit any defendant who
proves an affirmative defense.” J.A. 1815. The Supreme Court denied his petition.
C.
Treminio-Tobar then petitioned to vacate his conviction and sentence under 28
U.S.C. § 2255. He argued his trial counsel were constitutionally ineffective in several
ways, including by “fail[ing] to object to the absence of verdict directing language” in the
instruction on duress, which was his “entire defense.” J.A. 1809–10. Treminio-Tobar’s
trial counsel filed the § 2255 petition on his behalf and said their failure to object “was not
a strategic decision.” J.A. 1810. They asked the district court to appoint new counsel so
they wouldn’t have to “habeas themselves,” requesting that new counsel have the chance
to amend or supplement the petition after reviewing the record. J.A. 1811.
The district court denied the petition and motion for counsel without a hearing. It
refused to rely on counsel’s “conclusory” evaluations of their own performance. J.A. 1853.
It also found Treminio-Tobar couldn’t show that his counsel performed deficiently, noting
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that we had “upheld substantially similar language in a jury instruction for duress” in a
prior case. J.A. 1855 (citing United States v. King, No. 95-5917, 1997 WL 407803 (4th
Cir. July 22, 1997)). Finally, it held that because counsel had no “basis in Fourth Circuit
precedent to find that the jury instruction was fallible,” they acted reasonably in not
objecting. Id.
We granted a certificate of appealability on a single issue: “Whether [the] district
court erroneously determined counsel was not ineffective for failing to object to [a] duress
jury instruction because [the] instruction lacked verdict-directing language.” Dkt. No. 11.
II.
We first address the scope of our review. Along with his argument about the lack
of verdict-directing language, Treminio-Tobar asserts that the duress instruction “failed to
explain how an affirmative defense operates relative to the government’s burden” and
“failed to define ‘by a preponderance of the evidence.’” Appellant’s Br. at 24–25. He
argues competent counsel would have objected on these grounds as well. The government
responds that Treminio-Tobar’s new arguments “are not cognizable” because they go
beyond the certificate of appealability and weren’t raised in the district court. Appellee’s
Br. at 16.
We don’t address issues outside the certificate of appealability, particularly when
they weren’t raised below. See Appleby v. Warden, N. Reg’l Jail & Corr. Facility, 595
F.3d 532, 535 n.3 (4th Cir. 2010) (explaining that we are “empowered to consider only the
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specific issue or issues set forth in the certificate of appealability” (cleaned up)); United
States v. Herrera-Pagoada, 14 F.4th 311, 318 (4th Cir. 2021) (claim procedurally barred
where not raised before district court in § 2255 petition). And separate objections must be
specifically preserved, even if they relate to the same instruction. See United States v.
Nicolaou, 180 F.3d 565, 569 (4th Cir. 1999) (“A party wishing to preserve an exception to
a jury instruction must state distinctly the matter to which he objects and the grounds of
his objection.” (cleaned up)).
Treminio-Tobar’s § 2255 petition didn’t raise any potential objections to the duress
instruction beyond the lack of verdict-directing language, and his new objections aren’t
covered by the certificate of appealability. So we won’t consider whether counsel was
ineffective in failing to make them.
Now to the sole issue properly before us. We typically review de novo the legal
conclusions in a district court’s denial of a § 2255 motion. See United States v. Carthorne,
878 F.3d 458, 464 (4th Cir. 2017). And where the district court denies relief without an
evidentiary hearing, we view the facts in the light most favorable to the movant. United
States v. Pressley, 990 F.3d 383, 387 (4th Cir. 2021).
But collateral proceedings aren’t “designed to be a rehash” of our decision on direct
appeal. United States v. Fulks (Fulks II), 683 F.3d 512, 521 (4th Cir. 2012). Once we
establish the law of the case, it generally “must be followed in all subsequent proceedings
in the same case in the trial court or on a later appeal.” United States v. Lentz, 524 F.3d
501, 528 (4th Cir. 2008) (cleaned up). We have applied the law-of-the-case doctrine in
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proceedings under § 2255. See Fulks II, 683 F.3d at 521; United States v. Bennerman, 785
F. App’x 958, 962 (4th Cir. 2019) (explaining that the law-of-the-case doctrine “has been
applied to serve finality interests in the habeas context, where the normal preclusion
principles of res judicata and collateral estoppel don’t apply”).
The law-of-the-case doctrine “applies both to questions actually decided as well as
to those decided by necessary implication.” Lentz, 524 F.3d at 528. There are three
exceptions: “(1) a subsequent trial produces substantially different evidence, (2)
controlling authority has since made a contrary decision of law applicable to the issue, or
(3) the prior decision was clearly erroneous and would work manifest injustice.” Id.
(cleaned up).
To succeed on his ineffective-assistance-of-counsel claim, Treminio-Tobar must
prove that his counsel’s performance was deficient, and he was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Our decision on direct appeal
precludes him from establishing either.
1.
The government argues Treminio-Tobar can’t show deficient performance because
we held on direct appeal “that the jury instructions were not erroneous.” Appellee’s Br. at
22. We agree.
On direct appeal, Treminio-Tobar argued that the lack of verdict-directing language
in the duress instruction deprived him of his due-process right to present a defense. He
now argues counsel were ineffective for failing to object to the instruction on the same
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ground. But that argument is foreclosed by our holding from his direct appeal under the
law-of-the-case doctrine.
Our decision in Fulks II is instructive. On collateral review, Fulks argued that his
capital-sentencing counsel was ineffective by not exercising peremptory challenges on
three jurors who were “unfavorably disposed to [his] cause.” 683 F.3d at 520. He said
counsel also overlooked a fourth juror’s failure to answer a questionnaire item about family
members who were crime victims—as it turned out, her first husband had been murdered.
Id. at 520–21.
Fulks’s § 2255 petition followed a direct appeal in which he argued that the district
court should have excluded the three unfavorable jurors for cause and granted a new trial
when the fourth juror’s omission was discovered. See United States v. Fulks (Fulks I), 454
F.3d 410, 427–32 (4th Cir. 2006). But we had rejected those arguments, finding the court
acted within its discretion. Id. at 428–33.
When Fulks made the same points on collateral review, we determined that “[t]he
inevitable upshot of our holding on direct appeal . . . was that the process had resulted in a
fair and impartial jury.” Fulks II, 683 F.3d at 521. When the Supreme Court denied review
on Fulks’s direct appeal, that holding became the “law of the case.” Id. And from that
“immutable premise,” we held that Fulks could “under no circumstances demonstrate the
necessary precondition for his claim, i.e., that [counsel’s] actions . . . strayed beyond the
bounds of reasonableness.” Id. at 522.
Just as our finding of no error in the jury composition in Fulks I precluded a finding
of deficient performance in Fulks II, our decision finding no error in the duress instruction
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on Treminio-Tobar’s direct appeal forecloses a finding of deficient performance here. On
direct appeal, we reviewed the instructions holistically to confirm they were “not
misleading and contained an adequate statement of the law.” Lazo, 816 F. App’x at 764.
And we found “the jury was well aware it should acquit if it found [Treminio-Tobar] acted
under duress.” Id. (cleaned up). That decides the performance inquiry, because counsel
can’t be ineffective for “failing to offer alternatives to proper jury instructions.” Bennett
v. Angelone, 92 F.3d 1336, 1350 (4th Cir. 1996).
Treminio-Tobar argues we aren’t bound by our direct-appeal decision because “any
suggestion that the instruction was not error at all is merely dicta.” Appellant’s Br. at 54.
He relies on a footnote where we stated that “[e]ven if we were to conclude that the
omission of verdict-directing language was error, any error would not be ‘plain.’” Lazo,
816 F. App’x at 764 n.3.
But Treminio-Tobar gets it backwards: The focus of our earlier decision was
whether the duress instruction fairly informed the jury that it “should acquit” if it found he
acted under duress. Id. at 764. If there’s dicta here, it’s in the footnote.
Treminio-Tobar’s remaining arguments are no more availing. He asserts that his
former attorneys didn’t make the same arguments on his direct appeal, so “the questions at
hand have not been squarely addressed.” Appellant’s Br. at 54. Not so.
His opening brief on direct appeal claimed, “an accused is deprived of his due
process right to a fair trial and right to present a defense if the jury is not instructed as to
its duty to find an accused Not Guilty if it determines the accused acted under duress.”
Appellants’ Br. at 40, Lazo, 816 F. App’x 752 (No. 18-4449), ECF No. 50 (emphasis
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removed). That brief also pointed to nearly all the same cases and pattern jury instructions
as he does in this appeal. See id. at 37–42.
It’s true that Treminio-Tobar now argues (for the first time) that counsel should have
objected because the instruction didn’t define “preponderance of the evidence” or explain
the relationship between the government’s burden and an affirmative defense. But those
arguments aren’t covered by the certificate of appealability. And we won’t depart from
our prior holding based on arguments that aren’t properly before us.
Nor do we agree with Treminio-Tobar’s assertion that our prior decision was “dead
wrong.” Appellant’s Br. at 55. Admittedly, many of our sister circuits include verdict-
directing language in their duress pattern jury instructions. But while it may be a best
practice, that doesn’t make it a constitutional requirement.
In fact, none of the cases cited by Treminio-Tobar imposed a per-se requirement for
verdict-directing language—each examined the effect of the alleged error in the context of
all the instructions. E.g., State v. Thomas, 868 N.E.2d 1061, 1065–66 (Ohio Ct. App. 2007)
(considering the “instructions taken as a whole”). That’s exactly what we did on direct
appeal, finding that the totality of instructions adequately informed the jury of its duty. We
won’t retread the same ground now.
Treminio-Tobar doesn’t offer any other reason why the law of the case shouldn’t
govern, and we see no reason to depart from our earlier holding. Because there was no
error in the duress instruction, Treminio-Tobar can’t establish deficient performance.
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2.
Our direct-appeal decision also forecloses a finding of prejudice. The “substantial
rights” prong of plain-error analysis mirrors the prejudice prong of Strickland’s ineffective-
assistance-of-counsel inquiry. See United States v. Rangel, 781 F.3d 736, 745–46 (4th Cir.
2015) (“Affecting substantial rights, in most cases, means that the error must have been
prejudicial: It must have affected the outcome of the district court proceeding. This
outcome-based standard is similar to Strickland’s prejudice inquiry.” (cleaned up)). Both
analyses require the defendant to establish “a reasonable probability” of a different result.
Id. at 745.
We held on direct appeal that the omission of verdict-directing language from the
duress instruction wasn’t an error, so we didn’t consider whether it affected Treminio-
Tobar’s substantial rights. But we did conclude that his substantial rights weren’t impacted
by the lack of definitions for “recklessly” and “reasonable legal alternative” in the same
instruction. See Lazo, 816 F. App’x at 765.
That conclusion binds us here by “necessary implication.” See Lentz, 524 F.3d at
528. The district court instructed the jury that to find Treminio-Tobar acted under duress,
it had to find that he didn’t “recklessly place himself in a situation where he would be
forced to engage in criminal conduct.” J.A. 1354. But we held on direct appeal that
Treminio-Tobar couldn’t “establish that the jury would have acquitted [him] had the
district court defined ‘recklessly’ and ‘reasonable legal alternative,’” because the jury saw
“overwhelming evidence that [he] knowingly, not just recklessly, placed [himself] in the
vehicle on the night” of the murder. Lazo, 816 F. App’x at 765.
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We agree with the government that our prior decision establishes that “there was no
reasonable probability that the jury would have found for [Treminio-Tobar] on one of the
required factual elements of his [duress] defense.” See Appellee’s Br. at 27. By “necessary
implication,” there isn’t a reasonable probability that the jury would have acquitted him
based on duress (even if the instructions included verdict-directing language). See Lentz,
524 F.3d at 528. So even if counsel erred in not objecting to the lack of verdict-directing
language—and we don’t think they did—Treminio-Tobar can’t show prejudice under
Strickland.
III.
The issues here are governed by the law of the case we established on Treminio-
Tobar’s direct appeal, and he hasn’t offered a persuasive reason to depart from our earlier
decision. We therefore affirm the district court’s judgment. And we dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid in our decision.
AFFIRMED