United States v. Mirabal

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 23, 2024
• Docket: 24-2048
• Status: Unpublished

Opinion

Appellate Case: 24-2048 Document: 27-1 Date Filed: 10/23/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 23, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Respondent - Appellee,

v. No. 24-2048 (D.C. Nos. 1:18-CV-01024-WJ-JHR & GABRIEL MIRABAL, 1:13-CR-01152-WJ-KBM-1) (D. N.M.) Petitioner - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before TYMKOVICH, McHUGH, and MORITZ, Circuit Judges. _________________________________

Gabriel Mirabal, a federal prisoner appearing pro se, seeks a certificate of

appealability in order to challenge the district court’s denial of his 28 U.S.C. § 2255

motion. We deny his application and dismiss this matter.

I

The underlying facts of this case were outlined in our decision denying

Mr. Mirabal’s direct appeal. See United States v. Mirabal, 876 F.3d 1029, 1031–32

(10th Cir. 2017). Suffice it to say that Mr. Mirabal, a convicted felon, was suspected by

federal authorities of having an assault rifle in the trunk of a car he was driving. A local

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-2048 Document: 27-1 Date Filed: 10/23/2024 Page: 2

law enforcement officer stopped Mr. Mirabal for a traffic violation, determined the car

did not belong to Mr. Mirabal, searched the car without Mr. Mirabal’s consent, found no

assault rifle, but did find a kilogram of cocaine and a knife. Subsequent searches of

Mr. Mirabal’s residence and a rental storage unit produced a pistol, ammunition, a

bulletproof vest, and crack cocaine.

Mr. Mirabal was charged and ultimately convicted by a jury of conspiracy to

distribute at least ten ounces of crack cocaine, possession of 500 grams or more of

powder cocaine with intent to distribute, being a felon in possession of a firearm and

ammunition, and unlawful possession of body armor. The district court sentenced

Mr. Mirabal to a term of imprisonment of 432 months, which was within the applicable

guidelines range.

Mr. Mirabal filed a direct appeal raising five issues: (1) whether the local law

enforcement officer who stopped him “violated the Fourth Amendment by going into the

interior of the car and pulling the armrest down,” id. at 1032; (2) whether the district

court erred in restricting his cross-examination of the car’s owner; (3) whether the

evidence presented at trial was sufficient to support his convictions, (4) whether the

government destroyed drug evidence in bad faith; and (5) whether the government

withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).

We rejected all five arguments and affirmed Mr. Mirabal’s convictions.

Mr. Mirabal then filed a pro se § 2255 motion to vacate, set aside, or correct

sentence. His amended § 2255 motion asserted five general grounds for relief: (1) that

his Fourth Amendment rights were violated through physical and electronic searches;

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(2) that his Fifth and Sixth Amendment rights were violated due to destroyed or withheld

evidence; (3) that he received ineffective assistance of counsel; (4) that the district court

improperly applied sentencing enhancements, including one based on its conclusion that

Mr. Mirabal’s prior New Mexico conviction for aggravated battery with a deadly weapon

qualified as a crime of violence; and (5) that the government presented false or

misleading testimony at trial from Mr. Mirabal’s co-defendant.

The magistrate judge recommended that all of the claims in the amended § 2255

motion be denied, except for the claim regarding whether Mr. Mirabal’s prior

New Mexico conviction qualified as a crime of violence. As to that issue, the magistrate

judge appointed counsel for Mr. Mirabal and requested additional briefing. Following

additional briefing on the crime of violence issue, the magistrate judge issued a second

order recommending denial of that issue. Mr. Mirabal objected to the magistrate judge’s

recommendations.

The district court overruled Mr. Mirabal’s objections, adopted the magistrate

judge’s recommendations in full, and denied Mr. Mirabal a COA.

Mr. Mirabal now seeks a COA from this court.

II

The granting of a COA is a jurisdictional prerequisite to an appeal from the denial

of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To obtain a

COA, Mr. Mirabal must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). This requires him to demonstrate that “reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have been

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resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Miller-El, 537 U.S. at 336 (internal quotation marks

omitted). In addition, because the district court in this case denied some of Mr. Mirabal’s

claims on procedural grounds, he must also, with respect to those claims, show “that

jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

In evaluating whether Mr. Mirabal has satisfied these burdens, we undertake “a

preliminary, though not definitive, consideration of ” his claims. Miller-El, 537 U.S.

at 338. Although he need not demonstrate his appeal will succeed to be entitled to a

COA, he must “prove something more than the absence of frivolity or the existence of

mere good faith.” Id. (internal quotation marks omitted).

A

We begin with Mr. Mirabal’s Fourth Amendment challenges to the searches that

were conducted by law enforcement. The district court noted that all of Mr. Mirabal’s

Fourth Amendment arguments were raised in multiple motions to suppress and all of

those motions were denied. The district court further noted that Mr. Mirabal raised all

but one of his Fourth Amendment arguments on appeal and those arguments were

rejected by this court. The district court concluded that the claims raised by Mr. Mirabal

on direct appeal failed on the merits, and that the remaining claim that Mr. Mirabal failed

to raise on direct appeal was procedurally barred.

We conclude jurists of reason could not debate these rulings. Mr. Mirabal does

not dispute that all but one of his Fourth Amendment claims were raised in his direct

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appeal. “[U]nder the law-of-the-case doctrine,” we generally “refuse to reconsider

arguments presented in a § 2255 motion that were raised and adjudicated on direct

appeal.” Abernathy v. Wandes, 713 F.3d 538, 549 (10th Cir. 2013); see United States v.

LaHue, 261 F.3d 993, 1010 (10th Cir.2001) (“The law of the case doctrine posits that

when a court decides upon a rule of law, that decision should continue to govern the same

issues in subsequent stages in the same case.” (internal quotation marks omitted)).

Although there are three exceptions to the law-of-the-case doctrine, Mr. Mirabal does not

argue that any of them apply here. See United States v. Alvarez, 142 F.3d 1243, 1247

(10th Cir. 1998) (identifying the three exceptions). He has therefore failed to

demonstrate that jurists of reason could debate the district court’s resolution of the Fourth

Amendment claims he raised on direct appeal.

That leaves the Fourth Amendment claim that Mr. Mirabal failed to raise on direct

appeal (i.e., that the special agent who provided an affidavit in support of a request for a

wiretap failed to follow Title III guidelines). Criminal defendants may not use § 2255

motions as a substitute for a direct appeal, and failure to raise an issue on direct appeal

creates a procedural bar. United States v. Cervini, 379 F.3d 987, 990 (10th Cir. 2004).

Procedural default can be excused if the defendant shows (1) that cause and prejudice

exist to excuse the default or (2) that enforcing the default will result in a fundamental

miscarriage of justice. Id. Mr. Mirabal made no attempt below to show cause and

prejudice for his failure to raise the issue on direct appeal, nor did he argue that a

fundamental miscarriage of justice would occur unless the district court considered his

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defaulted claim. We therefore conclude reasonable jurists could not debate the district

court’s conclusion that this claim was procedurally barred.

B

We turn next to Mr. Mirabal’s Fifth and Sixth Amendment claims relating to the

alleged destruction of seized drugs, the alleged withholding of key discovery and

information until trial, and the alleged failure to disclose evidence affecting the

credibility of a confidential informant.

The district court concluded the law-of-the-case doctrine barred relief on the

destruction of evidence and withholding of evidence claims, noting those issues were

raised by Mr. Mirabal on appeal and rejected by this court. Mr. Mirabal does not dispute

that we rejected those claims in his direct appeal. See Mirabal, 876 F.3d at 1038

(rejecting destruction of evidence claim), 1039 (denying withholding of evidence claim).

Nor does he offer any argument that would persuade us that the law-of-the-case doctrine

should not apply. Consequently, we conclude reasonable jurists could not debate the

district court’s resolution of these claims.

As for Mr. Mirabal’s claim that the prosecution failed to disclose evidence

affecting the credibility of a confidential informant, the district court concluded the claim

was procedurally barred because Mr. Mirabal actively pursued discovery on this claim

prior to trial, but did not raise the claim on direct appeal. The district court further

concluded that Mr. Mirabal failed to show cause for his failure to raise the issue on

appeal, actual prejudice, or a miscarriage of justice. Mr. Mirabal makes no attempt in his

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application for COA to rebut these conclusions. We therefore conclude he has failed to

establish his entitlement to a COA on this issue.1

C

Mr. Mirabal claimed in his § 2255 motion that the two attorneys who represented

him during the district court proceedings, as well as the attorney who represented him on

direct appeal, were each ineffective in numerous respects. To succeed on these claims,

Mr. Mirabal had to show that (1) counsel’s performance fell below an objective standard

of reasonableness, and (2) the deficient performance was prejudicial to the claimant.

See Strickland v. Washington, 466 U.S. 668, 687 (1984). The district court concluded

Mr. Mirabal failed to make the first of these showings with respect to each of his claims.

In his application for COA, Mr. Mirabal repeats many of the allegations of

ineffective assistance that he asserted in his § 2255 motion. But he makes no attempt to

demonstrate why the district court’s analysis of his claims was incorrect. As a result, he

has failed to show reasonable jurists could debate the district court’s resolution of the

ineffective assistance claims.

1 Mr. Mirabal also alleged in his § 2255 motion, and continues to allege in his application for COA, that the prosecutor engaged in misconduct by withholding key discovery, failing to produce a key witness, and presented perjured testimony. The district court concluded the claim was procedurally barred because it was based on information presented to the district court in pretrial motions, at trial, and in post-trial proceedings, but was not pursued on direct appeal. Mr. Mirabal does not attempt to refute these conclusions, and thus he has failed to establish his entitlement to a COA on this issue. 7 Appellate Case: 24-2048 Document: 27-1 Date Filed: 10/23/2024 Page: 8

D

In his § 2255 motion, Mr. Mirabal challenged his conviction for possession of

body armor by a felon who had been convicted of a crime of violence, in violation of

18 U.S.C. §§ 931(a)(1) and 924(a)(7). More specifically, he argued the trial court erred

in concluding that his prior New Mexico state conviction for aggravated battery with a

deadly weapon, in violation of N.M. Stat. Ann. § 30-3-5(C), qualified as a predicate

crime of violence under 18 U.S.C. § 16.

The district court concluded Mr. Mirabal’s arguments were foreclosed by our

decision in United States v. Manzanares, 956 F.3d 1220 (10th Cir. 2020). The defendant

in Manzanares filed a § 2255 motion challenging his sentence under the Armed Career

Criminal Act (ACCA). Id. at 1223. More specifically, the defendant in Manzanares

argued that “his underlying New Mexico convictions (armed robbery, aggravated assault

with a deadly weapon, and aggravated battery)” did not qualify as violent felonies under

the ACCA’s elements clause. Id. We held that the New Mexico crime of aggravated

battery is a violent felony for purposes of the Armed Career Criminal Act (ACCA). Id.

at 1228. That holding, we noted, was compelled by the decision in United States v.

Castleman, a case in which the Supreme Court held that “knowing or intentional

causation of bodily injury necessarily involves the use of physical force.” 572 U.S. 157,

169 (2014). We also relied in Manzanares on United States v. Ontiveros, 875 F.3d 533

(10th Cir. 2017), a post-Castleman decision in which we “concluded that Colorado

second-degree assault is a crime of violence, even though the crime’s elements ‘focus on

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the result of the conduct (serious bodily injury), not the conduct itself.” Manzanares,

956 F.3d at 1228 (internal quotation marks omitted).

Because the definition of “violent felony” employed in 18 U.S.C. § 931 (which

incorporates the definition of “violent felony” in 18 U.S.C. § 16) is nearly identical to the

ACCA’s definition of “crime of violence,” we conclude that reasonable jurists could not

debate the district court’s conclusion that Mr. Mirabal’s arguments were foreclosed by

Manzanares.

E

Mr. Mirabal asserted a number of claims challenging the district court’s

calculation of his sentence. The district court concluded these claims were procedurally

barred because Mr. Mirabal failed to raise them on direct appeal and, in turn, failed in his

§ 2255 motion to present any argument to excuse his failure to raise the issues on direct

appeal. We conclude that reasonable jurists could not debate the district court’s

resolution of these claims.

F

Lastly, Mr. Mirabal claimed that the government presented false or misleading

testimony at trial from his co-defendant. The district court concluded this claim was

barred under the law-of-the-case doctrine because Mr. Mirabal raised the claim on direct

appeal and this court rejected it. Mr. Mirabal does not dispute that the claim was raised

and rejected on direct appeal. Nor does not argue that his case falls within any of the

possible exceptions to the law-of-the-case doctrine. Consequently, we conclude that

jurists of reason could not debate the district court’s resolution of this claim.

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III

We grant Mr. Mirabal’s motion for leave to proceed in forma pauperis, but we

deny his application for a COA and dismiss this matter.

Entered for the Court

Timothy M. Tymkovich Circuit Judge