F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 26 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-2256
v. (District of New Mexico)
(D.C. No. CIV-98-1168-JC)
CIPRIANO ZAMUDIO,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
After examining Appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
The case is before this court on Appellant Cipriano Zamudio’s request for
a certificate of appealability (“COA”). Zamudio seeks a COA so he can appeal
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the district court’s denial of his motion to vacate, set aside, or correct sentence
brought pursuant to 28 U.S.C. § 2255. 1
See 28 U.S.C. § 2253(c)(1)(b) (providing
that a petitioner may not appeal the denial of a § 2255 petition unless the
petitioner first obtains a COA). Because Zamudio has not made “a substantial
showing of the denial of a constitutional right,” this court denies Zamudio’s
request for a COA and dismisses the appeal. See id. § 2253(c)(2).
Zamudio was indicted for conspiracy to possess with intent to distribute
more than five kilograms of cocaine. Zamudio was convicted following a jury
trial in federal court. On direct appeal, Zamudio raised several claims of error
including: (1) counsel for one of his co-defendants improperly commented on his
failure to testify; (2) the trial court improperly limited his right to cross-examine
one of the government’s witnesses; and (3) the trial court improperly admitted
hearsay statements made by a co-defendant. This court rejected Zamudio’s
allegations of error and affirmed his conviction. See United States v. Zamudio ,
No. 96-2182, 1998 WL 166600 (10th Cir. April 6, 1998) (unpublished
disposition).
Zamudio has attached to his application for a COA certain documents that
1
were not presented to the district court and are not part of the record on appeal.
This court will not consider those documents in deciding whether to grant
Zamudio’s request for a COA. See John Hancock Mut. Life Ins. Co. v. Weisman,
27 F.3d 500, 506 (10th Cir. 1994).
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In his pro se § 2255 petition, Zamudio first asserted that his trial counsel
had been ineffective in the following respects: (1) failing to challenge the
sufficiency and credibility of the DEA agent’s testimony about Zamudio’s post-
arrest statements; (2) failing to present all available evidence about the rental of a
trailer used to transport the drugs; (3) failing to effectively cross-examine a co-
conspirator who testified against Zamudio; (4) failing to investigate taped
conversations Zamudio had with co-conspirators to determine whether the
government complied with the federal wire tap statute (18 U.S.C. § 2510 et.
seq .); (5) failing to make a motion to suppress the tapes made of the
conversations between Zamudio and a co-conspirator; (6) failing to investigate
the quantity of drugs to be attributed to Zamudio; and (7) failing to seek
sentencing adjustments and Zamudio’s eligibility for the safety valve provisions
of U.S.S.G. § 5C1.2. Zamudio also claimed that his appellate counsel was
ineffective for failing to raise the argument, on appeal, that his trial counsel
failed to effectively cross-examine his co-conspirator.
In addition to his ineffective-assistance-of-counsel claims, Zamudio raised
the following additional claims: (1) the DEA’s failure to record his interrogation
on the day he was taken into custody was a violation of the Fifth Amendment; (2)
the DEA’s failure to comply with the requirements of the federal wire tap statutes
(8 U.S.C. § 2510 et. seq .) required that the recorded conversations between
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Zamudio and a co-conspirator be suppressed; (3) he was denied his Sixth
Amendment confrontation rights because of limitations placed on the cross-
examination of a witness by the trial court; (4) the jury was biased; (5) the trial
court erred when it instructed the jury regarding translations of the taped
conversations between Zamudio and his co-conspirator; and (6) the government
violated 18 U.S.C. § 201 by rewarding a cooperating co-defendant. 2
Despite Zamudio’s written objections, the district court adopted the
magistrate judge’s Proposed Findings and Recommended Disposition. Each
claim raised in Zamudio’s petition was painstakingly addressed in turn in the
magistrate judge’s Proposed Findings and Recommended Disposition which
began by noting that to establish the ineffectiveness of his counsel, Zamudio
must demonstrate both that counsel’s performance was deficient and that he was
prejudiced by the deficient performance. See Strickland v. Washington , 466 U.S.
668, 687 (1984). Applying Strickland to Zamudio’s claims, the court concluded
2
Although not directly addressed by the district court, Zamudio’s § 2255
petition, liberally construed, could also be said to contain claims that: (1)
Zamudio’s due process rights were violated because the jury was not composed of
a cross-section of the community; (2) Zamudio’s trial counsel was ineffective for
failing to challenge the composition of the jury; and (3) Zamudio’s appellate
counsel was ineffective for failing to raise the sentencing issues in his direct
appeal. Assuming without deciding that the § 2255 petition contained these
claims, this court has considered them and finds them either to be procedurally
barred or without merit.
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that Zamudio had failed, in each instance, to demonstrate deficient performance
on the part of his counsel.
The district court noted that Zamudio’s Sixth Amendment confrontation
claims had been raised on direct appeal and rejected by this court. See Zamudio ,
1998 WL 166600, at, *5-*8. Issues previously considered and disposed of on
direct appeal will not be reconsidered in a § 2255 petition in the absence of an
intervening change in the law. See United States v. Prichard , 875 F.2d 789, 791
(10th Cir. 1989). This court is unaware of any intervening law applicable to the
Sixth Amendment issues raised by Zamudio in his § 2255 petition.
The district court then concluded that Zamudio’s jury-bias claim and his
claim attacking the district court’s instructions pertaining to the tape translations
were procedurally barred because they should have been brought in his direct
appeal. See United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994) (“A
defendant who fails to present an issue on direct appeal is barred from raising the
issue in a § 2255 motion, unless he can show cause for his procedural default and
actual prejudice resulting from the alleged errors, or can show that a fundamental
miscarriage of justice will occur if his claim is not addressed.”). The district
court concluded that Zamudio had failed to show cause and prejudice or a
miscarriage of justice. The district court further concluded that, even in the
absence of a procedural bar, the claims had no merit.
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The district court also rejected Zamudio’s claim that the government
violated 18 U.S.C. § 201 by rewarding a co-conspirator for his cooperation. See
United States v. Singleton , 165 F.3d 1297, 1300-1302 (10th Cir. 1999) (en banc).
The district court based it’s conclusion on the fact that it’s review of the co-
conspirator’s sentencing proceedings failed to show that the prosecutor had
offered the co-conspirator “something other than a concession normally granted
by the government in exchange for testimony.” Id. at 1302.
The district court then rejected Zamudio’s claim that his Fifth Amendment
rights were violated by the DEA’s failure to tape-record his interrogation. The
court concluded that the Fifth Amendment does not require the recording of post-
arrest statements. See United States v. Yunis , 859 F.2d 953, 961 (D.C. Cir. 1988)
(“[T]there is no constitutional requirement that confessions be recorded by any
particular means.”). In the alternative, the district court, liberally construing
Zamudio’s claim as a due process challenge, concluded that the absence of a tape
recording did not prejudice Zamudio so as to render the entire proceeding
fundamentally unfair. See Martin v. Kaiser , 907 F.2d 931, 934 (10th Cir. 1990).
Finally, the district court rejected Zamudio’s claim that his Fourth
Amendment and statutory rights were violated by the recording of his
conversations with a co-conspirator. The court noted that the co-conspirator
consented to the recording of the conversations. See United States v. White , 401
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U.S. 745, 747-54 (1971) (holding that a defendant’s Fourth Amendment rights
are not violated if conversations between the defendant and a government
informant are electronically monitored with the consent of the informant).
Further, the district court concluded that Zamudio’s statutory rights had not been
violated because the statute contains exceptions to the prohibition against
wiretapping or other electronic surveillance if, as here, the conversation is
recorded by a government informant who has consented to the recording of the
conversation. See 18 U.S.C. § 2511(2)(c), (d).
After reviewing the parties’ submissions, the Proposed Findings and
Recommended Disposition, and Zamudio’s objections thereto, the district court
entered an order dismissing Zamudio’s § 2255 petition. Zamudio sought and was
denied a COA from the district court. In his appeal, Zamudio raises substantially
the same issues raised in his § 2255 petition. 3
This court has reviewed Zamudio’s request for a COA, Zamudio’s
appellate brief, the magistrate judge’s Proposed Findings and Recommended
Disposition, the district court’s order adopting the Proposed Findings and
3
In his application for a COA and again in his appellate brief, Zamudio also
attempts to raise, for the first time, the argument that his trial counsel was
ineffective for failing to allow him to testify at his trial. Zamudio also attempts
to raise for the first time the argument that his appellate counsel was ineffective
for failing to visit him in prison and “debrief” him prior to filing the direct
appeal. This court will not consider issues raised for the first time on appeal. See
Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999).
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Recommended Disposition, and the entire record before us. That review
demonstrates that the district court’s order denying relief is not deserving of
further proceedings, debatable among jurists of reason, or subject to different
resolution on appeal. See Barefoot v. Estelle , 463 U.S. 880, 893 (1983).
Accordingly, Zamudio has failed to make a substantial showing of the denial of a
constitutional right and is not entitled to a COA. See 28 U.S.C. § 2253(c)(1)(b).
This court denies Zamudio’s request for a COA for substantially those reasons
set forth in the magistrate judge’s Proposed Findings and Recommended
Disposition as adopted by the district court in it’s Order dated August 9, 1999,
and dismisses this appeal.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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