F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 29 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-8102
v. (D. of Wyo.)
MANUEL SAVALA RAMIREZ, (D.C. No. 03-CV-12-J)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges. **
Defendant-Appellant Manuel Savala Ramirez, a federal inmate appearing
pro se, seeks a certificate of appealability (“COA”) allowing him to appeal the
district court’s order denying relief on his motion pursuant to 28 U.S.C. § 2255.
On appeal, Ramirez also argues that his sentence violates the principles of Blakely
v. Washington , 124 S. Ct. 2531 (2004).
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Because Ramirez has failed to make a “substantial showing of the denial of
a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny the COA and dismiss the
appeal. We also deny Ramirez’s claims under Blakely.
Background
On January 23, 2001, a two-count indictment was filed against Ramirez in
the United States District Court in Cheyenne, Wyoming, charging him with
conspiracy to possess with the intent to distribute and to distribute
methamphetamine, and distribution of methamphetamine. Following the
indictment, Ramirez was arrested in Washington and transferred back to
Wyoming. Thereafter, a two-count information was filed against him in the
Eastern District of Washington, charging him with conspiracy to possess with the
intent to distribute and distribution of more than 500 grams of methamphetamine,
and money laundering.
Prior to trial in Wyoming, Ramirez waived indictment on the Washington
charges and agreed to have them transferred to Wyoming. He pled guilty to both
counts of the Washington information and stipulated to the relevant conduct in
Count One involving 18 pounds of a mixture containing methamphetamine, and
the relevant conduct in Count Two involving money laundering. The government
eventually dismissed the original Wyoming charges. On January 18, 2002, the
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district court sentenced Ramirez to 320 months of incarceration on Count One and
240 months of incarceration on Count Two. Ramirez did not appeal his sentence.
Thereafter, Ramirez filed a § 2255 motion, citing four allegations of
ineffective assistance of counsel. First, Ramirez alleged that counsel did not visit
him in jail and inappropriately permitted him to be interviewed for two
presentence investigation reports. Second, Ramirez alleged that counsel had a
conflict of interest because he was being investigated for money laundering
charges related to Ramirez’s case. Third, Ramirez alleged that counsel was
intoxicated at sentencing. Fourth, Ramirez alleged that counsel failed to pursue a
direct appeal. In a thorough opinion, the district court rejected each claim and
declined to grant COA. On appeal, Ramirez brings an additional claim under
Blakely.
Analysis
I. Certificate of Appealability
This court may only grant a COA and entertain Ramirez’s appeal if he “has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). See also Slack v. McDaniel , 529 U.S. 473, 483-84 (2000). To make
the necessary showing, “a petitioner must show that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
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deserve encouragement to proceed further.” Miller-El v. Cockrell , 537 U.S. 322,
336 (2003) (internal citations omitted). The role of this court is not to engage in
full consideration of the factual or legal bases adduced in support of the claims,
but rather to conduct an “overview of the claims in the habeas petition and a
general assessment of their merits.” Id. In this case, Ramirez’s four claims of
ineffective assistance of counsel lack merit.
In order to succeed on a claim of unconstitutional ineffective assistance of
counsel, Ramirez must satisfy the standards of Strickland v. Washington , 466 U.S.
668 (1984), which consists of two components. First, Ramirez must show that his
attorney “made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687. Second, Ramirez
must show that the “deficient performance prejudiced the defense.” Id. This
requires showing that “counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Id. We agree with the
district court that Ramirez has not met this standard.
A. Presentencing Conduct
Ramirez contends that counsel was ineffective because he failed to visit
Ramirez in jail in Cheyenne. However, as the district court correctly noted,
Ramirez failed to show prejudice with respect to this accusation. Without such a
showing, this claim fails.
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Ramirez also contends that counsel inappropriately allowed him to be
interviewed for two separate presentence investigation reports. Again, Ramirez
fails to show how he was prejudiced by being interviewed without the presence of
his attorney. Thus, this claim also fails.
Finally, Ramirez contends that counsel did not fully explain the contents of
his presentence report. He does not allege, however, that counsel failed to review
the report with him. As the district court noted, the sentencing transcript
indicates that Ramirez and his counsel did in fact discuss the contents of the
report prior to the sentencing hearing. In any event, Ramirez again fails to show
prejudice with respect to counsel’s alleged failure to adequately address his
concerns about the contents of his presentence report.
B. Conflict of Interest
Next, Ramirez argues that counsel was ineffective due to his conflict of
interest. To support this allegation, Ramirez states that counsel was being
investigated for money laundering charges related to Ramirez’s case, and that he
sounded “nervous” in a telephone call to Ramirez.
To prevail on his claim of alleged conflict of interest, Ramirez must
demonstrate that an actual conflict of interest adversely affected his lawyer's
performance. See Cuyler v. Sullivan , 446 U.S. 335, 348 (1980); Selsor v. Kaiser ,
22 F.3d 1029, 1032 (10th Cir. 1994). An actual conflict of interest exists “if
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counsel was forced to make choices advancing other interests to the detriment of
his client. Without a showing of inconsistent interests, any alleged conflict
remains hypothetical, and does not constitute ineffective assistance.” United
States v. Alvarez , 137 F.3d 1249, 1252 (10th Cir. 1998) (internal citations
omitted). Ramirez’s allegations do not meet this standard. He fails to point to
specific instances of actual conflict in which counsel made any choices advancing
any interest other than Ramirez’s. As such, we agree with the district court that
this claim lacks merit.
C. Use of Alcohol
Ramirez also claims that counsel was ineffective because he was
intoxicated at Ramirez’s sentencing hearing. However, we agree with the district
court that Ramirez can point to nothing in the record to support the truthfulness of
this claim. The record, in fact, shows counsel’s performance at the hearing was
adequate and no inference of intoxication can be drawn. Because Ramirez cannot
show prejudice, this claim also lacks merit.
D. Direct Appeal.
Finally, Ramirez claims that counsel was ineffective because he failed to
pursue a direct appeal. Again, however, Ramirez has failed to adequately
demonstrate that counsel acted against his wishes or failed to discuss appeal
options with him. Thus, this claim also lacks merit.
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Because we agree with the district court that Ramirez has not shown a
denial of a constitutional right as provided by 28 U.S.C. § 2253(c)(2), we must
deny a certificate of appealability.
II. Blakely Claims
On appeal, Ramirez argues that his sentence was unconstitutional under
Blakely v. Washington , 124 S. Ct. 2531 (2004) and Apprendi v. New Jersey, 530
U.S. 466 (2000). However, as this court recently held in United States v. Price,
No. 04-7058, 2005 WL 535361 (March 8, 2005), because Blakely provides a new
rule of criminal procedure, it is not subject to retroactive application on collateral
review. Specifically, Blakely does not apply retroactively to convictions that were
already final at the time the Supreme Court decided Blakely on June 24, 2004. Id.
at *5. As such, Ramirez’s claim is inappropriate in this forum.
For the aforementioned reasons, we DENY COA and DENY Ramirez’s
claim that his sentence is unconstitutional under Blakely .
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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