UNITED STATES CO URT O F APPEALS
TENTH CIRCUIT
__________________________
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 06-4028
(D. Utah)
JUA N A RN ULFO-SAN CH EZ, (D.Ct. Nos. 2:05-CV-20-BSJ and
2:99-CR-641-BSJ)
Defendant - Appellant.
____________________________
OR DER
Filed M ay 1, 2007
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
Appellant’s petition for rehearing is granted in part, for the purpose of
correcting the order denying a certificate of appealability dated M arch 14, 2007.
In all other aspects, the petition is denied. The amended order, filed nunc pro
tunc to M arch 14, 2007, is attached.
Entered for the Court
Elisabeth A . Shumaker, Clerk
By:
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 14, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 06-4028
(D. Utah)
JUA N A RN ULFO-SAN CH EZ, (D.Ct. Nos. 2:05-CV-20-BSJ and
2:99-CR-641-BSJ)
Defendant - Appellant.
____________________________
OR DER DENY ING CERTIFICATE O F APPEALABILITY
A ND DISM ISSIN G A PPLIC ATIO N
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
Juan Arnulfo-Sanchez was convicted on one count of possession of 500
grams or more of a mixture of methamphetamine with the intent to distribute in
violation of 21 U.S.C. § 841(a)(1) in the United States District Court for the
District of Utah. Following the denial of his direct appeal, he filed a M otion to
Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 in the district
court, alleging ineffective assistance of counsel and that his due process rights, as
defined by Brady v. M aryland, 373 U.S. 83 (1963), were violated. The district
court denied the § 2255 motion, without holding an evidentiary hearing. Because
the district court did not rule on whether to grant a certificate of appealability
(C OA) w ithin thirty days, we deem the application for COA denied. 10th Cir. R.
22.1(c). A rnulfo-Sanchez now asks this Court to grant a COA. See 28 U.S.C. §
2253(c).
A COA is a jurisdictional pre-requisite to our review. M iller-El v.
Cockrell, 537 U.S. 322, 336 (2003). “A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). “This means that the applicant 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 w ere adequate to deserve encouragement to proceed further.’” United
States v. Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (quoting Slack v.
M cDaniel, 529 U.S. 473, 484 (2000)).
A. Ineffective Assistance of Counsel
Arnulfo-Sanchez argues his trial counsel was ineffective in several
respects. He claims his counsel: 1) failed to conduct pre-trial investigation of his
case before counseling him to reject a plea-agreement; 2) inadequately performed
at trial by not hiring a handwriting expert and calling Arnulfo-Sanchez’s w ife to
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testify; 3) failed to contend, at sentencing, the methamphetamine was not
consumable; and 4) had a financial conflict of interest.
To prevail on a claim his trial counsel was constitutionally ineffective,
Arnulfo-Sanchez “must show that counsel's representation fell below an objective
standard of reasonableness” and “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). “Judicial
scrutiny of counsel's performance must be highly deferential.” Id. at 689. Thus,
“the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id.
Arnulfo-Sanchez argues his counsel failed to conduct a reasonable pre-trial
investigation of the case. The district court reviewed the docket and found
counsel had filed “numerous pre-trial motions each addressing various evidentiary
issues relating to the case.” (R . at 146.) W e agree counsel’s filings indicate
counsel engaged the evidence in the case. In addition, Arnulfo-Sanchez has failed
to explain how the alleged trial errors would have had a “reasonable probability”
of affecting the outcome of the case. Strickland, 466 U.S. at 694. Arnulfo-
Sanchez argues counsel’s trial performance was constitutionally inadequate
because he did not hire a handwriting expert. Although there was an issue
regarding the authorship of certain “pay-owe sheets” offered into evidence at
trial, Arnulfo-Sanchez provides no evidence demonstrating testimony by such an
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expert would have affected the outcome of the trial. He also alleges ineffective
assistance because counsel called his wife to testify. According to Arnulfo-
Sanchez, his wife testified “that the family income w as modest, and she was not
aware that [Arnulfo-Sanchez] had in his possession the sum of $991.00.” The
actual transcript of this testimony is not a part of the record on appeal. In any
event, we are reluctant to interfere with counsel’s strategic decisions, especially
where Petitioner has not shown counsel did not have some strategic reason for his
actions. See Strickland, 466 U.S. at 689 (Supreme Court hesitant to “interfere
with the constitutionally protected independence of counsel and restrict the wide
latitude counsel must have in making tactical decisions.”). Arnulfo-Sanchez did
not demonstrate a reasonable probability counsel’s choices would have affected
the outcome of the trial.
The same reasoning defeats Arnulfo-Sanchez’s complaint about counsel’s
ineffectiveness at sentencing because he did not address, given the fact the drugs
were only 28% pure methamphetamine, whether the mixtures were consumable.
As the government pointed out in its brief before the district court, Note B to the
Drug Quantity Table of § 2D1.1 defines the term "methamphetamine (actual)" as
“the weight of the controlled substance, itself, contained in the mixture or
substance.” See USSG § 2D1.1 n.B (2004). The guidelines recommend the
sentencing court “use the offense level determined by the entire weight of the
mixture or substance, or the offense level determined by the weight of the PCP
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(actual), amphetamine (actual), or methamphetamine (actual), whichever is
greater.” Id. This Court presumes the district court considered the guidelines.
United States v. Goldberg, 295 F.3d 1133, 1141 (10th Cir. 2002) (“Although it
is not entirely clear from that statement what methodology the district court
employed, we will presume that the district court employed a methodology based
on the Guidelines.”). Because Arnulfo-Sanchez has provided no record-indication
to the contrary, we presume counsel’s failure to raise the purity issue, in light of
the guidelines framew ork, did not change the outcome of the sentencing.
Finally, Arnulfo-Sanchez claims his counsel was improperly financially
motivated when he advised Arnulfo-Sanchez to choose to go to trial instead of
accepting a plea bargain. As the district court held, however, there is no evidence
supporting the allegation counsel put his own financial interests ahead of his
client’s interests.
B. Alleged Brady Violation
In addition, Arnulfo-Sanchez alleges a violation of the rule announced in
Brady. He argues the government improperly suppressed handwriting analysis
evidence. This Court, however, has already found this claim without merit in
Arnulfo-Sanchez’s direct appeal. See United States v. Arnulfo-Sanchez, 71 Fed.
App. 35, 39-41 (2003) (unpublished). “An issue disposed of on direct appeal
will generally not be reconsidered on a collateral attack by a motion pursuant to
28 U.S.C. Section 2255.” United States v. Nolan, 571 F.2d 528, 530 (10th Cir.
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1978). Furthermore, our decision in Petitioner’s direct appeal on the Brady issue
is binding in this case. United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir.
1998) (“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 quotations omitted). The issue is not
reasonably debatable.
C. District court’s refusal to hold an evidentiary hearing
Arnulfo-Sanchez’s final complaint alleges the district court erred by
refusing to hold an evidentiary hearing on these matters. “W e review the district
court's refusal to hold an evidentiary hearing for an abuse of discretion.” United
States v. H arm s, 371 F.3d 1208, 1210 (10th Cir. 2004). As discussed above,
Petitioner has not produced enough evidence showing a “plausible” claim of
constitutional violation. See United States v. Cox, 83 F.3d 336, 341 (10th Cir.
1996) (District court did not err in declining to hold an evidentiary hearing where
defendant “failed to show his counsel’s performance was constitutionally
deficient.”). Therefore, the district court did not err in declining to hold an
evidentiary hearing.
The district court’s order of dismissal is not reasonably debatable. Taylor,
454 F.3d at 1078. Arnulfo-Sanchez has failed to make a sufficient showing he is
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entitled to a COA. The request for a COA is denied and the application is
dismissed.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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