FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 30, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-2222
(D.C. Nos. CIV-04-903-MCA/WDS
v. and CR-02-598-MCA)
(D. N.M.)
JOSE CARLOS ARRAS, JR.,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.
Following a jury trial, Jose Carlos Arras, Jr. was convicted of conspiring to
import into the United States more than 100 kilograms of marijuana and
conspiring to possess that marijuana with the intent to distribute. After this court
affirmed his conviction in United States v. Arras, 373 F.3d 1071 (10th Cir. 2004),
Mr. Arras filed a 28 U.S.C. § 2255 motion in the district court to set aside his
*
After examining the briefs and 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. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
sentence. The district court denied the motion and granted Mr. Arras a certificate
of appealability on the issue of ineffective assistance of counsel. We affirm.
I. B ACKGROUND
We take the following facts from this court’s opinion in Mr. Arras’s direct
criminal appeal:
The government’s key trial witness, Tammy Nielsen, testified
[that Mr. Arras and Lorenzo Ruiz] hired her to transport drugs to
Denver, Colorado, from El Paso, Texas, and Juarez, Mexico, on four
separate occasions between December 2001 and February 2002. On
her first trip, she arrived in El Paso by bus and met Mr. Arras, who
gave her the keys to a 1983 Mercury Marquis she was to drive to
Denver. He insisted she check the oil and tire pressure regularly.
When she arrived in Denver, Mr. Ruiz paid her $2,000. Ms. Nielsen
subsequently made two trips originating from Juarez that followed
the same pattern, except she was paid $4,000 based on the added risk
of crossing the border. On each trip, prior to her departure for
Denver, Mr. Arras met her and again told her to be careful to check
the car’s oil and tire pressure often. During her fourth trip, which
began in Juarez, Ms. Nielsen was arrested as she entered the United
States at the Santa Theresa border crossing. Customs agents
discovered thirty-nine kilograms of marijuana in metal canisters
inside the tires of the car.
Arras, 373 F.3d at 1073.
The government indicted Mr. Arras on one count of conspiracy to import
less than fifty kilograms of marijuana and one count of conspiracy to possess with
intent to distribute. Mr. Arras was adamant about going to trial and clashed with
his court-appointed attorney, who “was too insistent on a plea.” Aplt. App.,
Vol. I at 8. After that attorney withdrew, the district court appointed Anthony
White. During their initial consultation, Mr. Arras conveyed to White that he
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wanted a trial and was very unhappy with his former attorney’s pursuit of a plea
bargain.
Shortly thereafter, the government filed a superceding indictment,
increasing the amount of marijuana allegedly involved to more than 100
kilograms. The government also offered Mr. Arras a plea bargain, which was
contingent upon acceptance by both Mr. Arras and his co-defendant, Lorenzo
Ruiz. White told Mr. Arras that “there’s a plea agreement out there,” but he did
not “go through the particular parts” because Mr. Arras said he did not want to
plead. Id. at 41-42. Ruiz also was not interested in a plea.
In discussing trial strategy, Mr. Arras alerted White to two municipal
citations he had been issued while in Mexico for use in establishing an alibi or
impeaching Nielsen. The citations would have provided “some verification that
[Mr. Arras] was not in the State of Texas at the time that . . . Nielsen claimed he
was” during her fourth marijuana delivery. Id. at 28. White obtained the
citations only three days before trial and did not use them.
During jury selection, the government filed a 21 U.S.C. § 851 enhancement
information. White did not discuss the significance of that filing until after the
trial. Mr. Arras did not testify at trial and was convicted on both counts. The
district court sentenced him to 262-months’ imprisonment.
In his § 2255 motion, Mr. Arras argued that White was ineffective in not
“pursu[ing] an opportunity to plea bargain” and not promptly “communicat[ing]
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the enhancement information and [its] implications.” R., Doc. 1 at 4. He also
raised White’s “fail[ure] to authenticate and admit into evidence” the Mexican
citations. Id. at 5. A magistrate judge held an evidentiary hearing and then
recommended that the motion be denied. Regarding the proposed plea bargain
and enhancement information, the magistrate judge concluded that White
performed deficiently, but that there was no prejudice because (1) Mr. Arras was
adamantly opposed to plea bargaining; and (2) the government’s plea offer could
not have been accepted given that Ruiz was not interested in pleading. Regarding
the citations, the magistrate judge concluded that White did not perform
deficiently because (1) Mr. Arras was responsible for the citations’ late
production, (2) Mr. Arras’s presence during the fourth delivery was not material
to his involvement in the charged conspiracies, and (3) introducing the citations at
trial would have required Mr. Arras to take the stand, exposing him to
cross-examination about his prior drug-trafficking convictions.
The district court adopted the recommendation and denied Mr. Arras’s
motion, prompting the instant appeal.
II. D ISCUSSION
A. Standards of Review
“[W]e review the district court’s legal rulings on a § 2255 motion de novo
and its findings of fact for clear error.” United States v. Pearce, 146 F.3d 771,
774 (10th Cir. 1998).
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B. Assistance of Counsel
“[C]riminal defendants have a Sixth Amendment right to ‘reasonably
effective’ legal assistance.” Roe v. Flores-Ortega, 528 U.S. 470, 476 (2000)
(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). This right is
violated when counsel’s representation falls “below an objective standard of
reasonableness,” Strickland, 466 U.S. at 688, and “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different,” id. at 694.
Mr. Arras re-asserts his district court arguments concerning White’s
handling of the Mexican citations and the government’s plea offer and
enhancement information. After reviewing the record, the parties’ appellate
briefs, the magistrate judge’s thorough report and recommendation, and the
relevant legal authorities, we conclude that the district court did not err in
denying Mr. Arras’s § 2255 motion.
Accordingly, we AFFIRM the district court’s judgment for substantially the
same reasons given by the magistrate judge in his report and recommendation
dated May 31, 2007.
Entered for the Court
John C. Porfilio
Circuit Judge
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