FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 1, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4064
RAOUL MORENO, (D.C. Nos. 08-CV-00861-DAK and
06-CR-00384-DAK-2)
Defendant-Appellant. (D. Utah)
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
Raoul Moreno, a federal prisoner appearing pro se, seeks a certificate of
appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. §
2255 motion. Moreno also requests to proceed in forma pauperis (“IFP”). We
deny the COA and the request to proceed IFP.
I
A jury convicted Raoul Moreno of distributing five grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and of carrying a
firearm during and in relation to a drug trafficking crime, in violation of 18
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
U.S.C. § 924(c)(1)(A). On May 10, 2007, the district court sentenced Moreno to
120 months’ imprisonment followed by 60 months’ supervised release. Moreno
appealed, arguing that the district court erred in instructing the jury. On March
28, 2008, we affirmed the district court.
On November 7, 2008, Moreno, appearing pro se, filed a 28 U.S.C. § 2255
motion. The motion alleged two grounds for relief: (1) ineffective assistance of
counsel for not objecting “to the fact the government failed to present sufficient
evidence at trial [that Moreno] used a firearm”; and (2) ineffective assistance of
counsel for not objecting “to the fact the that the government never presented any
narcotic[s] at trial, and [because counsel] used coercion in order to prevent
[Moreno] from testifying on his own behalf, denying [Moreno] a fair trial.” R.
Vol. I, Doc. 1 at 5.
On February 5, 2009, the district court denied Moreno’s § 2255 motion.
Moreno filed a timely notice of appeal and a request for a COA.
II
The issuance 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, 336 (2003). A
COA may be issued “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2553(c)(2). To make this showing,
Moreno must demonstrate “that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different
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manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation and
internal quotation marks omitted).
In his application for a COA and his present briefing, Moreno argues that
his counsel provided ineffective assistance by: (1) failing to move to suppress the
firearm; (2) “failing to object to the insufficient evidence to support the
conviction for carrying a firearm”; (3) by “not preserving [Moreno’s] Sixth
Amendment rights to be found guilty beyond a reasonable doubt of each element
of the crime . . . ”; and (4) “failing to object to the imposition of a five year
consecutive sentence [based on Moreno’s conviction under 18 U.S.C. §
924(c)(1)(A)].” COA Application at 2. Because Moreno proceeds pro se, we
construe his pleadings liberally. Garrett v. Selby Connor Maddux & Janer, 425
F.3d 836, 840 (10th Cir. 2005).
For Moreno to merit a COA based on the alleged ineffectiveness of his
counsel, he must make a substantial showing that his counsel was ineffective. To
ultimately establish ineffective assistance of counsel, Moreno must show both that
his counsel’s performance was deficient, and that this deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Our review
of counsel’s performance is “highly deferential,” and “we indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption
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that, under the circumstances, the challenged action might be considered sound
trial strategy.” United States v. Taylor, 454 F.3d 1075, 1079 (10th Cir. 2006)
(quotation omitted).
All of Moreno’s arguments assume that: (1) his counsel was ineffective in
failing to prevent the admission of evidence related to the firearm conviction; and
(2) there was insufficient evidence to support his firearm conviction. Both
assumptions are unwarranted.
First, Moreno’s argument that counsel should have moved to suppress the
firearm is factually incorrect. The firearm was not admitted into evidence. R.
Vol. I, Doc. 7 at 2 (“[T]he gun was not recovered by the police and was not
introduced into evidence.”).
Second, Moreno’s argument that counsel failed to object to the sufficiency
of the evidence related to the firearm is incomplete. Moreno provides no basis
upon which his counsel could have objected to the admission of the evidence.
According to trial testimony, a law enforcement officer saw Moreno retrieve what
appeared to be a firearm from his pocket and replace it before the drug
transaction. During the drug transaction, the law enforcement officer saw the
outline of the firearm in Moreno’s pocket. After the drug transaction, the law
enforcement officer heard the sound of a safety being engaged on a firearm. Our
review of this evidence supports the conclusion that a reasonable jury, viewing
the evidence in the light most favorable to the government, could have found
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Moreno guilty of carrying a firearm during and in relation to a drug trafficking
crime beyond a reasonable doubt. See United States v. Garza, 566 F.3d 1194,
1202 (10th Cir. 2009) (applying this standard to review the sufficiency of the
evidence for a conviction under 18 U.S.C. § 924(c)(1)(A)).
Our review of the record reveals no basis for an objection by Moreno’s
counsel to the admission of the officer’s observations. Without further
clarification, Moreno cannot overcome the strong presumption that his counsel
was pursuing a sound trial strategy. Because the evidence supporting Moreno’s
conviction was sufficient, Moreno’s counsel was not ineffective when he failed to
challenge the sufficiency of the evidence. Similarly, because the evidence related
to the firearm was sufficient to support the firearm conviction, Moreno’s rights
under the Sixth Amendment were not violated. Lastly, because there was
sufficient evidence to convict Moreno under 18 U.S.C. § 924(c)(1)(A), it is
unclear what basis Moreno’s counsel would have had to object to the imposition
of the sentence under this statute.
After reviewing Moreno’s application for a COA, his present briefing, and
the record on appeal, we agree with the district court and conclude that no
reasonable jurist could conclude that Moreno made a substantial showing of a
violation of his constitutional rights. We conclude that he has failed to establish
his entitlement to a COA. Because we deny Moreno’s COA, we also deny his
motion to proceed IFP.
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Moreno’s request for a COA is DENIED, and this matter is DISMISSED.
Moreno’s motion to proceed IFP is DENIED.
ENTERED FOR THE COURT
Mary Beck Briscoe
Circuit Judge
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