United States v. Moreira

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS March 24, 2011
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 10-3321
(D.C. No. 2:06-CR-20021-KHV-JPO-1
v. & 2:10-CV-02004-KHV)
(D. Kansas)
HECTOR MOREIRA,

Defendant - Appellant.

ORDER DENYING
CERTIFICATE OF APPEALABILITY *

Before BRISCOE, ANDERSON, and MURPHY, 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 matter. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Hector Moreira, proceeding pro se, seeks a certificate of appealability

(“COA”) to appeal the district court’s denial of his motion pursuant to 28 U.S.C.

§ 2255. Mr. Moreira pleaded guilty to conspiracy to violate and violation of

*
This order is not binding precedent except under the doctrines of law of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.
multiple federal drug trafficking laws and was sentenced to life in prison. He

filed a direct appeal of his sentence which this court affirmed. United States v.

Moreira, 317 Fed. App’x 745 (10 th Cir. 2008). Subsequently he filed the instant

§ 2255 motion seeking to vacate his sentence and conviction and withdraw his

guilty plea, alleging ineffective assistance of counsel. The district court denied

the motion and declined to issue a COA.

For the reasons stated below, we deny COA and dismiss this matter.

BACKGROUND

Mr. Moreira does not claim factual innocence. Nor does he dispute the

essential underlying facts which are detailed by the district court in its

Memorandum and Order dated October 13, 2010. The facts show that

Mr. Moreira was involved with a number of others, in a drug-trafficking operation

in Kansas City, Kansas. That operation was investigated by the Drug

Enforcement Administration (“DEA”) beginning in 2005. Using confidential

sources and surveillance, the DEA confirmed that Mr. Moreira was selling and

coordinating the sale of methamphetamine, part of which activities involved a

location at 1814 Bunker Avenue in Kansas City. The district court summarizes

Mr. Moreira’s arrest and subsequent charges as follows:

On April 29, 2006, DEA agents arrested . . . Moreira and
Perez-Jacome at the Bunker Avenue house. DEA agents had already
arrested the other members of the conspiracy. When agents entered

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 the Bunker Avenue residence, they saw Moreira standing at the stove
with a pot of methamphetamine and baggies nearby, and
approximately one-half kilogram of cocaine on the kitchen table.
During the search of the Bunker Avenue house, agents found large
amounts of drugs and drug paraphernalia. In a drop ceiling, agents
also found four handguns, an AK-47 assault rifle, an SKS Norinco
assault rifle, various magazines, a large amount of ammunition and
more than $7,000.

On May 26, 2006, a grand jury returned a 21-count indictment
which charged Moreira and 12 co-defendants. In particular, the
indictment charged defendant with (1) conspiracy to possess with
intent to distribute 50 grams or more of methamphetamine, 500 grams
or more of cocaine, 50 grams or more of methamphetamine, and a
detectable amount of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(viii), (b)(1)(B)(ii), (b)(1)(D), 846, and 18
U.S.C. § 2; and (2) distribution of five grams or more of
methamphetamine, in violation of 21 U.S.C. § 841 (a)(1) and
(b)(1)(B)(viii), and 18 U.S.C. § 2. Trial was set for March 20, 2007.
On March 19, 2007, three co-defendants (Kenet Del Cid-Rendon,
Terri Burford and Justin Bolligi) pled guilty. On the day of trial,
defendant and his remaining three co-defendants (Bayron Moreira,
Edguar Lizard-Figueroa and Alberto Perez-Jacome) pled guilty
without plea agreements. 3 Even so, as to defendant, the government
agreed to recommend a sentence at the low end of the applicable
sentencing guideline range.

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3
The Court later allowed Perez-Jacome to withdraw his plea, but a jury
ultimately convicted him and the Tenth Circuit affirmed his conviction. See
United States v. Perez-Jacome, 356 Fed. Appx. 212 (10 th Cir. 2009).

Mem. & Order at 2-3.

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 On March 20, 2007, the day scheduled for his trial to begin, Mr. Moreira

appeared in court and entered a plea of guilty. The district court held an extensive

hearing, pursuant to Fed. R. Crim. P. 11, prior to accepting the guilty plea. At the

beginning of the hearing there was some discussion as to the length of sentence

Mr. Moreira would be facing, and the court took a 40-minute recess to allow Mr.

Moreira to confer further with his counsel. Following that recess, the court took

every precaution to make sure Mr. Moreira understood that he was facing a prison

term which could be up to life, to be determined by the court at the time of

sentencing. The court explained at length the many factors which could affect

what sentence the court would ultimately impose. Those factors explicitly

included an explanation of the use and potential impact of relevant conduct. In

particular, the court took pains to address Mr. Moreira and establish on the record,

by eliciting responses from him, that no sentence was promised, set or guaranteed.

Throughout, the district court established from Mr. Moreira that he was pleading

guilty voluntarily.

After pleading guilty, Mr. Moreira did not file a motion pursuant to Fed. R.

Crim. P. 11(d)(2) or in any other way seek to withdraw that plea prior to

sentencing.

At sentencing on October 4, 2007, Mr. Moreira’s counsel objected to the

Presentence Investigation Report (“PSIR”):

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 because (1) it included the enhancement for possession of a firearm,
(2) it did not include a downward adjustment for a minor or minimal
role in the offense, (3) it stated that he was not eligible for a two level
downward adjustment under the “safety valve” provision of U.S.S.G.
§5C1.2 and (4) it overstated the amount of drugs attributable to him.
Defendant also objected to the government’s failure to request a third
level for acceptance of responsibility.

Id. at 4. The district court, after hearing testimony from government witnesses,

overruled those objections.

Subsequently, Mr. Moreira appealed his sentence, which, as mentioned

above, this court affirmed; but he did not challenge his guilty plea.

On January 4, 2010, two years and three months from the date he was

sentenced, Mr. Moreira filed the instant § 2255 motion, seeking to vacate his

guilty plea. In his motion, he raised more than a dozen issues, the bulk of which

were under the rubric of alleged ineffective assistance of counsel. However, his

brief to this court pursues only three claims: (1) ineffective assistance of counsel

resulting in a plea of guilty without a plea agreement; (2) ineffective assistance of

counsel in that counsel failed to challenge the district court’s jurisdiction and seek

a dismissal of the indictment due to an alleged violation of the Speedy Trial Act;

and (3) alleged abuse of discretion by the district court in failing to conduct an

evidentiary hearing. Aplt’s Combined Op. Br. & App. for COA at 3-4.

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 DISCUSSION

Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make “a

substantial showing of the denial of a constitutional right.” Miller-El v. Cockrell,

537 U.S. 322, 336 (2003). He may do so by “showing that reasonable jurists could

debate whether . . . the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks

omitted). Thus, when the district court has ruled on the merits of the prisoner’s

claims, he must show that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Id.

A claim of ineffective assistance of counsel is a mixed question of law and

fact which we review de novo. Fisher v. Gibson, 282 F.3d 1283, 1290 (10 th Cir.

2002). To establish ineffective assistance of counsel, a criminal defendant must

demonstrate: (1) that his trial counsel was deficient such that he was deprived of

”reasonably effective assistance”; and (2) that counsel’s deficient performance

prejudiced his case, meaning that “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, 687, 694 (1984). It is

permissible for a reviewing court, if it so chooses, to proceed directly to the

prejudice prong of the Strickland analysis. Id. at 697 (“If it is easier to dispose of

an effectiveness claim on the ground of lack of sufficient prejudice, which we

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expect will often be so, that course should be followed.”); see Romano v. Gibson,

239 F.3d 1156, 1181 (10 th Cir. 2001) (“This court can affirm the denial of habeas

relief on whichever Strickland prong is easier to resolve.”). Prejudice in the guilty

plea context requires Mr. Moreira to establish that “there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Because Moreira is proceeding pro se, we construe his filings liberally. See Van

Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10 th Cir. 2007).

1. Ineffective Assistance – Guilty Plea

Mr. Moreira’s complaints about his counsel are numerous. He alleges that

counsel did not meet with him for eight months prior to the scheduled trial date,

did not prepare for trial, did not inform him that when he appeared on March 20,

2007, it was for his trial to begin, filed no pretrial motions, did not explain the

sentencing guidelines or the role of relevant conduct, did not seek to plea bargain

with the government so that there was no benefit of a plea agreement, directed him

to plead guilty because of lack of preparation, and promised a sentence of thirty

years. Mr. Moreira further alleges that he was vulnerable because he did not know

the justice system and trusted his attorney. These representations boil down to

claims by Mr. Moreira that his guilty plea was not knowing and voluntary because

he was, essentially, tricked, enticed or coerced into pleading guilty; and that he

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had been promised a thirty-year sentence. Further, he claims that his attorney

deprived him of the plea bargain process which, arguably, would have yielded a

shorter sentence.

As indicated above, the district court thoroughly examined and confirmed

the voluntariness of Mr. Moreira’s plea and established the fact that although

counsel roughly estimated a sentence of thirty years, no promises or guarantees

were made. To the contrary, Mr. Moreira was specifically advised that his

sentencing range included life. Those findings by the district court, and relevant

case law citations, are uncontested in Mr. Moreira’s brief to this court.

We have reviewed the change of plea hearing transcript covering more than

80 pages. Change of Plea Hr’g Tr., Mar. 20, 2007. The record establishes beyond

question that Mr. Moreira pled guilty intelligently, knowledgeably and voluntarily,

and did so without threat, promise or coercion, all as found by the district court in

this § 2255 proceeding. D. Ct. Memo. and Order at 7-11.

As for the allegation that the government would have offered a beneficial

plea agreement if counsel had attempted to bargain, that argument is both legally

and factually unavailing. First, it is rank speculation. Second, the facts do not

support it. At sentencing, Mr. Moreira’s counsel stated (in arguing for a further

acceptance of responsibility adjustment, and explaining the delay in entering a

plea):

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 [MR. SIMON:] The Court will remember at the time we
entered the plea, the Court inquired as to why this plea had not been
entered earlier and I advised the Court at that time that we had
attempted to enter into a Plea Agreement and it would be somewhat
beneficial to Mr. Moreira which would involve debriefing.
The government advised me they were not particularly
interested in Mr. Moreira’s debriefing because, first of all, they
viewed him as being at the top of the food chain, at the apex of the
pyramid, and second, that the government believed it had a
sufficiently strong case to proceed without Mr. Moreira’s cooperation.
It was only on the day of trial when Mr. Moreira entered his
plea that the government agreed to let Mr. Moreira be debriefed and
he, in fact, was debriefed.

Tr. of Sentencing Hr’g, Oct. 4, 2007, at 56.

Government counsel then responded:

[MS. MOREHEAD:] You know, our position all along was our case
was strong, we didn’t need – and we didn’t – we shouldn’t have had
to allow Mr. Moreira the opportunity to be debriefed. Regardless, we
did, and, frankly, Judge, it was the most worthless debriefing of
anybody I can say I’ve debriefed in the five years since I’ve been
here. And I’ve been involved in debriefing a lot of individuals. It
was a big waste of time. And he gave us no useful information.
So, again, that was another reason that we had declined all
along was we didn’t think he would have anything to offer or that he
would give us anything of any benefit. And he didn’t.

Id. at 60.

The district court clearly did not err in rejecting Mr. Moreira’s claims of

ineffective assistance of counsel in connection with Mr. Moreira’s guilty plea.

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 2. Ineffective Assistance – Speedy Trial Act

The Speedy Trial Act, 18 U.S.C. § 3161, et seq. (“Act”), requires that

defendants be tried within 70 days of indictment or their first appearance in court,

whichever is later. It also specifies that certain periods of time may be excluded

from the 70-day calculation. Mr. Moreira’s brief alleges that his counsel was

ineffective for failing to move for dismissal of the indictment because the Act was

violated, citing the recent Supreme Court decision in Bloate v. U.S., 130 S. Ct.

1345 (2010).

The district court addressed this claim pointing out that excludable periods

of delay under the Act include periods relating to co-defendants, § 3161(h)(6),

and, by reference, identifying qualifying periods of delay in this case. D. Ct.

Memo. and Order at 6. Mr. Moreira does not contest any part of the district

court’s reasoning or authorities on this point, or on the related Sixth Amendment

issue. Likewise, Mr. Moreira does not address the fact that, in any event, a guilty

plea constitutes a waiver of any right to dismissal under the Act. Id. at

§ 3162(a)(2). And, finally, he fails, also in any event, to establish prejudice since

he cannot show that even if there were a hypothetical dismissal, it would have

been with, instead of without, prejudice. See id. § 3162(a)(1).

In these and other respects Mr. Moreira’s citation to Bloate, 130 S. Ct. 1345,

is both unavailing and inapposite. That case deals only with the excludability of

time for preparing pretrial motions.

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 3. Evidentiary Hearing

Mr. Moreira argues that the district court’s decision not to hold an

evidentiary hearing on his § 2255 petition constituted an abuse of discretion. A

district court “must hold an evidentiary hearing on the prisoner’s claims unless the

motion and files and records of the case conclusively show that the prisoner is

entitled to no relief.” United States v. Lopez, 100 F.3d 113, 119 (10 th Cir. 1996);

28 U.S.C. § 2255(b). We review a district court’s decision not to hold a hearing

for abuse of discretion. Lopez, 100 F.3d at 119. Mr. Moreira’s argument on this

point is long on rhetoric and speculative possibilities. The district court concluded

that no hearing was necessary. D. Ct. Memo. and Order at 16. As discussed

above, none of Mr. Moreira’s contentions in his § 2255 motion have merit, and so

we cannot hold that the district court abused its discretion in electing not to hold

an evidentiary hearing.

CONCLUSION

The district court’s Memorandum and Order thoroughly, cogently, and

correctly addresses Mr. Moreira’s assertions. For the reasons stated above, and

substantially for the reasons set out in the district court’s opinion, we conclude

that reasonable jurists could not debate the propriety of the district court’s

dismissal of Mr. Moreira’s § 2255 petition. We therefore DENY Mr. Moreira’s

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application for a COA and dismiss this matter. Finally, we DENY his motion to

proceed in forma pauperis.

ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

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