FILED

United States Court of Appeals

Tenth Circuit

April 16, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

WELDON H. ANGELOS,

Movant.

No. 09-4190

(D.C. No. 2:07-CV-00936-TC)

(D. Utah)

ORDER

Before LUCERO, TYMKOVICH, and GORSUCH, Circuit Judges.

Weldon H. Angelos has filed a motion to remand or in the alternative for

authorization to file a second or successive 28 U.S.C. § 2255 motion. We deny

the motion for remand and the motion for authorization.

Background

In December 2003, Mr. Angelos was convicted by a jury of a number of

drug and firearm crimes. Three of the counts for which he was convicted

involved violations of 18 U.S.C. § 924(c), which prohibits a person from

possessing a firearm during and in relation to a drug trafficking crime. The

mandatory minimum sentence resulting from those counts was 55 years. The

district court sentenced Mr. Angelos to 55 years and 1 day in prison. This court

affirmed his convictions and sentence, see United States v. Angelos, 433 F.3d

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738, 742 (10th Cir. 2006), and the Supreme Court denied his petition for a writ of

certiorari, see Angelos v. United States, 127 S. Ct. 723 (2006). 

On December 3, 2007, Mr. Angelos filed a motion to vacate, set aside, or

correct sentence pursuant to 28 U.S.C. § 2255. In his motion, Mr. Angelos

argued that his sentence violated the Second and Eighth Amendments to the

Constitution; he was denied his Fifth Amendment right to due process and equal

protection; and he was denied his Sixth Amendment right to effective assistance

of counsel. On December 8, 2008, the district court entered an order denying

Mr. Angelos’s claims under the Second, Fifth and Eighth Amendments because

they were procedurally barred. On the Sixth Amendment claim, Mr. Angelos

alleged a number of separate instances of ineffective assistance of counsel. The

district court denied all of these claims on the merits, with the exception of

Mr. Angelos’s claim that he received ineffective assistance of counsel during his

plea negotiations. The district court held a hearing on the remaining

ineffective-assistance claim in March 2009. After the hearing and further briefing

by the parties, the district court denied that claim on the merits in an order

entered April 29. 

In May 2009, Mr. Angelos filed a motion to reconsider the district court’s

December 8 and April 29 orders, seeking relief under Rule 59 and Rule 60(b) of

the Federal Rules of Civil Procedure. In addition to seeking reconsideration of

the district court’s two orders, Mr. Angelos also sought “an order permitting

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[him] to add facts and claims to his original 2255 motion.” Dist. Ct. Doc. 63 at 2. 

The district court determined that Mr. Angelos was attempting to file successive

§ 2255 claims. It therefore concluded that it lacked jurisdiction to consider those

successive claims and transferred them to this court in order for Mr. Angelos to

seek authorization under 28 U.S.C. § 2244(b)(3). Mr. Angelos now argues that

his claims were erroneously transferred to this court and that they should be

remanded to the district court for consideration on the merits. Alternatively,

Mr. Angelos asserts that his claims meet the standard for authorization under

§§ 2244(b) and 2255(h). The government has filed an opposition to

Mr. Angelos’s combined motion.

Motion for Remand

In his motion for remand, Mr. Angelos argues that the district court erred

by characterizing his claims as successive. He explains that he seeks to

supplement his claims under the Fifth and Sixth Amendments for prosecutorial

misconduct and ineffective assistance of counsel, as well as bring new Fifth

Amendment claims for violations of Brady v. Maryland, 373 U.S. 83 (1963) and

Giglio v. United States, 405 U.S. 150 (1972). Mr. Angelos contends that all of

these claims are based on newly discovered evidence. 

We have explained that, under the Supreme Court’s decision in Gonzalez v.

Crosby, 545 U.S. 524 (2005), a Rule 60(b) motion “is a second or successive

petition if it in substance or effect asserts or reasserts a federal basis for relief

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Mr. Angelos also argues that the new evidence was brought to the attention 1

of the district court on several occasions prior to the district court’s disposition of

his remaining ineffective-assistance claim. But Mr. Angelos did not move to

amend his initial § 2255 motion as required by Rule 15 of the Federal Rules of

Civil Procedure.

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from the petitioner’s underlying conviction.” Spitznas v. Boone, 464 F.3d 1213,

1215 (10th Cir. 2006). We have further explained that “[i]t is the relief sought,

not [the] pleading’s title, that determines whether the pleading is a § 2255

motion.” United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006). 

Mr. Angelos argues that his new claims are not successive because they were

brought pursuant to Rule 59(e) during the pendency of his initial habeas action.1

For support, he relies on Howard v. United States, 533 F.3d 472 (6th Cir. 2008),

Whab v. United States, 408 F.3d 116 (2d Cir. 2005), and Douglas v. Workman,

560 F.3d 1156 (10th Cir. 2009). 

In Howard, the Sixth Circuit declined to extend the Supreme Court’s

decision in Gonzalez to Rule 59(e) motions and concluded that even when a

Rule 59(e) motion raised a new ground for relief, it did not constitute a second or

successive § 2255 motion. See Howard, 533 F.3d at 474-75. But, as the district

court explained in its transfer order, the Howard court’s reasoning does not

dictate the analysis to be followed in this circuit. In fact, the Howard court

“recognize[d] that language in cases from the Fourth, Eighth, and Tenth Circuits

indicates that Gonzalez applies with equal force to Rule 59(e) motions.” Id. at

476 (citing in part United States v. Pedraza, 466 F.3d 932, 933-34 (10th Cir.

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2006)). In Pedraza, 466 F.3d at 933-34, we noted that Rule 59(e) motions were

“subject to the same characterization” as Rule 60(b) motions, and explained that a

Rule 59(e) motion that “presented substantive argument reasserting a federal basis

for relief from [the] underlying conviction” should be transferred to this court in

order for the movant to seek authorization to file a second or successive § 2255

motion. 

Mr. Angelos’s citation to Whab is similarly unpersuasive. In Whab,

408 F.3d at 118, the Second Circuit concluded that new § 2255 claims did not

need authorization under § 2244(b) “so long as the appellate proceedings

following the district court’s dismissal of the initial petition remain pending when

a subsequent petition is filed.” But we expressly declined to follow the Whab

decision, explaining that the reasoning in the Whab decision was “clearly

precluded by general principles established in our case law addressing various

attempts to circumvent § 2244(b) requirements, particularly following the

Supreme Court’s decision in Gonzalez.” Ochoa v. Sirmons, 485 F.3d 538, 540

(10th Cir. 2007). We emphasized that “[t]he point is that § 2244(b) authorization

is required whenever substantively new claims are raised; procedural associations

with prior habeas matters must not obscure the fact that the petitioner is really

pursuing a second or successive petition.” Id. at 541.

Finally, Mr. Angelos argues that our decision in Douglas supports his

position that a new claim can be raised even after the district court has ruled on

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an initial § 2255 motion. But in Douglas we did not overrule Ochoa or any of our

other precedent on the treatment of successive claims. See Douglas, 560 F.3d at

1189-90 (recognizing Ochoa as valid precedent but concluding that the “unusual

circumstances” in the Douglas case made it distinguishable from Ochoa). In

Douglas, we explained that it “made sense to allow Mr. Douglas to supplement

his previously asserted prosecutorial misconduct claim with his Brady

allegations,” where the allegations involved 

proven willful misconduct by the prosecutor in eliciting [the main

witness’s] false testimony at Mr. Douglas’s trial, in using that false

testimony to improperly vouch for [the main witness’s] veracity to

the jury during closing arguments, and in taking affirmative action to

cover up the tacit agreement the prosecutor made with [the main

witness] in exchange for the witness’s testimony against

Mr. Douglas.

Id. at 1190. We determined that “[b]ecause the prosecutor acted willfully, and

not just negligently or inadvertently, his conduct warrants special condemnation

and justifies permitting Mr. Douglas to supplement his initial habeas petition.” 

Id. We also noted that there were seven factors that we considered in reaching

this conclusion, including the fact that it was a death penalty case, as well as the

willful and intentional nature of the alleged prosecutorial misconduct. We

emphasized, however, that “it will be a rare case where such factors will be

present” and therefore “they serve to narrow significantly the circumstances that

would justify permitting a habeas petitioner to supplement his first habeas

petition in this same manner.” Id. at 1190 n.20. 

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Mr. Angelos’s case does not present the type of unusual circumstances

present in the Douglas case. There is no evidence in this case of the type of

egregious and intentional prosecutorial misconduct at issue in the Douglas case;

instead, Mr. Angelos alleges that the prosecution failed to disclose potential

impeachment evidence. The narrow exception carved out by our court in Douglas

does not apply to Mr. Angelos’s case. As the district court correctly concluded,

Mr. Angelos’s claims assert or reassert a basis to set aside his conviction and

therefore they are second or successive claims requiring authorization from this

court under § 2244(b)(3). Accordingly, the motion for remand is denied. 

Motion for Authorization

In order to be entitled to authorization to file a second or successive

§ 2255, Mr. Angelos must show that he has “newly discovered evidence that, if

proven and viewed in light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that no reasonable factfinder would

have found [him] guilty of the offense.” 28 U.S.C. § 2255(h)(1). In other words,

“a federal court can consider a claim presented in a second or successive

application only if the prisoner shows, among other things, that the facts

underlying the claim establish his innocence by clear and convincing evidence.” 

Calderon v. Thompson, 523 U.S. 538, 558 (1998) (emphasis added). Mr. Angelos

has not met this standard.

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Two of the three § 924(c) counts that form the basis for Mr. Angelos’s

55-year sentence involved controlled drug buys using a confidential informant,

Ronnie Lazalde. It was Mr. Lazalde’s testimony about seeing guns in

Mr. Angelos’s possession during drug transactions on May 21 and June 4, 2002,

that helped to convict Mr. Angelos on those two § 924(c) counts. The newly

discovered evidence all relates to these two counts. It includes three items: 

(1) a videotape of a March 28, 2002, interview of Mr. Lazalde by the Duchesne

County Sheriff’s Office; (2) notes from Detective Jason Mazuran’s initial

interview with Mr. Lazalde; and (3) a June 26, 2002, letter to Mr. Lazalde

purportedly from inmate Ronnie Ontiveros.

At the outset we note that Mr. Angelos previously conceded before the

district court that he was not actually innocent of the § 924(c) count from the

May 21 drug transaction. Dist. Ct. Doc. 76 at 4. He did argue, however, that he

was actually innocent of the § 924(c) drug count from the June 4 drug transaction. 

See id. Consistent with his earlier concession, Mr. Angelos argues in his motion

for authorization that based on the new evidence and the alleged prosecutorial

misconduct, ineffective assistance of counsel, and Brady/Giglio violations,

“a reasonable jury would have acquitted [him] of at least one of the underlying

offenses on which he was sentenced.” Mot. at 39; see also id. (noting that

“[Mr.] Angelos has persistently and repeatedly asserted from the very outset of

his prosecution that he is actually, factually innocent of at least one of the critical

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gun possession convictions”). As a result, our analysis will focus on the § 924(c)

conviction arising out of the June 4 transaction.

At trial, Mr. Angelos’s defense theory was that Detective Mazuran and

Mr. Lazalde were not being truthful about the presence of a firearm during the

May and June marijuana sales. Jerome Mooney, Mr. Angelos’s trial counsel

cross-examined Detective Mazuran extensively about the fact that the initial

summary of the controlled buys did not include any statements that Mr. Lazalde

had seen a firearm during the transactions, and that Detective Mazuran did not

report until much later, on October 30, that Mr. Lazalde had seen Mr. Angelos

with a gun during the May and June transactions. Mr. Mooney then highlighted

the absence of any mention of the guns in the initial police reports in his closing

argument. Mr. Mooney also cross-examined Mr. Lazalde about the firearm

sightings from the May and June transactions and in his closing argument

presented the defense theory that Mr. Lazalde could not have been in a position to

actually see a gun on Mr. Angelos’s person during the June 4 transaction. 

Finally, Mr. Mooney argued that Mr. Lazalde was motivated to make things look

more serious with Mr. Angelos so that he could get a good deal in exchange for

his information.

With respect to the new evidence, Mr. Angelos asserts that the videotape of

the March 2002 interview “in which [Mr. Lazalde] pleads for the opportunity to

cooperate and promises ‘major’ cooperation, showcases his willingness to do

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‘anything’ to please authorities to help ensure lenient treatment in response to his

own criminal activities.” Mot. at 14 (quoting id., Ex. F at 15, 23). He contends

that the notes from the initial interview with Mr. Lazalde show that

Detective Mazuran had a pattern of documenting references to firearms and

supports Mr. Angelos’s defense theory that if Mr. Lazalde had mentioned the

presence of a gun during the May and June transactions, Detective Mazuran

would have documented it in the initial reports. Finally, Mr. Angelos explains

that the letter from one of Mr. Lazalde’s friends in late June 2002 demonstrates

that Mr. Lazalde’s status as an informant had been compromised. Mr. Angelos

argues that he “could have used that evidence to show the jury that Lazalde had a

motive to exaggerate Angelos’s criminal activities in order to maximize the value

of his assistance because his utility as an informant had come to an abrupt end

because his status had been compromised.” Id. at 16.

This new evidence, however, does not offer any new facts establishing

Mr. Angelos’s actual innocence; rather, it is simply potential impeachment

evidence that could have been used to supplement the existing impeachment

evidence in supporting the defense theory that was fully explored at trial: that

Detective Mazuran and Mr. Lazalde were lying about the presence of a firearm

during the June 4 transaction. See Sawyer v. Whitley, 505 U.S. 333, 349 (1992)

(rejecting a new evidence claim based on impeachment evidence because it failed

to show that petitioner was actually innocent and explaining that this type of

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evidence “will seldom, if ever,” meet the standard for authorization). Moreover,

despite Mr. Angelos’s argument to the contrary, Mr. Lazalde’s testimony was not

the only evidence supporting a conviction on the June 4 § 924(c) charge. 

As we explained in our decision in Mr. Angelos’s direct appeal, the

relevant § 924(c) charge was tied to Mr. Angelos’s possession of a 10 millimeter

Glock pistol. Angelos, 433 F.3d at 749. In addition to Mr. Lazalde’s testimony

that he saw Mr. Angelos wearing the Glock pistol in an ankle holster during the

controlled buy and Detective Mazuran’s testimony that Mr. Lazalde reported this

observation to him after the controlled buy, deputies from the Salt Lake County

Sheriff’s Office testified that, in July 2002, they responded to a fight involving

Mr. Angelos and seized a 10 millimeter Glock pistol that he was wearing in an

ankle holster. Id. Mr. Angelos’s former girlfriend, Chelsea Davenport, also

“testified that, during the course of their relationship, Mr. Angelos consistently

carried a black gun in an ankle holster, particularly when selling drugs.” Id. 

Finally, Detective Mazuran testified that the substantial amount of lint found in

the receiver of the Glock pistol that was recovered from Mr. Angelos in July was

consistent with being carried in an ankle holster over the long term. Resp. to

Mot., Ex. U at 130. Mr. Angelos has failed to show that his newly discovered

evidence “would be sufficient to establish by clear and convincing evidence that

no reasonable factfinder would have found [him] guilty” of the § 924(c) count

based on the June 4 drug transaction. 28 U.S.C. § 2255(h)(1).

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Conclusion

Mr. Angelos’s motion for remand is DENIED. Mr. Angelos’s motion for

authorization is also DENIED. The denial of authorization is not appealable and

may not be the subject of a petition for rehearing or for a writ of certiorari. Id.

§ 2244(b)(3)(E). This matter is TERMINATED. 

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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