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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Aquileo Melchor-Zaragoza, 

Petitioner, 

vs.

The United States of America, 

Respondent. 

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No. CR 01-17-PHX-JAT

CV 04-2766-PHX-JAT (LOA)

ORDER

Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus which he

filed on December 3, 2004 (Doc. #290) pursuant to 28 U.S.C § 2255. On August 30, 2005,

the Magistrate Judge to which the Petition was assigned issued a Report and

Recommendation (Doc. #307) recommending that the Petition be denied. On September 19,

2005, Petitioner filed objections to the Report and Recommendation (Doc. #309).

Review of Report and Recommendation

This Court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that the

district judge must review the magistrate judge’s findings and recommendations de novo if

objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121

(9th Cir. 2003) (en banc) (emphasis in original). Because objections were filed to all aspects

of the Report and Recommendation, the Court will conduct a de novo review.

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Claims in the Petition

First, Petitioner incorporates the factual and procedural background section of his

underlying case and conviction as recounted by the Magistrate Judge at pages 1-3 of the

Report and Recommendation. See Objections at 1. Accordingly, this Court accepts and

adopts this portion of the Report and Recommendation. Next, Petitioner objects to the

Magistrate Judge's conclusion with respect to each of Petitioner's claims. 

Claims 1, 2, and 4

Petitioner's claims 1, 2 and 4 are based on Apprendi, Blakely, and Ameline (Ameline

being the Ninth Circuit Court of Appeals case interpreting the what is required after Booker).

As discussed above, this case is before this Court as a habeas petition. None of the cases on

which Petitioner relies create an avenue of relief for cases in the habeas context. United

States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir. 2002) (Apprendi); Cook v. United

States, 386 F.3d 949, 950 (9th Cir. 2004) (Blakely); and United States v. Cruz, 423 U.S. 1119,

1119 (9th Cir. 2005) (Booker). Accordingly, Petitioner's claims 1, 2, and 4 will be denied.

Claim 5

In claim 5, Petitioner argues duplicity with respect to counts one and two of the

indictment under which he was charged and convicted. 

Count 1 of the Indictment

Petitioner claims count 1 of the indictment is duplicitous because it charges him under

two statutes, each of which has a conspiracy section. Petitioner goes on to argue that reading

these two statutes together, there would be five or more possible charges of conspiracy as

part of count 1. In his objections, Petitioner cites no law and makes no argument as to why

the indictment cannot allege multiple statutes that may be violated by the same conspiracy.

Additionally, this Court agrees with the conclusion of the Report and Recommendation that

it is clear from the verdict form that the jury convicted Petitioner of a single conspiracy with

respect to count one, which was conspiracy to commit hostage taking. Accordingly, the

Petition will be denied on the duplicity theory as it relates to count 1.

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Count 2 of the Indictment

Petitioner argues that count 2 of the indictment is also duplicitous because it entwines

"conspires and attempts" language from 18 U.S.C. § 1203 with the "aiding and abetting"

language of 18 U.S.C. § 2. The Magistrate Judge concludes that this charging methodology

is not duplicitous because it merely clarifies that Petitioner is not being charged solely for

his role as a conspirator, but also as a principal for aiding and abetting. Petitioner objects

stating, "In reading the structure of Counts One, Two, Three and Four with the district court's

instructions, and the lack of specific verdicts... it becomes clear that the convictions violate

the Fifth and Sixth Amendments." Objections at 9. 

Thus, Petitioner appears to be urging this Court to review the first four counts of the

indictment, the jury instructions, and the verdict forms to determine if taking them all

together there is a violation of the Fifth and/or Sixth Amendment. Such a general objection

makes it very difficult for the Court to pinpoint the basis for the objection to the Magistrate

Judge's conclusion in the Report and Recommendation. However, after considering the issue

de novo, the Court agrees with the Magistrate Judge that the verdict forms make clear that

Petitioner was convicted on count one of conspiracy to commit hostage taking, and on count

two of hostage taking. Therefore, the Court finds that the indictment was not duplicitous and

relief on this basis with respect to counts 1 and 2 will be denied.

Claim 6

In claim 6, Petitioner argues that the indictment is multiplicitous because Petitioner

posits that he engaged in a single plan or scheme, but he was convicted of separate counts

relating to that plan and scheme. As the Report and Recommendation recounts, a person can

be convicted of multiple crimes for a single act, or series of actions, so long as each offense

requires proof of a fact that the other does not. See U.S. v. Alerta , 96 F.3d 1230, 1237-39

(9th Cir. 1996)(citing Blockburger v. U.S., 284 U.S. 299, 304 (1932)) overruled on other

grounds, U.S. v. Nordby, 225 F.3d 1053 (9th Cir. 2000); Albernaz v. U.S., 450 U.S. 333, 344,

n.3 (1981) ("It is well settled that a single transaction can give rise to distinct offenses under

separate statutes without violating the Double Jeopardy Clause. This is true though the

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1

 In essence, the charging at issue in Alerta is the same type of charging to which

Petitioner objects with respect to count 1 (claim 5) in this case. However, while count 1

charged a violation of both the general conspiracy statute of the specific conspiracy section

of the statute at issue in this case, because it was ONLY a single count, unlike Alerta, the

charging in count 1 did not run afoul of Alerta.

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'single transaction' is an agreement or conspiracy."); Report and Recommendation at 17;

compare Albernaz, 450 U.S. at 337-38 (upholding consecutive sentences for two conspiracy

charges arising from a single conspiracy having dual objectives) with Launius v. U.S., 575

F.2d 770, 771, n.1 (9th Cir 1978) (finding multiplicitous two counts of conspiracy arising

from one drug smuggling venture when each count alleged the same conspiracy) and Alerta

v. U.S., 96 F.3d 1230, 1239 (9th Cir. 1996) overruled on other grounds, U.S. v. Nordby, 225

F.3d 1053 (9th Cir. 2000) (finding multiplicitous two counts of conspiracy for the same

conduct when one charged a conspiracy in violation of the general conspiracy statute (18

U.S.C. § 371) and one charged a conspiracy in violation of the specific conspiracy section

of the statute at issue (21 U.S.C. § 846)).1

Specifically, Petitioner objects that count 1 charged him with conspiracy to commit

hostage taking, count 3 charged him with conspiracy to harbor illegal aliens, and count 4

charged him with concealing, harboring and shielding from detection illegal aliens, but that

all of these counts arise from a single act. After reviewing the jury instructions (see R&R

at 17-18), the Court agrees with the Report and Recommendation that each of these 3 counts

requires elements that are different from the other counts. Specifically, each conspiracy

relates to a different statutory offense, and conspiracy to commit a crime is a different

offense from the crime that is the object of the conspiracy. See American Tobacco Co. v.

U.S., 328 U.S. 781, 789 (1946). Therefore, considering these three counts together, the Court

finds that indictment is not multiplicitous, and relief on claim 6 will be denied.

Claim 7

In claim 7, Petitioner argues that there was a constructive amendment to the

indictment with respect to the "duplicitous" offenses charged in count 1, and the

"multiplicitous" conspiracy charges discussed in claim 6 (which would presumably be a

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repeat of count 1, and then include counts 3 and 4). The Report and Recommendation

concludes that the theory of claim 7 repeats what the Report and Recommendation had

already discussed in claims 5 and 6. Petitioner objects stating, "the indictment was

constructively amended in violation of the Fifth and Sixth Amendment. This claim does

indeed rely on the theories advanced in claims five and six, and despite the fact that the

Magistrate has erroneously concluded that these claims lack merit, [Petitioner] asserts that

these claims do not lack merit and, therefore, do not fail. ... [Petitioner] begs the court to

evaluate the merits of his arguments before ceremoniously denying them." Objections at 12.

The Court agrees with the Report and Recommendation, as agreed to in the

Objections, that because claim 7 relies on the theories of claims 5 and 6, and because the

theories of claims 5 and 6 have already been evaluated and rejected on the merits, claim 7

is also rejected. Moreover, in his Objections, Petitioner fails to assert any theory or argument

for how this "constructive amendment" claim could entitle him to relief despite claims 5 and

6 being rejected. Accordingly, relief based on "constructive amendment" will be denied.

Claim 8

In claim 8, Petitioner argues that the indictment was incorrect in the wording of the

charge under 18 U.S.C. § 924, and that the jury instructions (which did not use the exact

same language as the indictment) amended the indictment. Petitioner relies on U.S. v.

Combs, 369 F.3d 925, 934 (6th Cir. 2004). Basically, Petitioner argues that 18 U.S.C. §

924(c)(1)(A) creates two separate and distinct offences: 1) using or carrying a firearm during

and in relation to a crime of violence or 2) possessing a firearm in furtherance of a crime of

violence. See Report and Recommendation at 19-22. The indictment in this case said,

"defendant did possess, carry and brandish a firearm during and in relation to a crime of

violence." In Combs, the Sixth Circuit agreed with Petitioner that these two sets of verbs

could not be mixed and still be construed to charge a crime under Federal law. However,

while Combs may be persuasive authority, it is not binding in this circuit.

As the Report and Recommendation notes, the Ninth Circuit Court of Appeals has

stated that, "when the sufficiency of the indictment is challenged after trial it is only required

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that the necessary facts appear in any form or by fair construction can be found within the

terms of the indictment." U.S. v. James, 980 F.2d 1314, 1317 (9th Cir. 1992) (internal

citations and quotations deleted). Specifically, 

An essential purpose of an indictment is to give a defendant notice of the

charge so that he may defend or plead his case adequately. Id. Generally, the

failure of an indictment to detail each element of the charged offense

constitutes a fatal defect. United States v. Keith, 605 F.2d 462, 464 (9th Cir.

1979). A claim of a defective indictment can be raised at any time, but

"[c]hallenges [should] be made at the earliest possible moment.... [I]ndictments

which are tardily challenged are liberally construed in favor of validity."

United States v. Pheaster, 544 F.2d 353, 361 (9th Cir. 1976), cert. denied,

Inciso v. United States, 429 U.S. 1099 (1977). Furthermore, tardy challenges

to an indictment must be "construed according to common sense."

Normandeau, 800 F.2d at 958 (internal quotations omitted). A "minor or

technical deficiency" in the indictment will not reverse a conviction if there is

no prejudice. Id. 

Id. at 1316.

In this case, the Court agrees with the Report and Recommendation, that at this stage,

on habeas, the fact that the language of the statute was combined into one sentence does not

render the indictment defective.

Next, Petitioner argues that the jury instructions constructively amended the

indictment with respect to this charge. The jury instructions stated that Petitioner was,

"charged with possessing, carrying, or brandishing a firearm during and in relation to hostage

taking, or possessing a firearm in furtherance of hostage taking, in violation of 924(c) of Title

18 of the United States Code." However, in the verdict form, the jury specifically found the

Defendant guilty of "Use of a firearm in relation to a crime of violence," "Carrying a firearm

in relation to a crime of violence" and "Brandishing a firearm in relation to a crime of

violence" (emphasis added). Therefore, to the extent the jury instructions may have allowed

a guilty finding based on possession in relation to (but the statute states possession in

furtherance of ), the verdict form makes clear that Petitioner was found guilty of using and

possessing in relation to a crime of violence, consistent with the language of the statute.

Accordingly, Petitioner suffered no prejudice and this claim for relief will be denied.

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Claims 3 and 9 - Ineffective Assistance of Counsel

Under Strickland v. Washington, 466 U.S. 668 (1984) and its progeny, “[a]n

ineffective assistance claim has two components: A petitioner must show that counsel’s

performance was deficient, and that the deficiency prejudiced the defense. To establish

deficient performance, a petitioner must demonstrate that counsel’s representation fell below

an objective standard of reasonableness.” Wiggins v. Smith, 539 U.S. 510, 521 (2003)

(internal citations and quotations omitted). A deficient performance is one that is “outside

the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. In order

to show prejudice, Petitioner “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. Without specifics that cause the court to have such doubts, a

claim of ineffective assistance of counsel must be denied. See James v. Borg, 24 F.3d 20,

26 (9th Cir. 1994) (noting that petitioner needs to “identify what evidence counsel should

have presented” to show his innocence).

Claim 3 - Apprendi issue

Petitioner claims that his counsel was ineffective for failing to raise and preserve for

appeal an Apprendi issue. The Report and Recommendation recounts, however, all of

counsel's oral and written motions on the Apprendi issue. Report and Recommendation at

24-25. In his objections, Petitioner contends that counsel did not "vigorously" argue the

issue before the district court. Because counsel raised and argued the issue about which

Petitioner complains, Petitioner fails to meet the standard of Strickland.

Claim 9 

In claim 9, Petitioner argues that his counsel was ineffective because counsel failed

to raise the claims Petitioner now raises on habeas, specifically, claims 5-8. The Court has

considered claims 5-8 on the merits, as discussed above, and has determined that Petitioner

is not entitled to relief on those claims. Therefore, the Court finds that Petitioner cannot meet

the test of Strickland because as a matter of law the claims themselves fail on their merits.

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See Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982) ("The failure to raise a

meritless legal argument does not constitute ineffective assistance of counsel.").

Conclusion

Based on the foregoing,

IT IS ORDERED that the Report and Recommendation (Doc. #307) is accepted and

adopted as specified above, the Objections are overruled (Doc. #309); the Petition (Doc.

#290) is denied, with prejudice, and the Clerk of the Court shall enter judgment accordingly.

DATED this 30th day of November, 2005.

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