UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KILLIU FORD, Defendant - Appellant. No. 17-1122 (D.C. Nos. 1:15-CV-02213-REB and 1:11-CR-00303-REB-2) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , HOLMES , and BACHARACH , Circuit Judges.

________________ _________________ Defendant Killiu Ford was convicte d in the United States Distri ct Court for the District of Colorado on tw o counts of kidnapping, see 18 U.S.C. § 1201(a)(1); two counts of kidnapping minor children, see id . §§ 1201(a)(1) & 3559(f)(2); one count of conspiracy to kidnap, see id. § 1201(c); and one count of po ssession of a firearm during a crime of violence, see id. § 924(c). The district court sentenced him to 600 months’ imprisonment. We affirmed his c onviction and sentence on appea l, see United States v.

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not mat erially assist in the determina tion of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is th erefore ordered submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 valu e consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 25, 2019
Elisabeth A. Shumaker Clerk of Court2 Morgan , 748 F.3d 1024, 1028 (10th Cir. 2 014); and the Supreme Court d enied his petition for a writ of certiorari, see Ford v. United States , 135 S. Ct. 298 (2014). In November 2015 Defendant filed a motion under 28 U.S.C. § 225 5 challenging his conviction and sentence on 11 grounds. The following June he filed a motion to amend and supplement his § 2255 motion with a challenge to his § 924(c) conviction based on the Supreme Court’s recent decision in Johnson v. United States , 135 S. Ct. 2551, 2557 (2015). The district court denied all 11 claims in the original § 2255 motion, including the claim that his tria l attorney was ineffective for failing to investigate and call his wife Shavonda L. Sterling and cousin Keino K. Taylor as alibi witnesses. And it denied as untimely Defendant’s Johnson challenge to his § 92 4(c) conviction. Defendant requested a certifi cate of appealability (COA) from t his court to permit him to appeal two alleged errors by the district court: (1) den ial of his alibi-witness ineffective-assistance-of-couns el claim and (2) denial of his § 924(c) claim. See 28 U.S.C. § 2253(c)(1)(B) (requiring a COA to appeal denial of a § 2255 motion). We have granted that request. The governm ent waived its timeliness obj ection to the § 924(c) claim and confessed error, so we reverse Defendant’s conviction on the § 924(c) charge and remand with instructions to vacate that conviction and rese ntence Defendant. There remains for consideration only D efendant’s ineffectiveness clai m. Defendant argues that there was no reasonable basis for trial c ounsel’s failure to call Sterling or Taylor to testif y after they had both informed counsel that Defendant was home at the time of the kidnapp ings. And he argues that the fa ilure to call both witnesses was clearly prejudicial to his de fense, because “the government ’s case here hung on3 testimony of unindicted coconspi rators, who were of course subj ect to impeachment based on the benefits that they received from their cooperation ; and on the purported voice recognition by one of the a lleged victims, who likewise r eceived the benefit of a more favorable plea agreement in exchange for his testimony.” Aplt. Br. at 30. “We review the district court’ s legal rulings on a § 2255 motio n de novo and its findings of fact for clear error. A claim for ineffective assi stance of counsel presents a mixed question of fact and law , which we review de novo.” United States v. Orange , 447 F.3d 792, 796 ( 10th Cir. 2006) (citation omitted). To establish ineffective assistance of counsel, Defendant must show bot h that counsel’s performance wa s deficient and that this deficiency prejudiced him. See Smith v. Duckworth , 824 F.3d 1233, 1249 (10th Cir. 2016) . To demonstrate prejudice, Defe ndant “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 re asonable probability is a proba bility sufficient to undermine confidence in the outcome.” Strickland v. Washington , 466 U.S. 668, 694 (1984) . We can consider Strickland ’s performance and prejudice prongs in any order, see id. at 697 ; an insufficient showing on eith er one is fatal to an ineffect ive-assistance claim,

see id. at 700

. We affirm the denial of Defendant ’s claim because the evidence against him was very strong and the alibi eviden ce was weak. We begin with the incriminating evidence. Defendant and two codefendants, T racy Morgan and Augustus Sanfo rd, were convicted by a jury at a joint trial. Evidence at trial indica ted that the three men, together with Marvin Tabor andhis step-brother Xallier Patterson (who b oth testified for the4 government at trial), plotted in August 2009 to k idnap and rob Mario Armendariz, see Morgan , 748 F.3d at 1028–29, a drug s upplier for Tabor’s drug-dealing operation. Our opinion affirming the convictions summarized the core evidence as follows: Pursuant to their plan, Mr. Morga n attached a GPS tracking devi ce to Mr. Armendariz’s car while Mr. Arm endariz was visiting Mr. Tabo r’s home. Mr. Tabor then tracked Mr. A rmendariz’s location on the Internet using Google Maps, enabling Mr. M organ and Mr. Ford to follow M r. Armendariz in their vehicle. Also in late summer 2009, Mr. Ta bor’s brother-in-law, Mr. Sanfo rd, persuaded a police officer’s mino r child to steal four weapons and parts of a police uniform—including cargo pa nts, a black police shirt, and an orange reflective vest—from his fathe r in exchange for t wo ounces of m arijuana. Mr. Sanford also painted hi s Chevrolet Tahoe black. Around 11:00 p.m. on September 22, 2009, the Defendants and Mr. Tabor met at Mr. Tabor’s house. M r. Sanford wore the stolen po lice gear. The Defendants then departed t o locate Mr. Armendariz. Mr. Tab or remained at his home and tracked Mr. Armendariz using the GPS d evice and Google Maps, speaking with the Defendants on a cell phone t o update them with Mr. Armendariz’s location
. That night, Mr. Armendariz and hi s wife, Perla Flores, were get ting into their car with their two young da ughters outside of a cousin’s house when they saw two armed men exit a black Chevrolet Tahoe and at leas t one other man arrive from across the street. The men announced the y were police officers and ordered Ms. F lores and Mr. Armendariz to li e on the ground. One of the men was wea ring a reflective police vest. Evidence at trial established the De fendants were present. Two of the men zip-tied Mr. Arm endariz’s arms and legs together , covered his head, and put him i nto the back of the Tahoe. Mr. Ford got into the Tahoe and questioned Mr. Arme ndariz about where he kept his money while an unknown coconspirator d rove the Tahoe around. Eventua lly the Tahoe dropped off Mr. Ford at Mr . Armendariz’s home. The Tahoe drove away and parked in a different location. Meanwhile, Mr. Sanford drove Ms. Flores and her daughters in he r car to the Flores–Armendariz home. Mr. F ord and Mr. Mor gan met him th ere.5 The Defendants confronted Ms. Flo res, demanding to know where M r. Armendariz kept his money. Ms. F lores refused to tell them. Mr. Morgan put a gun to the thr ee-year-old daughter’s head, and Ms. Flores then told them the mone y was under her daughter’s dresse r. Mr. Morgan retrieved $30,0 00 from under the dresser and left the ho me. Mr. Sanford and Mr. Ford c ontinued to search the house, but after r ealizing Mr. Morgan had already left with the money, they also exited the ho me. Ms. Flores left the house looking for help. She saw a black sp ort utility vehicle pick up Mr. Sanford and Mr. Ford. The driver then drov e away from the home, stopped several miles away, and dropped off Mr. Armendariz on the side of the road. Later that night or early the nex t morning, Mr. Ford and Mr. Sa nford looked for Mr. Morgan and found him at a Taco Bell. They divid ed the money Mr. Morgan took from Mr. Armendariz’s home. Mr. Sanford returned t o Mr. Tabor’s home and complained to Mr. Tabor and Mr. Patterson about Mr. Morga n’s keeping too much of the pr oceeds. Mr. Ford called Mr. Tabor’s home to discuss the kidnapping and robbery with Mr. Tabor and Mr. Patterson . He also complained that Mr. Morgan kept more than his share of the money. Mr. Morgan joined the p hone call for a brief moment and told the others he would arrive at Mr. T abor’s house within several hours. The group met at Mr. Tabor’s house and r edistributed the proceeds from the ki dnapping and robbery.
Id. at 1029–30 (footnotes omitted). This account was derived from te stimony by several witnesses an d recordings of telephone conversations intercept ed by a wiretap authorized for a separate drug investigation. Tabor testified to Defendant’s role in both the preparation for the kidnapping and robbery and the crimes themselves. Defendant brought the money for the drug deal used to get Armendari z to Tabor’s home in August 2009 . Then Defendant helped Morgan attach the GPS tra cker to Armendariz’s car while Armendariz was at the home. Also, Defendant assisted M organ in conducting surveillan ce of Armendariz on6 one occasion after the tracker w as attached. For the executionof the plan, Defendant came to Tabor’s home at about 11: 00 p.m. on September 22. He, Morgan, andSanford arrived in separate vehicles. A fter the men used the tracker t o locate Armendariz, Defendant departed w ith Morgan and Sanford. Defendant returned to Tabor’s home the next morning and gave him $1 500. Morgan and Sa nford returned l ater that evening, when Sanford gav e Tabor another $900. At trial, Tabor was impe ached based on his prior felony convictions and the reduction in sentence he would receive for cooperating with the prosecution , although there was no suggestion that he had a particular animus against Defendant that would have led him to falsely add Defend ant’s name as a coconspirator. Armendariz also testified about h is kidnapping. H e identified Defendant as one of the kidnappers. Although he did n ot testify that he had seen D efendant’s face during the incident (as the assailants were masked and he was blindfolded while in the Tahoe), he said that he recognized Defendant ’s voice from having been invo lved in drug transactions with him on three prior occasi ons. In particular, Armendariz t estified that Defendant spoke to him while the Tahoe was en route to his home, stating that he was a lawenforcement officer making a drug bust and asking for his coope ration. He said that he did not hear Defendant’s voice fo r the roughly 15–20 minutes th at the Tahoe was stopped and unoccupied, but that once th e kidnappers reentered the car and started driving, Defendant questioned him repeat edly about how much money he had in his home. He told Defendant $30,000. Armenda riz was impeache d based on prio r felony convictions and the agreement o f the prosecution to r ecommend a reduced sen tence on pending drug7 charges against him, but again t here was no suggestion that he had a particular animus against Defendant. Flores’s testimony corroborated m uch of her husband’s account o f his kidnapping, although she did not identify De fendant or the other kidnappers . She also testified about her own experience after being se parated from her husband—inclu ding how three men confronted her and her daughters at gunpoint inside her home, c ompelled her to tell them where the money was, and took t he cash, as well as jewelry and electronics. The one who seemed to be in charge took the cash and left. When the ot hers realized he was gone, they also left the home; a nd she saw them being picked up by the SUV that her husband was in. Flores did not receive any benefit from the pr osecution for her testimony. Katina Bell, Morgan’s girlfriend at the time of the crimes, was another government witness. She said tha t she picked up Morgan at the home of Defendant’s sister sometime after her work sh ift ended at 1:00 or 2:00 a.m. on the night of the kidnapping, and the two of them went to a Taco Bell to eat. Sh ortly thereafter, Defendant and Sanford pulled up in a black Tahoe. They were upset and de manded that Morgan get in the Tahoe, which he did. Bell then got f ood at the Taco Bel l and drove home. When Morgan came to her hom e some 30 to 45 minutes later, he pulled out a stack of money from his jacket and put it in his bag. Portions of the above testimony were corroborated by eight reco rdings of wiretapped conversations. Patters on briefly testified about th ree recordings (and nothing else). On a call on September 11 a nd on two calls on September 18, Patterson and8 Morgan discussed Armendariz’s lo cation and movement. Patterson never mentioned Defendant at trial. Tabor testif ied about the five remaining r ecorded conversations. In four of these conversations Tabo r and Morgan plann ed the kidnap ping: they discussed the online purchase and delivery o f the GPS tracker, and getting De fendant to bring funds for the August drug deal with Armendariz. The final recording, and the mos t compelling evid ence against D efendant, was a conversation recorded on September 23, 2009. It began at 3:19 a.m., not long after the kidnapping, and lasted 42 minute s. Defendant called Patterson on his cell phone and spoke with both Patte rson and Tabor. During the conversation D efendant reports what had happened during the kidnappi ng, an account that closely mat ched Flores’s testimony: He and Sanford tied Armendariz’s hands and put him in the back of the Tahoe. The two men and Morgan then searched the Flores-Armendariz home and fou nd three cash bundles of $10,000 each, as Armendariz had told them. They als o took jewelry. Then Morgan departed unexp ectedly with the money , leaving Sanford an d Defendant behind. They were able to track down Morg an at a Taco Bell, and the thr ee men then went to the home of Defendant’s sister to split the proceeds, although Defe ndant suspected that Morgan kept more tha n his fair share. This is compelling evidence. And Defendant’s alleged alibi evi dence does little to undercut it. Defendant claims that the testimony of Taylor and Sterling (his wife) would have “provided specific facts th at placed [him] at home on the night and during the time frame in which the crimes were committed,” Aplt. Br. at 10, andwould have “tilted the scales in favor of [Defendant’s ] acquittal,” Aplt. Reply Br. at 2. But the affidavits of the9 two alibi witnesses describe eve nts on the evening of September 23 and morning of September 24, one day after the crimes. Even if we “correct” the dates, the affidavits ar e insufficient to create substan tial doubt. Taylor’s affidavit s tates that he saw Defendant at Defendant’s home between 8:00 p. m. and 8:30 p.m . Defendant had been sleeping on the couch and was not dre ssed to go out. But this tells us virtual ly nothing regarding Defendant’s whereabouts at the time of the kidnappings about tw o hours later. As for Sterling’s affidavit, she states that she and Defendant were in bed together after 10 p.m. when he got a call that upset him. Afterwards he fell asleep before she did. About 3:00 a.m. she was awakene d by a call to his cell phone. She answered but the caller hung up. She then awoke Def endant so he could answer if the caller called back. He answered the next call, but a gain the caller hung up. He th en called the number and had a hushed conversation for afew minutes before leaving for about a half hour. The statement about Defendant’s bed time is of some help to Defendan t, but the account of the 3:00 a.m. call is strong confirma tion that it was Defendant’s v oice on the most incriminating ev idence against him—the re cording of the 3:19 a. m. call. On the whole, Sterling’s affidavit probably w ould somewhat strengthen the cas e against Defendant. In our view, Defendant fails to “show that there is a reasonabl e probability that . . . the result of the proceeding wo uld have been different,” Strickland , 466 U.S. at 694, if counsel had called Taylor and Sterling as witnesses.
We AFFIRM the ruling of the district cour t denying Defendant’s claim of ineffective assistance of counsel based on failure to investiga te and call alibi witnesses.10 We REVERSE Defendant’s conviction u nder 18 U.S.C. § 924(c) and REMAND to the district court for further proceed ings consistent with this ord er.

Entered for the Court

Harris L Hartz Circuit Judge