UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAMON ESPINOZA-AGUILAR, Defendant - Appellant. No. 11-8080 (D.C. Nos. 1:11 -CV-00071-NDF and 2:08-CR-00108-WFD-3) (D. Wyo.)

ORDER AND JUDGMENT *

Before LUCERO , O'BRIEN , and MATHESON , Circuit Judges.
Espinoza-Aguilar seeks to appeal from the district court’s order partially denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. 1 Acting pro se, he contends (1) he was denied effective assi stance of counsel; (2) he was entitled to a

* The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This case is submitte d for decision on the briefs. This order and judgment is an unpublishe d decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

.
1 Our jurisdiction derives from 28 U.S.C. § 1291. We construe Espinoza-Aguilar’s pleadings liberally because he is not represented by counsel. See Haines v. Kerner , 404 U.S. 519, 520–21 (1972); Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir.1991). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - new presentence report and senten cing hearing; and (3) the dist rict court failed to rule on all of the issues he raised in his motion. W ith respect to the first two issues, we deny his application for a certificate of appealability (COA) and dismiss th ose claims. With respect to the third issue, we grant a COA and affirm. BACKGROUND AND PROCEDURAL HISTORY Espinoza-Aguilar was convicted on April 14, 2009, following a jury trial in the U.S. District Court for the District of Wyom ing, on two counts rela ting to the distribution of methamphetamine. The indictment on whic h he was convicted and sentenced charged him with one count of conspiracy to possess w ith intent to distribut e, and to distribute, methamphetamine 2 as well as one count of conducti ng a continuing criminal enterprise (CCE). 3 He was sentenced to 384 months impr isonment. He then appealed from his conviction and sentence claiming he was deni ed effective assistance of counsel. United States v. Espinoza-Aguilar , 390 F. App’x 801 (10th Cir. 2010 ). As ineffective assistance of counsel claims should almost always be ra ised in a § 2255 motion, we dismissed the appeal. Id. at 802-03. 4 He then filed this § 2255 mo tion, which advances ineffective assistance of counsel claims against hi s trial counsel and appellate counsel. The district court agreed with one of his arguments – his trial counsel was

2 In violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A).

3 In violation of 21 U. S.C. § 848(a) and (c).

4 See also United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir.1995) (“Ineffective assistance of co unsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appe al are presumptively dismissible, and virtually all will be dismissed.”).- 3 - ineffective in failing to argue that the conspi racy charge was a less er-included offense of the CCE charge – and vacated the sentence on the conspiracy charge. Because his original sentence imposed concurrent terms of incarceration on both charges, the court did not change his prison term but did relieve him of ten year s of supervised release and a $100 special assessment. The court did not address all of his other arguments but rejected those it did consider. It denied his request for a COA, however it permitted him to proceed on appeal without prepayment of fees, i.e., in forma pauperis ( ifp ). DISCUSSION A COA is a jurisdictional prerequisite to our review of a motion for relief under 28 U.S.C. § 2255. 28 U.S.C. § 2253(c); see Miller–El v. Cockrell , 537 U.S. 322, 335-36 (2003). Ordinarily, we issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional righ t.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate “tha t reasonable jurists could debate whether (or, for that matter, agree that) the petition should ha ve 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) (quotati ons omitted). In evaluating whether an applicant has satisfied this burden, we un dertake “a preliminary, though not definitive, consideration of the [legal] framework” applicable to each of his claims. Miller–El , 537
U.S. at 338. We agree with Espinoza-Aguilar that the di strict court failed to rule on one of the issues raised in his § 2255 mo tion. We grant the COA only with respect to that issue.- 4 - A. Ineffective Assi stance of Counsel Espinoza-Aguilar contends the district cour t erred in (1) denyin g his request for an evidentiary hearing as to whether his tria l counsel had a conflict of interest; (2) concluding trial counsel had no t conceded his guilt to the jury; (3) concluding trial counsel did not fail to raise a colorable statut e of limitations defense; and (4) concluding trial counsel did not fail to raise a plausible Blakely 5 / Booker 6

objection to the CCE charge. To demonstrate ineffectiven ess of counsel, the defendant must generally show how counsel’s performance fell below an obje ctive standard of reasonableness and how that deficient performance was prejudicial. United States v. Lopez , 100 F.3d 113, 117-18 (10th Cir. 1996). We review claims of ineffective assistance de novo. Id. 1. Evidentiary Hearing Prior to trial, defense counsel provided Espinoza-Aguilar with certain discovery documents in violation of the district court’ s order. After a co-defendant complained of threats from Espinoza-Aguilar, officials sear ched Espinoza-Aguila r’s jail cell and discovered the documents. According to Espi noza-Aguilar, his trial counsel’s fear of sanctions for her violation caused his represen tation to be deficient. He included an affidavit from his wife with his § 2255 motion; it stated defense counsel was “hysterical” about a government threat to “file contempt charges agai nst her.” (R. Vol. II at 59.)

5 Blakely v. Washington , 542 U.S. 296 (2004).

6 United States v. Booker , 543 U.S. 220 (2005).- 5 - Section 2255 “provides for an evidentiary hearing unless the motion and the files and records of the case conclusively show th at the prisoner is entitled to no relief.” Moore v. United States , 950 F.2d 656, 65 9 (10th Cir. 1991) (quotations omitted). Where, as here, the allegations in the § 2255 motion, if proved, would entitle the movant to relief, we review the district court’s summary denial of an evidentiary hearing for an abuse of discretion. Id. ; see, e.g., Hammon v. Ward , 466 F.3d 919, 929 (10th Cir. 2006) (“[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not dem onstrate prejudice in order to obtain relief.”) (quotation omitted). After reviewing the record, we perceive no abuse of discretion. The district court correctly concluded the allegations, if pr oved, would not demons trate a conflict of interest because (1) both defense counsel a nd Espinoza-Aguilar shar ed “an incentive to minimize the improper dissemination of investig ative reports;” (2) “there was no mention in the record of the possibility of the Court holding Espinoza-Aguilar’s trial counsel in contempt;” and (3) the record did not s upport Espinoza-Aguilar’s assertion that the discovery of the improper disclosure resulted in a palpable change in the intensity or quality of defense counsel’s representation. (R . Vol. I at 117.) Ou r “preliminary, though not definitive” analysis of the court’s or der reveals no flaw in ITS reasoning. See Miller– El , 537 U.S. at 338. 2. Concession of Guilt Espinoza-Aguilar next argues he was denied the effective assi stance of counsel because his trial counsel conceded his guilt. As he points out, such conduct “represents a- 6 - paradigmatic example of the sort of breakdown in the adversarial process that triggers a presumption of prejudice.” United States v. Williamson , 53 F.3d 1500, 1511 (10th Cir. 1995). Yet, as the record clearly indicates, that did not happen here. Trial counsel did not concede his guilt. While she ack nowledged to the jury that th ey might be able to “find he’s guilty of something,” sh e argued he was not guilty of the crimes charged in the indictment in both opening an d closing arguments. (R. Vol. I at 126.) We see nothing even debatably incorrect in the district court’ s conclusion that counsel’s statements were “not an admission of Mr. Espinoza-Aguilar’s guilt on the charges in the case.” (R. Vol. I at 127.) 3. Statute of Limitations Defense Likewise, the record belies Espinoza-Agu ilar’s argument that his trial counsel erred in failing to raise a statute of limitations defense to the CCE charge. The statute of limitations for this offense was five years. See 18 U.S.C. § 3282(a). The overt acts charged occurred in July 2003; the indictme nt was issued in May 2008. EspinozaAguilar does not dispute these dates in his br ief. While he argues overt acts prior to May 2003 are time-barred, the prosecution relied on overt acts which began in July 2003. He does not argue that these acts do not relate to the CCE. 7 Absent a colorable statute of limitations issue, counsel was not in effective for failing to raise it.

7 See United States v. Qayyum, 451 F.3d 1214, 1218 (10t h Cir. 2006) (“The fact that the conspiracy began ou tside the limitations period w ill not prevent prosecution as long as at least one overt act in furtherance of the conspiracy occurred within five years of the indictment.”) (citation omitted).- 7 - 4. Blakely/Booker Objection to CCE Charge Espinoza-Aguilar next argues his trial couns el was ineffective for failing to object to the CCE charge on Blakely / Booker grounds. 8 He asserts the prosecution was not permitted to rely on uncharge d conduct in establishing the CCE, and trial counsel was ineffective for failing to bring this error to the district court’s attention. Again, the record undercuts the factual premise of his argument. Espinoza-Aguilar’s argument bears elabora tion. Under the applicable statute: [A] person is engaged in a conti nuing criminal enterprise if – (1) he violates any provis ion of this subchapter or subchapter II of this chapter the punishment for which is a felony, and (2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter. . . . 21 U.S.C. § 848(c) (emphasis a dded). He argues that, to conform to the requirements of Blakely and Booker , the prosecution must not only charge the CCE in its indictment but must actually charge and convict on each violation in the “continuing series of violations.” As he acknowledges, we have rejected this argument. See United States v. Almaraz , 306 F.3d 1031, 1039 (10t h Cir. 2002) (“[W]e hold the jury is not limited to considering only those acts for which it return ed a guilty verdict wh en determining which acts make up the ‘continuing series of vi olations.’”). Nevertheless, he asserts Almaraz is

8 It is difficult to discern from Espinoza- Aguilar’s brief whet her this argument on appeal continues to focus, as did his § 2255 motion, on trial counsel’s ineffectiveness for failing to object, or whether his argument on app eal is that he is entitled to relief because his conviction is invalid under Blakely and Booker . Because both arguments are meritless under our analysis, the di stinction is not significant here.- 8 - no longer good law after Blakely and Booker . In his view, “any factor that serves to increase a defendant’s sentence ‘must be charge d in the indictment and proved to a jury beyond a reasonable doubt.’” 9 (Appellant’s Br. 33.) Espinoza-Aguilar’s statement of the law is inaccurate. “It has been settled throughout our history that the Constitution protects every criminal defendant ‘against conviction except upon proof be yond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’” United States v. Booker , 543 U.S. 220, 230 (2005) (quoting In Re Winship , 397 U.S. 358, 364 (197 0)). Nothing about this requirement undercuts the holding in Almaraz, because Almaraz never purported to allow a conviction without proof beyond a reasona ble doubt on every fact necessary to constitute the crime – including the fact of any particular a lleged violation. See Almaraz , 306 F.3d at 1039. Here, the jury’s instructions required it to find, in a ccord with these principles, each of the violations in the continuing series beyond a reas onable doubt. The district court instructed the jury that “to return a guilty verdict, th e government must provide and all twelve of you must agree by proof beyon d a reasonable doubt that he committed at

9 The language Espinoza-Aguilar cites in hi s brief in support of his statement of the law comes from Blakely , 542 U.S. at 302 n.5. Yet th at language was not the holding or conclusion of the Court, but, rather, an aside discussing a quotation from an 1862 treatise on criminal procedure. See id. (quoting J. Archbold, Pleading and Evidence in Criminal Cases 51, 50-56 (15th ed. 1862)). While it is true that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a ju ry, and proved beyond a reasonable doubt,” Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), hi s sentence did not exceed the statutory maximum, so the Apprendi rule does not apply in this case.- 9 - least three (3) of the acts listed and you mu st also unanimously agree upon which of the listed acts, if any, the defendant committed. ” (R. Vol. I at 128.) The jury found Espinoza-Aguilar guilty beyond a reasonable doubt on “every fact necessary to constitute the crime with which he was charged.” See Booker , 543 U.S. at 230. Accordingly, trial counsel was not ineffective for fa iling to object on this basis. The district court correctly addressed Es pinoza-Aguilar’s ineffective assistance arguments; no reasonable jurist would have reso lved these issues in a different manner. See Slack , 529 U.S. at 484. B. Resentencing Hearing and New Presentence Investigation Report Espinoza-Aguilar next contends the dist rict court erred when, as a result of concluding that one of his co nvictions was a lesser-include d offense of the other (and counsel was ineffective for failing to raise the issue), it simply vaca ted those portions of the sentence it found attributable to that def ect. He argues the district court should have ordered a new presentence investigation repo rt (PSR) and held a new sentencing hearing because “the offense level and relevant c onduct triggering the 32-year sentence came from the conspiracy count the court has vacate d.” (Appellant’s Br. 25-26.) He also argues the district court faile d to address this issue. Once again, the record belies Espinoza-Aguilar’s contention. As the court explained at resentencing, the offense level and relevant conduct applicable to the CCE count still result in the offense level of 42, even without the conspiracy claim: The Court finds that after vacating th e conspiracy conviction, the guideline calculation is still correct. The guidelin e sentence was calculated using the CCE guideline, U.S.S.G. §2D1.5, which cross refere nces the drug quantity- 10 - table of §2D1.1. Section 2D1.5 imposes the greater base offense level of 38, or 4 plus the offense level require d by the drug quantity determined in §2D1.1. Pursuant to §2 D1.1, Mr. Espinoza-Aguilar’s drug quantity offense level was 38, based on the jury find ing his possession/distribution of 500 grams or more of methamphetamine and the PSR finding of relevant conduct of more than 15 kilograms of [m]ethamphetamine. Pursuant to § 201.1(b)(1), Mr. Espinoza-Aguilar r eceived a two level enhancement for possessing a firearm. Therefore, his offense level determined in §2D1.1 was 40, then pursuant to §2D1.5, four levels were then added based on Mr. Espinoza-Aguilar’s conviction of CCE fo r a total offense level of 44. Mr. Espinoza-Aguilar did not receive any e nhancement for his role as organizer or leader of a criminal activity that involved five or more participants, because this enhancement is not author ized, as the four level enhancement of §2D1.5 reflects an adjustment for the role in the offense. (R. Vol. I at 121-22 (citations omitted).) Our “preliminary, th ough not definitive” analysis of the district court’s orde r reveals no flaw in its reasoning. See Miller–El , 537 U.S. at 338. The court properly relied on conduct relevant to the CCE conviction to calculate Espinoza-Aguilar’s offense level and sentence. 10 The district court properly resentenced Espinoza-Aguilar. No reasonable jurist would consider its failure to pursue redund ant and unnecessary er rands even debatably incorrect. See Slack , 529 U.S. at 484. C. Unaddressed Issues Finally, Espinoza-Aguilar compla ins of the district court’s failure to address all of the issues he raised in his § 2255 motion. Al though he alleges the “district court left at least five of the issues presented in the § 22 55 motion without an answer,” he enumerates

10 United States v. Bendolph , which Espinoza-Aguilar cites in support of his argument, is inapposite. 409 F. 3d 155 (3d Cir. 2005) (en banc). Bendolph concluded indigent § 2255 movants are entitled to the ap pointment of counsel pr ior to an evidentiary hearing. Id. at 160. It simply does not addre ss a movant’s entitlement to a new sentencing hearing or PSR. See id.- 11 - only two. 11 (Appellant’s Br. 29-30.) We have already addressed those portions of his argument related to his base offense level at resentencing. He also argues the district court failed to rule on his argument that his appellate counsel was ineffective for failing to challenge the trial court’s admission of certain items of physical evidence – in particular two pounds of me thamphetamine, 156.1 grams of cocaine, cutting agents, and cash – which he believes were illegally seized from his home in violation of Miranda v. Arizona , 384 U.S. 436 (1966). His trial counsel successfully argued fo r the exclusion of Espinoza-Aguilar’s statements, including statem ents made to officers after he was given his Miranda warnings. 12 But Espinoza-Aguilar now argues the physical evidence the police discovered as a result of the unwarned questi oning should have been suppressed as well. The district court must consider the issues presented in a § 2255 motion and our review of the record confirms Espinoza-Aguilar’s clai m - he raised this issue and the district court did not discuss it. See Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992). However, as the applicable law forecloses Espinoza-Aguilar’s argument, we need not

11 To the extent there are other issues the district court failed to address, EspinozaAguilar forfeited his complaints about them by failing to demonstrate the alleged errors and his entitlement to relief. See Hernandez v. Starbuck , 69 F.3d 1089, 1093 (10th Cir. 1995) (“A court of appeals is not required to manufacture an appellant’s argument on appeal when it has failed in its burden to draw our atte ntion to the error below.”) (quotation omitted).

12 For further clarity on this issue, we ha ve reviewed the district court’s order, which was filed in this c ourt on direct appeal. See, e.g., Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) (stating that we may ta ke judicial notice of the records of prior proceedings).- 12 - remand to the district court for consideration of this issue. See Hernandez v. Starbuck , 69 F.3d 1089, 1093 (10th Cir. 1995 ) (noting we are free to affirm the district court’s decision on “any grounds for which there is a record su fficient to permit conclusions of law, even grounds not relied upon by the dist rict court”) (quotation omitted). Appellate counsel may be ineffective if he or she “unreasonably overlook[s] meritorious grounds for appeal.” Lopez , 100 F.3d at 119. But that didn’t happen here. Prosecutors are free to use physical evidence obtained as a result of voluntary statements even if they are elicited in violation of Miranda

. United States v. Phillips , 468 F.3d 1264, 1265 (10th Cir. 2006) (“[P]hysical ev idence obtained as fruit of a voluntary statement by a defendant to a law-enforcement officer is admissible at trial regardless of whether the officer gave the defendant Miranda warnings.”). Espinoza-Aguilar’s appellate counsel was not ineffective for failing to press this meritless issue. See Slack , 529 U.S. at 484. With respect to the Miranda issue the district court failed to address we GRANT his request for a COA and AFFIRM. With respect to all other issues, we DENY Espinoza-Aguilar’s request fo r a COA and DISMISS them. Entered by the Court: Terrence L. O’Brien United States Circuit Judge