U.S. v. Barajas-Diaz, 01-2298.

• Decision Date: 03 December 2002
• Docket Number: No. 01-2298.,01-2298.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Emiliano BARAJAS-DIAZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1242

313 F.3d 1242

UNITED STATES of America, Plaintiff-Appellee, v. Emiliano BARAJAS-DIAZ, Defendant-Appellant.

No. 01-2298.

United States Court of Appeals, Tenth Circuit.

December 3, 2002.

Submitted on the briefs:

Kari Converse, Albuquerque, NM, for Defendant-Appellant.

David C. Iglesias, United States Attorney, Norman Cairns, Assistant United States Attorney, Albuquerque, NM, for Plaintiff-Appellee.

Before O'BRIEN and PORFILIO, Circuit Judges, and KANE,^* Senior District Judge.

KANE, Senior District Judge.

Defendant-appellant Emiliano Barajas-Diaz ("Barajas") appeals from the district court's order denying his 28 U.S.C. § 2255 motion to vacate, correct or set aside his sentence.¹ Barajas raises two claims in his appeal, one based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and the other on Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). We previously granted Barajas a certificate of appealability ("COA") on his Richardson claim.² We now affirm the order of the district court.

Barajas was named as a defendant in three counts of a nine-count indictment. Count One charged him and ten other defendants with conspiring to possess methamphetamine, cocaine and marijuana with an intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Count Two charged Barajas and three other defendants with engaging in a "continuing criminal enterprise" ("CCE"), in violation of 21 U.S.C. § 848(a), (b) and (c), and 18 U.S.C. § 2. Counts Three through Eight charged other defendants, but not Barajas, with various drug-related offenses. Count Nine charged Barajas and the other defendants with criminal forfeiture, in violation of 21 U.S.C. § 853(p). (The forfeiture conviction is not at issue in this appeal.)

The jury convicted Barajas of Count Two, engaging in a CCE.³ A CCE is defined by statute as follows:

For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if —

(1) he violates any provision 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 —

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources.

21 U.S.C. § 848(c).

We have held, as have most courts, that the "continuing series of violations" mentioned in this statute requires proof of three or more related violations. See, e.g., United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1025 n. 3 (10th Cir.1996). At the close of his trial, Barajas moved to dismiss the CCE count on the ground that there was insufficient evidence to show that he was guilty of the three felonies required to support a CCE conviction. The district court denied his motion.

On direct appeal, Barajas shifted his attack and challenged the sufficiency of the indictment. He contended that since the indictment did not name him as a defendant in Counts Three through Eight, it failed to charge that he had personally undertaken the three felonies required for a CCE conviction. United States v. Barrajas-Diaz (Barrajas)⁴, No. 97-2351, 1999 WL 107016, at *2 (10th Cir. Feb. 26, 1999). We rejected this argument, holding that references to Barajas' participation in these additional crimes in the "overt acts" section of the conspiracy count had been sufficient to support the indictment for CCE. We also held that the evidence was sufficient to support a CCE conviction.

Subsequent to our decision in Barrajas, but before Barajas filed his § 2255 motion, the Supreme Court decided Richardson. In that case, the Court determined that to support a CCE conviction, the jury "must unanimously agree not only that the defendant committed some `continuing series of violations' but also that the defendant committed each of the individual `violations' necessary to make up that `continuing series.'" Richardson, 526 U.S. at 815, 119 S.Ct. 1707 (quoting § 848(c)). Barajas requested and received permission to amend his § 2255 motion to allege a violation of Richardson. The district court ultimately rejected the Richardson claim, both for procedural reasons and on the merits.

The posture of this case does not permit us simply to address the district court's denial of the Richardson claim on the merits. Rather, we must first consider two procedural hurdles: (1) whether Richardson may be applied retrospectively on collateral review, and (2) whether Barajas' failure to raise a contemporaneous Richardson objection at trial and on direct appeal procedurally bars the issue on collateral review.

1. Retrospectivity under Teague

Richardson was decided after Barajas' conviction became final. Under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), we generally do not apply new constitutional rules of criminal procedure retrospectively to cases on collateral review. Id. at 310-11, 109 S.Ct. 1060. We must therefore decide whether Richardson falls under the Teague bar or may be applied retrospectively to Barajas' § 2255 proceeding.

Teague only comes into play where the new rule is procedural rather than substantive. Every circuit court that has considered the issue has held that Richardson announced a new rule of substantive law. Therefore, Teague does not impose a bar to applying Richardson retrospectively. See, e.g., United States v. Brown, 305 F.3d 304, 308 (5th Cir.2002); Ross v. United States, 289 F.3d 677, 681 (11th Cir.2002); Santana-Madera v. United States, 260 F.3d 133, 138-39 (2d Cir.2001), cert. denied, 534 U.S. 1083, 122 S.Ct. 817, 151 L.Ed.2d 701 (2002); Lanier v. United States, 220 F.3d 833, 838 (7th Cir.2000); Murr v. United States, 200 F.3d 895, 906 (6th Cir.2000). We agree with our sister circuits, and hold that Teague does not prevent Richardson from being applied retrospectively here.

2. Frady bar

Having surmounted the Teague barrier, Barajas must next face the consequences of his failure to raise a contemporaneous Richardson objection. Ordinarily, failure to raise an issue either at trial or on direct appeal imposes a procedural bar to habeas review. See United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ("[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) `cause' excusing his double procedural default, and (2) `actual prejudice' resulting from the errors of which he complains.").

Barajas first contends that he did raise a Richardson-style challenge, both at trial and on direct appeal. In the alternative, he raises three challenges to the application of the Frady bar to his case. He contends (1) that the government waived the bar; (2) that he made a sufficient showing of cause and prejudice to excuse the bar; and (3) that he is actually innocent.

a. Preservation of the issue

Barajas contends that he raised a Richardson-style claim at trial and on direct appeal. The trial record cites he provides reveal at best that he attacked the evidence supporting his personal commission of three predicate violations, not the requirement of jury unanimity. See R. Supp. Vol. VII at 1179-82; Supp. Vol. VIII at 1361-63. Barajas' challenges on direct appeal concerned the sufficiency of the indictment and the sufficiency of the evidence, rather than the failure to give an instruction concerning the requirement of unanimity on the predicate violations.

Barajas argues that he preserved a Richardson error because Richardson also created a new requirement that the jury must specifically find that the defendant committed the predicate violations. See Richardson, 526 U.S. at 815, 119 S.Ct. 1707 (stating that to support a CCE conviction, the jury "must unanimously agree not only that the defendant committed some continuing series of violations but also that the defendant committed each of the individual violations necessary to make up that continuing series." (emphasis added and quotations omitted)). The short answer to that contention is that there is nothing new about the requirement that the jury find that a defendant committed the predicate violations. That has long been the rule in this circuit, as elsewhere. See, e.g., United States v. Hall, 843 F.2d 408, 411 (10th Cir.1988) (endorsing jury instruction that required jury to find defendant "committed" the predicate violations). Although the direct appeal panel discussed Barajas' guilt only in terms of the express language of the statute (i.e., whether he "undertook" the violations in concert with those he supervised), it cited Hall and we must presume it painted on the canvas erected by Hall and other similar authority. In short, Richardson did not change the law in this respect and Barajas supplies us with no reason to depart from our earlier holding in Barrajas concerning his guilt for the underlying offenses.⁵

b. Waiver

Barajas next contends that the government waived the Frady bar by not raising it before the district court.⁶ Although the government may indeed have faltered, we disagree with Barajas that its failure amounts to a waiver constraining our application of it here for at least two reasons. First, although the government did not raise Frady before the district court, the court applied the bar sua sponte. The magistrate judge assigned to this case recommended that the Richardson claim be denied both on the basis of Frady and on the merits, and the district court adopted that recommendation. R. doc. 17 at 4-5; doc. 20. Second, the government does assert the Frady bar in this appeal.

"[T]he district court has the power to raise a Frady defense sua sponte in those situations where the court...