U.S. v. Gonzalez, 09-6069.

• Citation: 596 F.3d 1228
• Decision Date: 02 March 2010
• Docket Number: No. 09-6069.,09-6069.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis Emerson GONZALEZ, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

596 F.3d 1228

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Emerson GONZALEZ, Defendant-Appellant.

No. 09-6069.

United States Court of Appeals, Tenth Circuit.

March 2, 2010.

William P. Earley, Assistant Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant.

Leslie M. Maye, Assistant United States Attorney (Robert J. Troester, Acting United States Attorney, with her on the brief), Oklahoma City, OK, for Plaintiff-Appellee.

Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Dennis Gonzalez, currently serving a thirty-year sentence in connection with multiple drug-trafficking convictions arising out of his role in an Oklahoma City-based methamphetamine distribution operation, appeals from the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district court and deny Gonzalez's request for a certificate of appealability on additional issues.

I

Factual and procedural history

The underlying factual and procedural history of Gonzalez's case was outlined by this court on direct appeal:

After his arrest in the summer of 2003, Jason "Joker" Lujan cooperated with an Oklahoma City Police Department narcotics investigation. Mr. Lujan told the police that, beginning in early 2002, several members of a Hispanic gang from California, later identified as the Compton Varrio Tortilla Flats, moved to Oklahoma City to set up a methamphetamine-dealing operation. Mr. Lujan explained to the police that the members of the group included "Boxer," one of his confederates later identified as Mr. Gonzalez, who ran the operation from Florida; "Lalo," later identified as Eduardo Verduzco, who delivered the drugs to Oklahoma City at Mr. Gonzalez's direction; and Jennifer Lujan, his sister-in-law, who distributed the methamphetamine in Oklahoma City with the assistance of Mr. Gonzalez's girlfriend "Mousey," later identified as Maria Ginez. With Mr. Lujan's assistance, the police eventually seized over 2,800 grams of methamphetamine from participants in the drug ring and obtained indictments against twelve participants, including Mr. Gonzalez. Most of the defendants pled guilty and cooperated with the government. Along with two associates, Mr. Gonzalez-accused of being the group's ringleader-pled not guilty and proceeded to trial.

In his opening statement before the jury, counsel for Mr. Gonzalez, Charles Kilgore, denied Mr. Gonzalez's involvement in "any kind of drug conspiracy." Tr. of Opening Stmt. at 27. The government, however, proceeded to present substantial evidence of Mr. Gonzalez's guilt from more than a dozen cooperating witnesses, as well as 16 law enforcement officers, agents, and employees. The evidence at trial adduced that Mr. Gonzalez left Oklahoma for Florida in February 2003, after one of the members of the drug organization was arrested. According to testimony presented, Mr. Gonzalez continued to direct from Florida the California-to-Oklahoma drug operation, and, after his move, proceeds of various drug transactions were wired to Florida.

Responding to the proof presented by the government, Mr. Kilgore took a different tack in closing, admitting Mr. Gonzalez's involvement in the drug conspiracy but seeking to diminish it by suggesting that he participated only until February 2003, when he moved to Florida, and that Mr. Verduzco was the true ringleader. Thus, for example, Mr. Kilgore told the jury that "I'm not going to ask you to find [Mr. Gonzalez] not guilty on all of those counts, because if I did, I think you'd probably tune me out from the very beginning and just go somewhere else." Tr. of Closing Arg. (vol.4) at 30-31. Likewise, Mr. Kilgore stated that Mr. Gonzalez's "involvement stopped in February of 2003," id. at 34, and that Mr. Gonzales [sic] was "a lieutenant . . . working for Lalo," id. at 35. And when discussing the particular counts charged, Mr. Kilgore submitted, for example, that "now, Count 1 is the conspiracy. . . . We'll submit. . . . Dennis [Gonzalez] was involved. . . . He wasn't the head, but he was involved. But I will argue that he was only involved . . . until he took off to Florida." Id. at 67.

After Mr. Kilgore's closing argument, the district court asked Mr. Kilgore if it should issue a conspiracy-withdrawal instruction to the jury. Id. at 75; see Docket Entry No. 382 (instruction titled "AFFIRMATIVE DEFENSE OF WITHDRAWAL FROM A CONSPIRACY"). The government agreed with the district court that such an instruction was appropriate. After reviewing the proposed instruction overnight, however, Mr. Kilgore declined the instruction, and the government did not request it. Tr. of Closing Arg. (vol.4) at 106. The district court then generally instructed the jury, including an instruction indicating the vicarious liability of co-conspirators for the actions of others in the drug ring. See Docket Entry No. 382 (instruction titled "VICARIOUS LIABILITY OF CO-CONSPIRATORS"). Though there is no mention of it in the record before us, the parties' briefs represent that the district court also sought and held additional meetings in chambers to discuss questions submitted by the jury. Apparently, either during or shortly after one of these conferences, the district court made some type of inquiry to Mr. Kilgore regarding whether his client had agreed to his change in tactics and concession of guilt. No transcript of the meeting seems to exist but the government represents that Mr. Kilgore said he altered his trial tactics with Mr. Gonzalez's permission. Mr. Gonzalez stresses that there is no indication in the record to confirm the accuracy of this representation and denies that he was ever informed of the pertinent chambers meeting or that he waived his right to be present during this proceeding.

Ultimately, [on July 25, 2005,] the jury found Mr. Gonzalez guilty of 63 of the 65 counts with which he was charged and, by means of a special verdict form, indicated that Mr. Gonzalez's conspiracy involved more than 500 grams of methamphetamine. See Docket Entry No. 385.

At sentencing [on November 21, 2005], the district court began its analysis with the advisory Guidelines' suggested sentencing range of ten years to life in prison and then proceeded to review the various factors set forth in 18 U.S.C. § 3553(a); the ultimate upshot: Mr. Gonzalez was sentenced to 30 years on each of 12 separate counts; 5 years each on 2 separate counts; 20 years each on 48 separate counts; and 30 years on a single remaining count at issue in this appeal. The district court indicated that its sentences would run concurrently, for a total of 30 years' imprisonment.

United States v. Gonzalez, 238 Fed.Appx. 350, 351-53 (10th Cir.2007) (footnotes omitted).

Gonzalez's direct appeal

Gonzalez filed a direct appeal asserting two claims of ineffective assistance of counsel, as well as a separate claim that his sentence on Count 29, for conspiracy to commit money laundering, was in violation of law. This court, in an unpublished order and judgment issued on June 25, 2007, deferred the ineffective assistance claims to collateral proceedings, found merit to Gonzalez's sentencing challenge, and remanded for resentencing. On August 6, 2007, the district court, in accordance with this court's mandate, issued an order amending the judgment to reflect a sentence of twenty years' imprisonment on Count 29, to run concurrently with the sentences imposed on the other counts of conviction.

Gonzalez's § 2255 motion

On August 31, 2007, Gonzalez filed a pro se motion asking that counsel be appointed "to represent him in connection with the filing of a motion pursuant to 28 U.S.C. § 2255." ROA, Vol. 1 at 336. The district court granted Gonzalez's motion on September 11, 2007.

On November 4, 2008, Gonzalez, through appointed counsel, filed a § 2255 motion to vacate, set aside, or correct sentence. Gonzalez's motion asserted five grounds for relief: (1) that his trial counsel was ineffective for failing to investigate and call two witnesses, Marlene Gonzalez and Eduardo Verduzco, to support the theory of defense at trial, i.e., that Gonzalez withdrew from the charged conspiracy in February 2003 when he moved to Florida; (2) that his trial counsel was ineffective for failing to accept the trial court's proposed jury instruction on the defense of withdrawal from the conspiracy; (3) that his trial counsel's closing argument concession that Gonzalez was guilty of conspiracy caused a breakdown in the adversarial process and violated Gonzalez's constitutional rights; (4) that Gonzalez's absence from an in-chambers conference during which counsel and the trial court discussed whether Gonzalez consented to his trial counsel's concession of partial guilt to the conspiracy charge violated his right to be present under Rule 43 of the Federal Rules of Criminal Procedure and the Due Process Clause; and (5) cumulative error.

The district court, after allowing the parties to fully brief the issues raised by Gonzalez, issued an order on February 25, 2009, denying Gonzalez's motion in its entirety. Final judgment was entered that same day.

Gonzalez filed a notice of appeal on March 27, 2009. On March 30, 2009, Gonzalez filed a request for a certificate of appealability (COA) on the five substantive issues asserted in his § 2255 motion, as well as a sixth issue of whether the district court erred in denying his § 2255 motion without first conducting an evidentiary hearing. On April 2, 2009, the district court issued an order granting Gonzalez a COA with respect to the second and third substantive issues asserted in his § 2255 motion, and denying his request for COA on the other four issues.

Gonzalez has now filed an appellate brief addressing the two issues on which the district court granted a COA. Gonzalez also requests that we grant him a COA with respect to the other four...