774 F.3d 1278 (10th Cir. 2014), 14-2017, United States v. Cruz

Docket Nº:14-2017
Citation:774 F.3d 1278
Opinion Judge:BRISCOE, Chief Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAUL CRUZ, Defendant-Appellant
Attorney:Todd A. Coberly of Coberly & Attrep, LLLP, Santa Fe, New Mexico, for Defendant-Appellant. Damon P. Martinez, United States Attorney; Laura Fashing, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.
Judge Panel:Before BRISCOE, Chief Judge, HOLMES and BACHARACH, Circuit Judges.
Case Date:December 22, 2014
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
SUMMARY

Defendant Raul Cruz was convicted by a jury of knowingly and intentionally possessing with intent to distribute methamphetamine. He was sentenced to 63 months' imprisonment. Cruz subsequently filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255, arguing that his trial counsel was ineffective for failing to move to suppress evidence on the grounds that the search... (see full summary)

 
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774 F.3d 1278 (10th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

RAUL CRUZ, Defendant-Appellant

No. 14-2017

United States Court of Appeals, Tenth Circuit

December 22, 2014

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. Nos. 1:12-CV-01097-LH-CG and 1:10-CR-01178-LH-1).

Todd A. Coberly of Coberly & Attrep, LLLP, Santa Fe, New Mexico, for Defendant-Appellant.

Damon P. Martinez, United States Attorney; Laura Fashing, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before BRISCOE, Chief Judge, HOLMES and BACHARACH, Circuit Judges.

OPINION

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BRISCOE, Chief Judge.

Defendant Raul Cruz was convicted by a jury of knowingly and intentionally possessing

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with intent to distribute methamphetamine, in violation of 21 U.S.C. § § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2, and sentenced to a term of imprisonment of 63 months. Cruz's conviction and sentence were affirmed on direct appeal. United States v. Cruz, 680 F.3d 1261, 1262 (10th Cir. 2012) (Cruz I). Cruz subsequently filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, alleging, in pertinent part, that his trial counsel was ineffective for failing to move to suppress evidence on the grounds that the search warrant when executed on Cruz's residence was neither signed nor dated by the issuing judge. The district court denied Cruz relief on that claim. Cruz now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district court.[*]

I

Factual background

In March 2010, a law enforcement agent employed by the Middle Rio Grande Valley Task Force prepared an affidavit for a search warrant for Cruz's residence in Albuquerque, New Mexico. On the face of the affidavit, the officer swore " upon his oath" that he " ha[d] reason to believe that" Cruz had concealed at his residence a variety of contraband, including " [m]ethamphetamine and other controlled substances of unknown quantity," " [p]araphernalia for weighing, packaging, ingestion, injection, transportation and sales of controlled substances," and " U.S. Currency used in narcotics transactions." ROA, Vol. 2 at 122. In the subsequent pages of the affidavit, the officer explained the factual basis for his suspicions. This included the officer's statement that he " was advised by a confidential source" that Cruz was " involved in the distribution of large quantities of methamphetamine in Albuquerque," and that the confidential source was present inside Cruz's residence when Cruz was " supplying unidentified individuals with large quantities of methamphetamine." Id. at 124. The officer also stated that he had conducted a controlled purchase of methamphetamine from Cruz's residence with the assistance of the confidential source.

The last page of the affidavit included the concluding paragraphs of the officer's factual description, followed by a paragraph that stated: " Based on the above facts and circumstances, Affiant has probable cause to believe the items sought and described within this affidavit would be found inside [the residence], on the person of . . . Cruz and in [Cruz's vehicle]." Id. Immediately below this final paragraph was: (1) a date line that read " THIS DAY of, 2010" ; (2) separate signature lines for " JUDGE" and " AFFIANT," along with accompanying lines for the " TITLE" of the judge and the affiant; and (3) a line that read " APPROVED BY ASSISTANT DISTRICT ATTORNEY," followed by a blank signature line and a blank date line. Id.

The affidavit was signed and dated by an assistant district attorney on March 26, 2010. On that same day, the officer/affiant presented the affidavit to New Mexico District Judge Kenneth Martinez. Judge Martinez signed the last page of the affidavit in the blank signature line entitled " JUDGE," and also handwrote " District Judge" in the accompanying line entitled " TITLE." Id. at 125. The officer/affiant

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also signed his name in the blank signature line entitled " AFFIANT," and handwrote " Agent 1291" in the accompanying line entitled " TITLE." Id. Either Judge Martinez or the officer completed the blank date line by handwriting " 26th" for the day and " March" for the month. Id.

The search warrant form itself listed Cruz's address, stated that " [a] copy of the Affidavit is attached and made a part of this Search Warrant," and incorporated by reference the affidavit's list of property to be seized. Id. The search warrant also included a date and signature line. Judge Martinez did not, however, contemporaneously sign or date the search warrant.

Law enforcement officers executed the search warrant three days later, on March 29, 2010, and found inside of Cruz's residence " baggies with 34.1 grams of methamphetamine (about 90-100 doses), along with horse steroids (a cutting agent), cash, and false identification." Cruz I, 680 F.3d at 1262. " Detectives saw no evidence of drug use in the home or by Mr. Cruz." Id. Cruz admitted " possession of the drug but not intent to distribute it." Id.

Approximately a month later, on April 23, 2010, Judge Martinez signed and dated the search warrant.1 ROA, Vol. 2 at 119. In doing so, Judge Martinez indicated that the warrant was " DATED THIS 26th DAY OF March, 2010 AT 10:00 HOURS." Id. Immediately below this date line, Judge Martinez hand-wrote: " Nunc Pro Tunc on this April 23, 2010." Id.

Procedural background

a) Cruz's trial proceedings and direct appeal

On April 18, 2010, a criminal complaint was filed against Cruz in federal district court charging him with a single count of manufacturing, distributing, dispensing, or possessing with intent to manufacture, distribute, or dispense, a controlled substance, in violation of 21 U.S.C. § 841(a). Attorney Christin Kennedy was appointed to represent Cruz. A federal grand jury subsequently indicted Cruz on a single charge of knowingly and intentionally possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. § § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.

The case against Cruz proceeded to trial in September 2010, and Cruz was found guilty of the charge alleged in the indictment. In June 2011, the district court sentenced Cruz to a term of imprisonment of 63 months, to be followed by three years' supervised release. The district court noted that Cruz, who was born in Mexico and granted permanent residency in the United States in 1990, was subject to removal during his sentence.

This court affirmed Cruz's conviction and sentence on direct appeal. Cruz I, 680 F.3d at 1262, 1264.

b) Cruz's § 2255 proceedings

On October 23, 2012, Cruz filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, alleging two distinct claims of ineffective assistance on the part of Kennedy, his appointed trial counsel. First, Cruz alleged that the search warrant that was issued for his residence in March 2010 was " facially invalid because [Judge Martinez] did not sign or date the warrant," ROA, Vol. 2 at 8, but that Kennedy " did not move to suppress the physical evidence or . . . Cruz's statements obtained as a result of the defective warrant," id. at 9. Second,

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Cruz alleged that Kennedy failed to adequately advise him concerning " the Government's repeated plea offers," id. at 10, and that, " [b]ecause he had no viable defense to the charge" alleged against him, " he would have entered into a plea agreement with the Government in order to obtain the benefit of" a 3-point reduction pursuant to U.S.S.G. § 3E1.1(b) had he been adequately advised by Kennedy regarding the government's plea offers, id. at 11.

Cruz's claims were first addressed by a magistrate judge. After holding an evidentiary hearing, the magistrate judge concluded there was merit to both of Cruz's ineffective assistance claims and recommended that the district court grant Cruz's § 2255 motion and vacate his conviction. The government filed written objections to the magistrate judge's proposed findings and recommendations.

On October 22, 2013, the district court issued a written order amending in part and adopting in part the magistrate judge's proposed findings and recommended disposition. The district court first addressed the validity of the search warrant and Kennedy's failure to move to suppress on that ground, and rejected the magistrate judge's conclusion that the search warrant was " not properly issued . . . because . . . there was no signature on the warrant by the judge, . . . no date that the warrant was allegedly issued, or any other indication on the face of the warrant that the judge had approved the warrant." Id. at 184. In the district court's view, " Judge Martinez's signature on the search warrant affidavit provided assurance that he found probable cause and officially authorized the search," and " Judge Martinez's nunc pro tunc signature on the warrant [wa]s additional evidence that Judge Martinez made the probable cause determination and issued the warrant on March 26, 2010, at the time he signed the affidavit." Id. at 185. In short, the district court " conclude[d] that the warrant to search [Cruz's] person and property was issued within the meaning of the Fourth Amendment and was valid." Id. at 189. The district court also agreed with the government's alternative argument " that the officers who searched [Cruz's] home would have been entitled to the [Leon] good faith exception to the exclusionary rule." Id. The district court thus concluded that, " had a motion to suppress been filed," the evidence seized from Cruz's residence, as well as his admissions to the police, " would not have been suppressed." Id. at 192. And it in...

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