U.S. v. Dago

• Decision Date: 30 March 2006
• Docket Number: No. 04-1184.,04-1184.
• Citation: 441 F.3d 1238
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Erman DAGO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

441 F.3d 1238

UNITED STATES of America, Plaintiff-Appellee, v. George Erman DAGO, Defendant-Appellant.

No. 04-1184.

United States Court of Appeals, Tenth Circuit.

March 30, 2006.

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Stephen M. Wheeler, Wheeler Law Offices PC, Evergreen, CO, for Defendant-Appellant.

John M. Hutchins, Assistant United States Attorney, Denver, CO (William J. Leone, Acting United States Attorney, with him on the brief), for Plaintiff-Appellee.

Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and HENRY, Circuit Judge.

EBEL, Circuit Judge.

In this case, George Erman Dago appeals from the denial of his 28 U.S.C. § 2255 petition for habeas relief by the United States District Court for the District of Colorado. We conclude that the district court's failure to instruct the jury in Dago's 1992 trial in accordance with the subsequent holding of Richardson v. United States, 526 U.S. 813, 815, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (holding that a jury must unanimously agree on which specific violations make up the "continuing series of violations" that underlie a continuing criminal enterprise conviction), is subject to harmless-error analysis under the standard set out in Brecht v. Abrahamson, 507 U.S. 619, 622-23, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Applying the Brecht standard, we find that the court's error in this case was harmless. We also hold that the district court's seven-and-a-half-year delay in denying Dago's § 2255 petition does not amount to a denial of due process sufficient to justify granting Dago habeas relief. We hold that Dago's trial counsel was not constitutionally ineffective, in part because the record in this counseled habeas proceeding does not contain the evidentiary material necessary for us to evaluate fully Dago's ineffective-assistance claim. Finally, we hold that Dago's sentence was not imposed in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because that decision does not apply retroactively to the convictions of federal prisoners bringing initial habeas petitions. Therefore, we AFFIRM the judgment of the district court.

BACKGROUND

In 1992, a federal grand jury returned an eighty-one count indictment against Dago and nineteen other individuals for activities related to narcotics trafficking. See United States v. Dago, 813 F.Supp. 736, 739 n. 1 (D.Colo.1992), aff'd in part, rev'd in part, 1994 WL 387836 (10th Cir. July 26, 1994) (unpublished). Dago went to trial, and a jury found him guilty of (1) conspiracy to possess with intent to distribute marijuana; (2) conspiracy to possess with intent to distribute cocaine; (3) distribution of marijuana and cocaine; (4) possession of marijuana and cocaine with the intent to distribute; (5) conducting a financial transaction to promote drug trafficking; (6) using communications facilities to promote drug trafficking; (7) distributing more than 500 grams of cocaine; (8) conspiracy to conduct a financial transaction to promote drug trafficking; and (9) engaging in a continuing criminal enterprise ("CCE"). See id. at 740. The district court sentenced Dago to 360 months' imprisonment. See Dago, 1994 WL 387836 at *1.

Dago appealed, and we affirmed in part and reversed in part. See id. Specifically, we reversed the drug conspiracy convictions because they were lesser included offenses within the CCE conviction; reversed the money laundering conspiracy conviction because the indictment failed to allege an overt act in furtherance of the conspiracy¹; ordered the district court to vacate the special assessments inadvertently imposed on four marijuana distribution charges that the government omitted from its notice of counts for trial; and affirmed the district court's judgment with respect to all other issues raised on appeal. See id. at *1, *7.

In August 1996, Dago filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The district court deemed the application to be a motion to vacate sentence pursuant to 28 U.S.C. § 2255. Over the next seven-and-a-half years, the parties actively litigated a number of issues, and Dago's case was passed among at least three district court judges and two magistrate judges. The district court denied Dago's § 2255 petition in March 2004.

In this appeal, Dago contests the district court's denial of his § 2255 petition. Although the district court denied Dago a certificate of appealability ("COA"), this court granted him a COA on the four issues discussed in this opinion, ordered the government to file a brief, and set the case for oral argument.²

DISCUSSION

We exercise jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253. See United States v. Espinoza-Saenz, 235 F.3d 501, 502 (10th Cir.2000). We review the district court's legal rulings de novo and its findings of fact for clear error. See United States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir.2000).

I. Richardson Error

Dago contends that we should reverse his CCE conviction because the district court failed to instruct the jury in his 1992 trial in accordance with the later holding of Richardson, 526 U.S. at 813, 119 S.Ct. 1707. To resolve this claim, we analyze two preliminary issues: (1) whether Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), allows Richardson to be applied retroactively on collateral review; and (2) whether Dago's failure to raise a Richardson-type argument at trial and on direct appeal procedurally bars him from raising the issue under United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). After answering the first question in the affirmative and the second question in the negative, we consider whether a Richardson error is subject to harmless-error analysis, what standard applies in that analysis, and whether the error in this case was harmless.

A. Retroactivity under Teague

In this case, Dago's conviction was final before the Supreme Court decided Richardson in 1999. For Teague purposes, a conviction becomes final when the availability of a direct appeal has been exhausted and the time for filing a petition for certiorari with the Supreme Court has elapsed or the Court has denied a timely petition for certiorari. See Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). Dago's conviction became final in October 1994, when the Supreme Court denied his petition for certiorari. See Dago v. United States, 513 U.S. 978, 115 S.Ct. 458, 130 L.Ed.2d 366 (1994).

Where a Supreme Court decision "results in a `new rule,' that rule applies to all criminal cases still pending on direct review." Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). "As to convictions that are already final, however, the rule applies only in limited circumstances." Id. While new substantive rules generally apply retroactively, new procedural rules do not. See id. at 351-52, 124 S.Ct. 2519.

"A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes." Id. at 353, 124 S.Ct. 2519. Richardson announces a new rule of substantive law. See United States v. Barajas-Diaz, 313 F.3d 1242, 1245 (10th Cir.2002). As such, Teague, which generally blocks the retroactive application of new procedural rules to cases on collateral review, see 489 U.S. at 310-11, 109 S.Ct. 1060, does not bar the retroactive application of the substantive Richardson rule to Dago's case.

B. Frady Defense

Dago does not contend that he raised a Richardson issue at trial or on direct appeal. In fact, Dago states that "[n]one of the issues raised in [his] brief were presented to the Court in the original appeal." As such, Dago's Richardson claim implicates Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816, which states that a defendant's failure to raise an issue at trial or on direct appeal imposes a procedural bar to the review of that claim in a habeas proceeding that is excusable only if certain conditions are met. See id. at 167-68, 102 S.Ct. 1584.

However, in this case the government concedes that it failed to assert a Frady defense to Dago's § 2255 Richardson claim before the district court. In circumstances where the government has failed to raise a Frady defense below, but does so on appeal, we may consider the defense, but we need not do so. Compare Barajas-Diaz, 313 F.3d at 1246, with United States v. Allen, 16 F.3d 377, 378-79 (10th Cir.1994).

Here, "[w]e elect not to pursue a disposition of this case on the ground of procedural bar, and the government is not entitled to such a disposition having failed until now to raise this issue." Allen, 16 F.3d at 379. In particular, we are concerned that because the government concedes that it did not raise a Frady defense until filing its appellate brief, and even then suggested that the defense may have been waived, Dago never had a meaningful chance to respond to the argument that Frady barred him from asserting a Richardson claim. See Hines v. United States, 971 F.2d 506, 509 (10th Cir.1992).

C. Harmless-Error Analysis

To establish that a defendant engaged in a CCE, the government must prove that the defendant committed a felony narcotics violation, see 21 U.S.C. § 848(c)(1), and that this narcotics offense was part of a continuing series of three or more related violations, see id. § 848(c)(2); United States v. Apodaca, 843 F.2d 421, 427 (10th Cir.1988). Richardson states that "a jury has to agree unanimously about which specific violations make up the `continuing series of violations.'" 526 U.S. at 815, 119 S.Ct. 1707. That is, Richardson makes clear that "a jury in a federal criminal case brought under [21 U.S.C.] § 848 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.'" Id.

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