U.S. v. Lopez

Decision Date05 November 1996
Docket NumberNo. 96-4046,96-4046
Citation100 F.3d 113
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jorge LOPEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Submitted on the briefs: *

Scott M. Matheson, Jr., United States Attorney, and Richard D. McKelvie, Assistant United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee.

Jorge Lopez, pro se.

Before SEYMOUR, KELLY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Sentenced for conspiracy to possess with intent to distribute cocaine and to distribute cocaine, 21 U.S.C. §§ 841(a)(1), 846, and for conspiracy to possess with intent to distribute cocaine and to distribute cocaine within 1000 feet of a school, 21 U.S.C. §§ 846, 860(a), Jorge Lopez appeals the district court's denial of his motion for relief under 28 U.S.C. § 2255. He raises four issues: first, that his counsel was constitutionally deficient for failing to advise Lopez to appeal and for failing to file a Rule 29 motion to acquit for insufficiency of the evidence; second, that the trial court violated his due process rights by not fully advising him of his right to appeal; third, that the trial court erred in denying a motion to sever his trial proceedings from those of a co-conspirator, Robert Mitchell; fourth, that the evidence establishing his base offense level was hearsay. We construe these last two claims broadly to allege violations of the petitioner's right to due process.

I

We first consider whether the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), bars Lopez from bringing this § 2255 motion or requires him to obtain a certificate of appealability. See 28 U.S.C. § 2253(c), 2255. Section 2255, as revised by the Act, precludes the filing of a § 2255 motion more than one year after conviction, as is the case here. 28 U.S.C. § 2255 (as amended by 110 Stat. 1214, 1220 (Apr. 24, 1996)). 1 Prior to this amendment, a party could bring a § 2255 motion at any time. Id. Section 2253(c)(2), as revised by the Act, requires a § 2255 movant who appeals a denial of his motion by the district court to obtain a certificate of appealability from the court of appeals by making a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). 2 Lopez filed a notice of appeal with this court on February 8, 1996, before the effective date of the Act, but no briefs were filed until May 7, after the Act became effective.

We decide that neither provision applies to this appeal. "If Congress does not prescribe the scope of a statute, we apply intervening civil legislation to pending cases unless it would operate retroactively." Lennox v. Evans, 87 F.3d 431, 432 (10th Cir.1996), citing Landgraf v. USI Film Prods., 511 U.S. 244, ----, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994). The Act does not contain clear language requiring retroactive application of provisions affecting § 2255 motions. We thus look to whether application of the amended statute to defendant's appeal would have retroactive effect, that is "whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Landgraf, 511 U.S. at ----, 114 S.Ct. at 1505. In essence, the test is whether "the new provision attaches new legal consequences to events completed before its enactment." Id. at ----, 114 S.Ct. at 1499. We conclude that both the time limitation to bring a § 2255 motion and the certificate of appealability requirement of § 2253(c)(1)(B) have such effects, and accordingly do not apply them to this case.

With respect to the one-year limitation period, the act of filing a § 2255 motion more than one year after conviction now has an entirely new legal consequence. Previously such a motion would have been considered on the merits. Now, the statute bars judicial consideration. We agree with the Seventh Circuit that retroactive application of the one-year requirement would therefore be inconsistent with Landgraf. Herrera v. United States, 96 F.3d 1010, 1011-12 (7th Cir.1996) (Act not applied to bar appeals properly filed before its enactment); see also Reyes v. Keane, 90 F.3d 676, 679 (2d Cir.1996) (finding application of Act's one-year limitation to pending § 2254 habeas action "entirely unfair and a severe instance of retroactivity.").

We conclude also that the amended § 2253(c) should not be applied to a § 2255 appeal filed before the Act's effective date. Before April 24, filing a notice of appeal was all that was required of a defendant appealing the denial of his § 2255 motion. After that date, that same act no longer has the same legal consequence--a substantial showing of a denial of a constitutional right is required in order to perfect the appeal. This change indicates that we should not impose § 2253(c) on already pending § 2255 cases. See Landgraf, 511 U.S. at ---- n. 29, 114 S.Ct. at 1502 n. 29 (applicability of new procedural provision depends on the posture of the particular case); United States v. Ruth, 100 F.3d 111, 112 n. 1 (10th Cir.1996) (Act does not call for dismissal of § 2255 appeals properly filed before its enactment); Herrera, 96 F.3d at 1011-12 (pre-Act filing of notice of appeal suffices to place § 2255 case before court of appeals, and Act does not alter the effect of procedural steps completed before its enactment); Martin v. United States, 96 F.3d 853, 854-55 (7th Cir.1996) (same result where prisoner handed prison official notice of appeal before enactment but not received by court until after enactment); cf. Landgraf, 511 U.S. at ---- n. 29, 114 S.Ct. at 1502 n. 29 ("A new rule concerning the filing of complaints would not govern an action in which the complaint had already been filed under the old regime...."); Thye v. United States, 96 F.3d 635, 636-37 (2d Cir.1996) ( § 2253(c) not applied to § 2255 appeals properly filed and fully briefed before Act's effective date). 3

II

Although Lopez's motion is not barred under the Act, we almost always decline to hear collateral attacks for which the defendant has shown no cause and resulting prejudice for his failure to raise the issue at sentencing and on direct appeal. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982); United States v. Allen, 16 F.3d 377, 378 (10th Cir.1994). One exception to this rule involves ineffectiveness of counsel claims, which need not be raised on direct appeal. United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir.1995) (en banc). Lopez could have raised his due process claims on direct appeal, but he alleges that his failure to appeal was caused by ineffectiveness of counsel. To the extent that his ineffectiveness of counsel claims have merit, they may constitute cause for failing to raise the due process claims earlier. See Medina v. Barnes, 71 F.3d 363, 370 (10th Cir.1995) (ineffectiveness of counsel can establish cause excusing procedural bar). We therefore turn first to the merits of his ineffectiveness of counsel claims.

III

Appellant cites two allegedly deficient aspects of counsel's representation: first, that counsel inadequately advised him as to the advantages and disadvantages of waiving an appeal; second, that counsel did not file a Rule 29 motion, under Fed.R.Crim.P. 29, to acquit for insufficiency of the evidence. To demonstrate ineffectiveness of counsel, the defendant must generally show that counsel's performance fell below an objective standard of reasonableness, and that counsel's deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 690, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984). We review claims of ineffective assistance de novo. Brewer v. Reynolds, 51 F.3d 1519, 1523 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 936, 133 L.Ed.2d 862 (1996).

A

We consider first whether defendant's counsel was deficient for failing to file a Rule 29 motion. In reviewing a conviction for sufficiency of the evidence, we review the record de novo to determine whether "taking the evidence--both direct and circumstantial, together with the reasonable inferences to be drawn therefrom--in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Urena, 27 F.3d 1487, 1489 (10th Cir.) (quotation omitted), cert. denied, 513 U.S. 977, 115 S.Ct. 455, 130 L.Ed.2d 364 (1994). "We reverse only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Wacker, 72 F.3d 1453, 1462-63 (10th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 136, 136 L.Ed.2d 84 (1996).

Reviewing the extensive record in this case under this highly deferential standard, we conclude that the evidence against the defendant--both direct and circumstantial--was sufficient to establish all elements of conspiracy to possess with intent to distribute and to distribute cocaine. 21 U.S.C. §§ 841(a)(1), 846. 4 To prove a violation of 21 U.S.C. §§ 841(a)(1) and 846, the government must present evidence sufficient to establish four elements: "(1) agreement with another person to violate the law; (2) knowledge of the essential objectives of the conspiracy; (3) knowing and voluntary involvement; and (4) interdependence among the alleged conspirators." United States v. Edwards, 69 F.3d 419, 430 (10th Cir.1995) (quotation omitted). Defendant alleges that the second, third, and fourth elements were not established in this case because he had no direct knowledge of his alleged co-conspirator's extensive distribution operations in Utah.

We cannot agree that a rational trier of fact could not have found these elements proven beyond a reasonable doubt. Defendant supplied his coconspirator, Robert Mitchell, with large quantities of cocaine over an extended period. He was introduced to several of Mitchell's distributors....

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