US v. Cota-Loaiza, 96-WY-828-AJ.

• Decision Date: 16 July 1996
• Docket Number: No. 96-WY-828-AJ.,96-WY-828-AJ.
• Citation: 936 F. Supp. 751
• Parties: UNITED STATES of America, Plaintiff, v. Abel COTA-LOAIZA, Defendant.
• Court: U.S. District Court — District of Colorado

936 F. Supp. 751

UNITED STATES of America, Plaintiff, v. Abel COTA-LOAIZA, Defendant.

No. 96-WY-828-AJ.

United States District Court, D. Colorado.

July 16, 1996.

Henry L. Solano, United States Attorney, and Charlotte J. Mapes, Assistant United States Attorney, Denver, Colorado, for the United States of America.

Susan G. James, Law Offices of Susan G. James & Associates, Montgomery, Alabama, for Abel Cota-Loaiza.

MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF PURSUANT TO 28 U.S.C. § 2255

ALAN B. JOHNSON, Chief Judge.^*

Before the court is Abel Cota-Loaiza's motion for post-conviction relief pursuant to 28 U.S.C. § 2255. Having considered all of the relevant facts and law, the materials submitted by the parties, and the entire file in this case, the court concludes Mr. Cota-Loaiza's motion should be DENIED.

I

Mr. Cota-Loaiza pled guilty to one count of conspiracy to possess heroin with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846 (hereafter "count 1") and one count of using or carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) (hereafter "count 2"). In his plea agreement, Mr. Cota-Loaiza stipulated to the following facts:

6. The parties agree that the government's evidence would show that the date on which conduct relevant to the offense began is about August 1, 1992.

7. The parties further agree that at trial the government's evidence would show:

8. From December 1991 through July 1992 ... a DEA confidential informant and DEA Special Agent Ralph Villarreul, acting in an undercover role, had conversations regarding the purchase of controlled substances by Agent Villarreul which included discussions about the possible purchase of heroin.

9. On August 2, 1992, the DEA confidential informant and Agent Villarreul were contacted by Ruben Dario Ramirez-Garcia and asked if they were interested in the purchase of 28 ounces of black tar heroin. The informant and Agent Villarreul indicated they were, but that the heroin would have to be delivered to Denver, Colorado. The confidential informant flew to Phoenix, Arizona and met with Ruben Dario Ramirez-Garcia on August 3, 1992. The informant was then introduced to the defendant by Ruben Dario Ramirez-Garcia who indicated that the defendant had the heroin.

10. The informant, the defendant and Ruben Dario Ramirez-Garcia drove from Phoenix to Denver and arrived in Denver on the morning of August 5, 1992. Agent Villarreul then went to the Denny's Restaurant, at I-25 and 38th Avenue in Denver, Colorado and met with the informant, Ruben Dario Ramirez-Garcia and the defendant. After discussions, the group moved outside to the vehicle in which the defendant, the informant and Ruben Dario Ramirez-Garcia had arrived. Agent Villarreul got into the car with the defendant and the defendant provided Agent Villarreul with a package that contained suspected heroin. The contents of this package and another found in a search of the vehicle following the arrest, were tested by the Drug Enforcement Administration Laboratory and found to contain 219.2 grams of heroin of 57% purity.

11. The defendant was arrested from the passenger seat of the vehicle. During the arrest, a loaded Charter Arms, .38 special revolver, serial number 1075590, was found in the front of the pants worn by the defendant.

The court sentenced Mr. Cota-Loaiza to 42 months imprisonment for count 1 and 60 months for count 2, to run consecutively, for an aggregate term of 102 months. The Court also sentenced Mr. Cota-Loaiza to four years supervised release for count 1 and three years supervised release for count 2, to run concurrently, imposed a $50.00 special assessment for each count, and waived all fines because of Mr. Cota-Loaiza's inability to pay. Mr. Cota-Loaiza did not appeal his conviction and sentence to the Tenth Circuit Court of Appeals.

On April 8, 1996, Mr. Cota-Loaiza filed the motion for post-conviction relief which is the subject of this memorandum and order, raising a single issue: whether his conviction and sentence for using or carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) must be vacated in light of the Supreme Court's recent decision in Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The matter is now fully briefed and ripe for decision.

II

As a threshold matter, the court must determine whether Bailey applies retroactively to allow relief in collateral proceedings under 28 U.S.C. § 2255. Although the Tenth Circuit has not squarely decided this issue, all of the courts in other jurisdictions that have considered it have held Bailey applies retroactively. See, e.g., United States v. Andrade, 83 F.3d 729, 730 n. 1 (5th Cir.1996) (per curiam) (suggesting in dictum that application of Bailey in collateral proceedings not barred under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)); United States v. Garcia, 77 F.3d 274, 276-77 (9th Cir.1996) (raising Bailey sua sponte and holding its application was not barred by law of the case doctrine despite ruling of prior Ninth Circuit panel); Rodriguez v. United States, 933 F.Supp. 279, 281 (1996) (defendant not procedurally barred from raising Bailey in successive § 2255 petition and "because Bailey effected a change in the substantive meaning of a criminal statute, rather than merely establishing a new constitutional rule of criminal procedure, it must be applied retroactively"); United States v. Adams, 1996 WL 363926, *2, n. 2 (E.D.Pa. June 21, 1996) (application of Bailey not barred by the Antiterrorism and Effective Death Penalty Act of 1996, even though defendant filed his § 2255 motion after the statute's effective date); Guzman-Rivera v. United States, ___ F.Supp. ___, ___, 1996 WL 341972, *4 (D.Puerto Rico June 17, 1996) (Bailey is retroactive under Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)); Alton v. United States, 928 F.Supp. 885, 887 (E.D.Mo.1996) (citing district court decisions holding Bailey applies retroactively and Bailey claims are not procedurally barred though not raised on direct appeal); Warner v. United States, 926 F.Supp. 1387, 1391 & n. 5 (E.D.Ark.1996) (Bailey is retroactive under Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), and retroactivity is not governed by Teague); United States v. Trevino, 1996 WL 252570, *2 (N.D.Ill. May 10, 1996) (same); Beal v. United States, 924 F.Supp. 913, 915-16 (D.Minn.1996) (Bailey claim not procedurally barred because defendant showed "cause" and "prejudice"); United States v. Fletcher, 919 F.Supp. 384, 387-89 (D.Kan.1996) (concluding in light of Tenth Circuit and Supreme Court precedent that defendant did not waive Bailey issue by pleading guilty and that Bailey applies retroactively); Bell v. United States, 917 F.Supp. 681, 683-84 (E.D.Mo.1996) (holding Bailey is not barred under Teague, Bailey claim is not procedurally barred although defendant failed to raise it on direct appeal, and defendant did not waive issue by pleading guilty); Sanabria v. United States, 916 F.Supp. 106, 109-14 (D.Puerto Rico 1996) (Bailey is not barred from retroactive application under Teague); United States v. Turner, 914 F.Supp. 48, 49 (W.D.N.Y.1996) (retroactivity of Bailey governed by Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), rather than Teague, and under Davis, Bailey must be applied retroactively); Abreu v. United States, 911 F.Supp. 203, 206-08 (E.D.Va.1996) (holding Bailey is not barred under Teague, Bailey claim is not procedurally barred although defendant failed to raise it on direct appeal, and defendant did not waive issue by pleading guilty). The court agrees with these decisions on the question of retroactivity, and therefore holds Bailey applies in collateral proceedings under 28 U.S.C. § 2255. The court also agrees with the well reasoned analysis by Judge Saffels in Fletcher, 919 F.Supp. at 387-88, by Judge Gunn in Bell, 917 F.Supp. at 683-84, and by Judge Ellis in Abreu, 911 F.Supp. at 207-08, and shares their view that a defendant who has pled guilty has not waived his right to challenge his conviction on the ground his conduct was not unlawful under § 924(c) as interpreted in Bailey.

The Tenth Circuit has not yet explained how courts are to apply Bailey in cases in which the defendant pled guilty to a charge he used or carried a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) in a published opinion. It has, however, discussed Bailey's application in cases in which a defendant was convicted of that offense by a jury. In United States v. Miller, 84 F.3d 1244, 1257 (10th Cir.1996), the court explained that if, as in this case, the indictment alleges that the defendant both "used" and "carried" the firearm in question, the jury was instructed on both the "use" and the "carry" prong of § 924(c), and the "use" instruction was erroneous in light of Bailey, the defendant's conviction under § 924(c) must be reversed unless the reviewing court is absolutely certain the jury convicted solely under the "carry" prong. It further held, however, that the defendant may be retried under the "carry" prong if a properly instructed jury could have convicted. Id. at 1258.

The court believes the concerns underlying the Tenth Circuit's decision in Miller are not implicated when, as in this case, the defendant has pled guilty. In Miller, the court observed that if a jury may convict under either of two alternate theories, and the jury instruction on one of those theories is incorrect, the jury's verdict may have been based on the theory on which it was incorrectly instructed. Miller, 84 F.3d at 1257. The only way to remedy the problem is to order a retrial and put the government to its proof before a properly instructed jury, as the court did in Miller. I...