Free Certificate of Appealability Issued - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff/Appellee, vs. Aquileo Melchor-Zaragoza, ) Defendant/Appellant, ) ) ) ) ) ) ) )

CASE NO. CR 01-0017-PHX-JAT CV 04-2766-PHX-JAT (LOA) ORDER re: CERTIFICATE OF APPEALABILITY and IN FORMA PAUPERIS STATUS

I,

James A Teilborg , Judge of the United States District Court for the District Aquileo Melchor-Zaragoza

of Arizona, certify that I have examined the Petition of

for issuance of a Certificate of Appealability, together with the motion to vacate/set aside sentence pursuant to 28 U.S.C. § 2255 filed in this Court, and FIND: /x/ Certificate of Appealability Granted. Probable cause exists for the appeal taken in the above-named cause through the United States Court of Appeals for the Ninth Circuit from the Order of this Court denying petitioner's motion pursuant to 28 U.S.C. §2255, and GRANTS that petitioner be allowed to proceed in forma pauperis for this appeal. The appellant has made a substantial showing of the denial of a constitutional right with respect to the following issues: see attached . / / Certificate of Appealability Denied. Probable cause does not exist for the appeal. The applicant has not made a substantial showing of the denial of a constitutional right. In Forma Pauperis status denied as to this appeal. The clerk shall forthwith notify the parties of the entry of this Order regarding Certificate of Appealability and In Forma Pauperis Status on Appeal. DATED this 4th day of April, 2006.

Case 2:01-cr-00017-JAT

Document 318

Filed 04/04/2006

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WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Aquileo Melchor-Zaragoza, Petitioner, vs.

The United States of America, Respondent

) ) ) ) ) ) ) ) ) ) ) )

No.

CR-01-17-PHX-JAT CV 04-2766-PHX-JAT (LOA)

ORDER

Pending before the Court is Petitioner's Motion for Certificate of Appealability (Doc. #316). For the following reasons, the Court finds that Petitioner has made a substantial showing of a denial of constitutional rights with respect to the issues of duplicity, multiplicity, and the incorrect wording on the indictment. I. PROCEDURAL HISTORY Petitioner filed a Petition for Writ of Habeas Corpus (Doc. #290) on December 3, 2004. The Magistrate Judge assigned to the Petition issued a Report and Recommendation (Doc. #307) on August 30, 2005 recommending that the Petition be denied. Petitioner filed objections to the Report and Recommendation (Doc. #309) on September 19, 2005. The Court adopted the Magistrate Judge's Report and Recommendation, overruled Petitioner's
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objections, and denied with prejudice Petitioner's Petition for Writ of Habeas Corpus on December 2, 2005 (Doc. #313). II. DISCUSSION A. Legal Standard A judge may issue a Certificate of Appealability ("COA") "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The standards for granting a COA are the same for petitioners under § 2254 and § 2255. See United States v. Martin, 226 F.3d 1042, 1046 n.4 (9th Cir. 2000). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); see also id. (describing the COA determination as deciding whether the issues presented are "`adequate to deserve encouragement to proceed further'" [quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)]). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. at 484. Although an issue may appear to be settled in the reviewing circuit, it may be debatable for purposes of issuing a COA if another circuit has reached a conflicting view. Lambright v. Stewart, 220 F.3d 1022, 1025-26 (9th Cir. 2000). The Court may address either element of the two-pronged COA test to determine
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the appealability of a district court's procedural ruling in any order if disposing one element resolves the issue. See id. at 485 ("[e]ach component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments"). The rule for issuing a COA amounts to but a "modest standard" and the Ninth Circuit has cautioned that "`we must be careful to avoid conflating the standard for gaining permission to appeal with the standard for obtaining a writ of habeas corpus.'" Silva v. Woodford, 279 F.3d 825, 832 (9th Cir. 2002), cert. denied, 123 S.Ct. 342 (2002)(quoting Lambright, 220 F.3d at 1024, 1025). Finally, "any doubts" about granting a movant's request for a COA "must be resolved in his favor" and a court should issue a COA unless the claims are "`utterly without merit.'" Silva v. Woodford, 279 F.3d at 833 (quoting Jefferson v. Welborn, 222 F.3d 286, 289 (7th Cir. 2000)). B. Application 1. Claims One, Two, and Four­Apprendi, Blakely, and Ameline Petitioner's Claims One, Two, and Four are based on Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (Ameline being the Ninth Circuit case interpreting what is required after United States v. Booker, 543 U.S. 220 (2005)). In the context of a collateral review, such as a habeas petition, the Ninth Circuit has clearly established that these cases do not provide an avenue for relief. United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir. 2002) (discussing Apprendi); Cook v. United States, 386 F.3d 949, 950 (9th Cir. 2004) (discussing Blakely); United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir. 2005)
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(discussing Booker). Accordingly, Petitioner has failed to make a substantial showing of a denial of constitutional rights as to these claims. 2. Claim Five­Duplicity Petitioner argues that Counts One and Two of the indictment were duplicitous in nature. "Duplicity is the joining in a single count of two or more distinct and separate offenses. One vice of duplicity is that a jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of a particular offense." United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976). Count One Count One charged Petitioner with Conspiracy to Commit Hostage Taking under 18 U.S.C. §§ 371 and 1203. He argues that "Count One contained five or more possible charges [when reading the two statutes together]." (Doc. #316 at 15-15). He argues that listing both statutes under Count One created the non-existent federal offenses of "attempting to conspire" and "conspiring to conspire." (Doc. #291 at 35). He argues that based on the general verdict forms there is no way of knowing if he was convicted under 18 U.S.C. §371, §1203, or the non-existent federal offenses. The verdict form, however, listed Count One as "Conspiracy to Commit Hostage Taking" and did not mention "attempt." Although this Court found the verdict forms to be unambiguous, Petitioner's argument is debatable. It is possible that the jury may not have reached a unanimous verdict as to §§371 or 1203, but may have combined the offenses to reach their verdict. See UCO Oil Co., 546 F.2d at 835. Count Two Count Two charges Hostage Taking pursuant to 18 U.S.C. §§ 1203 and 2. Petitioner
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argues that "Count Two entwines `conspires and attempts' with `aiding and abetting." The Magistrate Judge concluded that using the "aiding and abetting" language from 18 U.S.C. §2 did not render the count duplicitous but rather clarified that Petitioner "could be charged under 18 U.S.C. §1203 as a principal even if he only aided and abetted the hostage taking." (Document #307 at 16). Petitioner argues that "[i]n reading the structure of Counts One, Two, Three and Four with the district court's instructions, and the lack of specific verdicts . . . it becomes clear that the convictions violate the Fifth and Sixth Amendments." He offers no further arguments in support of this position. Again it is possible that the jury may have combined the statutes in an impermissible way to find Petitioner guilty of an offense under Count Two. See UCO Oil Co., 546 F.2d at 835. A jurist of reason may find it debatable whether Petitioner stated a valid claim of a denial of a constitutional right with respect to the issue of duplicity in Counts One and Two. Accordingly, Petitioner has established a sufficient basis for granting a Certificate of Appealability on this issue. 3. Claim Six­Multiplicity Petitioner argues that the government violated his Fifth and Sixth Amendment rights by convicting him of separate counts of conspiracy to effect a common plan or scheme when he engaged only in a single conspiracy. "[T]he test to be applied to determine whether there are two offense or only one, is whether each provision requires proof of a fact which the other does not." Albernaz v. United States, 450 U.S. 333, 337 (1981) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). In Albernaz, the Supreme Court upheld consecutive sentences for conspiracy to import marijuana and for conspiracy to distribute marijuana because each conspiracy had a different objective and thus required proof of
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separate facts. Id. at 339. In contrast, the Ninth Circuit held in Lanius v. United States, 575 F.2d 770, 771 (9th Cir. 1978) that consecutive sentences for conspiracy to smuggle heroin and for conspiracy to smuggle amphetamines were multiplicitous because only one agreement was involved. Petitioner was charged with Conspiracy to Commit Hostage Taking in violation of 18 U.S.C. §§371 and 1203 (Count One) and Conspiracy to Harbor Illegal Aliens in violation of 8 U.S.C. § 1324 (a)(1)(A)(iii) (Count Three). Petitioner believes the circumstances of his conviction to be similar to those in Lanius. Petitioner believes that both conspiracies arose out of a single agreement and course of conduct over a three day period. If the conduct did, in fact, arise out of a single agreement, the holding in Lanius casts doubt on whether or not the conspiracies should have been treated as a single offense. Because a jurist of reason may find it debatable whether or not Petitioner was denied his constitutional rights because of mulitplicitous charges, this issue is grounds for granting the Certificate of Appealability. 4. Claim Seven­Constructive Amendment Petitioner argues that because of the duplicitous offenses charged in Count One and the multiplicitous conspiracy charges in Counts One and Three, the indictment was constructively amended in violation of his Fifth and Sixth Amendment rights. This claim is intertwined with Claims Five and Six. Both of those claims entitled Petitioner to a Certificate of Appealability. Accordingly, this claim may be considered upon review in conjunction with Claims Five and Six. 5. Claim Eight­Incorrect Indictment Petitioner argues that Count Five of the indictment, charging a violation of 18 U.S.C. § 924(c), was worded improperly and that the jury instructions amended the indictment.
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Petitioner argues that §924(c)(1)(A) creates two separate and distinct offenses: 1) using or carrying a firearm during and in relation to a crime of violence and 2) possessing a firearm in furtherance of a crime of violence. The challenged wording of the indictment said, "defendant did possess, carry and brandish a firearm during and in relation to a crime of violence." The Ninth Circuit has held that "[w]hen the sufficiency of an indictment is challenged after trial, it is only required that `the necessary facts appear in any form or by fair construction can be found within the terms of the indictment.'" United States v. James, 980 F.2d 1314, 1317 (9th Cir. 1992) (quoting Kaneshiro v. United States, 445 F.2d 1266, 1269 (9th Cir. 1971)). The Sixth Circuit has taken a different approach. United States v. Combs, 369 F.3d 925, 934 (6th Cir. 2004). It held that intermixing elements of both offenses led to a conviction that was not the subject of the indictment, thus requiring reversal. Id. Because the two Circuits have taken different approaches to this issue, the issue is debatable for purposes of issuing a COA. Lambright v. Stewart, 220 F.3d 1022, 1025-26 (9th Cir. 2000)). Accordingly, the Certificate of Appealability should be granted as to this issue. 6. Claims Three and Nine­Ineffective Assistance of Counsel Petitioner argues that his counsel failed to raise and preserve for appeal an Apprendi issue and failed to raise the issues listed under Claims Five through Eight, thus rendering the assistance of counsel ineffective. Under Stickland v. Washington, 466 U.S. 668, 687 (1984), a claim of ineffective assistance of counsel has two components: 1) counsel's performance must have been deficient, and 2) the deficient performance must have prejudiced the defendant. To be considered deficient, counsel's performance must have fallen below an objective standard of reasonableness. Wiggins v. Smith, 539 U.S. 510, 521 (2003). "The
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defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694. The record reflects that Petitioner's counsel did, in fact, raise and argue Apprendi issues. Petitioner failed to demonstrate how his counsel's performance fell below an objective standard of reasonableness as to Claim Three. Petitioner's Claims Five through Eight were deemed by the Court to be meritless, and thus counsel's failure to raise them could not have prejudiced the original outcome of the trial as Petitioner suggests in Claim Nine. See Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982). A reasonable jurist would not find the issue debatable. Claims Three and Nine do not require the Court to grant a Certificate of Appealability. III. CONCLUSION Petitioner's claims relating to duplicity, multiplicity, and the general wording of the indictment have established a substantial showing of a denial of constitutional rights or the possibility of an incorrect procedural ruling. Accordingly, IT IS SO ORDERED that Petitioner's Motion for Certificate of Appealability (Doc. #316) is granted with respect to Claims Five, Six, Seven, and Eight of the habeas petition (which relate to Counts One, Two, Three, and Four of the indictment) and denied with respect to Claims One, Two, Three, Four, and Nine of the habeas petition. DATED this 4th day of April, 2006.

Case 2:01-cr-00017-JAT

Document 318

Filed 04/04/2006

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