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United States v. Tubens

United States Court of Appeals, Tenth Circuit

May 12, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
PETER ANTONIO TUBENS, Defendant-Appellant.

         (D.C. Nos. 2:15-CV-00659-TC and 2:11-CR-00579-TC-1) (D. Utah)

          Before LUCERO, O'BRIEN, and MORITZ, Circuit Judges.

          ORDER DENYING CERTIFICATE OF APPEALABILITY AND DISMISSING APPEAL

          Terrence L. O'Brien United States Circuit Judge.

         On June 7, 2011, Peter Antonio Tubens was traveling on a Greyhound bus when it stopped at a truck stop for a scheduled passenger break. During the stop, two Utah Highway Patrol agents, with the help of their drug dogs, discovered several pounds of methamphetamine in Tubens' carry-on luggage.[1] He was arrested, but released from custody. The next month, Tubens and his then-attorney met with an FBI agent in Philadelphia where Tubens lived. He admitted to having traveled to Las Vegas, Nevada, and receiving methamphetamine from his father-in-law's former drug source. He was returning to Philadelphia via bus when caught.

         He was indicted with possession with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Upon conviction he was sentenced to 20 years imprisonment, the mandatory minimum.[2] We affirmed on direct appeal. See United States v. Tubens, 765 F.3d 1251 (10th Cir. 2014).

         He filed a pro se 28 U.S.C. § 2255 motion, [3] claiming his trial counsel was ineffective for three reasons: (1) counsel failed to sufficiently advise him concerning the benefits of pleading guilty and the consequences of his prior convictions; (2) counsel should have negotiated a lower sentence in light of a memorandum issued by then-Attorney General Eric Holder (the Holder memorandum) which directed prosecutors not to charge the quantity of drugs needed to trigger mandatory minimum sentences if the defendant satisfied certain criteria; and (3) counsel was deficient for not interviewing and investigating other bus passengers and failing to challenge the methamphetamine's purity or the government's failure to provide a chemist as a witness on purity so he could cross-examine him.[4] The judge denied the motion.

         She decided the first claim was belied by the record. Counsel informed her prior to trial that Tubens had rejected a potential plea offer of 20 years.[5] Moreover, both Tubens' lead counsel and his local counsel submitted affidavits saying they were concerned about a potential life sentence due to his prior convictions and informed him multiple times of the benefits of entering a negotiated plea. He insisted on going to trial. In the alternative, the judge concluded he could not show prejudice because the potential plea offer was 20 years, the sentence he received. See Lafler v. Cooper, 566 U.S. 156, 164 (2012) (when a defendant rejects a plea offer based on counsel's faulty advice, he must show, inter alia, that the "sentence . . . under the offer's terms would have been less severe than under the . . . sentence that in fact [was] imposed" to establish he was prejudiced by the faulty advice) (emphasis added).

         With regard to counsel's failure to use the Holder memorandum, the judge decided counsel's representation did not "f[a]ll below an objective standard of reasonableness" because the memorandum was not issued until four days after Tubens' sentencing. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984) ("When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.").

         Finally, on the last claim, the judge decided Tubens could not show prejudice. He provided no evidence suggesting the result of the proceeding would have been different had counsel performed these tasks, especially in light of his admission of guilt to the FBI agent in Philadelphia. Id. at 695 (to establish prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different").

         Tubens wants to appeal from the denial of his § 2255 motion, [6] but he did not request a certificate of appealability (COA) from the district judge. He seeks one from this Court.

         A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, Tubens must demonstrate "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted). He has not met his burden.

         With one exception, he reiterates verbatim the arguments raised in his § 2255 motion. He makes no attempt to show how the judge erred in deciding his claims. He simply says the government did not respond to and the judge did not decide all of his claims. That is simply not true. Although they discussed some of his claims together, the government addressed and the judge resolved all of them. And, for the reasons given by the judge, no reasonable jurist could debate the propriety of the denial of these claims.

         The one exception is a new argument in his COA application. He says counsel was ineffective for failing to insist upon the government proving his prior felony drug conviction beyond a reasonable doubt. He relies on Alleyne v. United States, where the Supreme Court held the Sixth Amendment requires any fact increasing a mandatory minimum sentence to be submitted to a jury. ___ U.S. ___, 133 S.Ct. 2151, 2155 (2013).

         We normally do not consider claims raised for the first time in a COA application. See United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) ("It is the general rule . . . that a federal appellate court does not consider an issue not passed upon below."). However, the proper resolution of his Alleyne claim is clear. Singleton, 428 U.S. at 121 (an issue may be resolved for the first time on appeal "where the proper resolution is beyond any doubt"). In Almendarez-Torres v. United States, the Supreme Court held the fact of a prior conviction need not be submitted to a jury and proved beyond a reasonable doubt to serve as the basis for enhancing a defendant's sentence. 523 U.S. 224, 226-27 (1998). In Alleyne, the Supreme Court explicitly declined to revisit Almendarez-Torres. 133 S.Ct. at 2160 n.1; see also United States v. Ridens, 792 F.3d 1270, 1274 (10th Cir.) ...


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