D.C. Nos. 2:12-CV-00678-RJS, 2:12-CR-00065-DB-1 D. of Utah
Before TYMKOVICH, Chief Judge, BALDOCK, and HARTZ, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY [*]
TIMOTHY M. TYMKOVICH CHIEF JUDGE.
Maciel Leyva Garcia, proceeding pro se,  seeks a certificate of appealability (COA) to appeal the district court's denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 motion). Exercising jurisdiction under 28 U.S.C. § 1291, we deny a COA and dismiss the appeal.
In February 2007, the government filed a criminal complaint against Garcia and two co-defendants. Count I charged the co-defendants, but not Garcia, with distribution or possession with intent to distribute 500 grams of methamphetamine. See 21 U.S.C. § 841(a)(1). Count II charged Garcia and his co-defendants with conspiracy to distribute or possess with intent to distribute 500 grams of methamphetamine. See id. §§ 841(a)(1), 846. For unknown reasons, the complaint stated that both counts were punishable under 21 U.S.C. § 841(b)(1)(B). That section provides for a sentence between five and forty years' imprisonment where the crime involves five grams or more of methamphetamine. Id. § 841(b)(1)(B)(viii). But in fact, both charges in the complaint are punishable under subsection (A), which requires a more severe sentence of ten years to life imprisonment where the amount exceeds fifty grams. Id. § 841(b)(1)(A)(viii).
After arresting Garcia in 2009, the government filed a felony information charging him with essentially the same crime listed in the complaint: conspiracy to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. This time, the information correctly stated that he would be punished under 21 U.S.C. § 841(b)(1)(A)-ten years to life imprisonment. But Garcia alleges that his counsel consistently told him he faced a minimum of five years and a maximum of forty. Counsel predicted that Garcia would receive seven or eight years.
Garcia pleaded guilty on counsel's advice. He waived his right to an appeal or collateral review. The district court sentenced him to 210 months in prison, the low end of the range recommended by the United States Sentencing Guidelines. Garcia asked his counsel to appeal, but received no response. Garcia then brought this habeas petition, alleging ineffective assistance of counsel during and after the plea process. The district court denied the motion because it was clear at the time of the plea that Garcia faced a single count carrying a sentence of ten years to life imprisonment.
Although Garcia waived his right to collateral review, that does not bar him from bringing "ineffective assistance of counsel claims challenging the validity of the plea or the waiver." United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). We therefore consider this petition. In doing so, we review the district court's legal determinations de novo and its factual conclusions for clear error. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001). We only grant a COA "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requires demonstrating "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) (internal quotation marks omitted).
A. Counsel's Performance During the Plea Process
To succeed on a claim for ineffective assistance of counsel, Garcia must show that his counsel's performance was deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. To demonstrate prejudice in the guilty plea context, Garcia "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Garcia argues that his plea was involuntary and unknowing because he thought he was pleading to a charge carrying a sentence between five and forty years' imprisonment. Specifically, he believed he was pleading to Count I of the complaint, which he asserts is less severe than Count II. He claims that when the government issued its felony information, he believed it was charging him with Count I and not Count II. In addition, he alleges that his counsel bolstered the misconception by erroneously advising him that he faced five to forty years, rather than ten years to life. Garcia concludes that this was deficient performance and that had counsel performed reasonably, Garcia would not have accepted the plea. There are several flaws in this argument.
First, Count I of the complaint does not name Garcia. It only names his co-defendants. Garcia is named in Count II, and there was never any suggestion that he was subject to Count I. Second, the felony information plainly stated that Garcia was charged with conspiracy-the crime alleged in Count II. Finally, as noted above, Count II is not more severe than Count I. Conspiracy carries the same sentence as the completed act, 21 U.S.C. § 846, and both counts involved the same quantity of methamphetamine. Indeed, the complaint specified that both crimes ...