Filed: Patrick Fisher
Filed: Patrick Fisher
APR 26 2000
PATRICK FISHER
Clerk
No. 99-2256
(District of New Mexico)
(D.C. No. CIV-98-1168-JC)
v.
CIPRIANO ZAMUDIO,
Defendant-Appellant.
the district courts denial of his motion to vacate, set aside, or correct sentence
brought pursuant to 28 U.S.C. 2255.
that a petitioner may not appeal the denial of a 2255 petition unless the
petitioner first obtains a COA). Because Zamudio has not made a substantial
showing of the denial of a constitutional right, this court
request for a COA and
denies Zamudios
Zamudio ,
Zamudio has attached to his application for a COA certain documents that
were not presented to the district court and are not part of the record on appeal.
This court will not consider those documents in deciding whether to grant
Zamudios request for a COA. See John Hancock Mut. Life Ins. Co. v. Weisman,
27 F.3d 500, 506 (10th Cir. 1994).
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In his pro se 2255 petition, Zamudio first asserted that his trial counsel
had been ineffective in the following respects: (1) failing to challenge the
sufficiency and credibility of the DEA agents testimony about Zamudios postarrest statements; (2) failing to present all available evidence about the rental of a
trailer used to transport the drugs; (3) failing to effectively cross-examine a coconspirator who testified against Zamudio; (4) failing to investigate taped
conversations Zamudio had with co-conspirators to determine whether the
government complied with the federal wire tap statute (18 U.S.C. 2510
et.
seq .); (5) failing to make a motion to suppress the tapes made of the
conversations between Zamudio and a co-conspirator; (6) failing to investigate
the quantity of drugs to be attributed to Zamudio; and (7) failing to seek
sentencing adjustments and Zamudios eligibility for the safety valve provisions
of U.S.S.G. 5C1.2. Zamudio also claimed that his appellate counsel was
ineffective for failing to raise the argument, on appeal, that his trial counsel
failed to effectively cross-examine his co-conspirator.
In addition to his ineffective-assistance-of-counsel claims, Zamudio raised
the following additional claims: (1) the DEAs failure to record his interrogation
on the day he was taken into custody was a violation of the Fifth Amendment; (2)
the DEAs failure to comply with the requirements of the federal wire tap statutes
(8 U.S.C. 2510 et. seq .) required that the recorded conversations between
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See Zamudio ,
(10th Cir. 1989). This court is unaware of any intervening law applicable to the
Sixth Amendment issues raised by Zamudio in his 2255 petition.
The district court then concluded that Zamudios jury-bias claim and his
claim attacking the district courts instructions pertaining to the tape translations
were procedurally barred because they should have been brought in his direct
appeal. See United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994) (A
defendant who fails to present an issue on direct appeal is barred from raising the
issue in a 2255 motion, unless he can show cause for his procedural default and
actual prejudice resulting from the alleged errors, or can show that a fundamental
miscarriage of justice will occur if his claim is not addressed.). The district
court concluded that Zamudio had failed to show cause and prejudice or a
miscarriage of justice. The district court further concluded that, even in the
absence of a procedural bar, the claims had no merit.
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The district court also rejected Zamudios claim that the government
violated 18 U.S.C. 201 by rewarding a co-conspirator for his cooperation.
See
United States v. Singleton , 165 F.3d 1297, 1300-1302 (10th Cir. 1999) (en banc).
The district court based its conclusion on the fact that its review of the coconspirators sentencing proceedings failed to show that the prosecutor had
offered the co-conspirator something other than a concession normally granted
by the government in exchange for testimony.
Id. at 1302.
The district court then rejected Zamudios claim that his Fifth Amendment
rights were violated by the DEAs failure to tape-record his interrogation. The
court concluded that the Fifth Amendment does not require the recording of postarrest statements.
See United States v. Yunis , 859 F.2d 953, 961 (D.C. Cir. 1988)
See Martin v. Kaiser , 907 F.2d 931, 934 (10th Cir. 1990).
Finally, the district court rejected Zamudios claim that his Fourth
Amendment and statutory rights were violated by the recording of his
conversations with a co-conspirator. The court noted that the co-conspirator
consented to the recording of the conversations.
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U.S. 745, 747-54 (1971) (holding that a defendants Fourth Amendment rights
are not violated if conversations between the defendant and a government
informant are electronically monitored with the consent of the informant).
Further, the district court concluded that Zamudios statutory rights had not been
violated because the statute contains exceptions to the prohibition against
wiretapping or other electronic surveillance if, as here, the conversation is
recorded by a government informant who has consented to the recording of the
conversation. See 18 U.S.C. 2511(2)(c), (d).
After reviewing the parties submissions, the Proposed Findings and
Recommended Disposition, and Zamudios objections thereto, the district court
entered an order dismissing Zamudios 2255 petition. Zamudio sought and was
denied a COA from the district court. In his appeal, Zamudio raises substantially
the same issues raised in his 2255 petition.
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Recommended Disposition, and the entire record before us. That review
demonstrates that the district courts order denying relief is not deserving of
further proceedings, debatable among jurists of reason, or subject to different
resolution on appeal.
This court denies Zamudios request for a COA for substantially those reasons
set forth in the magistrate judges Proposed Findings and Recommended
Disposition as adopted by the district court in its Order dated August 9, 1999,
and dismisses this appeal.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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