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    The United States Court of Appeals for the Tenth Circuit denied Cipriano Zamudio's request for a certificate of appealability to appeal the district court's denial of his motion to vacate, set aside, or correct his sentence. The district court had thoroughly addressed and rejected each of Zamudio's claims, including ineffective assistance of counsel, violations of his confrontation rights, jury bias, and challenges to the recording of his conversations. The appellate court found that Zamudio had failed to make a substantial showing that his constitutional rights were denied.

    Original Description:

    Filed: 2000-04-26 Precedential Status: Non-Precedential Docket: 99-2256

    Original Title

    United States v. Zamudio, 10th Cir. (2000)

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    The United States Court of Appeals for the Tenth Circuit denied Cipriano Zamudio's request for a certificate of appealability to appeal the district court's denial of his motion to vacate, set aside, or correct his sentence. The district court had thoroughly addressed and rejected each of Zamudio's claims, including ineffective assistance of counsel, violations of his confrontation rights, jury bias, and challenges to the recording of his conversations. The appellate court found that Zamudio had failed to make a substantial showing that his constitutional rights were denied.

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    Public Domain
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    40 views8 pages

    Filed: Patrick Fisher

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    The United States Court of Appeals for the Tenth Circuit denied Cipriano Zamudio's request for a certificate of appealability to appeal the district court's denial of his motion to vacate, set aside, or correct his sentence. The district court had thoroughly addressed and rejected each of Zamudio's claims, including ineffective assistance of counsel, violations of his confrontation rights, jury bias, and challenges to the recording of his conversations. The appellate court found that Zamudio had failed to make a substantial showing that his constitutional rights were denied.

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    of 8

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    APR 26 2000

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,

    No. 99-2256
    (District of New Mexico)
    (D.C. No. CIV-98-1168-JC)

    v.
    CIPRIANO ZAMUDIO,
    Defendant-Appellant.

    ORDER AND JUDGMENT *


    Before BRORBY, KELLY, and MURPHY, Circuit Judges.
    After examining Appellants brief and the appellate record, this panel has
    determined unanimously that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

    The case is therefore ordered submitted without oral argument.


    The case is before this court on Appellant Cipriano Zamudios request for
    a certificate of appealability (COA). Zamudio seeks a COA so he can appeal
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    *

    the district courts denial of his motion to vacate, set aside, or correct sentence
    brought pursuant to 28 U.S.C. 2255.

    See 28 U.S.C. 2253(c)(1)(b) (providing

    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

    dismisses the appeal.

    denies Zamudios

    See id. 2253(c)(2).

    Zamudio was indicted for conspiracy to possess with intent to distribute


    more than five kilograms of cocaine. Zamudio was convicted following a jury
    trial in federal court. On direct appeal, Zamudio raised several claims of error
    including: (1) counsel for one of his co-defendants improperly commented on his
    failure to testify; (2) the trial court improperly limited his right to cross-examine
    one of the governments witnesses; and (3) the trial court improperly admitted
    hearsay statements made by a co-defendant. This court rejected Zamudios
    allegations of error and affirmed his conviction.

    See United States v.

    Zamudio ,

    No. 96-2182, 1998 WL 166600 (10th Cir. April 6, 1998) (unpublished


    disposition).

    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).
    1

    -2-

    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
    -3-

    Zamudio and a co-conspirator be suppressed; (3) he was denied his Sixth


    Amendment confrontation rights because of limitations placed on the crossexamination of a witness by the trial court; (4) the jury was biased; (5) the trial
    court erred when it instructed the jury regarding translations of the taped
    conversations between Zamudio and his co-conspirator; and (6) the government
    violated 18 U.S.C. 201 by rewarding a cooperating co-defendant.

    Despite Zamudios written objections, the district court adopted the


    magistrate judges Proposed Findings and Recommended Disposition. Each
    claim raised in Zamudios petition was painstakingly addressed in turn in the
    magistrate judges Proposed Findings and Recommended Disposition which
    began by noting that to establish the ineffectiveness of his counsel, Zamudio
    must demonstrate both that counsels performance was deficient and that he was
    prejudiced by the deficient performance.
    668, 687 (1984). Applying

    See Strickland v. Washington , 466 U.S.

    Strickland to Zamudios claims, the court concluded

    Although not directly addressed by the district court, Zamudios 2255


    petition, liberally construed, could also be said to contain claims that: (1)
    Zamudios due process rights were violated because the jury was not composed of
    a cross-section of the community; (2) Zamudios trial counsel was ineffective for
    failing to challenge the composition of the jury; and (3) Zamudios appellate
    counsel was ineffective for failing to raise the sentencing issues in his direct
    appeal. Assuming without deciding that the 2255 petition contained these
    claims, this court has considered them and finds them either to be procedurally
    barred or without merit.
    2

    -4-

    that Zamudio had failed, in each instance, to demonstrate deficient performance


    on the part of his counsel.
    The district court noted that Zamudios Sixth Amendment confrontation
    claims had been raised on direct appeal and rejected by this court.

    See Zamudio ,

    1998 WL 166600, at, *5-*8. Issues previously considered and disposed of on


    direct appeal will not be reconsidered in a 2255 petition in the absence of an
    intervening change in the law.

    See United States v. Prichard , 875 F.2d 789, 791

    (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.
    -5-

    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)

    ([T]there is no constitutional requirement that confessions be recorded by any


    particular means.). In the alternative, the district court, liberally construing
    Zamudios claim as a due process challenge, concluded that the absence of a tape
    recording did not prejudice Zamudio so as to render the entire proceeding
    fundamentally unfair.

    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.
    -6-

    See United States v. White , 401

    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.

    This court has reviewed Zamudios request for a COA, Zamudios


    appellate brief, the magistrate judges Proposed Findings and Recommended
    Disposition, the district courts order adopting the Proposed Findings and
    In his application for a COA and again in his appellate brief, Zamudio also
    attempts to raise, for the first time, the argument that his trial counsel was
    ineffective for failing to allow him to testify at his trial. Zamudio also attempts
    to raise for the first time the argument that his appellate counsel was ineffective
    for failing to visit him in prison and debrief him prior to filing the direct
    appeal. This court will not consider issues raised for the first time on appeal. See
    Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999).
    3

    -7-

    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.

    See Barefoot v. Estelle , 463 U.S. 880, 893 (1983).

    Accordingly, Zamudio has failed to make a substantial showing of the denial of a


    constitutional right and is not entitled to a COA.

    See 28 U.S.C. 2253(c)(1)(b).

    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

    -8-

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