                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                              FOR THE TENTH CIRCUIT                        October 25, 2019
                          _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                          No. 17-1122
                                                    (D.C. Nos. 1:15-CV-02213-REB and
    KILLIU FORD,                                          1:11-CR-00303-REB-2)
                                                                 (D. Colo.)
         Defendant - Appellant.
                        _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
                  _________________________________

         Defendant Killiu Ford was convicted in the United States District Court for the

District of Colorado on two counts of kidnapping, see 18 U.S.C. § 1201(a)(1); two counts

of kidnapping minor children, see id. §§ 1201(a)(1) & 3559(f)(2); one count of

conspiracy to kidnap, see id. § 1201(c); and one count of possession of a firearm during a

crime of violence, see id. § 924(c). The district court sentenced him to 600 months’

imprisonment. We affirmed his conviction and sentence on appeal, see United States v.



*
  After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in 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. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
Morgan, 748 F.3d 1024, 1028 (10th Cir. 2014); and the Supreme Court denied his

petition for a writ of certiorari, see Ford v. United States, 135 S. Ct. 298 (2014).

       In November 2015 Defendant filed a motion under 28 U.S.C. § 2255 challenging

his conviction and sentence on 11 grounds. The following June he filed a motion to

amend and supplement his § 2255 motion with a challenge to his § 924(c) conviction

based on the Supreme Court’s recent decision in Johnson v. United States, 135 S. Ct.

2551, 2557 (2015). The district court denied all 11 claims in the original § 2255 motion,

including the claim that his trial attorney was ineffective for failing to investigate and call

his wife Shavonda L. Sterling and cousin Keino K. Taylor as alibi witnesses. And it

denied as untimely Defendant’s Johnson challenge to his § 924(c) conviction.

       Defendant requested a certificate of appealability (COA) from this court to permit

him to appeal two alleged errors by the district court: (1) denial of his alibi-witness

ineffective-assistance-of-counsel claim and (2) denial of his § 924(c) claim. See 28

U.S.C. § 2253(c)(1)(B) (requiring a COA to appeal denial of a § 2255 motion). We have

granted that request. The government waived its timeliness objection to the § 924(c)

claim and confessed error, so we reverse Defendant’s conviction on the § 924(c) charge

and remand with instructions to vacate that conviction and resentence Defendant. There

remains for consideration only Defendant’s ineffectiveness claim.

       Defendant argues that there was no reasonable basis for trial counsel’s failure to

call Sterling or Taylor to testify after they had both informed counsel that Defendant was

home at the time of the kidnappings. And he argues that the failure to call both witnesses

was clearly prejudicial to his defense, because “the government’s case here hung on


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testimony of unindicted coconspirators, who were of course subject to impeachment

based on the benefits that they received from their cooperation; and on the purported

voice recognition by one of the alleged victims, who likewise received the benefit of a

more favorable plea agreement in exchange for his testimony.” Aplt. Br. at 30.

       “We review the district court’s legal rulings on a § 2255 motion de novo and its

findings of fact for clear error. A claim for ineffective assistance of counsel presents a

mixed question of fact and law, which we review de novo.” United States v. Orange, 447

F.3d 792, 796 (10th Cir. 2006) (citation omitted). To establish ineffective assistance of

counsel, Defendant must show both that counsel’s performance was deficient and that

this deficiency prejudiced him. See Smith v. Duckworth, 824 F.3d 1233, 1249 (10th Cir.

2016). To demonstrate prejudice, 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. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694

(1984). We can consider Strickland’s performance and prejudice prongs in any order, see

id. at 697; an insufficient showing on either one is fatal to an ineffective-assistance claim,

see id. at 700.

       We affirm the denial of Defendant’s claim because the evidence against him was

very strong and the alibi evidence was weak. We begin with the incriminating evidence.

       Defendant and two codefendants, Tracy Morgan and Augustus Sanford, were

convicted by a jury at a joint trial. Evidence at trial indicated that the three men, together

with Marvin Tabor and his step-brother Xallier Patterson (who both testified for the


                                              3
government at trial), plotted in August 2009 to kidnap and rob Mario Armendariz, see

Morgan, 748 F.3d at 1028–29, a drug supplier for Tabor’s drug-dealing operation. Our

opinion affirming the convictions summarized the core evidence as follows:

         Pursuant to their plan, Mr. Morgan attached a GPS tracking device to
      Mr. Armendariz’s car while Mr. Armendariz was visiting Mr. Tabor’s
      home. Mr. Tabor then tracked Mr. Armendariz’s location on the Internet
      using Google Maps, enabling Mr. Morgan and Mr. Ford to follow Mr.
      Armendariz in their vehicle.

          Also in late summer 2009, Mr. Tabor’s brother-in-law, Mr. Sanford,
      persuaded a police officer’s minor child to steal four weapons and parts of a
      police uniform—including cargo pants, a black police shirt, and an orange
      reflective vest—from his father in exchange for two ounces of marijuana.
      Mr. Sanford also painted his Chevrolet Tahoe black.

         Around 11:00 p.m. on September 22, 2009, the Defendants and Mr.
      Tabor met at Mr. Tabor’s house. Mr. Sanford wore the stolen police gear.
      The Defendants then departed to locate Mr. Armendariz. Mr. Tabor
      remained at his home and tracked Mr. Armendariz using the GPS device
      and Google Maps, speaking with the Defendants on a cell phone to update
      them with Mr. Armendariz’s location.

          That night, Mr. Armendariz and his wife, Perla Flores, were getting into
      their car with their two young daughters outside of a cousin’s house when
      they saw two armed men exit a black Chevrolet Tahoe and at least one
      other man arrive from across the street. The men announced they were
      police officers and ordered Ms. Flores and Mr. Armendariz to lie on the
      ground. One of the men was wearing a reflective police vest. Evidence at
      trial established the Defendants were present.

          Two of the men zip-tied Mr. Armendariz’s arms and legs together,
      covered his head, and put him into the back of the Tahoe. Mr. Ford got into
      the Tahoe and questioned Mr. Armendariz about where he kept his money
      while an unknown coconspirator drove the Tahoe around. Eventually the
      Tahoe dropped off Mr. Ford at Mr. Armendariz’s home. The Tahoe drove
      away and parked in a different location.

          Meanwhile, Mr. Sanford drove Ms. Flores and her daughters in her car to
      the Flores–Armendariz home. Mr. Ford and Mr. Morgan met him there.



                                           4
       The Defendants confronted Ms. Flores, demanding to know where Mr.
       Armendariz kept his money. Ms. Flores refused to tell them.

          Mr. Morgan put a gun to the three-year-old daughter’s head, and Ms.
       Flores then told them the money was under her daughter’s dresser. Mr.
       Morgan retrieved $30,000 from under the dresser and left the home. Mr.
       Sanford and Mr. Ford continued to search the house, but after realizing Mr.
       Morgan had already left with the money, they also exited the home.

          Ms. Flores left the house looking for help. She saw a black sport utility
       vehicle pick up Mr. Sanford and Mr. Ford. The driver then drove away
       from the home, stopped several miles away, and dropped off Mr.
       Armendariz on the side of the road.

          Later that night or early the next morning, Mr. Ford and Mr. Sanford
       looked for Mr. Morgan and found him at a Taco Bell. They divided the
       money Mr. Morgan took from Mr. Armendariz’s home.

           Mr. Sanford returned to Mr. Tabor’s home and complained to Mr. Tabor
       and Mr. Patterson about Mr. Morgan’s keeping too much of the proceeds.
       Mr. Ford called Mr. Tabor’s home to discuss the kidnapping and robbery
       with Mr. Tabor and Mr. Patterson. He also complained that Mr. Morgan
       kept more than his share of the money. Mr. Morgan joined the phone call
       for a brief moment and told the others he would arrive at Mr. Tabor’s house
       within several hours. The group met at Mr. Tabor’s house and redistributed
       the proceeds from the kidnapping and robbery.

Id. at 1029–30 (footnotes omitted).

       This account was derived from testimony by several witnesses and recordings of

telephone conversations intercepted by a wiretap authorized for a separate drug

investigation. Tabor testified to Defendant’s role in both the preparation for the

kidnapping and robbery and the crimes themselves. Defendant brought the money for the

drug deal used to get Armendariz to Tabor’s home in August 2009. Then Defendant

helped Morgan attach the GPS tracker to Armendariz’s car while Armendariz was at the

home. Also, Defendant assisted Morgan in conducting surveillance of Armendariz on



                                             5
one occasion after the tracker was attached. For the execution of the plan, Defendant

came to Tabor’s home at about 11:00 p.m. on September 22. He, Morgan, and Sanford

arrived in separate vehicles. After the men used the tracker to locate Armendariz,

Defendant departed with Morgan and Sanford. Defendant returned to Tabor’s home the

next morning and gave him $1500. Morgan and Sanford returned later that evening,

when Sanford gave Tabor another $900. At trial, Tabor was impeached based on his

prior felony convictions and the reduction in sentence he would receive for cooperating

with the prosecution, although there was no suggestion that he had a particular animus

against Defendant that would have led him to falsely add Defendant’s name as a

coconspirator.

      Armendariz also testified about his kidnapping. He identified Defendant as one of

the kidnappers. Although he did not testify that he had seen Defendant’s face during the

incident (as the assailants were masked and he was blindfolded while in the Tahoe), he

said that he recognized Defendant’s voice from having been involved in drug transactions

with him on three prior occasions. In particular, Armendariz testified that Defendant

spoke to him while the Tahoe was en route to his home, stating that he was a law-

enforcement officer making a drug bust and asking for his cooperation. He said that he

did not hear Defendant’s voice for the roughly 15–20 minutes that the Tahoe was stopped

and unoccupied, but that once the kidnappers reentered the car and started driving,

Defendant questioned him repeatedly about how much money he had in his home. He

told Defendant $30,000. Armendariz was impeached based on prior felony convictions

and the agreement of the prosecution to recommend a reduced sentence on pending drug


                                            6
charges against him, but again there was no suggestion that he had a particular animus

against Defendant.

       Flores’s testimony corroborated much of her husband’s account of his kidnapping,

although she did not identify Defendant or the other kidnappers. She also testified about

her own experience after being separated from her husband—including how three men

confronted her and her daughters at gunpoint inside her home, compelled her to tell them

where the money was, and took the cash, as well as jewelry and electronics. The one

who seemed to be in charge took the cash and left. When the others realized he was

gone, they also left the home; and she saw them being picked up by the SUV that her

husband was in. Flores did not receive any benefit from the prosecution for her

testimony.

       Katina Bell, Morgan’s girlfriend at the time of the crimes, was another

government witness. She said that she picked up Morgan at the home of Defendant’s

sister sometime after her work shift ended at 1:00 or 2:00 a.m. on the night of the

kidnapping, and the two of them went to a Taco Bell to eat. Shortly thereafter, Defendant

and Sanford pulled up in a black Tahoe. They were upset and demanded that Morgan get

in the Tahoe, which he did. Bell then got food at the Taco Bell and drove home. When

Morgan came to her home some 30 to 45 minutes later, he pulled out a stack of money

from his jacket and put it in his bag.

       Portions of the above testimony were corroborated by eight recordings of

wiretapped conversations. Patterson briefly testified about three recordings (and nothing

else). On a call on September 11 and on two calls on September 18, Patterson and


                                             7
Morgan discussed Armendariz’s location and movement. Patterson never mentioned

Defendant at trial. Tabor testified about the five remaining recorded conversations. In

four of these conversations Tabor and Morgan planned the kidnapping: they discussed the

online purchase and delivery of the GPS tracker, and getting Defendant to bring funds for

the August drug deal with Armendariz.

       The final recording, and the most compelling evidence against Defendant, was a

conversation recorded on September 23, 2009. It began at 3:19 a.m., not long after the

kidnapping, and lasted 42 minutes. Defendant called Patterson on his cell phone and

spoke with both Patterson and Tabor. During the conversation Defendant reports what

had happened during the kidnapping, an account that closely matched Flores’s testimony:

He and Sanford tied Armendariz’s hands and put him in the back of the Tahoe. The two

men and Morgan then searched the Flores-Armendariz home and found three cash

bundles of $10,000 each, as Armendariz had told them. They also took jewelry. Then

Morgan departed unexpectedly with the money, leaving Sanford and Defendant behind.

They were able to track down Morgan at a Taco Bell, and the three men then went to the

home of Defendant’s sister to split the proceeds, although Defendant suspected that

Morgan kept more than his fair share.

       This is compelling evidence. And Defendant’s alleged alibi evidence does little to

undercut it. Defendant claims that the testimony of Taylor and Sterling (his wife) would

have “provided specific facts that placed [him] at home on the night and during the time

frame in which the crimes were committed,” Aplt. Br. at 10, and would have “tilted the

scales in favor of [Defendant’s] acquittal,” Aplt. Reply Br. at 2. But the affidavits of the


                                              8
two alibi witnesses describe events on the evening of September 23 and morning of

September 24, one day after the crimes. Even if we “correct” the dates, the affidavits are

insufficient to create substantial doubt. Taylor’s affidavit states that he saw Defendant at

Defendant’s home between 8:00 p.m. and 8:30 p.m. Defendant had been sleeping on the

couch and was not dressed to go out. But this tells us virtually nothing regarding

Defendant’s whereabouts at the time of the kidnappings about two hours later.

       As for Sterling’s affidavit, she states that she and Defendant were in bed together

after 10 p.m. when he got a call that upset him. Afterwards he fell asleep before she did.

About 3:00 a.m. she was awakened by a call to his cell phone. She answered but the

caller hung up. She then awoke Defendant so he could answer if the caller called back.

He answered the next call, but again the caller hung up. He then called the number and

had a hushed conversation for a few minutes before leaving for about a half hour. The

statement about Defendant’s bedtime is of some help to Defendant, but the account of the

3:00 a.m. call is strong confirmation that it was Defendant’s voice on the most

incriminating evidence against him—the recording of the 3:19 a.m. call. On the whole,

Sterling’s affidavit probably would somewhat strengthen the case against Defendant.

       In our view, Defendant fails to “show that there is a reasonable probability that

. . . the result of the proceeding would have been different,” Strickland, 466 U.S. at 694,

if counsel had called Taylor and Sterling as witnesses.

       We AFFIRM the ruling of the district court denying Defendant’s claim of

ineffective assistance of counsel based on failure to investigate and call alibi witnesses.




                                              9
We REVERSE Defendant’s conviction under 18 U.S.C. § 924(c) and REMAND to the

district court for further proceedings consistent with this order.


                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




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