                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 2, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                       No. 11-2202
                                            (D.C. Nos. 1:08-CV-00889-MV-WDS
 v.                                              and 2:03-CR-02112-MV-1)
                                                        (D. of N.M.)
 JORGE TORRES-LARANEGA,

              Defendant-Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Jorge Torres-Laranega, a federal prisoner proceeding pro se, appeals the

district court’s dismissal of his application for habeas relief under 28 U.S.C.

§ 2255. He also seeks leave to proceed on appeal in forma pauperis. We have

jurisdiction under 28 U.S.C. § 1291, and we construe Torres-Laranega’s filings

liberally because he is proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106,

1110 & n.3 (10th Cir. 1991).

      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      We agree with the district court that Torres-Laranega was not entitled to

relief under § 2255. Accordingly, we DENY his request for a certificate of

appealability (COA), DENY the application to proceed in forma pauperis, and

DISMISS his appeal.



                                     I. Facts

      Torres-Laranega was part of a wide-ranging operation that transported

multi-ton quantities of marijuana from the southwest to the Chicago area using

tractor trailers. After a jury trial, he was convicted and sentenced to 240 months’

imprisonment. The conviction and sentence were affirmed on direct appeal. See

United States v. Torres-Laranega, 476 F.3d 1148 (10th Cir. 2007), cert. denied,

522 U.S. 872 (2007).

      Relevant to this petition, Torres-Laranega was convicted on three counts:

(1) engaging in a continuing criminal enterprise in violation of 21 U.S.C.

§ 848(a); (2) conspiracy to possess with intent to distribute a controlled substance

within 1,000 feet of a school and 1,000 feet of a truck stop in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(A), 846, 849(a), and 860; and (3) possession with

intent to distribute 1,000 kilograms and more of marijuana in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(A). On the day of sentencing, the United States

moved to dismiss count 2 of the indictment, on the basis that count 2, conspiracy

to possess with intent to distribute, was a lesser included offense of count 1,

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continuing criminal enterprise. Subsequently, the district court sentenced Torres-

Laranega on count 1 and count 3 only.

      Torres-Laranega’s initial § 2255 motion raised five issues pertaining to

ineffective assistance of counsel. The district court dismissed the petition with

respect to these claims, and Torres-Laranega does not appeal that dismissal.

R., Vol. 1 at 440. Instead, he focuses on whether the district court properly

dismissed his motion to amend for the purpose of adding a double jeopardy claim

to his petition. Specifically, Torres-Laranega argues that count 3 is a lesser

included offense of count 1, and that his conviction on count 3 is a violation of

double jeopardy.

      The district court found that this argument is both time and procedurally

barred. R., Vol. 1 at 437. It is time-barred because it was filed after the one-year

statute of limitations expired and does not relate back to the original habeas

petition. Id. The argument is procedurally barred because it was not raised in the

direct appeal. Id. Additionally, Torres-Laranega did not demonstrate “cause,”

“prejudice,” or a “fundamental miscarriage of justice” to overcome the procedural

bar. Id.; see also United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996). The

district court continued: “were the Court to consider the merits of Petitioner’s

argument, it would find that the Tenth Circuit has already considered and rejected

the precise double jeopardy argument . . . [he] raises. See United States v.

Stallings, 810 F.2d 973, 977 (10th Cir. 1987) (double jeopardy clause not violated

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when defendant sustains continuing criminal enterprise and predicate drug offense

convictions).” R., Vol. 1 at 437.

      Torres-Laranega now appeals.



                                    II. Discussion

      “The issuance of a COA is a jurisdictional prerequisite to an appeal from

the denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596

F.3d 1228, 1241 (10th Cir. 2010). For Torres-Laranega to be granted a COA, he

“must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000).

      Torres-Laranega sought to amend his § 2255 filing, claiming that count 3,

possession with intent to distribute, should have been dismissed because it was a

lesser included offense of count 1, continuing criminal enterprise. He argues that

the reason this was not raised in his original § 2255 motion is because he did not

have a copy of his criminal file at the time of the initial filing. R., Vol. 1 at

316–17.

      He raises before us the same grounds he asserted in the district court.




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      A. Time-Barred

      All claims are required to be raised within one year of the “date on which

the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). The United

States Supreme Court denied certiorari on Torres-Laranega’s direct appeal on

October 1, 2007, meaning that his habeas petition was required to be filed by

October 1, 2008. Torres-Laranega’s initial habeas petition was filed on

September 28, 2008—within the time limit imposed by § 2255. R., Vol. 1 at 1.

But the double jeopardy argument was not raised until a motion to amend was

filed by Torres-Laranega on September 27, 2010—clearly outside of the one-year

window. R., Vol. 1 at 316.

      Since this court has not granted a motion for a second or successive habeas

petition, see 28 U.S.C. § 2255(h), in order to overcome the untimely filing,

Torres-Laranega’s amendment must “relate back” to his original filing. See

United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000) (finding

barred claims that are not merely “clarifying,” but rather raise “claims totally

separate and distinct, in both time and type from those raised” in the original

petition) (internal quotation marks omitted). As the district court found, the

double jeopardy theory does not relate back to his initial § 2255 petition

requesting relief related to the ineffectiveness of counsel. R., Vol. 1 at 437.

Torres-Laranega is attempting to supplement his § 2255 petition with an entirely

new theory which had never been raised prior to his motion to amend.

                                         -5-
      Similarly, even viewing the plain text of Torres-Laranega’s motion, he

requests permission “to supplement an[] additional issue” and “to dismiss the five

issues raised in the original § 2255 motion.” R., Vol. 1 at 316. Such a request is

facially inconsistent with the theory that the amendment relates back to the

original filing—especially since he is requesting that the first filing be considered

“moot as a matter of law.” Id. at 317.

      B. Procedurally Barred

      A § 2255 petition is not an opportunity to bring legal arguments that should

have been brought by direct appeal. See United States v. Frady, 456 U.S. 152,

165 (1982) (finding that the Court has “long and consistently affirmed that a

collateral challenge may not do service for an appeal”). Thus, when a defendant

“fails to raise an issue on direct appeal, he is barred from raising the issue in a

§ 2255 proceeding, unless he establishes either cause excusing the procedural

default and prejudice resulting from the error or a fundamental miscarriage of

justice if the claim is not considered.” Cox, 83 F.3d at 341.

      To establish “cause” requires a defendant to show some external objective

factor—such as governmental interference, unavailability of the relevant factual

or legal basis, or ineffective assistance of counsel—prevented him from raising

the issue on direct appeal. See Murray v. Carrier, 477 U.S. 478, 488 (1986);

United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). The fundamental

miscarriage of justice exception allows a defendant to obtain review of his

                                          -6-
defaulted claims by showing actual innocence. See Sawyer v. Whitley, 505 U.S.

333, 339–40 (1992). The district court concluded that Torres-Laranega “has

demonstrated neither ‘cause’ nor ‘prejudice,’ nor a ‘fundamental miscarriage of

justice,’ . . . to overcome the procedural bar.” R., Vol. 1 at 437.

      On appeal, Torres-Laranega does not advance an actual innocence argument

to support the fundamental miscarriage of justice exception, but instead focuses

on the cause prong. He argues that he did not have “his criminal file” until some

point after the filing deadline when the district court ordered his trial attorney to

forward it to him. Aplt. Br. at 13. He then attempts to attribute this delay to the

“government,” but does not explain why this particular occurrence is cognizable

as an example of “governmental interference.” Id. Instead, as the magistrate

judge noted in his recommended disposition, Torres-Laranega “was represented

by counsel in his direct appeal of his conviction and had all of his file, and

counsel, at that time.” R., Vol. 1 at 360. Torres-Laranega does not dispute this

fact. Torres-Laranega’s tolling arguments are unavailing for the same reason.

See Aplt. Br. at 13. Accordingly, there is nothing in the record evidencing

governmental interference or any other type of appropriate cause meriting relief.

      C. Merits

      Torres-Laranega largely ignores the timeliness and procedural difficulties

that his petition faces, and instead focuses on the merits of his underlying claim.

While we are not required to reach the merits, even if we do so, Torres-

                                          -7-
Laranega’s arguments are incorrect. The district court similarly addressed the

merits of Torres-Laranega’s argument, finding that “the Tenth Circuit has already

considered and rejected the precise double jeopardy argument” that he raises. R.,

Vol. 1 at 437; see Stallings, 810 F.2d at 977 (finding that double jeopardy clause

is not violated when a defendant sustains continuing criminal enterprise and

predicate drug offense convictions).

      Based on a review of the record, Stallings applies directly to the facts of

this case. In Stallings, the defendant was convicted on multiple counts, including

continuing criminal enterprise, two drug conspiracy counts, and multiple

predicate offenses. 810 F.2d at 975. This court vacated the drug conspiracy

counts as lesser included offenses of the continuing criminal enterprise

conviction, but upheld the underlying predicate offenses. Id. at 977. Likewise

here, the district court dismissed count 2, conspiracy to possess, prior to

sentencing, causing no error. Moreover, the Supreme Court has addressed this

scenario as well. In Rutledge v. United States, 517 U.S. 292 (1996), the Court

held that a conspiracy to distribute controlled substances is a lesser included

offense of a continuing criminal enterprise, hence punishment for both would

constitute double jeopardy. Id. at 307. Here, Torres-Laranega’s drug conspiracy

conviction was removed prior to sentencing, where he was sentenced for the

continuing criminal enterprise count and the underlying predicate offense. Both




                                         -8-
Stallings and Rutledge are directly on point and indicate that the district court did

not err by sentencing Torres-Laranega on both count 1 and count 3.



                                III. Conclusion

      For the foregoing reasons, we DENY Torres-Laranega’s request for a COA,

DENY his application to proceed in forma pauperis, and DISMISS his appeal.

                                                     Entered for the Court,


                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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