                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 14, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-2112
          v.                                           (D. New Mexico)
 JUAN MANUEL CARBAJAL-                       (D.C. Nos. 1:06-CV-00301-JEC-RLP
 MORENO,                                       and 2:99-CR-00777-JEC-RLP-3)

               Defendant - Appellant.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant, Juan Manuel Carbajal-Moreno, proceeding pro se,

seeks a certificate of appealability (“COA”) to enable him to appeal the district



      *
       This order is not binding precedent except under the doctrines of law of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.
court’s denial of his 28 U. S.C. § 2255 motion. For the following reasons, we

deny Mr. Carbajal-Moreno a COA and dismiss this matter.



                                BACKGROUND

      This is the fourth time Mr. Carbajal-Moreno has appeared before our court.

We derive the relevant procedural history of his lengthy case from the last

decision we issued involving Mr. Carbajal-Moreno, United States v. Carbajal-

Moreno, 332 Fed. Appx. (10 th Cir. 2009) (Carbajal-Moreno III):

      Carbajal was indicted in 2001 on eight counts relating to drug
      possession and distribution. A jury convicted him of all counts, and
      the district court sentenced him to concurrent prison terms of 262
      months on each count. Carbajal timely appealed his convictions on
      two counts.

      We reversed on one of the counts, a conspiracy charge, on double
      jeopardy grounds, but affirmed a related continuing criminal
      enterprise conviction. We remanded the case to the district court and
      ordered it to “vacate the conspiracy conviction . . . and to adjust
      Carbajal-Moreno’s sentence accordingly.” United States v. Carbajal-
      Moreno, 87 Fed. Appx. 700, 706 (10 th Cir. 2004) (Carbajal-Moreno
      I).

      During the time the case was before the district court on remand, and
      35 months after the jury verdict, Carbajal filed a Rule 33 motion for
      a new trial based on newly discovered evidence, alleging that
      “sometime after his convictions were entered he discovered that his
      trial attorney surrendered his Bar license prior to trial.” United
      States v. Carbajal-Moreno, 136 Fed. Appx. 163, 164, 167 (10 th Cir.
      2005) (Carbajal-Moreno II), and that his representation was therefore
      ineffective under the Sixth Amendment. The district court denied the
      motion in July 2004, reasoning that ineffective assistance of counsel
      claims are ordinarily best pursued in collateral proceedings.


                                        -2-
      On August 4, 2004, the district court entered its amended judgment
      in the remand proceedings, vacating the conspiracy conviction and
      sentencing Carbajal to concurrent terms of 262 months for each of
      the remaining counts. Carbajal filed a notice of appeal on August 11,
      2004, stating his “intent to appeal to the United States Court of
      Appeals for the Tenth Circuit from the attached August 10, 2004
      Amended Judgment and the July 28, 2004 order.” We affirmed the
      dismissal of Carbajal’s Rule 33 Motion in June 2005, although our
      order did not specifically discuss the amended judgment. Carbajal-
      Moreno II, 136 Fed. Appx. at 164-67.

      In April 2006, Carbajal initiated this § 2255 collateral action to
      pursue his ineffective assistance of counsel claim. The magistrate
      judge recommended dismissing the petition as time-barred. The
      district court adopted the magistrate judge’s recommendation and
      dismissed the action.

Id. at 473-74. On appeal from that decision, we reversed the district court’s

conclusion that Mr. Carbajal-Moreno’s § 2255 motion was untimely, concluding,

to the contrary, that his motion “filed in April of 2006, was timely filed within

one year of the date his conviction became final.” Id. at 477. The case was, once

again, remanded to the district court for further proceedings. The district court’s

decision on remand is the subject of this request for a COA.

      Before we address the merits of the district court’s decision on remand, we

must consider a preliminary jurisdictional matter referred to our panel (as the

merits panel) from the Clerk of our court, in an order dated June 21, 2010. That

order presented the following appellate jurisdictional issues:

      1) Whether Petitioner Carbajal-Moreno’s notice of appeal, which was
      filed in the district court on May 3, 2010, was timely filed 60 days
      after entry of the district court’s January 14, 2010 Judgment or was


                                         -3-
       the notice of appeal filed 49 days late? See Fed. R. App. P.
       4(a)(1)(B) and 4(c).

                 Please Note: Pursuant to Fed. R. App. P. 4(a)(1)(B), the
                 60-day deadline in this case for filing a timely notice of
                 appeal expired on March 15, 2010.

       2) Whether Plaintiff’s motion under Fed. R. App. P. 4(a)(5), which
       was filed in the district court on May 3, 2010, was timely filed in
       accordance with Fed. R. App. P. 4(a)(5)(A)(i) or was it filed beyond
       the filing deadline in Fed. R. App. P. 4(a)(5)(A)(i).

                 Please Note: Pursuant to Fed. R. App. P. 4(a)(5)(A)(i),
                 the deadline in this case for filing a timely motion for
                 extension of time expired on April 14, 2010. See also
                 Fed. R. App. P. 4(a)(6).

6/21/2010 Order at 1-2, R. Vol. 1 at 225-26. The parties were directed to file

jurisdictional memoranda addressing this issue; only Mr. Carbajal-Moreno has

filed a brief.

       The background facts to this appellate jurisdictional issue are as follows:

When this matter was remanded to the district court pursuant to Carbajal-Moreno

III, the district court adopted the magistrate judge’s report and recommendation

and, on January 14, 2010, judgment was entered dismissing Mr. Carbajal-

Moreno’s § 2255 motion. On May 3, 2010, long after the ordinary time in which

to file an appeal from the district court’s judgment had expired, Mr. Carbajal-

Moreno sent a letter to the district court along with a “Notice of Appeal.” See R.

Vol. 1 at 213-15. The stated reason for the letter was “to inquire as to the

reasoning behind the fact that I was not informed of the denial of my habeas


                                             -4-
appeal. My brother called your office to ask as to the status of my appeal and

was informed that my appeal had been denied since January.” “Request and

Inquiry,” id. at 213. The accompanying “Notice of Appeal” similarly indicated

that Mr. Carbajal-Moreno “had not been informed of the Court’s denial of his

habeas corpus appeal. . . . The clerk informed my brother that the A.U.S.A. and

my prior counsel had been sent notification. . . . The fact remains that I was not

notified.” “Notice of Appeal” at 1, id. at 214.

      Upon receipt of this letter and Notice of Appeal, the district court entered

an order construing the letter “as a motion for extension of time to file notice of

appeal or, alternatively, to reopen the time to file an appeal.” 6/21/10 Order at 1,

id. at 222. After determining that an internal mistaken entry in the district court

docket (regarding whether Mr. Carbajal-Moreno was represented by counsel or

not) had caused the failure to notify Mr. Carbajal-Moreno of the dismissal of his

case, the district court construed the letter as a motion to reopen the time to file

an appeal. The court then granted that motion and reopened the time for

Mr. Carbajal-Moreno to file an appeal “nunc pro tunc to and including May 3,

2010.” Id. at 2.

      Our initial inquiry, then, is whether we agree with the district court’s

determination that Mr. Carbajal-Moreno’s notice of appeal was timely. We

conclude that we do agree with the district court, for substantially the reasons




                                          -5-
stated in its 6/21/2010 Order. We therefore have appellate jurisdiction over this

request for a COA. 1



                                    DISCUSSION

      Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make

“a substantial showing of the denial of a constitutional right.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). He may do so by “showing that reasonable

jurists could debate whether . . . 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). Thus, when the district court has ruled on the

merits of the prisoner’s claims, he must show that “reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.”

Id. Where the district court ruled on procedural grounds, a COA may be granted

when the petitioner shows “that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and . . .

whether the district court was correct in its procedural ruling.” Id.



      1
       We notified Mr. Carbajal-Moreno by letter dated June 9, 2010, that,
pursuant to Fed. R. App. P. 22(b), we are treating his notice of appeal as a request
for a COA. We nonetheless directed Mr. Carbajal-Moreno to file a COA
application within forty days of the date of our letter. He filed an application for
a COA on July 19, 2010.

                                           -6-
       On remand, the district court considered Mr. Carbajal-Moreno’s § 2255

petition, in which he argued that his Sixth Amendment right to constitutionally

effective counsel had been violated when his counsel allowed him to be

prosecuted for participating in both a criminal continuing enterprise (“CCE”) and

a conspiracy. He argued that that circumstance allowed numerous hearsay

statements to be admitted into evidence that would not have been allowed in a

trial solely on the CCE charges. He also alleged ineffective assistance of counsel

on the ground that, as he learned after his trial, his counsel had surrendered his

California Bar license prior to his trial. 2

       The matter was referred to a magistrate judge, who rejected both of

Mr. Carbajal-Moreno’s arguments. 3 With respect to the argument that

       2
       Apparently, Mr. Carbajal-Moreno’s counsel’s suspension was the result of
misconduct in several civil cases. Mr. Carbajal-Moreno alleges his counsel also
had a drinking problem that he failed to remedy.
       3
        In his § 2255 motion, Mr. Carbajal-Moreno also claimed that his counsel
was ineffective in failing to argue that the CCE charge against him violated his
Due Process rights. He argues that the indictment against him did not charge him
with committing the “underlying crimes that compromised the series of crimes
that constituted a continuing criminal enterprise with five persons.” Def.’s
§ 2255 Motion at 21, R. Vol. 1 at 40 (emphasis in original). The government
argues that a reading of the indictment refutes this argument. It does not appear
that the magistrate judge specifically addressed this issue in his report and
recommendation. The argument is meritless, both because we agree with the
government’s reading of the indictment and because, given the overwhelming
evidence against Mr. Carbajal-Moreno, the failure by his counsel to argue this
issue would not have affected the outcome of the trial. Put in COA terms, no
reasonable jurist would believe that the magistrate judge’s failure to specifically
address this claim would merit further analysis of Mr. Carbajal-Moreno’s claims
                                                                       (continued...)

                                               -7-
Mr. Carbajal-Moreno’s counsel was ineffective because he had surrendered his

California Bar license prior to Mr. Carbajal-Moreno’s trial, the magistrate judge

determined that “the general rule among the circuits,” including our circuit,

provides that “if the lawyer was at one time licensed to practice law, then the fact

that he or she has been disbarred or has lost his or her licence” does not render

the lawyer’s representation “per se constitutionally ineffective.” Mag. J.’s

Second Rep. & Rec. at ¶ 6, R. Vol. 1 at 205. See United States v. Stevens, 978

F.2d 565 (10 th Cir. 1992) (holding that an attorney who had unknowingly been

disbarred seven days before trial was not per se ineffective); United States v.

Watson, 479 F.3d 607, 611 (8 th Cir. 2007) (“In our circuit we have declined to

extend a per se ineffective assistance of counsel rule to cases where the defendant

was represented by a trained and qualified attorney, albeit one with licensing

problems.”) (and collecting similar cases); United States v. Ross, 338 F.3d 1054,

1056 (9 th Cir. 2003) (holding that prior circuit authority held that “so long as the

lawyer had been admitted to practice at one point in time, his bar status at trial

was not dispositive of the ineffective assistance claim.”); Bond v. United States, 1

F.3d 631, 636 (7 th Cir 1993) (“Courts consistently have declined to adopt a per se

rule that ineffective assistance always results when a disciplinary action is

pending against the defendant.”); United States v. Mouzin, 785 F.2d 682, 698 (9 th


      3
        (...continued)
of ineffectiveness.

                                          -8-
Cir. 1986) (“Neither suspension nor disbarment invites a per se rule that

continued representation in an ongoing trial is constitutionally ineffective.”)

      After concluding that Mr. Carbajal-Moreno’s counsel was not per se

ineffective, the magistrate judge went on to examine whether defense counsel had

been ineffective under the standard of Strickland v. Washington, 466 U.S. 668

(1984). Accordingly, under Strickland, Mr. Carbajal-Moreno had to show, first,

that his counsel’s performance was deficient: that the “representation fell below

an objective standard of reasonableness” as measured by “prevailing professional

norms.” Strickland, 466 U.S. at 688. Second, he needed to establish prejudice:

“that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694.

      As indicated above, Mr. Carbajal-Moreno argued that his counsel was

ineffective for allowing him to be tried on both the CCE and the conspiracy

charges, claiming that such a “double” trial violated the Double Jeopardy clause

of the Constitution. The magistrate judge rejected this argument on the ground

that “Double Jeopardy protects an individual from being convicted more than

once for an offense or for suffering multiple punishments for the same offense.

Since Defendant had one trial and did not suffer multiple punishments, there is no

Double Jeopardy violation.” Mag. J.’s Second Rep. & Rec. at ¶ 8, R. Vol. 1 at

206 (citing United States v. Ziskin, 360 F.3d 934, 948-49 (9 th Cir. 2003) (holding

that nothing prohibits a trial for both conspiracy and CCE; Double Jeopardy only

                                         -9-
operates to prevent cumulative punishment for the offenses)); cf. Monge v.

California, 524 U.S. 721, 727-28 (1998) (“[The Double Jeopardy Clause] protects

against successive prosecutions for the same offense after acquittal or conviction

and against multiple criminal punishments for the same offense.”). 4

      Additionally, Mr. Carbajal-Moreno failed to establish ineffectiveness in

allowing him to be tried on both a CCE and a conspiracy charge because, as the

magistrate judge pointed out, “on appeal he prevailed on his argument that he

could not be sentenced for both crimes.” Mag. J.’s Second Rep. & Rec. at ¶ 7, R.

Vol. 1 at 206. Thus, in essence, he demonstrated no prejudice from his trial on

both counts.

      Mr. Carbajal-Moreno also argued that he was prejudiced by his trial on

both the CCE and conspiracy counts because he claims multiple hearsay

statements were allowed into evidence which would not have been allowed in a

trial on the CCE charge alone. The magistrate judge held that this argument was

based upon an incorrect understanding of the law regarding hearsay and

conspiracies:


      4
       We note, however, that in Carbajal-Moreno I, we held that “A conspiracy
to possess with intent to distribute marijuana . . . is a lesser included offense of
continuing criminal enterprise. Thus, the Double Jeopardy clause of the Fifth
Amendment prohibits a defendant from being convicted for both crimes.”
Carbajal-Moreno I, 87 Fed. Appx. at 702. That is law-of-the-case for this
decision. However, as indicated in text, infra, that ruling also shows that
Mr. Carbajal-Moreno suffered no prejudice from his trial on both conspiracy and
CCE charges.

                                         -10-
      Federal Rule of Evidence 801(d)(2)(E) excepts from the definition of
      hearsay “a statement by a coconspirator of a party during the course
      and in furtherance of the conspiracy,” where the statement is offered
      against the party. The party need not be charged with conspiracy.
      The rule applies where the evidence shows two or more individuals
      acting in concert despite the absence of a conspiracy charge.

Id. at ¶ 9 (citing United States v. Durland, 575 F.2d 1306, 1308 (10 th Cir. 1978)). 5

It was therefore not necessarily true that no statements by coconspirators would

have been admitted had Mr. Carbajal-Moreno only been charged with engaging in

a CCE.

      The magistrate judge then turned to Mr. Carbajal-Moreno’s final claim of

ineffective assistance, premised on Mr. Carbajal-Moreno’s counsel’s inability to

keep out of evidence numerous alleged hearsay statements. The magistrate judge

concluded that, except for one statement which was, in fact, hearsay and therefore

erroneously admitted, the remaining statements at issue were not hearsay:

             Except for one statement, . . . all of the statements listed by
      Defendant fall under . . . exceptions [to the hearsay rule] or are not
      considered hearsay. Most of the statements were provided by agents
      testifying about their investigation of Defendant’s and his
      colleagues’ activities. Many of the statements came out again on
      direct examination of his colleagues.

      5
          We stated as follows in Durland:

      . . . Rule 801(d)(2)(E) of the Federal Rules of Evidence recognizes
      statements of coconspirators as an exception to the prohibition
      against hearsay, and even though there is not a conspiracy charge, the
      evidence is admissible where existence of the conspiracy is
      independently established.

Durland, 575 F.2d at 1310.

                                          -11-
Mag. J.’s Second Rep. & Rec. at ¶ 15, R. Vol. 1 at 209. Further, the magistrate

judge concluded, given the overwhelming evidence against Mr. Carbajal-Moreno

which was properly admitted into evidence, the one erroneously admitted hearsay

statement did not affect the outcome. The magistrate judge then recommended

dismissal of Mr. Carbajal-Moreno’s § 2255 petition. The district court adopted

this report and recommendation and dismissed the petition. Final judgment was

entered on January 14, 2010. 6

      The district court dismissed Mr. Carbajal-Moreno’s petition after

considering the merits of it. As summarized above, the magistrate judge’s report

and recommendation (adopted by the district court) thoroughly explained its

disposition. We cannot see how reasonable jurists would find any of the court’s

determinations debatable or wrong. Accordingly, we deny Mr. Carbajal-Moreno

his requested COA for substantially the reasons stated in the magistrate judge’s

report, adopted by the district court.




      6
        Although Mr. Carbajal-Moreno did not file any objections to the
magistrate judge’s report and recommendation, we decline to apply our “firm
waiver rule” to Mr. Carbajal-Moreno’s appeal. The rule may be ignored in the
“interests of justice.” See Casanova v. Ulibarri, 595 F.3d 1120 (10 th Cir. 2010).
Given that Mr. Carbajal-Moreno’s notice of appeal was filed “late” because he
did not know his habeas petition had been dismissed by the district court on the
same day the magistrate judge issued his report and recommendation, it seems
clear that Mr. Carbajal-Moreno was unaware of the issuance of the report and
recommendation. In that circumstance, we can hardly expect him to file
objections to the report and recommendation.

                                         -12-
                               CONCLUSION

      For the foregoing reasons, we DENY a COA, we GRANT Mr. Carbajal-

Moreno leave to proceed in forma pauperis, and DISMISS this matter.

                                            ENTERED FOR THE COURT


                                            Stephen H. Anderson
                                            Circuit Judge




                                     -13-
