                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        December 20, 2005
                             FOR THE TENTH CIRCUIT
                                                                           Clerk of Court

    UNITED STATES OF AMERICA,

                 Plaintiffs-Appellees,

     v.                                                   No. 04-2227
                                                 (D.C. Nos. CIV-04-230-BB and
    RUBEN ALMARAZ,                                      CR-98-976 BB)
                                                           (D. N.M.)
                 Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before HENRY, ANDERSON, and TYMKOVICH, Circuit Judges.


          After examining the briefs and 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.

          Defendant-Appellant Ruben Almaraz appeals from the district court’s

denial of his 28 U.S.C. § 2255 habeas corpus petition. Mr. Almaraz alleged in his

petition that he was denied effective assistance of counsel and that prosecutorial


*
      This order and judgment is not binding precedent, except under the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.
misconduct denied him a fair trial. The district court denied his petition,

Mr. Almaraz appealed, and this court granted a certificate of appealability on the

two allegations of error raised on appeal: (1) that the district court erred in

finding that Mr. Almaraz had not “established a substantial claim of ineffective

assistance of counsel,” and (2) that the district court erred in finding that he had

not “established a substantial claim of prosecutorial misconduct.” We exercise

jurisdiction under 28 U.S.C. 2253(a) and affirm.

                                  BACKGROUND

      Mr. Almaraz was convicted of, among other charges, engaging in a

continuing criminal enterprise in violation of 21 U.S.C. § 848. Under 21 U.S.C.

§ 848(c), a person is engaged in a “continuing criminal enterprise” (CCE) if:

      (1) he violates any provision of [the federal drug laws] the
      punishment for which is a felony, and
      (2) such violation is a part of a continuing series of violations of [the
      federal drug laws]–
      (A) which are undertaken by such person in concert with five or more
      other persons with respect to whom such person occupies a position
      of organizer, a supervisory position, or any other position of
      management, and
      (B) from which such person obtains substantial income or resources.

Mr. Almaraz’s conviction arose out of his activities distributing cocaine in the

Las Cruces, New Mexico, area. The facts surrounding Mr. Almaraz’s conviction

are summarized in this court’s opinion on Mr. Almaraz’s direct appeal and need

not be repeated in detail here. See United States v. Almaraz (Almaraz I), 306 F.3d


                                          -2-
1031, 1033-34 (10th Cir. 2002). It is sufficient to say that Mr. Almaraz and his

brother distributed cocaine through street-level dealers with their family

restaurant serving as the focal point for the operation.

      The main argument in Mr. Almaraz’s § 2255 petition was that his trial

counsel was ineffective because counsel failed to perform a sufficient pre-trial

investigation, especially in regard to the issue of successive underlings, and that

counsel failed to (1) argue that underlings who merely replaced previous

underlings could not be counted as persons with whom he acted in concert under

21 U.S.C. § 848, and (2) request a jury instruction to that effect. Mr. Almaraz

claimed his trial counsel should have presented evidence that he “was a struggling

restaurant owner who foolishly succumbed to the temptation to engage in street-

level drug sales with the help of a single associate.” Aplt. App., Vol. III, at 713.

The district court pointed to Mr. Almaraz’s failure to present the names and

affidavits of witnesses who would have supported this defense and found that he

“[did] not state, with the specificity necessary to enable the court to determine

this issue, what information his attorney was supposed to have come up with in

pretrial investigation that would have affected the jury’s consideration of this

defense.” Id. at 880.

      Mr. Almaraz also claimed that (1) his trial counsel was ineffective for

failing to object when the prosecution introduced inadmissible expert witness


                                          -3-
testimony and hearsay testimony, and when the prosecution vouched for the

credibility of government witnesses; and (2) that these actions by the prosecution

amounted to misconduct and deprived Mr. Almaraz of due process. 1 The district

court agreed with the magistrate judge’s determination that the complained-of

testimony was admissible and that the prosecution did not improperly vouch for

witnesses. The court found that trial counsel had therefore not provided

ineffective assistance in failing to object to such testimony or to the prosecution’s

allegedly improper comments regarding its witnesses. The district court found

that the prosecution “did not engage in behavior or make remarks which fell

outside the normal bounds of zealous advocacy and rendered the trial

fundamentally unfair.” Id. at 877. The district court adopted the findings and

recommended disposition of the magistrate judge, denied the motion for

evidentiary hearing, and dismissed the action with prejudice.

                                    ANALYSIS

      “When reviewing a district court’s denial of a § 2255 petition, we review

questions of law de novo and questions of fact for clear error.” United States v.

Harms, 371 F.3d 1208, 1210 (10th Cir. 2004). “Review in a section 2255 habeas

action entails a two-step inquiry: (1) whether the defendant is entitled to relief if


1
      The district court also read Mr. Almaraz’s complaint to raise other claims,
but Mr. Almaraz does not challenge the district court’s resolution of these claims
on appeal.

                                         -4-
his allegations are proved; and (2) whether the district court abused its discretion

by refusing to grant an evidentiary hearing.” United States v. Whalen, 976 F.2d

1346, 1348 (10th Cir. 1992). Under 28 U.S.C. § 2255, the district court is

required to conduct an evidentiary hearing “[u]nless the motion and the files and

records of the case conclusively show that the prisoner is entitled to no relief.”

Under these standards, and for the reasons set forth by the district court in its

August 5, 2004, order, we affirm the district court’s ruling that Mr. Almaraz’s

trial counsel was not ineffective for failing to object to the elicitation of the

allegedly inadmissible evidence and improper vouching, and that such elicitation

and vouching did not rise to the level of prosecutorial misconduct. No

evidentiary hearing was required on these issues because Mr. Almaraz’s

complaints regard testimony and argument appearing in the record.

      Mr. Almaraz’s argument regarding replacement underlings deserves more

discussion. Some evidence in the record suggests that at least one of

Mr. Almaraz’s dealers was “replaced” by others. In Almaraz I, we described

Mr. Almaraz’s organization as follows:

      Jesus Orozco, a friend of the Almaraz brothers, assisted in the
      cocaine distribution efforts. Janette Orozco is his wife. The parties
      dispute whether she was involved in the drug organization. When
      things got too hot for Jesus Orozco because he became concerned law
      enforcement officials were watching him, he was replaced as a
      street-level dealer by two brothers, Carlos and Antonio Lopez. Jesse
      Chavez arrived on the scene late in the game when Carlos Almaraz
      [Mr. Almaraz’s brother] and Jesus Orozco gave a confidential

                                           -5-
      informant a pager number. Jesse Chavez manned that pager, returned
      phone calls, and sold cocaine for the organization.

306 F.3d at 1033 (emphasis added). Even if it could be said that the Lopez

brothers were, in turn, “replaced” by Jesse Chavez, it would not be clear whether

the “replaced” dealers actually left the organization or were simply replaced in

regard to the drug deals at issue and still maintained other responsibilities. 2 The

district court was correct in finding that Mr. Almaraz made no specific factual

allegations as to which street-level dealers were replacements, whether previous

dealers left the organization, and who would testify regarding such matters.

      Even if he had made such allegations, his counsel could not have been said

to have been ineffective for failing to investigate and present the defense at issue.

      To prevail on a claim of ineffective assistance of counsel, a
      convicted defendant must show that counsel’s representation fell
      below an objective standard of reasonableness, and that the deficient
      performance prejudiced the defendant. To establish prejudice, the
      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.

United States v. Prows, 118 F.3d 686, 691 (10th Cir. 1997) (internal quotation

marks and citations omitted).

      [S]trategic choices made after thorough investigation of law and
      facts relevant to plausible options are virtually unchallengeable; and


2
      For example, even after Jesus Orozco was “replaced” by the Lopez
brothers, he was evidently involved with giving Jesse Chavez’s pager number to a
confidential informant. Almaraz I, 306 F.3d at 1033.

                                          -6-
        strategic choices made after less than complete investigation are
        reasonable precisely to the extent that reasonable professional
        judgments support the limitations on investigation. In other words,
        counsel has a duty to make reasonable investigations or to make a
        reasonable decision that makes particular investigations unnecessary.
        In any ineffectiveness case, a particular decision not to investigate
        must be directly assessed for reasonableness in all the circumstances,
        applying a heavy measure of deference to counsel’s judgments.

Strickland v. Washington, 466 U.S. 668, 690-91 (1984).

        Here, it is clear that Mr. Almaraz had relationships with his brother and

four street-level dealers. Mr. Almaraz mainly relies on United States v. Bond,

847 F.2d 1233 (7th Cir. 1988), to argue that replacement underlings cannot be

counted. The appellant in Bond was the middleman in a marijuana ring. Id. at

1236. Although the appellant “[did] not deny working with or issuing orders to at

least 20 participants in [the] criminal venture[, h]e claim[ed] . . . that these were

casual laborers, that the indictment did not name them, and that the jury did not

necessarily agree on which five he supervised.” Id. at 1237. The Bond court

held:

        [t]hat the participants in this venture were casual labor is irrelevant.
        The statute speaks of acting in concert with five persons; it does not
        say the same five continuously or specify that any of the five must be
        “important” to the syndicate.

Id. The circuit court also used the language seized upon by Mr. Almaraz, stating:

        Now the statute aims at criminal organizations. A small time dope
        dealer who keeps to himself and has a single mule to smuggle the
        drug into the country is outside the statute’s scope. The dealer’s
        need to replace his aide (because of arrests or the difficulty of getting

                                           -7-
      good help in the business) would not authorize a CCE prosecution on
      the theory that the small-timer had one servant in January, a second
      in February, a third in March, and so on. The organization would
      never be larger than two.

Id. The court finally found that:

      the [defendant’s] network was not a two-bit show, however; it dealt
      with tons of marijuana yearly and did cocaine business on the side.
      This network continuously had more than five employees. The
      question is whether [the defendant] acted in concert with five as
      manager or coordinator.

Id.; see also United States v. Gibbs, 61 F.3d 536, 539 (7th Cir. 1995) (“It is

enough under Bond that the defendant at various times managed or supervised at

least five other persons so long as it is clear that no one of the five merely

replaced one of the others.”).

      The language in Bond relied upon by Mr. Almaraz does not represent the

law in this circuit. This court has held that, “[t]he supervisory relationships

[needed to support a CCE conviction] need not have existed at the same time or

with each other, and the same type of relationship need not exist between the

defendant and each of the five other persons involved.” Almaraz, 306 F.3d at

1040 (internal quotation marks omitted); see United States v. Apodaca, 843 F.2d

421, 426 (10th Cir. 1988) (“The defendant’s relationships with the other persons

need not have existed at the same time, the five persons involved need not have

acted in concert at the same time or with each other, and the same type of



                                          -8-
relationship need not exist between the defendant and each of the five.”). 3

Mr. Almaraz was therefore not prejudiced when his trial counsel made the

argument that no CCE existed because the street-level dealers were actually

competitors who were not controlled by him, and not the inconsistent argument

that no CCE existed because some of the dealers working for him were merely

replacements. See Bullock v. Carver, 297 F.3d 1036, 1051 (10th Cir. 2002) (“As

a general matter, we presume that an attorney performed in an objectively

reasonable manner because his conduct might be considered part of a sound

strategy.”).

                                  CONCLUSION




3
       Further, in United States v. Bafia , 949 F.2d 1465 (7th Cir. 1991), the court
found that Bond did not support that appellant’s argument that “it [was] not
sufficient to show that he supervised two or three people at one time, and then
three or four different people at another time.”   Id . at 1470. The Bafia court
found that Bond “dismissed as irrelevant the possibility that underlings came and
went, in light of the defendant’s role as manager and coordinator of a larger
criminal organization.” Id. at 1471. The court therefore affirmed the district
court’s refusal to instruct the jury that replacement underlings could not be
counted. Id. at 1481 (Posner, J., concurring and dissenting). Therefore, the
Seventh Circuit found Bond did not require the type of jury instruction Mr.
Almaraz now claims his trial counsel should have requested.

                                         -9-
    For the reasons set forth above, the judgment of the district court is

AFFIRMED.



                                                  Entered for the Court



                                                  Robert H. Henry
                                                  Circuit Judge




                                      -10-
