                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 31, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 13-8078
                                                       (D. Wyoming)
 JUAN MANUEL GLARIA-                        (D.C. Nos. 1:12-CV-00247-SWS and
 RAMIREZ,                                         2:11-CR-00236-SWS-4)

              Defendant - Appellant.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      Defendant and petitioner, Juan Manuel Glaria-Ramirez, proceeding pro se,

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

court’s order denying his motion to vacate his sentence, pursuant to 28 U.S.C.

§ 2255. After concluding that Mr. Glaria-Ramirez has failed to meet the

requirements for issuance of a COA, we deny him a COA and dismiss this matter.




      *
       This order is not binding precedent, except under the doctrines of law of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.
                                BACKGROUND

      Starting in November of 2010, law enforcement authorities were

investigating an ongoing criminal drug conspiracy involving the possession,

distribution and sale of methamphetamine. The methamphetamine was being

imported from Utah and Idaho to Sweetwater County, Wyoming. Through the

investigation, law enforcement learned that the following individuals were

involved in the conspiracy: Felix G. Maldonado, of Burley, Idaho; Sheila Ann

Russell, of Burley, Idaho; Christopher Scott Ayers, of Eden, Wyoming, and

Rupert, Idaho; Stephen Edward Painovich, of Eden, Wyoming; and Mr. Glaria-

Ramirez, of Salt Lake City, Utah.

      Mr. Maldonado and Ms. Russell testified that they purchased drugs from

“Mexicans” in Salt Lake City, Utah, through a Mexican drug trafficking

organization run by “The Old Man.” The drugs would then be transported

primarily to Wyoming for distribution. Mr. Maldonado described Mr. Glaria-

Ramirez’s role as being the “muscle” for “The Old Man.” Mr. Maldonado and

Ms. Russell further testified that Mr. Glaria-Ramirez had either supplied them

with methamphetamine or had been present during their drug transactions on

numerous occasions dating as far back as January of 2010.

      More specifically, according to their testimony, Mr. Maldonado and

Ms. Russell met Mr. Glaria-Ramirez on July 23, 2011, in Salt Lake City to obtain

four ounces of methamphetamine. Mr. Glaria-Ramirez then followed them from

                                       -2-
Utah to Wyoming to guard the methamphetamine and to collect the money from

its sale. After their arrival in Wyoming, Mr. Glaria-Ramirez apparently became

frustrated after only a small amount of methamphetamine was sold, and

subsequently drove back to Salt Lake City with the remaining methamphetamine

on July 24, 2011.

      On the following day, July 25, 2011, Mr. Maldonado contacted “The Old

Man” and asked him to send Mr. Glaria-Ramirez back to Wyoming with the

methamphetamine, because Mr. Maldonado had made arrangements to sell two

ounces of methamphetamine to “Jay” (who was an undercover officer).

Mr. Glaria-Ramirez accordingly returned to Wyoming on July 25, with the

methamphetamine, and met Mr. Maldonado in Farson, Wyoming. Mr. Glaria-

Ramirez then drove with Mr. Maldonado from Farson to Reliance, Wyoming, to

meet Jay. According to Mr. Maldonado, during the drive, Mr. Glaria-Ramirez

told Mr. Maldonado that, after he collected the money from the sale of the

methamphetamine, he was going to drive to California to buy more

methamphetamine for “The Old Man.”

      Mr. Glaria-Ramirez and Mr. Maldonado met Jay at 8:30 p.m. and delivered

two ounces of methamphetamine for $4,000. Mr. Maldonado and Mr. Glaria-

Ramirez were then arrested.

      On August 16, 2011, Mr. Glaria-Ramirez (along with four others) was

charged by criminal complaint with conspiracy to possess with intent to distribute

                                        -3-
and to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and

841(a)(1) and (b)(1)(A), and possession with intent to distribute

methamphetamine and aiding and abetting, in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B) and 18 U.S.C. § 2. On January 31, 2012, Mr. Glaria-Ramirez

entered into a plea agreement with the government. At his change of plea

hearing, however, Mr. Glaria-Ramirez expressed a desire to plead not guilty and

proceed to trial. Accordingly, on February 14, 2012, Mr. Glaria-Ramirez’s jury

trial commenced.

      On the second day of his jury trial, after hearing the testimony of several

witnesses, including his co-conspirators, Mr. Glaria-Ramirez changed course,

entering a guilty plea to both counts charged in the indictment. Prior to accepting

his guilty plea, the court asked Mr. Glaria-Ramirez if it was his desire to change

his plea in this matter. Mr. Glaria-Ramirez answered affirmatively. The court

then asked Mr. Glaria-Ramirez if he understood the nature of the charges against

him and the potential penalties, the rights he would be waiving by entering a

guilty plea, that he would be required to provide a factual basis for his guilty

plea, and that his guilty plea must be entered freely and voluntarily. Mr. Glaria-

Ramirez again answered affirmatively. Mr. Glaria-Ramirez also confirmed that

he had discussed his change of plea with his counsel and that he was satisfied

with his counsel’s representation.




                                          -4-
      After accepting Mr. Glaria-Ramirez’s guilty plea, the district court

continued to establish a factual basis for his plea. During his dialog with the

court, Mr. Glaria-Ramirez admitted that he supplied in excess of fifty grams of

methamphetamine to Felix Maldonado on July 23, 2011, while they were in Utah.

He then affirmatively stated that he knew Mr. Maldonado was going to sell the

methamphetamine in Wyoming. Additionally, Mr. Glaria-Ramirez admitted to

using his own vehicle to transport Mr. Maldonado and the methamphetamine from

Utah to the location of the sale in Wyoming on July 25, 2011. The district court

then accepted his guilty plea and concluded that Mr. Glaria-Ramirez provided a

sufficient factual basis to establish each and every essential element of the crime

to which he pled.

      On April 27, 2012, Mr. Glaria-Ramirez appeared for sentencing. Mr.

Glaria-Ramirez did not make any objections to the pre-sentence report (“PSR”)

prepared by the United States Probation Office in preparation for sentencing. The

PSR included a detailed description of the evidence uncovered during the course

of the investigation. The PSR included the 54.3 grams of methamphetamine sold

to Jay, the undercover agent, by Mr. Glaria-Ramirez and Mr. Maldonado on

July 25, 2011. The PSR further described an additional 411 grams of a mixture or

substance containing a detectable amount of methamphetamine that investigators

linked to Mr. Glaria-Ramirez’s conduct prior to his arrest on July 25, 2011.




                                         -5-
      The district court concluded that Mr. Glaria-Ramirez’s total offense level

was thirty which, with a criminal history category of III, yielded an advisory

sentence under the United States Sentencing Commission, Guidelines Manual, of

121 to 151 months’ imprisonment. The district court found that, while Mr.

Glaria-Ramirez was not a principal in the drug conspiracy, he was not a low level

or minor participant. The court considered all the sentencing factors enumerated

in 18 U.S.C. § 3553(a) and sentenced Mr. Glaria-Ramirez to serve concurrent

terms of 126 months on the two counts, followed by five years of supervised

release. Mr. Glaria-Ramirez did not file a direct appeal.

      Instead, Mr. Glaria-Ramirez filed the instant 28 U.S.C. § 2255 motion on

October 29, 2012. He raised two claims of ineffective assistance of counsel:

1) his counsel was ineffective for failing to object to the district court’s entry of

judgment on his guilty plea for the conspiracy charge when there was no factual

basis for the conspiracy offense; and 2) his counsel was ineffective for failing to

argue that the evidence showing an agreement to possess with intent to distribute

methamphetamine was insufficient.

      Applying the appropriate standard of Strickland v. Washington, 466 U.S.

668 (1984), the district court denied Mr. Glaria-Ramirez’s § 2255 motion, noting

that “the evidence establishing Mr. Glaria-Ramirez’s guilt was overwhelming and

demonstrated that there were sufficient facts to establish Mr. Glaria-Ramirez’s




                                          -6-
guilt. As such, . . . the Court finds Mr. Glaria-Ramirez’s claims must be

dismissed.” Order at 10, R. Vol. 1 at 78. This request for a COA followed. 1



                                  DISCUSSION

      To obtain a COA, Mr. Glaria-Ramirez must make a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the

requisite showing, he must demonstrate “that reasonable jurists could debate

whether (or, for that matter, agree that) the [motion] should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003) (quotations omitted). In evaluating whether Mr. Glaria-Ramirez has

satisfied his burden, this court undertakes “a preliminary, though not definitive,

consideration of the [legal] framework” applicable to each of his claims. Id. at

338. To be entitled to a COA, Mr. Glaria-Ramirez need not demonstrate his

appeal will succeed, but he must “prove something more than the absence of

frivolity or the existence of mere good faith.” Id. (quotations omitted).

      We note that, even though Mr. Glaria-Ramirez did not file a direct appeal,

he may, and indeed should, argue ineffective assistance of counsel in this

collateral proceeding. See Massaro v. United States, 538 U.S. 500, 504 (2003)


      1
       The district court granted Mr. Glaria-Ramirez permission to proceed on
appeal in forma pauperis.

                                         -7-
(‘[A]n ineffective-assistance-of-counsel claim may be brought in a collateral

proceeding under § 2255, whether or not the petitioner could have raised the

claim on direct appeal.”). As we have stated, “[i]neffective assistance of counsel

claims should be brought in collateral proceedings, not on direct appeal.” United

States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc).

      In Strickland, the Supreme Court announced a two-part test that governs

ineffective-of-assistance claims. 466 U.S. at 687. First, “[a] petitioner must

show that counsel’s performance was deficient.” Wiggins v. Smith, 539 U.S. 510,

521 (2003). Second, a petitioner must show that counsel’s deficiency “prejudiced

the defense.” Id.

      “To establish deficient performance, a petitioner must demonstrate that

counsel’s representation fell below an objective standard of reasonableness.” Id.

(internal quotation marks omitted); see Strickland, 466 U.S. at 688 (“The proper

measure of attorney performance remains simply reasonableness under prevailing

professional norms.”). A petitioner must overcome a “strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. To establish Strickland’s prejudice component, “[t]he

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.” Id. at 694.

                                         -8-
      Invoking these principles, Mr. Glaria-Ramirez renews the two

ineffectiveness claims that he raised in the district court. Thus, he argues his

counsel was ineffective in failing to object to the district court’s entry of

judgment on his guilty plea when there was allegedly no factual basis for the

conspiracy and in failing to argue that the evidence showing an agreement to

possess with intent to distribute methamphetamine was insufficient. He also

assigns error to the district court’s failure to conduct an evidentiary hearing into

his ineffectiveness claims.

      We address this last argument first. “A district court’s decision to grant or

deny an evidentiary hearing in a habeas proceeding is reviewed for an abuse of

discretion.” Hooks v. Workman, 606 F.3d 715, 731 (10th Cir. 2010). Because, as

we demonstrate below, “each of [Mr. Glaria-Ramirez’s] claims of ineffective

assistance of trial counsel is resolvable solely on the basis of the existing record,

the district court did not abuse its discretion in denying [his] general request for

an evidentiary hearing.” Id. “Likewise, the general and conclusory nature of the

allegations in [Mr. Glaria-Ramirez’s] request for an evidentiary hearing[] fully

support the district court’s decision to deny that request.” Id. We find no abuse

of discretion in the district court’s denial of Mr. Glaria-Ramirez’s request for an

evidentiary hearing.




                                          -9-
       With respect to the merits of the two ineffectiveness claims, the district

court rejected them after analyzing both parts of the Strickland analysis. The

court below, and we, address each argument in turn.

       Mr. Glaria-Ramirez first argues his counsel was ineffective in failing to

object on the ground that there was an inadequate factual basis for his guilty plea

to conspiracy. As the district court found, the trial court “ensured that Mr.

Glaria-Ramirez provided a factual basis to support the conspiracy charge during

his change of plea hearing.” Order at 10, R. Vol. 1 at 78. The district court

further explained:

              During his change of plea hearing, Mr. Glaria-Ramirez
       admitted he supplied in excess of 50 grams, actual,
       methamphetamine to Mr. Maldonado on July 23, 2011 while in Utah.
       He then affirmatively answered that he knew that Mr. Maldonado
       was going to sell the methamphetamine in Wyoming. Additionally,
       Mr. Glaria-Ramirez admitted he used his own vehicle to transport
       Mr. Maldonado and the methamphetamine from Utah to the location
       of sale in Wyoming on July 25, 2011. Based on the information
       provided, the Court concluded that Mr. Glaria-Ramirez made his plea
       knowingly and voluntarily, with an adequate understanding of the
       charges and their consequences, after consultation with competent
       counsel. The Court concluded that Mr. Glaria-Ramirez provided a
       sufficient factual basis to establish each and every essential element
       of the crime to which he pled. Thus, the facts presented at the
       change of plea hearing established Mr. Glaria-Ramirez’s role as
       supplier, courier and facilitator to the conspiracy to distribute
       methamphetamine in Wyoming.

Id. at 11, R. Vol. 1 at 79.

      The district court further noted that this case presented the unusual

circumstance that, while Mr. Glaria-Ramirez ultimately pled guilty, he did so

                                         -10-
after two days of trial testimony, including testimony by key co-conspirators.

“Rule 11(f) permits the trial judge to find the factual basis for the plea in

anything that appears in the record.” United States v. Keisetter, 860 F.2d 992,

996 (10th Cir. 1988). That “additional evidence provides even further support to

the finding of an adequate factual basis to Mr. Glaria-Ramirez’s guilty pleas, his

participation in the conspiracy and his involvement in ‘The Old Man’s’ Mexican

drug trafficking organization.” Order at 12, R. Vol. 1 at 80. As the district court

summarized, “this Court concludes the facts presented at the change of plea

hearing, the trial testimony and the pre-sentence report establish that Mr. Glaria-

Ramirez came to a mutual understanding with co-conspirators to try to

accomplish a common and unlawful plan to distribute methamphetamine in

Wyoming, thus clearly establishing a factual basis for Mr. Glaria-Ramirez’s

guilty plea.” Id. at 13, R. Vol. 1 at 81. We accordingly cannot find fault with the

district court’s conclusion that Mr. Glaria-Ramirez’s attorney was not ineffective

in failing to object to the sufficiency of the evidence supporting his guilty plea to

conspiracy.

      Mr. Glaria-Ramirez next argues that his attorney was ineffective for failing

to argue that the evidence was insufficient to show that Mr. Glaria-Ramirez

entered into an agreement with “The Old Man,” Mr. Maldonado, Ms. Russell and

others to possess with the intent to deliver methamphetamine. This argument is

equally unavailing. “[C]ircumstantial evidence is sufficient to prove . . . the

                                          -11-
existence of an agreement.” United States v. Brooks, 736 F.3d 921, 938 (10th

Cir. 2013). “[T]he agreement requirement may be satisfied entirely through

circumstantial evidence; that is, it may be inferred from the facts and

circumstances of the case.” United States v. Clark, 717 F.3d 790, 805 (10th Cir.

2013) (further quotations and citations omitted).

      We agree with the district court’s conclusion that, “[a]s has already been

established in Mr. Glaria-Ramirez’s first claim, the evidence in this case is more

than sufficient to establish that an agreement was made to carry out a common,

unlawful plan to distribute methamphetamine in Wyoming.” Order at 14, R. Vol.

1 at 82. Accordingly, “because the evidence more than adequately established

Mr. Glaria-Ramirez’s role in the conspiracy to distribute methamphetamine in

Wyoming, his counsel was not inadequate for failing to object on these grounds.”

Id. at 15, R. Vol. 1 at 83. No reasonable jurist could debate that determination.

      Even though the district court correctly determined that Mr. Glaria-Ramirez

failed to show that his counsel had performed ineffectively, the court went on to

conclude that both of his ineffectiveness claims would fail under the second

(prejudice) prong of Strickland. It is clear that “a reviewing court may consult

the whole record when considering the effect of any error on substantial rights.”

United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Edgar, 348 F.3d

867, 872 (10th Cir. 2003). The record in this case more than adequately

establishes that, as the district court found, “Mr. Glaria-Ramirez has failed to

                                         -12-
establish that his attorney’s performance was deficient, or further, that if it were,

there would be a reasonable probability the outcome of the proceeding would

have been different.” Order at 16, R. Vol. 1 at 84.



                                   CONCLUSION

      For the foregoing reasons, we DENY a COA and DISMISS this matter.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                         -13-
