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

                           FOR THE TENTH CIRCUIT                          April 2, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                         No. 12-4052
                                                 (D.C. Nos. 2:12-CV-00046-TC &
JOHN TUAKALAU,                                        2:08-CR-00431-TC-4)
                                                             (D. Utah)
             Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and O’BRIEN, Circuit Judges.



      John Tuakalau, a federal prisoner, wants to appeal from the denial of his

28 U.S.C. § 2255 motion. Because the propriety of the denial is not reasonably

debatable we deny his request for a Certificate of Appealability (COA).




*
       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. This order is not binding precedent, except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.
                                   I.     Background

      In July 2008, a federal grand jury indicted Tuakalau and other codefendants on

multiple counts of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and

multiple counts of use of a firearm during a crime of violence in violation of

18 U.S.C. § 924(c)(1)(A). Case No. 2:08-cr-431 (“CR-431”). In October 2008,

under a plea agreement reached with the government, Tuakalau pled guilty to four

counts of Hobbs Act robberies and one count of use of a firearm during a crime of

violence. Among other things, the agreement contained several conspicuous and

significant provisions: 1) many charges against Tuakalau would be dropped; 2) he

would be guaranteed a thirty-year sentence1; and 3) he would waive his right to

appeal from the judgment and sentence or collaterally attack it. The district court

accepted the plea agreement and, as agreed, sentenced Tuakalau to thirty years’

imprisonment, to be followed by five years of supervised release. The government

dismissed the remaining charges.

      Nearly two years later, in May 2010, Tuakalau was charged with conspiracy

under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.

§ 1962(d). Case No. 2:08-cr-758 (“CR-758”). Some of the predicate acts alleged in

the RICO indictment were based upon the same facts underlying charges to which he

had pled guilty in CR-431. Tuakalau moved to dismiss the RICO indictment in
1
       His pleas would be entered under Rule 11(c)(1)(C) of the Federal Rules of
Criminal Procedure, guaranteeing the agreed sentence if the agreement was accepted
by the judge.


                                         -2-
CR-758, claiming, inter alia, double jeopardy, and to withdraw his guilty plea in

CR-431. In November 2011, the government moved to dismiss the RICO charge; it

was dismissed in June 2012. But Tuakalau still insisted on withdrawing his guilty

plea in CR-431. The district judge directed him to refile the motion to withdraw as a

§ 2255 motion.

      He did so in January 2012, alleging ineffective assistance of counsel (“IAC”),

government breach of the plea agreement (by instituting the RICO prosecution), and

a double jeopardy violation. On October 19, 2012, the judge denied the motion and

later denied a requested COA. Tuakalau renewed his request for a COA in this court.

                                    II.    Discussion

      A prisoner seeking a COA must make a “substantial showing of the denial of a

constitutional right.” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012).

He may do so by “showing that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed

further.” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 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.” Slack, 529 U.S. at 484.

      Tuakalau proposes the following issues in his COA application: 1) the

government breached the plea agreement; 2) his guilty plea was involuntary; 3) trial


                                          -3-
counsel provided ineffective assistance; and 4) he should have been afforded an

evidentiary hearing. We do not consider the involuntary guilty plea claim because it

was not properly raised in the district court. We briefly address the other issues.

      A. Breach of the Plea Agreement

      A due process violation may arise if the government has breached a plea

agreement in a material way. See, e.g., Santobello v. New York, 404 U.S. 257 (1971);

Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir. 2000); United States v. Harvey,

869 F.2d 1439, 1443 (11th Cir. 1989) (“Due process requires the government to

adhere to the terms of any plea bargain or immunity agreement it makes.”). As a

result of the plea agreement and his plea in CR-431 Tuakalau claims to have

reasonably expected the “Government would cease prosecuting him for the charges

of conviction and the dismissed charges in the original prosecution.” Aplt. Br. at 17.

After all, he says, the plea agreement gave no indication of the government’s intent to

later pursue a RICO prosecution against him and his finality expectations can only be

met by permitting him to withdraw his plea.

      He faces an insurmountable obstacle: the government did not breach the plea

agreement. “General principles of contract law define the government’s obligations

under the agreement, looking to the express language and construing any ambiguities

against the government as the drafter of the agreement.” United States v. Burke,

633 F.3d 984, 994 (10th Cir. 2011) (internal quotation marks omitted). In

determining whether a breach has occurred, “we 1) examine the nature of the


                                          -4-
promise; and 2) evaluate the promise in light of the defendant’s reasonable

understanding of the promise at the time of the guilty plea.” Id. (internal quotation

marks omitted).

      Tuakalau obtained precisely what he bargained for, dismissal of charges and

an agreed sentence. The plea agreement contains no representation by the

government regarding future prosecutions. But it does have a clear integration

clause−there are no other agreements or arrangements between Tuakalau and the

government and no promises other than those stated in the plea agreement have been

made−rendering his contrary expectations unreasonable. Nothing in the agreement

foreclosed the government from bringing a subsequent RICO charge.

   B. Ineffective Assistance of Counsel

      Tuakalau claims his trial counsel knew the government intended to file future

RICO charges against him and those charges would include, as predicate acts, some

of the things he was admitting to as a result of the plea agreement or were the basis

for dismissed charges. According to Tuakalau, counsel’s failure to advise him of the

government’s intent and the possible ramifications amounted to IAC. In addition, he

claims, if he had been armed with full knowledge of the government’s intent he

would not have pled guilty. Trial counsel denies any knowledge of the government’s

intent. Tuakalau does not accept counsel’s denials, but even if true he claims counsel

was still ineffective in failing to anticipate the subsequent RICO charge and explain

the possible ramifications to him. According to him, he has been prejudiced by


                                         -5-
deficient performance in either event: whether counsel knew of the government’s

intent or failed to anticipate it, he has had to deal with the stress, trauma, and

notoriety of enduring a RICO prosecution, and has faced danger in returning to

federal prison after dismissal of the RICO charge.

       To establish a claim of IAC, Tuakalau must show how “counsel’s

representation fell below an objective standard of reasonableness” and he was

prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668,

687-88 (1984). To show prejudice in the guilty plea context he must establish “a

reasonable probability that, but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial,” Hill v. Lockhart, 474 U.S. 52, 59 (1985),

and “a decision to reject the plea bargain would have been rational under the

circumstances.” Padilla v. Kentucky, 130 S. Ct. 1473, 1485 (2010). Failure to show

either deficient performance or prejudice is dispositive. See Hooks v. Workman,

606 F.3d 715, 724 (10th Cir. 2010).

       As to the first prong the judge concluded trial counsel was not deficient in his

performance. Her conclusion was based on an affidavit in which trial counsel stated

he received no indication from the government of any intent to file a RICO charge

against Tuakalau.2 She did not address whether trial counsel should have, despite his


2
        Tuakalau claims a factual dispute exists as to whether the government advised
trial counsel of its intent to file RICO charges, making an evidentiary hearing
necessary. He is mistaken. Although his § 2255 counsel represented to the court that
she possessed e-mail communications from government counsel documenting the
                                                                            (continued)
                                           -6-
lack of explicit warning, anticipated the possibility of RICO charges and was

deficient for failing to timely warn Tuakalau of that possibility. Because there is no

valid reason to quarrel with her conclusion about trial counsel’s knowledge, we move

to the “should have anticipated” argument.3

       The Sixth Amendment right to counsel does not encompasses every aspect of

the attorney client relationship, only direct aspects of the prosecution. See Varela v.

Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992). “Consequences of a guilty plea

unrelated to the length and nature of the federal sentence are not direct

consequences.” United States v. Hurlich, 293 F.3d 1223, 1231 (10th Cir. 2002).

Neither is the possibility of future RICO charges a direct consequence of a guilty

plea. See United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000), abrogated on

other grounds by Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (“What renders a plea’s

effects collateral is not that they arise virtually by operation of law, but the fact that

[the consequence] is not the sentence of the court which accepts the plea but of

another agency over which the trial judge has no control and for which he has no


claimed factual dispute, she did not submit them in the § 2255 proceeding. Since her
unsupported statement to the court is not evidence, see Luevano v. Holder, 660 F.3d
1207, 1213 (10th Cir. 2011), there was no evidence of a factual dispute. Aplt. App.,
Vol. 1, at 141-42. See also Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974)
(in determining whether to grant an evidentiary hearing, mere generalities or hearsay
statements normally will not entitle an applicant to a hearing since such hearsay
would be inadmissible at the hearing itself).
3
      It appears the “should have anticipated” issue was raised in the district court,
but only summarily.


                                           -7-
responsibility.”).4 Trial counsel was not deficient in failing to anticipate a RICO

indictment. See also Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011)

(“[C]ounsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.”) (internal

quotation marks omitted).

      Even were we to assume trial counsel’s performance was inadequate under

Strickland’s first prong, Tuakalau must also satisfy the second prong by showing

prejudice. He has not shown a “reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on going to trial.” Moya,


4
       Padilla may have called the distinction between direct and collateral
consequences into doubt. See Padilla, 130 S. Ct. at 1481 (observing that the court
has “never applied a distinction between direct and collateral consequences to define
the scope of constitutionally reasonable professional assistance required under
Strickland”). In Padilla, the Supreme Court decided counsel was ineffective for
failing to advise of the risk of deportation, but did not rely on the direct-collateral
distinction because the risk of deportation’s close connection to the criminal process
made it uniquely difficult to classify as either a direct or collateral consequence.
See id. at 1481-82. It refrained from deciding whether the distinction between direct
and collateral consequences continues to be appropriate in contexts other than
deportation consequences. See id. at 1481 (“Whether that distinction is appropriate is
a question we need not consider in this case because of the unique nature of
deportation.”).

       Simply by reading the statute, Padilla’s counsel could easily have determined
he was eligible for deportation, which was presumptively mandatory. Id. at 1483.
The situation here is not nearly so tidy. A RICO prosecution is discretionary with the
government (not presumptively mandatory) and predicting the government’s
inclination to do so in any particular case would require much more than simply
reading a statute. Padilla is neither controlling nor even persuasive as to the issue
presented here.



                                         -8-
676 F.3d at 1214 (internal quotation marks omitted). Tuakalau was facing a potential

minimum mandatory sentence of 185 years imprisonment. We agree with the district

judge: rejecting a plea bargain dismissing numerous charges and guaranteeing a

thirty-year sentence would not have been rational. See Padilla, 130 S. Ct. at 1485.

      Tuakalau claims more is at stake than simply comparing a guaranteed sentence

to a potentially longer one, even an extremely longer one. He says the risk of

conviction is a related but independent consideration. In that regard he claims his

confession−the government’s strongest evidence in the original prosecution−was

constitutionally infirm and could have been suppressed. See Aplt. Opening Br. at 21.

He suggests his willingness to forego challenging his confession was a result of the

favorable plea agreement. Indeed, he did not move to suppress the allegedly infirm

confession. But he has not effectively claimed IAC for failing to do so.5 His rosy

predictions of the probable success of a suppression motion are merely speculative.

      Finally, to the extent Tuakalau claims prejudice because his plea bargain was

not a full resolution of the possible claims against him, we are unpersuaded. The

RICO charge was ultimately dismissed and the trial judge regarded the prejudice

claimed by Tuakalau–the stress, trauma, and notoriety resulting from the RICO


5
       Tuakalau claimed for the first time in his reply brief in support of his motion
for reconsideration that trial counsel’s advisement to plead guilty without seeking
suppression of Tuakalau’s confession constituted IAC. See Aplt. App., Vol. 1, at
114. The district court, however, held that such a claim was barred by the statute of
limitations under 28 U.S.C. § 2255(f), and declined to consider it. See id. at 141
n.24. So do we.


                                         -9-
prosecution–not to be the kind of prejudice for which relief is available under § 2255.

The cases documenting and explaining prejudice are legion. Yet, Tuakalau has failed

to cite any legal authority supporting his position, and we have found none. His

burden to show prejudice, see United States v. Rushin, 642 F.3d 1299, 1302

(10th Cir. 2011), must necessarily mean legally significant prejudice. He suffered no

punishment, no conviction, not even a trial. More than a tale of woe is required.

      C. Evidentiary Hearing

      Tuakalau claims entitlement to an evidentiary hearing regarding his IAC claim

based upon trial counsel’s knowledge of the government’s intent to seek a RICO

indictment. See footnote 2, supra. Under § 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.’” United States v.

Lopez, 100 F.3d 113, 119 (10th Cir. 1996) (quoting 28 U.S.C. § 2255) (further

quotation omitted). “We review the denial of an evidentiary hearing in a § 2255

proceeding for an abuse of discretion.” United States v. Clingman, 288 F.3d 1183,

1187 n.4 (10th Cir. 2002).

      Tuakalau claims to have been denied discovery which would have provided

evidence of the factual dispute about trial counsel’s knowledge of an impending

RICO charge. But no proper request was made. Merely claiming discovery is

necessary is insufficient. Tuakalau’s § 2255 counsel could have, but did not, make a

proper discovery request. Under Rule 6(b) of the Rules Governing Section 2255


                                         - 10 -
Proceedings for the United States District Courts, “[a] party requesting discovery

must provide reasons for the request. The request must also include any proposed

interrogatories and requests for admission, and must specify any requested

documents.” See also Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974) (in

determining whether to grant an evidentiary hearing, mere generalities or hearsay

statements normally will not entitle an applicant to a hearing since such hearsay

would be inadmissible at the hearing itself).

                                    III.    Conclusion

      The propriety of the district court’s resolution of this § 2255 motion is not

fairly debatable. Tuakalau’s request for a COA is DENIED and his application is

dismissed.


                                                    Entered for the Court


                                                    Terrence L. O’Brien
                                                    Circuit Judge




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