                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                January 20, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 09-2142
 v.                                             (D.C. Nos. 06-CV-00343 and
                                                   1:02-CR-01056-WJ-1)
 FRANK GABALDON,                                         (D.N.M.)

       Defendant - Appellant.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Defendant-Appellant Frank Gabaldon, a federal inmate appearing pro se,

seeks to appeal from the district court’s denial of his 28 U.S.C. § 2255 motion to

vacate, set aside, or correct his sentence. Because Mr. Gabaldon has not made “a

substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), we deny his request for a certificate of appealability (“COA”) and

dismiss the appeal. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).



                                   Background

      We previously set forth the factual background of this case in United States

v. Gabaldon (Gabaldon I), 389 F.3d 1090, 1093-94 (10th Cir. 2004). A jury
convicted Mr. Gabaldon of second degree murder and kidnaping resulting in

death. This court affirmed his conviction upon direct appeal. Gabaldon I, 389

F.3d 1090. Mr. Gabaldon then sought § 2255 relief, asserting claims of

ineffective assistance of counsel and incomplete jury instructions. The district

court denied Mr. Gabaldon’s § 2255 motion, ruling that it was time-barred. On

appeal, this court vacated the district court’s judgment and remanded the matter

for further proceedings concerning equitable tolling of the limitations period.

United States v. Gabaldon (Gabaldon II), 522 F.3d 1121 (10th Cir. 2008).

      Upon remand, the government argued that Mr. Gabaldon’s § 2255 motion

should be denied as untimely and without merit. 1 R. 245. The magistrate judge

then recommended that the motion be considered timely but without merit. 1 R.

429, 433, 449, 458. After considering Mr. Gabaldon’s objections, the district

court adopted the magistrate judge’s recommendations and denied the § 2255

motion and a subsequent motion to reconsider. 1 R. 603-05, 616-17.



                                     Discussion

      Mr. Gabaldon raises five separate claims for which he requests a COA. In

reality, four claims revolve around his contention that the trial court should have

instructed the jury that voluntary intoxication is a defense to charges of aiding

and abetting second-degree murder and kidnaping. He contends that the court’s

instructions deprived him of a fair trial, that his trial counsel was ineffective for

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failing to object or otherwise move to remedy the instructions, and that his

appellate counsel was ineffective for failing to raise this issue on appeal. He

additionally contends that his appellate counsel was ineffective on direct appeal

for failing to claim ineffective assistance of trial counsel for failure to prepare

and investigate for trial. Mr. Gabaldon’s trial counsel served as his appellate

counsel. Aplt. Br. at 2.

      In order to obtain a COA, Mr. Gabaldon must make a “substantial showing

of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that

“reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack, 529 U.S. at 484; see Miller-El v. Cockrell,

537 U.S. 322, 338 (2003). The instruction at issue provided:

            You may consider evidence of intoxication in deciding whether
      the government has proved beyond a reasonable doubt that the
      defendant acted with the intent to commit first degree murder or the
      offenses charged in Counts III, IV and V.

1 R. 50. The instruction did not include the lesser included offense of second

degree murder (located under Count I, first degree murder, on the verdict form) or

Count II (kidnaping resulting in death). Although Mr. Gabaldon argues that this

instruction precludes consideration of an intoxication defense on the omitted

offenses, Aplt. Br. at 21, 25, that is by no means certain. In argument, the parties

did not separate voluntary intoxication from any of the crimes. 1 R. 445.

      The failure to explicitly reference second degree murder or include a


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reference to kidnaping in the voluntary intoxication instructions would be subject

to harmless error review for instructional errors. See Hedgpeth v. Pulido, 129 S.

Ct. 530, 532 (2008); Neder v. United States, 527 U.S. 1, 10-11 (1999); California

v. Roy, 519 U.S. 2, 5 (1996). Thus, Mr. Gabaldon must prove that the error “had

substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks and citation

omitted); United States v. Dago, 441 F.3d 1238, 1246 (10th Cir. 2006). We do

not think that the magistrate judge’s apparent conclusion that this standard cannot

be met is reasonably debatable. 1 R. 446-49. Here, the jurors received an aiding

and abetting instruction specifically linked to Counts I and II alerting the jurors to

the requirement of specific intent for aiding and abetting liability. Merely

because they acquitted on the counts referenced in the voluntary intoxication

instruction, hardly suggests that they believed Mr. Gabaldon voluntarily

participated in, but lacked the specific intent to violate the law due to

intoxication. As discussed below, there was overwhelming evidence of both

principal and aiding and abetting liability on both counts at issue.

      The magistrate judge correctly recognized that (1) the jury was correctly

instructed on aiding and abetting, (2) voluntary intoxication could be a defense to

aiding and abetting second degree murder and kidnaping, and (3) a more inclusive

jury instruction on voluntary intoxication might have been given had it been

requested. See United States v. Jackson, 213 F.3d 1269, 1292 (10th Cir. 2000);

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United States v. Sayetsitty, 107 F.3d 1405, 1412 (9th Cir. 1997). Although a

defendant is entitled to an instruction given evidence supporting his theory of a

legally-recognized defense, counsel did not request a more explicit instruction 1

and probably for good reason.

      Contrary to the views of the magistrate judge, 1 R. 441, 444, aiding and

abetting was not the sole theory of liability in this case. Rather, as we indicated

in our prior opinion and as Mr. Gabaldon raised in his petition for certiorari,

powerful evidence suggested principal liability—that Mr. Gabaldon had the

capacity to plan and execute both the kidnaping and the second degree murder.

Mr. Gabaldon recognized this in his § 2255 motion. 1 R. 19. In fact, in affirming

the sufficiency of the evidence on the kidnaping count, we did not mention aiding

and abetting. Gabaldon I, 389 F.3d at 1094-98. We did mention evidence

suggesting Mr. Gabaldon’s direct participation: he joined Mr. Begay in beating

the victim unconscious and provided a shoelace to Mr. Begay and instructed him

on how to strangle the victim. Id. at 1093. Mr. Gabaldon’s petition for certiorari

echoes this evidence. Petition for Writ of Certiorari, Gabaldon v. United States,

No. 04-1111, 2005 WL 415080, at *3-*4 (Feb. 11, 2005). Had counsel requested

a more explicit voluntary intoxication instruction on aiding and abetting these two

offenses, that surely would have resulted in flagging that while voluntary

      1
        Counsel’s proposed voluntary intoxication instruction, Aplt. Br. at 4-5,
mistakenly included the substantive offense of kidnaping which the district court
properly omitted, 1 R. 50.

                                        -5-
intoxication could be a defense to aiding and abetting, it could not be a defense to

the substantive offenses themselves. Such a focus could well have been counter-

productive given the substantial evidence of guilt on both theories. Thus, we

cannot agree that Mr. Gabaldon’s counsel rendered deficient performance by not

clarifying the reach of the voluntary intoxication jury instruction. See Strickland

v. Washington, 466 U.S. 668, 687 (1984) (ineffective assistance requires a

showing of deficient performance and prejudice). Accordingly, Mr. Gabaldon has

not established ineffective assistance of counsel, either in its own right

concerning his trial and appellate counsel, or as cause for procedural default, see

Murray v. Carrier, 477 U.S. 478, 488 (1986). Insofar as the failure to call trial

witnesses, we do not think the magistrate judge’s conclusions are reasonably

debatable; we only add that it is highly doubtful that securing a similar vehicle for

Dr. Watts to test his theory would have resulted in a different outcome of this

issue on appeal. Gabaldon I, 389 F.3d at 1099.

      Accordingly, we DENY a COA and DISMISS the appeal.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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