United States v. Alcorta

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAYMOND ALCORTA, Defendant-Appellant.

No. 20-3198

United States Court of Appeals, Tenth Circuit

June 6, 2023

(D.C. Nos. 5:19-CV-04018-DDC & 5:13-CR-40065-DDC-3) (D. Kan.)

Before HOLMES, Chief Judge, HARTZ and BACHARACH, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Jerome A. Holmes Chief Judge

Defendant-Appellant Raymond Alcorta, a federal prisoner, appeals from the United States District Court for the District of Kansas's denial of his motion to vacate his sentence under 28 U.S.C. § 2255. In 2014, Mr. Alcorta was convicted of conspiracy to distribute over 500 grams of methamphetamine and sentenced to 240 months in prison. He now argues that his sentence should be vacated due to the unconstitutional deprivation of his choice of counsel and because of the constitutionally deficient representation in his trial and appellate counsel.

Mr Alcorta specifically argues that his Sixth Amendment rights were violated in two salient ways. First, Mr. Alcorta asserts that he was deprived of his Sixth Amendment right to counsel of choice because his trial counsel failed to disclose counsel's personally acrimonious history with the prosecutor in Mr. Alcorta's case- which included the prosecutor previously seeking to investigate Mr Alcorta's trial counsel. Mr. Alcorta asserts that if he had been informed of this history before trial-which he contends evinced a potential conflict of interest-he would have chosen to proceed to trial with a different attorney. Second, Mr. Alcorta contends that both his trial counsel and his appellate counsel provided ineffective assistance of counsel-resulting in a deprivation of his Sixth Amendment right to effective assistance of counsel-by failing to challenge jury instructions and a jury verdict form that allowed the jury to find the drug quantity supporting a mandatory-minimum sentence without applying the beyond-a-reasonable-doubt proof standard. Mr. Alcorta contends that his trial counsel's failure to object to the instructions and verdict form-and his appellate counsel's subsequent failure to challenge the instructions and verdict form on direct appeal-warrant relief for ineffective assistance of counsel under the Supreme Court's seminal decision in Strickland v Washington, 466 U.S. 668 (1984).

Exercising jurisdiction under 28 U.S.C. § 1291 and § 2253(c)(1)(B), we affirm the district court's denial of Mr. Alcorta's § 2255 motion. As we explain below, Mr. Alcorta's choice-of-counsel claim must fail because he cannot demonstrate a cognizable Sixth Amendment violation: specifically, insofar as he was deprived of his choice of counsel, it was through the private action of his trial lawyer in not disclosing his personally acrimonious relationship with the prosecutor and not the action of the court (or, for that matter, any other governmental actor). Mr. Alcorta never informed the court of his concern regarding his counsel's potential conflict- much less sought and obtained a ruling from the court about the matter. As for his second contention of error, we conclude that Mr. Alcorta's ineffective-assistance claims fall short on the issue of prejudice. Specifically, Mr. Alcorta has failed to demonstrate that there is a reasonable probability that the outcome of his proceeding would have been different, but for the failure of his trial and appellate counsel to challenge as error the jury instructions and verdict form on the ground that they permitted the jury to make a drug-quantity finding elevating his mandatory-minimum sentence without applying a beyond-a-reasonable-doubt standard. In sum, we conclude that the district court correctly denied Mr. Alcorta's § 2255 motion.

I

Mr Alcorta, a resident of California, was charged in the District of Kansas with conspiracy to distribute controlled substances, including but not limited to more than 500 grams of methamphetamine under 21 U.S.C. § 841(b)(1)(A) and § 846. See United States v. Alcorta, 853 F.3d 1123, 1128 (10th Cir. 2017). The government indicted him based on evidence stemming from two 2013 traffic stops in Kansas, which yielded approximately four pounds of methamphetamine in each stop (i.e., considerably more than triple 500 grams in each stop). See id. at 1129. Police arrested four suspected drug couriers-two for each stop-all of whom were charged as coconspirators along with Mr. Alcorta. See id. at 1128-29.

Mr. Alcorta proceeded to a joint trial with two of his alleged coconspirators, Adrienne and Angela Lopez.^[1] At trial, the government presented evidence that the couriers had actually made three trips through Kansas transporting drugs: the two trips that had led to arrests, along with another successful trip by Adrienne and Angela that had preceded their arrests. See id. at 1129. Although Mr. Alcorta had not personally taken part in any of the trips, the government offered "recorded jailhouse conversations and physical evidence (including cell phones) gathered from the vehicles of the arrested couriers" to link Mr. Alcorta with the drug-trafficking conspiracy. Id. On direct appeal, we summarized the evidence that the government presented at trial to connect Mr. Alcorta to the conspiracy:

Evidence tying Defendant [i.e., Mr. Alcorta] to the failed first delivery included the documents bearing his name found in the car; a text from Salazar to Defendant one month before she was arrested indicating that she would soon be ready to work for him; Defendant's text to Vega a few days before Vega was arrested stating, "I need to know if you're going"; Vega's lament to Adrienne that Defendant sent Salazar on the trip instead of Adrienne; Vega's complaints that Defendant sent him on trips with a foolish companion who threw napkins out the window; Vega's statement to Defendant that he erased all the data on his two phones before he was arrested and his advice to Defendant to get rid of his phone; Vega's statement to Defendant that he should take Vega's contacts, which were the people that he was "dealing with" and "making money from"; Vega's expectation that Defendant would provide money to him and Salazar while they were in jail, and Defendant's fulfillment of that expectation; and Defendant's vagueness and circumspection when speaking with Vega on the jailhouse phone.

Evidence tying Defendant to the successful second delivery included his conversation with Vega stating that Adrienne was responsible to do "it" just as she was driving to Kansas City to deliver drugs; his turnaround flight to Kansas City at the same time that Adrienne and Angela were there; his statement to Vega that Adrienne came back safely from the trip; and Adrienne's report back to Vega that Defendant was "home sweet home" and that "everything is cool."

Evidence tying Defendant to the failed third delivery included Adrienne's statement to Vega on the day before her arrest that she missed a call from Defendant; Vega's questions about whether Defendant provided gas money for Adrienne's drive; Vega's advice to Adrienne that she solicit Defendant for help obtaining a car for the drive to Kansas City; Defendant's 25 phone calls to Adrienne on the day that she was arrested; his conversation with Vega about there being no reason for Adrienne to "make mistakes" on her drive; Adrienne's using a fake name for Defendant in her phone contact list; and Defendant's driving to Kansas to bail Adrienne out of jail after her arrest.

Id. at 1136.

Following the presentation of the trial evidence, the district court instructed the jury that Mr. Alcorta had been "charged with conspiracy to distribute controlled substances, including but not limited to more than 500 grams of methamphetamine." R., Vol. I, at 190 (Instr. 18) (Jury Instrs., dated Oct. 23, 2014). The court further instructed the jury that to find Mr. Alcorta guilty, the jury had to "be convinced that the government has proved each of the following beyond a reasonable doubt":

First, two or more persons agreed to violate the federal drug laws;

Second, the defendants knew the essential objective of the conspiracy; Third, the defendants knowingly and voluntarily involved themselves in the conspiracy; and

Fourth, there was interdependence among the members of the conspiracy.

Id.

As relevant to Mr. Alcorta, the jury verdict form included two special interrogatories. The first addressed the question of whether the jury found Mr. Alcorta guilty "of conspiring to distribute controlled substances," as charged in the indictment. Id. at 215. If the jury answered this first question in the affirmative-by placing a mark next to the word "Guilty"-it was asked to answer the second special interrogatory, which addressed the drug quantity for which Mr. Alcorta should be held criminally responsible. That interrogatory provided as follows:

Question 2: We find that the defendant Raymond Alcorta's conduct as a member of the narcotics conspiracy charged, including the reasonably foreseeable conduct of other members of the conspiracy, involved:

___ More than 500 grams of methamphetamine

___ Less than 500 grams of methamphetamine.

Id. at 216 (handwritten checkmark omitted). After a brief colloquy with the court, Mr. Alcorta's trial counsel-Paul Cramm-accepted the final version of the instructions and the verdict form without objection. See id. at 1820 (Trial Tr. Vol. 6, dated Oct. 22, 2014) (Mr. Alcorta's counsel stating, "we have no objections to the instructions or to the verdict form").

In closing arguments, the government argued that Mr. Alcorta was responsible for more than 500 grams of methamphetamine based on the lab reports of the methamphetamine quantities discovered in each car. In his closing, Mr. Alcorta's trial counsel argued that the government had failed to establish any connection between...