Mercado-Gracia v. United States

UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

AARON MARTIN MERCADO-GRACIA,

Petitioner,

v. No. 23cv219 JCH/GJF

No. 16cr1701 JCH/GJF

UNITED STATES OF AMERICA,

Respondent.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER is before the Court on Petitioner Aaron Martin Mercado-Gracia’s Motion

under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody

(“Petition”). CV ECF 1 (“Pet.”).1 The United States responded, CV ECF 11, and Petitioner replied.

CV ECF 12. Having reviewed the briefing and the record, and otherwise being fully advised, the

Court RECOMMENDS that the Petition be DENIED and a certificate of appealability be

DENIED for the reasons that follow.2

I. BACKGROUND

In its opinion resolving the direct appeal of this case, the Tenth Circuit summarized the

relevant facts. United States v. Mercado-Gracia, 989 F.3d 829, 832-35 (10th Cir. 2021). That

summary is further condensed here. At noon on a spring day just west of Albuquerque, State Police

Officer Ronald Wood pulled Petitioner over for speeding on Interstate 40. Id. During the

1 All citations with CV refer to the civil case 23cv219 JCH/GJF, and all citations with CR refer to the criminal case

16cr1701 JCH/GJF.

2 Before issuing this PFRD, the Court considered whether an evidentiary hearing was necessary, as instructed by Rule

8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Because the outcome of

this Motion turns on matters of law and its recommended disposition requires no further factual development, the

Court concluded that no evidentiary hearing was necessary. The Court also denies Petitioner’s Motion to Appoint

Counsel, CV ECF 9, because the Court considers a hearing unnecessary and concludes that the issues in the Petition

are straightforward and ultimately without merit. See Rule 8(c), R. Gov. § 2255 Proceedings; Williams v. Meese, 926

F.2d 994, 996 (10th Cir. 1991).

encounter, the officer asked Petitioner what brought him from Phoenix to Albuquerque. Petitioner

responded by nervously changing his story multiple times: first he said he was there for work, then

to just drive around, then to see a woman. Petitioner was also driving a car owned by someone else

and insured by a third person. Because Petitioner told the officer a changing story while nervously

fidgeting, the officer ended the speeding ticket interaction with a now familiar investigative

technique: the officer told Petitioner he was free to go, but before Petitioner drove away, the officer

stepped back towards the vehicle saying, “[e]xcuse me . . . . Is it okay if I ask you some [more]

questions?” Id.

Petitioner did not object to the additional questioning and his story deteriorated further,

revealing that he had a partner in Phoenix, did not know where he was meeting the other woman

in Albuquerque, and did not know where he was staying in Albuquerque. At the end of the

additional questions, the officer said, “I'll be straight up with you. Right now I have some concerns

. . . [a]nd . . . I'm going to deploy my canine on the vehicle . . . .” The canine alerted and the

officer’s subsequent search of the vehicle yielded a firearm and more than two kilograms of heroin.

Id.

Based on this evidence, the United States charged Petitioner with: (1) possessing one

kilogram or more of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A); (2) conspiring to possess with intent to distribute more than one kilogram of heroin,

see id. § 846; and (3) using or carrying a firearm during and in relation to a drug trafficking crime,

in violation of 18 U.S.C. § 924(c). After the district court denied Petitioner’s suppression motion,

the case proceeded to trial. The jury convicted Petitioner of all three charges and the district court

sentenced him to 180 months in prison. That sentence represented a mandatory minimum ten years

for the distribution and conspiracy convictions, see 21 U.S.C. §§ 841(b)(1)(A)(i), 846, to run

concurrently, and a mandatory minimum five-year sentence on the firearm charge, to run

consecutively to the drug trafficking sentences. See 18 U.S.C. § 924(c)(1)(A)(i).

The Tenth Circuit affirmed Petitioner’s conviction and sentence and the Supreme Court

denied certiorari. Mercado-Gracia, 989 F.3d at 832, cert. denied, 142 S. Ct. 1374 (2022). On

March 14, 2023, Defendant filed the instant Petition under 28 U.S.C. § 2255, asserting ineffective

assistance of counsel.

II. SUMMARY OF ARGUMENTS

To begin, Petitioner alleges that the government failed to prove an essential element of

the firearm charge against him. Pet at 5. Petitioner contends that, because the superseding

indictment charged him with Using and Carrying a Firearm During and in Relation to a Drug

Trafficking Crime, the jury needed to find him guilty of both carrying and using the gun. He points

out, however, that the jury convicted him only of carrying a firearm during and in relation to his

drug trafficking crime. CR ECFs 225, 227. Petitioner therefore asks the Court to dismiss the

firearm charge as unproven as a matter of established federal law. Pet at 5-7. Liberally construing

his Petition, the Court considers Petitioner to be arguing that his counsel was ineffective for

failing to assert that the jury needed to find both that he carried and used a firearm during and in

relation to his drug trafficking crime.

The government responds that “it is hornbook law that a crime denounced in the statute

disjunctively may be alleged in an indictment in the conjunctive, and thereafter proven in the

disjunctive.” CV ECF 11 at 8 (citing United States v. Powell, 226 F.3d 1181, 1192 (10th Cir.

2000) (internal quotations omitted)). Thus, the government insists there was no legal error in

indicting Petitioner for carrying and using a firearm but only asking the jury to find whether

Petitioner carried the firearm during and in relation to his underlying drug trafficking crime. Id.

In reply, Petitioner agrees with the government, now conceding that no legal error

occurred when the grand jury indicted him for carrying and using a firearm but the government

elected only to prove that he carried a firearm during and in relation to the drug trafficking crime.

CV ECF 12 at 2. But Petitioner then attempts to change horses midstream, abandoning his original

ineffective assistance argument and asserting for the first time that his counsel was ineffective

because she failed during plea discussions to correctly advise him of controlling law. Id. Petitioner

belatedly contends that – if his counsel had advised him that the government only needed to prove

that he carried the firearm – he would have accepted the government’s offer and received a shorter

sentence. Id. at 3.

III. LEGAL STANDARDS

A. 28 U.S.C. § 2255

Under 28 U.S.C. § 2255, a federal prisoner “may move the court which imposed [his]

sentence to vacate, set aside or correct [his] sentence,” when, inter alia, “the sentence was imposed

in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). To state a

cognizable claim for relief under § 2255, a petitioner must allege that the “error constituted a

fundamental defect which inherently result[ed] in a complete miscarriage of justice.” United States

v. Addonizio, 442 U.S. 178, 185 (1979), superseded by statute on other grounds as stated in U.S.

v. Akinsade, 686 F.3d 248 (4th Cir. 2012) (internal quotation marks and citation omitted). A court

must presume “that the proceedings leading to the conviction were correct.” Klein v. United States,

880 F.2d 250, 253 (10th Cir. 1989) (citing United States v. Morgan, 346 U.S. 502, 512 (1954)).

Because Petitioner is pro se, the Court liberally construes his filings. See Erickson v. Pardus, 551

U.S. 89, 94 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991).

B. Ineffective Assistance of Counsel

The Sixth Amendment to the United States Constitution guarantees a defendant the right

to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984); see

also Williams v. Taylor, 529 U.S. 362, 390 (2000) (“It is past question that the rule set forth in

Strickland qualifies as ‘clearly established Federal law, as determined by the Supreme Court of

the United States.’”). To succeed under Strickland, a petitioner must show both that his “counsel’s

representation fell below an objective standard of reasonableness” and “the deficient performance

prejudiced the defense.” Strickland, 466 U.S. at 687–88. Courts “may address the performance

and prejudice components in any order, but need not address both if [the petitioner] fails to make

a sufficient showing of one.” Cooks v. Ward, 165 F.3d 1283, 1292–93 (10th Cir. 1998) (citation

omitted).

To establish the first prong, a petitioner must overcome the presumption that counsel

“rendered adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466

U.S. at 690). This requires the petitioner to establish that the “attorney’s representation amounted

to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices

or most common custom.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland,

466 U.S. at 690).

To satisfy the second prong, “[t]he [petitioner] 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.” Strickland, 466 U.S. at 694. In the context of a jury verdict, the prejudice that a habeas

petitioner must establish is that—but for counsel’s unreasonable conduct—there is a reasonable

possibility that the jury would have had reasonable doubt as to the conviction. See Weaver v.

Massachusetts, 582 U.S. 286, 303 (2017). To show prejudice in the context of pleas, however, a

defendant must show a reasonable probability he would have made a different plea decision.

United States v. Kearn, 90 F.4th 1301, 1306 (10th Cir. 2024). The prejudice inquiry is largely

objective; the mere allegation the petitioner would have made a different plea decision is

insufficient without contemporaneous evidence supporting the assertion. Id.

C. Waiver of Arguments First Raised in Reply

An argument raised for the first time in a reply is waived. Pinder v. Crowther, 803 F. App'x

165, 176 (10th Cir. 2020) (“It was [petitioner's] obligation to” raise his habeas argument “in his §

2254 petition . . . . Waiting until his § 2254 reply was too late.”); see also Reedy v. Werholtz, 660

F.3d 1270, 1274 (10th Cir. 2011). Courts apply this rule because waiting to raise new arguments

in reply “robs the [respondent] of the opportunity to demonstrate that the record does not support

a[ petitioner’s] factual assertions and to present an analysis of the pertinent legal precedent that

may compel a contrary result. The rule also protects this court from publishing an erroneous

opinion because [it] did not have the benefit of the . . . response.” Stump v. Gates, 211 F.3d 527,

533 (10th Cir. 2000) (citation omitted).

This waiver rule also applies to pro se habeas petitioners. United States v. Carpenter, 24 F.

App'x 899, 906 n.5 (10th Cir. 2001) (unpublished) (holding that where an argument was first

asserted in a reply brief, “it is waived, notwithstanding the fact [it is filed by] a pro se petitioner.”)

(citations omitted); United States v. Moya-Breton, 439 F. App'x 711, 715 (10th Cir. 2011)

(similarly stating that a reply brief “is not a proper vehicle to raise a new issue.”).

IV. ANALYSIS

As to the original argument that Petitioner made in his Petition, all parties and this Court

now agree that there was no legal error when the prosecution indicted Petitioner for using and

carrying a firearm but only submitted to the jury the question of whether Petitioner carried a

firearm in relation to the drug trafficking crime. CV ECF 11 at 8-12; CV ECF 12 at 2-3. As the

Tenth Circuit has reasoned, “it is ‘hornbook law that a crime denounced in the statute disjunctively

may be alleged in an indictment in the conjunctive, and thereafter proven in the disjunctive.”

Powell, 226 F.3d at 1192. And a conviction pursuant to 18 U.S.C. § 924(c)(1) requires the

government to prove the defendant used or carried a firearm during and in relation to a drug

trafficking crime, but it need not prove both. United States v. Nicholson, 983 F.2d 983, 990 (10th

Cir. 1993). Thus, there was no legal error when the government indicted Petitioner in the

conjunctive but chose to prove in the disjunctive that he only carried the firearm.

Because there was no legal error, Petitioner’s lawyer could not have been constitutionally

ineffective for failing to raise a losing argument. Nor was there any prejudice because the trial

judge doubtless would have rejected this argument even if counsel had raised it. Accordingly, the

only claim for ineffective assistance that Petitioner actually raised in the Petition fails.

As for Petitioner’s attempt to pivot away from criticizing his counsel’s performance at trial

to attacking her advice during plea discussions, the Court recommends that his new argument be

considered waived. Waiting until one’s reply brief to raise a new argument that had long been

available “robs the [government] of the opportunity to” respond and puts this Court at risk of

“publishing an erroneous opinion because we did not have the benefit of the . . . response.” Stump,

211 F.3d at 533. Because Petitioner waited until his Reply to assert this new argument that his

counsel mis-advised him during plea discussions, he has waived it. Carpenter, 24 F. App'x at 906

(holding that an argument first asserted in a reply brief, “is waived, notwithstanding the fact [it is

asserted by] a pro se petitioner.”).

V. CONCLUSION

For the foregoing reasons, the Court recommends that the Petition be DENIED and this

case DISMISSED WITH PREJUDICE. The Court further recommends, pursuant to Rule 11(a)

of the Rules Governing Section 2255 cases, that a certificate of appealability be DENIED.

SO RECOMMENDED.

f A

T HONORAB GREGORY J. FOURATT

UNITED STATES MAGISTRATE JUDGE

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these

Proposed Findings and Recommended Disposition they may file written objections with the Clerk of the District

Court pursuant to 28 U.S.C. § 636(b)(1)(c). Any request for an extension must be filed in writing no later than

seven days from the date of this filing. A party must file any objections with the Clerk of the District Court

within the fourteen-day period if that party wants to have appellate review of the proposed findings and

recommended disposition. If no objections are filed, no appellate review will be allowed.