Filed: Patrick Fisher
Filed: Patrick Fisher
Filed: Patrick Fisher
JUN 3 2003
PATRICK FISHER
Clerk
Plaintiff-Appellee,
v.
SERGIO BURCIAGA,
Defendant-Appellant.
No. 02-8011
(D. Wyo.)
(D.Ct. Nos. 00-CV-194-D and
99-CR-36-D)
No. 02-8012
(D. Wyo.)
(D.Ct. Nos. 01-CV-1019-D and
99-CR-36-D)
No. 02-8013
(D. Wyo.)
(D.Ct. Nos. 00-CV-222-D and
99-CR-36-D)
No. 02-8020
(D. Wyo.)
(D.Ct. Nos. 00-CV-202-D and
99-CR-36-D)
No. 02-8025
(D. Wyo.)
(D.Ct. Nos. 00-CV-207-D and
99-CR-36-D)
FREDI GOMEZ-PEREZ,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 02-8034
(D. Wyo.)
(D.Ct. Nos. 01-CV-1009-D and
99-CR-36-D)
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The above named six defendants appeal the district courts dismissal of
their federal habeas petitions brought under 28 U.S.C. 2255. 1 In the interest of
judicial efficiency, we combine the appeals because they involve the same issues
and arise from the same facts. Exercising jurisdiction under 28 U.S.C. 1291
and 2253, we affirm.
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*
Some time thereafter, the defendants learned the Wyoming wiretap statute,
under which the government obtained the wiretap warrants in this case, had
expired pursuant to a sunset provision in the statute prior to the state courts
issuance and the governments execution of the wiretap warrants. Each defendant
subsequently moved to vacate or set aside his conviction and sentence under 28
U.S.C. 2255. The district court denied the motions and the defendants appeal.
Each of the six defendants asserts on appeal that his indictment and
conviction were based on illegally obtained evidence. Some of the defendants
also assert they received ineffective assistance of counsel as their individual
counsels failed to discover the expiration of the wiretap statute.
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The issues and facts presented these cases are virtually indistinguishable
from those presented in our recent decision United States v. Salazar, 323 F.3d 852
(10th Cir. 2003). In Salazar, the defendant appealed a district court decision
denying his motion to vacate his conviction and sentence under 28 U.S.C. 2255,
arguing the indictment and conviction were based on illegally obtained evidence
(gathered pursuant to the expired Wyoming wiretap statute) which should be
suppressed. Id. at 855. The defendant also argued he did not receive effective
assistance of counsel because his counsel failed to discover the statute had
expired. Id. at 855, 857. We held in Salazar the defendants suppression claim
is procedurally barred [for failure to raise it prior to trial] or, in the alternative,
his unconditional guilty plea effectively waived any challenge to the legality of
the wiretaps. Id. at 855. We also held the defendants counsel was not
ineffective so as to deprive [the defendant] of his Sixth Amendment rights. Id.
at 857.
Our decision in Salazar controls our resolution of these cases. See United
States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000) (Under the doctrine of stare
decisis, this panel cannot overturn the decision of another panel of this court.).
We therefore affirm the district courts decision in these six cases for the same
reasons set forth in Salazar. The defendants claims are procedurally barred or,
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in the alternative, their unconditional guilty pleas waived their challenges to the
legality of the wiretaps. 2 Salazar, 323 F.3d at 855. Furthermore, the defendants
received effective assistance of counsel. 3 Id. at 857.
For the reasons set forth above, we AFFIRM the district court.
Consequently, we also conclude the district court did not err in denying Mr.
Burciagas motion to substitute counsel in order to pursue a claim of ineffective
assistance of counsel. Under the circumstances of this case, his counsel did not render
ineffective assistance by failing to raise the issue of the invalidity of the wiretaps during
the trial proceedings.
3
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