Dominguez v. United States of America

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
CHRISTOPHER DOMINGUEZ,
Petitioner,
vs. 	Case No. 22-CV-0246-NDF
Criminal No: 17-CR-98-F
18-CR-186-F 1
UNITED STATES OF AMERICA,
Respondent.
ORDER GRANTING PETITIONER’S MOTION FOR LEAVE TO
SUPPLEMENT AND AMEND HIS § 2255 MOTION AND
DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY
This matter is before the Court on Defendant/Petitioner Christopher Dominguez’s
Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct a Sentence by a Person
in Federal Custody (Civil Case ECF 1), and his Motion for Leave to Supplement and
Amend his § 2255 Motion Pursuant to Fed. R. Civ. P. 15 (ECF 4). The government opposes
the motion to vacate but does not oppose the motion for leave to supplement and amend.
ECF 3, 11. The matter is fully briefed and ready for disposition. ECF 10.
As to the motion for leave to amend and supplement the § 2255 motion, the
government recognizes that this motion is timely and creates no prejudice. Consequently,
1 This docket number reflects unrelated conduct charged by the District of New Mexico. That district’s docket
number for the New Mexico offense conduct is 16-CR-4697-MV.
11:51 am, 2/17/23
FILED
Margaret Botkins
Clerk of Court
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the government does not oppose. 	For these same reasons, the Court GRANTS leave to
amend and supplement (ECF 4) and will consider the additional basis advanced by Mr.
Dominguez in support of his § 2255 motion.
Additionally, 	and 	for 	the 	reasons 	explained 	below, 	the 	Court 	concludes
Dominguez’s appellate counsel was not ineffective in arguing trial counsel failed to
provide close assistance (as opposed to effective assistance) because appellate counsel in
fact argued the standard applicable to effective assistance. 	Further, the effectiveness of
trial counsel was fully and comprehensively considered by the Tenth Circuit so it may not
now be raised on collateral attack. 	The Court additionally concludes Dominguez’s
challenge to the legality of his sentence is procedurally barred. 	Finally, the Court
concludes 	that 	Mr. 	Dominguez’s 	supplemental 	claim 	is 	also 	procedurally 	barred.
Therefore, 	the 	motion 	to 	supplement 	and 	amend 	is 	GRANTED, 	(ECF 	4) 	and
Mr. Dominguez’s § 2255 motion (ECF 1) is DENIED as to claim one and DISMISSED as
to claim two and the supplemental claim.
Background
The Court takes the relevant history in large part from the government’s opposition
and the Tenth Circuit’s opinion on Mr. Dominguez’s appeal. United States v. Dominguez,
998 F.3d 1094, 1096-97 (10th Cir. 2021).
The underlying criminal charges arise from a series of armed robberies of
pharmacies in New Mexico and Wyoming committed by Mr. Dominguez, Antoine
Mitchell, and Moses D. Dickens III. The three were first arrested in Raton, New Mexico.
The Raton Police Department posted information concerning the robbery, including
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photos, on the Department’s Facebook page, which ultimately came to the attention of a
pharmacist who had been shot during the Wyoming pharmacy robbery. That pharmacist
alerted law enforcement, which began investigating whether the suspects in the New
Mexico robbery had also committed the Wyoming robbery. 	Ultimately, federal grand
juries in both states returned multi-count indictments charging Mr. Dominguez and the
other two men with various crimes related to these robberies. 	Among Mr. Dominguez’s
charges were three separate violations of 18 U.S.C. § 924(c)—one in relation to the New
Mexico pharmacy robbery, and two in relation to the Wyoming pharmacy robbery.
Under § 924(c),
any person who, during and in relation to any crime of violence or drug
trafficking crime ... uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition to the punishment provided
for such crime of violence or drug trafficking crime—(i) be sentenced to a
term of imprisonment of not less than 5 years; (ii) if the firearm is brandished,
be sentenced to a term of imprisonment of not less than 7 years; and (iii) if
the firearm is discharged, be sentenced to a term of imprisonment of not less
than 10 years.
18 U.S.C. § 924(c)(1)(A). As to the New Mexico robbery, Mr. Dominguez’s only § 924(c)
charge alleged brandishing a firearm, and thus invoked the seven-year mandatory
minimum sentence. As to the Wyoming robbery, Mr. Dominguez’s two § 924(c) charges
each alleged discharge, which invoked the ten-year mandatory minimum sentence.
Section 924(c) requires that each term of imprisonment for a violation of the statute
run consecutively to each of a defendant’s other terms of imprisonment. 	Additionally,
when Mr. Dominguez was indicted, § 924(c) contained a “stacking provision,” which
mandated mandatory minimum sentences of twenty-five years for second or subsequent
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§ 924(c) violations. 	See id. § 924(c)(1)(C) (2006). 	Consequently, when indicted,
Mr. Dominguez faced a mandatory minimum sentence of sixty years if convicted on all
three § 924(c) violations.
The parties began global plea negotiations to resolve both the Wyoming and New
Mexico cases, and Mr. Dominguez signed his Rule 11(c)(1)(C) plea agreement on
December 20, 2018. 	ECF 146 (17-CR-98). 	The plea agreement provided that Mr.
Dominguez would plead guilty to three counts from the Wyoming indictment—including
one § 924(c) violation—and one count from the New Mexico indictment. 	Among other
things, it provided that he would receive a sentence of 8 years’ imprisonment for the
Wyoming carjacking count (Count 2); 10 years’ imprisonment for the Wyoming attempted
robbery count (Count 5); and 10 years imprisonment for the Wyoming § 924 discharge of
a firearm count, all to be served consecutively. 	Regarding the New Mexico indictment
(which was ultimately transferred to Wyoming and became 18-CR-186), Mr. Dominguez
agreed to receive 18 years’ imprisonment for the New Mexico robbery conspiracy count,
to be served concurrently with the 18-year sentence imposed for Counts 2 and 5 of the
Wyoming indictment. In exchange, the government would dismiss the remaining charges
against him, including the two additional § 924(c) violations with which he was charged.
Finally, the government agreed not to charge Mr. Dominguez with any conduct under
investigation related to a bank robbery that occurred in 2015 in Albuquerque, New Mexico.
In short, by the plea agreement he signed on December 20, 2018, Mr. Dominguez agreed
to a sentence of twenty-eight years’ imprisonment as a global resolution of all charges.
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On December 21, 2018, Mr. Dominguez appeared in district court for his change-
of-plea hearing. 	At the conclusion of the Rule 11 colloquy conducted by the Court,
Mr. Dominguez pled guilty to each of the four charges covered by the plea agreement,
which pleas were conditionally accepted. 	However, that same day the President signed
into law the First Step Act (“FSA”) which altered the stacking provision of § 924(c) and
significantly 	impacted 	Mr. 	Dominguez’s 	penalty 	exposure. 	Before 	the 	FSA, 	Mr.
Dominguez faced a sixty-year mandatory minimum sentence were he to be convicted on
all three § 924(c) charges brought in the New Mexico and Wyoming indictments. 	After
the FSA, conviction on all these charges would bring only a mandatory minimum sentence
of twenty-seven years. See id. § 924(c)(1)(A), (D)(ii).
After learning of the FSA, Mr. Dominguez sought to withdraw his guilty plea.
ECF 161 (17-CR-98). His attorney argued that “[t]he entire structure of the law changed
for Mr. Dominguez on the same day he changed his plea” and that “almost for certain
[Mr. Dominguez] wouldn’t have changed his plea” had he known about the FSA. ECF 227
(17-CR-98), pp. 12-13. 	In an Order denying Mr. Dominguez’s motion to withdraw his
guilty plea, the Court concluded that he was engaged in plea negotiations for several weeks
prior to the change of plea hearing, when the passage of the FSA was uncertain, and that
the failure to fully consider the new law did not constitute the lack of close assistance of
counsel, especially when Mr. Dominguez continually stated that he was satisfied with the
advice of counsel. 	ECF 194 (17-CR-98), pp. 8-9. 	Further, the fact Mr. Dominguez was
not aware of potential statutory changes did not provide a sufficient basis to find the guilty
plea was not knowingly entered. Id., p. 10.
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Mr. Dominguez appealed the order denying the motion to withdraw his guilty plea
on the basis that his plea was not knowing and intelligent, and that his plea was invalid
because he did not receive “close assistance” of counsel during the plea-bargaining process.
ECF 206 (17-CR-98). The Tenth Circuit rejected both arguments. As to the first, the Court
held that “Mr. Dominguez [did] not demonstrate how any misunderstanding he may have
had about the [FSA’s] potential effects on mandatory minimum penalties for charges to
which he did not plead guilty are of direct consequence with respect to the charges to which
he did plead guilty, such that his purported misunderstanding regarding these effects would
render his plea unknowing and unintelligent.” Dominguez, 998 F.3d at 1109 (emphasis in
original). Next, the Circuit viewed Mr. Dominguez’s claim that he did not receive “close
assistance” of counsel under the familiar, two-pronged test of Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and its progeny, which was consistent
with how the parties framed the issue. Id. at 1110. Following a comprehensive discussion
of Strickland’s prejudice prong in the context of Mr. Dominguez’s two prejudice theories
(e.g., the denial of his right to a trial and the denial of a potentially better plea agreement),
the Court held that, “under either theory, Mr. Dominguez’s prejudice showing is inadequate
and, therefore, his ineffective-assistance claim fails.” Id. at 1113.
The court of appeals’ decision was on June 2, 2021. The Defendant sought a writ
of certiorari from the Supreme Court, but his petition was denied on May 31, 2022.
Dominguez v. United States, 142 S.Ct. 2756 (2022). Therefore, his current § 2255 motion,
filed on November 28, 2022, is timely for purposes of § 2255(f)’s one year limitation
period. United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006).
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Applicable Law
Section 2255 entitles a prisoner to relief “[i]f the Court finds that the judgment was
rendered without jurisdiction, or that the sentence imposed was not authorized by law or
otherwise open to collateral attack, or that there has been such a denial or infringement of
the constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack.” 28 U.S.C. § 2255(b). The standard applied to § 2255 motions is stringent. “Not
every violation of federal law can be remedied under § 2255. 	Only if the violation
constitutes a fundamental defect which inherently results in a complete miscarriage of
justice, or an omission inconsistent with the rudimentary demands of fair procedure can
§ 2255 provide relief.” 	United States v. Gordon, 172 F.3d 753, 755 (10th Cir. 1999)
(internal quotations omitted). 	The Court presumes the proceedings which led to a
defendant’s conviction were correct. 	See Parke v. Raley, 506 U.S. 20, 29-30 (1992)
(“presumption of regularity that attaches to final judgments, even when the question is
waiver of constitutional rights,” internal quotation marks omitted).
Further, special rules govern consideration of a motion to vacate under 28 U.S.C.
§ 2255. “Section 2255 motions are not available to test the legality of matters which should
have been raised on direct appeal.” United States v. Frady, 456 U.S. 152 (1982); United
States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993); United States v. Warner, 23 F.3d
287, 291 (10th Cir. 1994). A defendant who fails to raise an issue before this court or on
direct appeal may present it in a § 2255 motion only if he can demonstrate cause for his
procedural default, and either actual prejudice from the alleged errors, or that a fundamental
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miscarriage of justice will occur if his claim is not addressed. 	United States v. Allen,
16 F.3d 377, 378 (10th Cir. 1994).
In order to establish “cause,” a defendant must show that there existed some external
impediment which prevented him from raising the claim during the original proceedings
on his case, or on direct appeal. Murray v. Carrier, 477 U.S. 478, 492 (1986). A defendant
could show “cause” by demonstrating that his non-compliance was the product of some
kind of governmental or official interference, or that his claim was so novel that its legal
basis was not reasonably available to his counsel. 	Id., 477 U.S. at 488; see also Reed v.
Ross, 468 U.S. 1, 16 (1984). However, neither ignorance nor inadvertence is sufficient in
this regard, nor is a failure to recognize the factual or the legal basis for the claim. Id.
Additionally, “[a]bsent an intervening change in the law of a circuit, issues disposed
of on direct appeal generally will not be considered on a collateral attack by a motion
pursuant to § 2255.” 	United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989); See
also United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (same)
The procedural bar rules do not apply to a petitioner’s claim of ineffective assistance
of counsel. 	To prevail on an ineffective assistance of counsel claim under § 2255, a
petitioner must meet the well-established two-prong test set forth in Strickland, 466 U.S.
668. 	That is, the petitioner must show: (1) “counsel’s performance was deficient” (“fell
below an objective standard of reasonableness”); and (2) “the deficient performance
prejudiced the defense” (“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different”). Id. at 687-
88, 694. 	“If it is easier to dispose of an ineffectiveness claim on the ground of lack of
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sufficient prejudice, which we expect will often be so, that course should be followed.”
Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000) (quoting Strickland, 466 U.S. at 697).
The Court’s review is “highly deferential,” based on “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that is,
the [petitioner] must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” United States v. Taylor, 454
F.3d 1075, 1079 (10th Cir. 2006) (quoting Strickland, 466 U.S. at 689). Where “the basis
for the ineffective assistance claim is the failure to raise an issue, [the Court] must look to
the merits of the omitted issue.” 	United States v. Orange, 447 F.3d 792, 797 (10th Cir.
2006). 	“If the omitted issue is without merit, then counsel's failure to raise it is not
prejudicial, and thus is not ineffective assistance.” Id.
In analyzing whether counsel’s alleged errors prejudiced petitioner, [the
Court] must keep in mind the standard to be applied in assessing whether
petitioner is entitled to an evidentiary hearing in federal court on his
ineffectiveness claim. First, the petitioner bears the burden of alleging facts
which, if proved, would entitle him to relief. Moreover, his allegations must
be specific and particularized; conclusory allegations will not suffice to
warrant a hearing.
Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995) (overruled on other grounds by
Daniels v. United States, 254 F.3d 1180, 1188 n.1 (10th Cir. 2001)) (citations and
quotations omitted).
Discussion
Mr. Dominguez identifies two claims of error which he argues warrant § 2255 relief,
along with a supplemental claim by way of his motion to amend. 	In his initial § 2255
petition, Mr. Dominguez first argues appellate counsel rendered ineffective assistance on
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his direct appeal by arguing trial counsel failed to provide “close assistance” of counsel,
rather than arguing trial counsel rendered ineffective assistance under Strickland. ECF 1,
pp. 14-23. Second, Mr. Dominguez argues this Court abused its discretion by erroneously
concluding that the law did not change (by way of the FSA) until after his change of plea
hearing (which Dominguez views as a claim that he was sentenced under the pre-FSA law
which would constitute an abuse of discretion and render the proceedings fundamentally
unfair). 	Id., pp. 24-28. Finally, as a supplemental § 2255 claim, Mr. Dominguez argues
an intervening change in the law – Taylor v. United States, 142 S.Ct. 2015 (2022) –
mandates that the § 924 conviction and sentence be vacated because the predicate
conviction of Attempted Robbery Involving Controlled Substances and Aiding and
Abetting under 18 U.S.C. § 2118(a)(1)(3)(c)(1) and (2) no longer qualifies as a crime of
violence under § 924(c)(3)(A)’s element clause.
A. Claim 1 – Ineffective Assistance of Appellate Counsel
As to this claim, Mr. Dominguez essentially argues all the same points which were
unsuccessfully advanced in support of his motion to withdraw his guilty plea, and which
were also unsuccessfully advanced to the Tenth Circuit in support of his direct appeal of
this Court’s order denying the motion. 	The government opposes, pointing out that Mr.
Dominguez’s appellate counsel in fact argued that trial counsel was constitutionally
ineffective under Strickland. Because Mr. Dominguez’s factual basis for his claim is false,
the government argues that this claim should be rejected. The government also argues that
this claim was fully addressed and rejected by the Tenth Circuit, and Mr. Dominguez fails
to identify any intervening change in the law of the circuit. Based on this, the government
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argues this issue may not be considered on a collateral attack by a motion pursuant to
§ 2255.
In considering this claim, the Court agrees with the government. 	While Mr.
Dominguez attempts to bring this argument under the guise of ineffective assistance of
appellate counsel, such a claim is baseless. Appellate counsel argued the Strickland test in
advancing 	Mr. 	Dominguez’s 	contention 	that 	trial 	counsel failed 	to 	provide 	“close
assistance,” and the Tenth Circuit considered the “close assistance” argument through that
same Strickland lens. 	The effectiveness of trial counsel was fully and comprehensively
considered by the Tenth Circuit, and it may not be now raised on collateral attack simply
by dressing it up as an argument of ineffective assistance of appellate counsel. Contrary
to Mr. Dominguez’s statements, appellate counsel advanced the Strickland test to assess
the assistance of trial counsel, and the Tenth Circuit considered that test. 	Additionally,
there 	is 	no 	intervening 	change 	in 	the 	law 	of 	the 	circuit 	for 	consideration 	of
Mr. Dominguez’s argument in a § 2255 petition, and this claim of error is denied.
B. Claim 2 – Abuse of Discretion at Sentencing
Mr. Dominguez argues that this Court was wrong in concluding that the law did not
change until after his change of plea hearing which ultimately led to a sentencing
proceeding which was fundamentally unfair. The government opposes, arguing that Mr.
Dominguez’s challenge to the legality of his sentence is procedurally barred with no
showing of “cause” under Frady. The government also argues that this claim lacks merit
because Mr. Dominguez was sentenced on only one § 924(c) count, and the mandatory ten-
year consecutive sentence for that offense was not affected by anything in the FSA.
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Because the government raises the procedural bar issue in response to this claim of
error, the Court is obliged to address the issue and, if appropriate, dispose of the case on
that basis. 	Allen, 16 F.3d at 379. 	The Court agrees with the government that Mr.
Dominguez’s second claim of error, that his sentencing proceeding was fundamentally
unfair, is barred. Mr. Dominguez provides no reason why this claim could not have been
raised with this Court in connection with his sentencing, or why it was not raised on direct
appeal. Consequently, this claim of error is dismissed.
C. Supplemental Claim – An Intervening Change in the Law
As a supplemental § 2255 claim, Mr. Dominguez argues an intervening change in
the law – Taylor v. United States, 142 S.Ct. 2015 (2022) – mandates that his conviction
and sentence under § 924(c)(1)(A) be vacated because the predicate conviction of
Attempted Robbery Involving Controlled Substances and Aiding and Abetting under 18
U.S.C. § 2118(a)(1)(3)(c)(1) and (2) no longer qualifies as a crime of violence under
§ 924(c)(3)(A)’s element clause.
As noted above, 18 U.S.C. § 924(c)(1)(A) mandates a ten-year consecutive sentence
for anyone convicted of “us[ing] or carr[ying] a firearm” “during and in relation to any
crime of violence … (iii) if the firearm is discharged.” 	The statute defines “crime of
violence” in two ways: the term “means an offense that is a felony” and that either (A) “has
as 	an 	element 	the 	use, 	attempted 	use, 	or 	threatened
use of physical force against the person or property of another” or (B) “that by its nature,
involves a substantial risk that physical force against the person or property of another may
be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3).
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In United States v. Davis, the Supreme Court held that clause (B)—the “residual
clause”—is unconstitutionally vague. 	139 S. Ct. at 2336. 	After Davis, then, a criminal
conviction qualifies as a predicate “crime of violence” under § 924(c) only if it meets the
terms of clause (A)—the “elements clause”—that is, only if it “has as an element the use,
attempted use, or threatened use of physical force against the person or property of
another.” Id. at 2324 (quoting § 924(c)(3)).
In response, the government argues that Mr. Dominguez’s supplemental claim was
effectively and specifically waived by the terms of his plea agreement, and this claim is
procedurally barred absence a showing of the necessary cause and prejudice under Frady.
The government argues this has not been shown, and actual innocence of this or other
equally or more serious charges cannot be shown by Dominguez.
Again, because the government raises the procedural bar issue, this will be
addressed first. The Court agrees with the government that Mr. Dominguez’s supplemental
claim of error – the Taylor-based challenge to the attempted robbery conviction – is barred.
Mr. Dominguez provides no reason why this claim was not raised before this Court or on
direct appeal. 	He makes no argument that the claim would surely have been futile and
doomed to fail based on binding precedent in this circuit, or even persuasive precedent
from other circuits. The legal basis was available to him during the time the charges were
pending against him, as well as during his appeal. 	Thus, cause for a procedural default
based on “futility” does not exist. Engle v. Isaac, 456 U.S. 107, 134 (1982).
Further, the government anticipates that Dominguez will argue actual innocence to
survive the procedural bar. Bousley v. U.S., 523 U.S. 614, 623-24 (1998). In response, the
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government points out that Mr. Dominguez has not and cannot demonstrate actual
innocence on all charges the government bargained away in the course of plea negotiations.
Taylor v. Powell, 7 F.4 th 920, 937 (10th Cir. 2021). 	The government points out that it
dismissed two charges, each alleging aggravated violations of § 924(c) with legally
sufficient predicates, which involved cumulatively mandatory minimum penalties greater
than what Mr. Dominguez received for the conviction at issue. 2 Mr. Dominguez makes no
argument as to actual innocence as to any charge, let alone the bargained-away charges,
nor does he argue that Count Two of the New Mexico indictment lacks proper predicates.
Consequently, this supplemental claim of error is procedurally barred and is dismissed.
Conclusion
As to all claims and arguments, the files and record in this case conclusively
establish that Mr. Dominguez is not entitled to any additional relief. 	Accordingly, no
evidentiary hearing is required. 	United States v. Marr, 856 F.2d 1471, 1472 (10th Cir.
1988) (no hearing required where § 2255 motion may be resolved on review of record
before the Court).
THEREFORE, IT IS ORDERED that Mr. Dominguez’s Motion to Supplement
and Amend his Motion under 28 U.S.C. § 2255 (ECF 4) is GRANTED; and
2 Notably, Count Two in the New Mexico indictment charged brandishing, using and carrying a firearm during and in
relation to crimes of violence and drug trafficking. The crimes of violence predicates for Count Two include (Count
Three) robbery involving controlled substances in violation of 18 U.S.C. § 2118(a)(1) and (c)(1), and (Count Four)
theft of medical products, in violation of 18 U.S.C. § 670(a)(1) and (b)(2)(A) and (B). ECF 25 (16cr4697). The drug
trafficking predicate for Count Two is Count Five, possession with intent to distribute oxycodone, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C). Id.
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IT IS FURTHER ORDERED THAT claim one of Mr. Dominguez’s Motion
Under 28 U.S.C. § 2255 (ECF 1) is DENIED; and
IT IS FURTHER ORDERED that claim two of Mr. Dominguez’s Motion Under
28 U.S.C. § 2255 (ECF 1) is DISMISSED; and
IT IS FURTHER ORDERED that Mr. Dominguez’s supplemental claim added to
his Motion Under 28 U.S.C. § 2255 (ECF 4) is DISMISSED; and
IT IS FINALLY ORDERED that pursuant to 22 U.S.C. § 2253(c), this Court
declines to issue a certificate of appealability based on the conclusion that petitioner has
not made a substantial showing of the denial of a constitutional right. 	See also, Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong).
Dated this 17th day of February, 2023.
NANCY D. FREUDENTHAL
UNITED STATES SENIOR DISTRICT JUDGE
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