Cruz Vazquez v. United States

Luis X. Cruz Vazquez, Petitioner v. United States of America, Respondent.

CIVIL NO. 15-2838 (PG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

March 5, 2019

Related Crim. No. 09-173-8 (PG)

OPINION AND ORDER

Before the court is Petitioner Luis X. Cruz Vazquez's ("Petitioner" or "Cruz-Vazquez") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255¹ (Dockets No. 1; No. 16; No. 23) and the United States' (or the "Government") opposition thereto (Docket No. 14). For the following reasons, the court DENIES Petitioner's motion to vacate.

I. BACKGROUND

On April 15, 2010, a Grand Jury returned a Second Superseding Indictment charging Cruz-Vazquez, his brother, Angel Ayala-Vazquez, and sixty-three other co-defendants for their involvement in a drug-trafficking conspiracy. See Crim. No. 09-173 (PG) (herein "Crim."), Docket No. 775. Cruz-Vazquez was charged with conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 860 (Count One); conspiracy to import narcotics into the customs territory of the United States, in violation of 21 U.S.C. § 963 (Count Two); possession with intent to distribute heroin, crack cocaine, cocaine andmarijuana, in violation of 21 U.S.C. §§ 841(a)(1), 860 and 18 U.S.C. § 2 (Counts Three to Six); conspiracies to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Counts Seven to Eleven); and narcotics and money laundering forfeiture allegations, under 21 U.S.C. §§ 853, 881, and 18 U.S.C. § 982. See id.

Cruz-Vazquez proceeded to trial and the jury found him guilty on Counts One, Three, Four, Five, Six, and Seven. See Crim. Docket No. 1606. Cruz-Vazquez was sentenced to a term of life imprisonment. He appealed, but the First Circuit Court of Appeals affirmed his conviction and sentence. See United States v. Ayala-Vazquez, 751 F.3d 1 (1st Cir. 2014).

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a); Hill v. United States, 368 U.S. 424, 426-427 (1962); Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).

Ineffective Assistance of Counsel Claims

The Sixth Amendment guarantees that in all criminal prosecutions, the accused have a right to the assistance of counsel for their defense. U.S. Const. amend. VI. It has long been recognized that the right to counsel means the right to effective legal assistance. Strickland v. Washington, 466 U.S. 669, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)). Where, as here, a petitioner moves to vacate his sentence on ineffective assistance of counsel grounds, he must show that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result."Strickland, 466 U.S. at 686; see also Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996) (a petitioner seeking to vacate his sentence based on the ineffective assistance of counsel bears a very heavy burden). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689.

For Petitioner's ineffective assistance of counsel claim to succeed, he must satisfy a two-part test. First, Petitioner needs to show that "counsel's representation 'fell below an objective standard of reasonableness.'" Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland, 466 U.S. at 688). Second, Petitioner must establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been more favorable to him. See United States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 2013) (citing Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012)). Petitioner must demonstrate both incompetence and prejudice. Failure to prove one element proves fatal for the other. See United States v. Caparotta, 679 F.3d 213, 219 (1st Cir. 2012). Nonetheless, the court "need not address both requirements if the evidence as to either is lacking." Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 2007). Thus, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice...that course should be followed." Strickland, 466 U.S. at 679.

III. DISCUSSION

On November 2, 2015, Cruz-Vazquez filed the pending motion to vacate under 28 U.S.C. § 2255 attacking his conviction and sentence. See Docket No. 1. At the underbelly of every argument contained in the motion is the belief that Cruz-Vazquez was deprived of effective assistance of counsel (A) by his trial and appellate counsel and (B) by the Government's "intentional and willful withholding of...exculpatory and impeaching material and introduction of false testimony at trial." See Docket No. 1 at 2. In other words, Cruz-Vazquez argues that his counsel failed to offer effective assistance and that the Government's intentional withholding ofcrucial evidence deprived Petitioner's counsel from being able to provide effective assistance. See Docket No. 1 at 37-38.

Petitioner failed to present all of his claims on appeal. Therefore, he has the added burden of proving good cause and actual prejudice with respect to the procedurally defaulted claims. See Owens v. United States, 483 F.3d 48, 56 (1st Cir. 2007) (setting forth analysis of claims subject to procedural default doctrine). The First Circuit has held that "[o]ne way to meet the cause requirement is to show constitutionally ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984)." Wider v. United States, 806 F.3d 653, 658 (1st Cir. 2015). Conversely, if Petitioner fails to establish that the procedural default was the result of his attorney's ineffectiveness, then such claims cannot be presented by way of a § 2255 motion. See United States v. Frady, 456 U.S. 152, 165 (1982) (holding that "a collateral challenge may not do service for an appeal").

Furthermore, the court has deemed waived any other argument that is merely mentioned in passing or is hidden behind Petitioner's primary complains as a mere afterthought. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived").

Against this background, the court will address Petitioner's adequately developed claims in turn.

A. Conflict of Interest claim

First, Cruz-Vazquez contends that he was deprived of his Fifth Amendment right to due process and his Sixth Amendment right to the effective assistance of conflict-free counsel on direct appeal because multiple conflicts of interest infected appellate counsel's representation. See Docket No. 1 at 19-22. More specifically, Petitioner claims that appellate counsel's concurrent representation of Government cooperator Jorge Figueroa Agosto, codefendantsAngel Esquilin (8), Luis Cedeño-Burgos (23), Samuel Negrón-Hernandez (3), and Cruz-Vazquez created an irreconcilable conflict of interest. See Docket No.1 at 15. For the reasons that follow, the court finds that the Petitioner's conflict of interest claim lacks merit.

The Supreme Court has held that allowing a single attorney to represent codefendants is not per se a violation of constitutional guarantees to effective assistance of counsel. See Wheat v. United States, 486 U.S. 153, 159-160 (citing Holloway v. Arkansas, 435 U.S. 475, 482). In fact, even if the court fails to inquire into a potential conflict about which it reasonably should have known, "a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). Therefore, a possibility of conflict is not sufficient to impugn a criminal conviction.

Petitioner must prove (1) that there is an actual conflict of interest and (2) that the conflict caused an adverse effect in counsel's performance. If Petitioner proves these two things, he does not need to prove prejudice under Strickland for his conflict of interest claim to prevail. See Yeboah-Sefah v. Ficco, 556 F.3d 53, 73 (1st Cir. 2009). An actual conflict of interest can be established when the "defendant demonstrates that counsel 'actively represented conflicting interests.'" Sullivan, 446 U.S. at 350. To prove an adverse effect in counsel's performance, Petitioner must establish an "adverse action or inaction...that can be traced to the conflict in loyalty." United States v. Burgos-Chaparro, 309 F.3d 50, 53 (1st Cir. 2002). Consequently, not only does Petitioner need to prove inadequate representation, but he must also establish a causal link between the actual conflict of interest and counsel's decision to forgo a particular strategy. Mere speculation is not enough. Id. at 53 (citing United States v. Hernandez-Lebron, 23 F.3d 600, 606-607 (1st Cir. 1994)).

The first thing the court must assess is whether an actual conflict of interest exists between the apparent conflicting loyalties. To prove the existence of an actual conflict "a defendant mustshow that (1) the lawyer could have pursued a plausible alternative defense strategy or tactic and (2) the alternative strategy or tactic was inherently in conflict with or not undertaken due to the attorney's other interest or loyalties." United States v. Soldevila-Lopez, 17 F.3d 480, 486 (1st Cir. 1994) (quoting Guaraldi v. Cunningham, 819 F.2d 15, 17 (1st Cir. 1987)).

Petitioner limited the scope of his argument by just stating that appellate counsel failed to challenge the drug trafficking conspiracy. See Docket No. 1 at 22. By doing this, Cruz-Vazquez presupposes actual conflicting loyalties...