Flores-Rivera v. United States

325 F.Supp.3d 232

Sandra FLORES-RIVERA, Petitioner

v.UNITED STATES of America, Respondent.

CIVIL NO. 16-2350 (PG)

Related Crim. No. 07-0318-8 (PG)

United States District Court, D. Puerto Rico.

Signed August 31, 2018

Sandra I. Flores-Rivera, Coleman, FL, pro se.

Mariana E. Bauza, United States Attorneys Office, District of Puerto Rico, Nelson J. Perez-Sosa, U.S. Attorney's Office, Appellate Division, San Juan, PR, for Respondent.

OPINION AND ORDER

JUAN M. PEREZ-GIMENEZ, SENIOR U.S. DISTRICT JUDGE

Before the court is petitioner Sandra Flores-Rivera's (henceforth "Petitioner" or "Sandra Flores") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket No. 1) and the United States' (or the "government") opposition thereto (Docket No. 15). For the following reasons, the court DENIES Petitioner's motion to vacate.

I. BACKGROUND

On February 5, 2008, Sandra Flores, alongside another forty-six codefendants, were indicted by a grand jury in Criminal Case No. 07-318 (PG). Sandra Flores was charged in Count One for conspiracy to possess with the intent to distribute narcotics within one thousand feet of a public housing project or a public school, in violation of 21 U.S.C. §§ 841, 846, and 860. See Crim. No. 07-318 (PG), Docket No. 478. Count Two charged a conspiracy to possess firearms in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1)(A) and (0). Counts Three through Six charged Petitioner with aiding and abetting in the possession with intent to distribute narcotics in violation of 21 U.S.C. §§ 841 and 860, and 18 U.S.C. § 2. See id. at 6-28.

On October 13, 2009, the government filed an information pursuant to 21 U.S.C. § 851, notifying the court that Petitioner had a previous felony drug conviction, subjecting her to a statutory mandatory minimum of twenty years as to Count One. See Crim. No. 07-318 (PG), Docket No. 1562. At trial, the government introduced three cooperating witnesses: Harry Smith Delgado ("Delgado"), Xiomara Berrios-Rojas ("Xiomara"), and Andy Marcano ("Marcano"). Delgado testified that he was a part of the conspiracy, and that Sandra Flores served as both a runner and a seller of cocaine, crack, and marijuana. See United States v. Flores-Rivera, 787 F.3d 1, 10 (1st Cir. 2015). Xiomara and Marcano corroborated Delgado's testimony regarding Sandra Flores' role in the drug trafficking organization. See id. Additionally, the government presented video evidence showing that Sandra Flores was a member of the charged drug trafficking conspiracy, thereby corroborating all three testimonies. See Crim. No. 07-318 (PG), Dockets No. 1583, 1602. Central to the defendants' trial strategy was an attempt to impeach Delgado, Xiomara, and Marcano by suggesting that they had colluded to fabricate their testimonies. See Flores-Rivera, 787 F.3d at 10. Nevertheless, the jury found Sandra Flores guilty as to Counts One, Three, Four, Five and Six of the indictment. See Crim. No. 07-318 (PG), Docket No. 1652.

At some unspecified time before trial, Delgado sent the lead prosecutor a handwritten letter, which was not promptly disclosed to defendants. See Flores-Rivera, 787 F.3d at 11. Likewise, two handwritten notes that Delgado kept, which contained details of his conversations with two other co-conspirators were not timely disclosed. The belated production of these materials set off a series of post-trial evidentiary hearings and motions presented by Sandra Flores and her codefendants, Carlos Omar Bermudez-Torres ("Omar") and Cruz Roberto Ramos-Gonzalez ("Ramos"). Between 2010 and 2013, the district court wrote four separate opinions denying the appellants' various requests for a new trial, which were grounded on these belated productions. These four opinions provide a detailed account of each of the hearings conducted by, and motions submitted to, the district court. See United States v. Ramos-Gonzalez, 747 F.Supp.2d 280, 284-89 (D.P.R. 2010) ; United States v. Ramos-Gonzalez, Crim. No. 07-318, 2011 WL 2144215, at *1-2 (D.P.R. May 31, 2011) ; Opinion and Order, Crim. No. 07-318, Docket No. 2972 at 1-3, July 30, 2012; Opinion and Order, Crim. No. 3166 at 1-6, August 9, 2013.

After denying her motion for new trial, the district court sentenced Sandra Flores to an imprisonment term of two hundred forty months as to Count One, to be served concurrently with one hundred eighty-eight months as to Counts Three, Four, Five, and Six. See Crim. No. 07-318, Docket No. 2626.

On March 29, 2011, Sandra Flores filed a timely notice of appeal. See Crim. No. 07-318, Docket No. 2624. Unlike her codefendants, Omar and Ramos, Sandra Flores did not renew on appeal her argument regarding the evidence that was produced belatedly. The First Circuit Court of Appeals found that these materials warranted that Omar and Ramos be tried again. As a result, the First Circuit remanded Omar and Ramos' cases to the district court, and affirmed the convictions and sentences of Sandra and Sonia Flores-Rivera. Flores-Rivera, 787 F.3d at 33. Petitioner did not file a petition for certiorari.

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, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ; Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).

III. DISCUSSION

On June 14, 2016, Sandra Flores filed a motion to vacate under 28 U.S.C. § 2255 attacking the legality of her sentence on five different grounds. See Docket No. 1. In Grounds One and Three, Petitioner alleges that the prosecution violated her right to Due Process when it failed to turn over Delgado's letter and notes, and she contends that her appellate counsel was ineffective for failing to renew this claim on appeal. In Ground Four, Sandra Flores argues that her sentence was unconstitutionally enhanced because the court erred in determining that her prior conviction for simple possession of marijuana under P.R. LAWS ANN. tit. 24, § 2404 is a "felony drug offense" under 21 U.S.C. § 841(b)(1)(A). Therefore, Petitioner contends that the prior conviction information presented by the government pursuant to 21 U.S.C. § 851 was unwarranted, and she should not have been subjected to the mandatory minimum sentence imposed under 21 U.S.C. § 841(b)(1)(A). Lastly, Petitioner argues in Grounds Two and Five that she received ineffective assistance of counsel because trial counsel abandoned her during the post-trial proceedings and her trial and appellate counsels failed to successfully challenge the application of a two-point enhancement on Petitioner's sentencing guidelines calculation under U.S.S.G. § 2D1.1(b)(1). Each of these arguments will be addressed in turn.

A. Brady Claim

Firstly, Sandra Flores claims in Ground One that the government violated her right to Due Process by failing to promptly turn over exculpatory or impeaching evidence in relation to Delgado's testimony. See Docket No. 1, at 10. Additionally, in Ground Three Petitioner alleges that she received ineffective assistance of counsel when her appellate counsel failed to raise the issue on appeal. See Docket No. 1 at 11.

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that the prosecution violates due process when it suppresses evidence favorable to the accused and said evidence is material to determining guilt or punishment. See Brady 373 U.S. at 87, 83 S.Ct. 1194. A true Brady violation has three components, namely: "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

Despite the foregoing, a § 2255 motion is not a substitute for a direct appeal, therefore "a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Furthermore, a significant bar on habeas corpus relief is placed on a defendant when she fails to raise her claims at trial or on direct review. In such cases, "a court may hear those claims for the first time on habeas corpus review only if the petitioner has ‘cause’ for having procedurally defaulted [her] claims, and if the petitioner suffered ‘actual prejudice’ from the errors of which [she] complains." Owens v. United States, 483 F.3d 48, 56 (1st Cir. 2007).

It has long been understood 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." Wilder v. United States, 806 F.3d 653, 658 (1st Cir. 2015). Petitioner must show actual prejudice by establishing that there is a "reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense." Jackson v. Marshall, 634 F.Supp.2d 146, 160 (D.Mass. 2009) (quoting Strickler, 527 U.S. at 289, 119 S.Ct. 1936 ). Therefore, "[w]e do not ... automatically require a new trial whenever a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict." United States v. Dumas, 207 F.3d 11, 15 (1st Cir. 2000) (quoting Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) ).

In order to establish ineffective assistance of counsel, Petitioner must prove that her attorney's performance was deficient and the deficient performance...