Alverio-Melendez v. USA

Filing 15

OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 09-061.) filed by Alexis Alverio-Melendez. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order b ecause it plainly appears from the record that Petitioner is not entitled to § 2255 relief from this court. Petitioner may request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 22. Signed by Judge Jose A Fuste on 5/17/2013.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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ALEXIS ALVERIO-MELENDEZ,
Petitioner,

Civil No. 12-1178 (JAF)

v.

(Criminal No. 09-061-02)

UNITED STATES OF AMERICA,
Respondent.
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OPINION AND ORDER

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Petitioner, Alexis Alverio-Meléndez, brings this pro-se petition under 28 U.S.C.

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§ 2255 for relief from sentencing by a federal court, alleging that the sentence imposed

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on him violated his rights under federal law. He requests an order to vacate, set aside, or

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correct the sentence imposed in Cr. No. 09-61. (Docket No. 1-2.)
I.

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On February 11, 2009, the grand jury rendered a three (3) count indictment against

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Alexis Alverio-Meléndez , and co-defendant Armando Gómez-Ortiz. (Crim. Docket

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No. 14.) Count One charged both defendants with conspiracy to possess with intent to

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distribute cocaine in violation of 21 U.S.C. §§841(a)(1), 841 (b)(1)(B) and 846. (Id.)

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Count Two charged them with the aiding and abetting in the possession of a machine gun

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in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§924(c)(1)(A),

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924(c)(1)(B)(ii), and §2. (Id.) On May 5, 2009, a jury found both, Alverio-Meléndez

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and co-defendant Armando Gómez-Ortiz, guilty of Counts One and Two of the

Background

Civil No. 12-1178 (JAF)

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indictment. (Crim. Docket No. 52, 53.) While the jury determined that Gómez-Ortiz

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knew the firearm was automatic, it determined that Alverio-Mélendez did not have

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knowledge that the firearm was automatic. (Id.) On August 11, 2009, the district court

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sentenced Alverio-Meléndez to sixty (60) months as to Count One and sixty (60) months

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as to Count Two, to be served consecutively. (Crim. Docket No. 64, 66.) On August 17,

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2009, Alverio-Meléndez appealed. (Crim. Docket No. 67.) On April 4, 2011, the First

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Circuit Court of Appeals affirmed the convictions and sentences of Alverio-Meléndez

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and co-defendant Gómez-Ortiz. United States v. Alverio-Meléndez, 640 F.3d 412 (1st

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Cir. 2011).
II.

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A federal district court has jurisdiction to entertain a § 2255 petition when the

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petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A

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federal prisoner may challenge his sentence on the ground that, inter alia, it “was imposed

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in violation of the Constitution or laws of the United States.” Id. The petitioner is

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entitled to an evidentiary hearing unless the “allegations, even if true, do not entitle him

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to relief, or . . . ‘state conclusions instead of facts, contradict the record, or are inherently

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incredible.’” Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007) (quoting United

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States v. McGill, 11 F.3d 223, 225–26 (1st Cir. 1993)); see 28 U.S.C. § 2255(b). A

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petitioner cannot be granted relief on a claim that has not been raised at trial or direct

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appeal, unless he can demonstrate both cause and actual prejudice for his procedural

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default. See United States v. Frady, 456 U.S. 152, 167 (1982). Indeed, “[p]ostconviction

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relief on collateral review is an extraordinary remedy, available only on a sufficient

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showing of fundamental unfairness.” Singleton v. United States, 26 F.3d 233, 236 (1st Cir.

Legal Standard

Civil No. 12-1178 (JAF)

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1994). Claims of ineffective assistance of counsel, however, are exceptions to this rule.

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See Massaro v. United States, 538 U.S. 500, 123 (2003) (holding that failure to raise

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ineffective assistance of counsel claim on direct appeal does not bar subsequent § 2255

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review).
III.

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Because Alverio-Meléndez appears pro se, we construe his pleadings more

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favorably than we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S.

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89, 94 (2007). Nevertheless, Alverio-Meléndez’s pro-se status does not excuse him from

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complying with procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890

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(1st Cir. 1997).

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A.

Discussion

Counsel was ineffective by not challenging the sufficiency of the indictment

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Alverio-Meléndez alleges that he was charged with aiding and abetting in the

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possession of a machine gun in furtherance of a drug trafficking crime but the court

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instructed the jury as to the meaning of “using or carrying a firearm during and in relation

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to a drug trafficking crime” which is contrary to the actual charge of possessing a firearm

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in furtherance of a drug trafficking crime. (Docket No. 1 at 5-6.) For this reason, he

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claims that the court amended the indictment due to the way it instructed the jury on the

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firearm count. (Docket No. 1 at 6-8.)

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impossible to conclude that he carried a firearm during, and in relation to, drug

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trafficking. (Docket No. 1 at 9.)

Alverio-Meléndez also claims that it was

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This issue was already raised and considered on appeal. Alverio-Meléndez, 640

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F.3d at 420-23. The First Circuit has determined that “[a]bsent some extraordinary

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circumstances . . . we will not reconsider by way of collateral review arguments we have

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already resolve on direct appeal.” United States v. Bull, 731, F.2d 75, 76 (1st Cir.1984).

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Alverio-Meléndez is not entitled to litigate on collateral review issues raised and decided

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on direct appeal. Davis v. United States, 417 U.S. 332, 342 (1974); Singleton, 26 F.3d at

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240 (1st Cir. 1993) (issues disposed of in a prior appeal will not be reviewed again by

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way of a 28 U.S.C. 2255 motion).

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B.

Counsel was ineffective for failure to request a Buyer-Seller Instruction or
Raise a Buyer-Seller Defense`
Alverio-Meléndez alleges that, since the evidence against him only came from a

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buyer-seller relationship he formed with a confidential informant, there is no evidence in

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this case for the jury to find that he was engaged in a drug distribution conspiracy.

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(Docket No. 1 at 10-11.) Alverio-Meléndez contends that if a “buyer-seller” instruction

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would have been raised, the result would have been different and he would have been

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acquitted. (Docket No. 1 at 11-15.) The facts presented at trial, as outlined by the Court

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of Appeals, clearly contradict Alverio-Meléndez’s claims: Alverio-Meléndez called

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Rodríguez-Morales offering to sell him cocaine; Rodríguez-Morales saw Alverio-

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Meléndez with co-defendant Gómez-Ortiz in the car at the time the drug transaction was

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to take place; and telephone records revealed that, immediately after Rodríguez-Morales

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spoke with him, Alverio-Melendez’s phone was used to dial the number of the phone that

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Gómez-Ortiz had with him on the day of his arrest. Alverio-Meléndez, 640 F.3d at 416.

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Alverio-Meléndez has attached an affidavit disputing the facts and the credibility of

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Rodríguez-Morales—whose testimony was found credible by the jury. United States v.

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Morales-Machuca, 546 F.3d 13, 21 (1st Cir.2008) (credibility determinations are for the

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jury).

Civil No. 12-1178 (JAF)
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C.

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Counsel was ineffective during closing arguments

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Counsel cannot perform ineffectively by failing to bring an argument the evidence

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does not support. Here, Alverio-Meléndez argues that counsel was ineffective for failing

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to argue that he was not involved with the alleged drug exchanges during closing

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arguments. But the evidence overwhelmingly showed that Alverio-Meléndez was

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involved with the drug sales. The evidence revealed Alverio-Meléndez had several

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conversations with Rafael Rodríguez-Morales, a confidential law enforcement source,

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about the drugs and that he arranged and met Rodríguez-Morales, along with codefendant

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Gómez-Ortiz, to carry out the drug transaction. Arguing that Alverio-Meléndez was not

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involved with the drug conspiracy would have been frivolous, and counsel cannot be

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found to be constitutionally ineffective for failing to raise what would have been a

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frivolous argument. United States v. Ventura-Cruel, 356 F.3d 55, 61 (1st Cir. 2003)

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(citing Acha v. United States, 910 F.2d 28, 32 (1990) (failure to raise meritless legal

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argument cannot constitute ineffective assistance of counsel)).

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D.

Counsel was ineffective during plea bargaining and at sentencing

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Alverio-Meléndez maintains that he qualified for a safety valve and that his legal

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counsel should have negotiated a plea deal employing a safety valve. (Docket No. 1 at

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17.); see 18 U.S.C. §3553(f); U.S.S.G. §5C1.2(A)(1)-(5). The defendant bears the burden

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of demonstrating his entitlement to the safety valve. United States v. Bravo, 489 F.3d 1,

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11 (1st Cir. 2007); United States v. Marquez, 280 F.3d 19, 23 (1st Cir. 2002). To qualify

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for the safety valve the defendant must show, among other things, that he did not possess

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a firearm or other dangerous weapon (or induce another participant to do so)

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in connection with the offense. Here, the evidence showed that Alverio-Meléndez aided

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and abetted the possession of a firearm during and in relation to a drug trafficking crime.

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Therefore, Alverio-Meléndez is precluded from receiving the benefits of a safety valve,

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and his counsel was not constitutionally ineffective for failing to negotiate for it as part of

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his plea deal.

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E.

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Delgado-Alejandro crossed the line from that of “fact” witness into “expert” witness

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testimony without any objection from counsel. (Docket No. 1 at 24, 26.). Alverio-

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Meléndez argues that Delgado-Alejandro, a Puerto Rico Police employee assigned to the

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DEA, testified about the events seen during the surveillance operation and the meaning of

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words that appeared in the drug ledgers. Special Agent Jimmy Alverio, who participated

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in the operation that led to Alverio-Meléndez’s arrest, testified that it is not customary to

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bring innocent people to the drug transactions and that it is common for drug traffickers

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to bring weapons to the transactions. (Crim. Docket No. 79 at 60-61).

Counsel was ineffective in Failing to Challenge Expert and Lay Witness
Testimony
Alverio-Meléndez claims that the testimony of Agent Jimmy Alverio and Nilsa

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Alverio-Meléndez’s challenges to both witnesses are without merit because both

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witnesses could testify on the matters they were questioned. United States v. Rodríguez-

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Ortiz, 455 F.3d 18, 23 (1st Cir.2006). Agents can testify that drug traffickers typically

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maintain large amounts of cash, drug ledgers, and other documents evincing their

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criminal activity. United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985); United States

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v. Pierce, 493 F.Supp, 2d 611 (W.D.N.Y. 2006). “It requires no special expertise for [an

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officer] to conclude based on his observations that places which sell drugs are often

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protected by people with weapons.” United States v. Pizarro, 407 F.3d 25, 28-29 (1st Cir.

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2005). Likewise, it is clearly permissible for properly-qualified law enforcement agents

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to testify about their interpretation of entries in relevant papers and the meaning of slang

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or coded words. United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987),

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(allowing testimony of DEA agent as to meaning of coded words); United States v.

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Tejada, 886 F.2d 483, 486 (1st Cir. 1989) (finding admissible expert testimony of agents

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who used their experience with the “lexical of the cocaine community” to interpret coded

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words within a notebook).

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Thus, the challenged testimonies of Delgado-Alejandro and Special Agent

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Alverio were not improper, United States v. Marin, 523 F.3d 24, 29 (1st Cir.2008), and

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Alverio-Meléndez’s arguments are meritless.

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F.

Cumulative Effect of Counsel’s Errors Deprived Petitioner of Due Process

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The First Circuit has observed that “[i]individual errors, insufficient in themselves

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to necessitate a new trial may in the aggregate have a more debilitating effect.” United

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States v. Sepúlveda, 15 F.3d 1161, 1196 (1st Cir. 1993); United States v. Dwyer, 843

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F.3d 60, 65 (1st Cir. 1988). Cumulative errors are harmless unless they affect substantial

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rights. United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990). Thus, the

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cumulative error analysis focuses on the “underlying fairness of the trial. Delaware v.

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Van Arshall, 475 U.S. 673, 681 (1986).

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In evaluating the cumulative effect of alleged errors, we consider the entire record,

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paying particular attention to such factors as the nature and number of the errors

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committed; their interrelations, if any; their combined effect; how the district court dealt

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with the errors as they arose; and the strength of the government’s case. See Sepúlveda,

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15 F.3d at 1196.

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Here, Alverio-Meléndez’s appeal to the cumulative error doctrine is unavailing.

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The only error presented—the instructional error—was harmless and did not deprive

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Alverio-Meléndez of a fair trial.

Civil No. 12-1178 (JAF)

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In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever

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issuing a denial of § 2255 relief we must concurrently determine whether to issue a

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certificate of appealability (“COA”). We grant a COA only upon “a substantial showing

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of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,

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“[t]he petitioner must demonstrate that reasonable jurists would find the district court's

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assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537

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U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While

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Petitioner has not yet requested a COA, we see no way in which a reasonable jurist could

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find our assessment of his constitutional claims debatable or wrong. Petitioner may

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request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure

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Certificate of Appealability

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V.

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Conclusion

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For the foregoing reasons, we hereby DENY Petitioner’s § 2255 motion (Docket

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No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary

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dismissal is in order because it plainly appears from the record that Petitioner is not

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entitled to § 2255 relief from this court.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 17th day of May, 2013.

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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE