Rodriguez-Reyes v. USA

Filing 9

OPINION AND ORDER - DISMISSING Petitioner's 1 pro se Motion to Vacate, Set Aside or Correct Sentence; request for evidentiary hearing is DENIED. Signed by Judge Carmen C. Cerezo on 8/4/2017. (mld)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JERRY O. RODRIGUEZ-REYES
Plaintiff
vs
UNITED STATES OF AMERICA
Defendant

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OPINION AND ORDER
Before the Court is the Motion under 28 U.S.C. § 2255 filed by Petitioner
Jerry O. Rodríguez-Reyes (hereinafter Petitioner or Rodríguez-Reyes) (d.e. 1).
Petitioner, a prisoner appearing pro se, also filed a Memorandum in Support
(d.e. 1-1). The Government’s Response (d.e. 3) For the reasons discussed
below, the Court finds the Motion as well as the Supplemental Petition must be
DENIED.
I.

BACKGROUND
Petitioner Rodríguez-Reyes was charged along with twenty-five (25)

other co-defendants in a four-count Superseding Indictment (d.e. 15 in
Cr. 06-299CCC). Petitioner was charged in counts one (1) and two (2).
Count One (1) charged: From in or about late 2003, and continuing up
to the date of this Indictment, in the District of Puerto Rico, elsewhere, and
within the jurisdiction of this Court, [8] Jerry O. Rodríguez-Reyes, a/k/a “Quiri”
and twenty five (25) other co defendants, the defendants herein, along with
other unindicted co-conspirators to the Grand Jury known and unknown, did
knowingly and intentionally conspire, combine, confederate, and agree together
and with each other and with other persons, to commit an offense against the
United States, that is, to possess with intent to distribute, and distribute

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narcotic controlled substances, to wit: five (5) kilograms or more of cocaine,
and fifty (50) grams or more of cocaine base (“crack”), both Schedule II
Narcotic Drug Controlled Substances, and one (1) kilogram or more of a
mixture or substance containing a detectable amount of heroin, and marijuana
and a mixture or substance containing a detectable amount of marijuana, both
Schedule I Narcotic Controlled Substances, within one thousand (1,000) feet
of the real property comprising a housing facility owned by a public housing
authority, that is, Nemesio R. Canales Housing Project and of public
elementary and secondary schools, that is, Nemesio R. Canales School
Number 1 and the Nemesio R. Canales School Number 2, in violation of
Title 21, United States Code, Section 841(a)(1), 841(b)(1)(A) and 860 (d.e. 15
at pages 2-3 in Cr. 06-299CCC).
Count Two (2) charged: From on or about late 2003, and continuing up
to the date of this Superseding Indictment, in the District of Puerto Rico, and
elsewhere, and within the jurisdiction of this Court, [8] Jerry O.
Rodríguez-Reyes, a/k/a “Quiri” and twelve (12) additional co defendants, the
defendants herein, along with other unindicted co-conspirators to the Grand
Jury known and unknown, did knowingly, intentionally, and unlawfully conspire,
combine, confederate, and agree together and with each other and with other
persons, to commit an offense against the United States, that is, to knowingly,
willfully, intentionally, and unlawfully, possess, use, brandish, or carry firearms,
as that term is defined in Section 921(a)(3) of Title 18, United States Code, in
furtherance of, or during and in relation to a drug trafficking crime, as that term
is defined in Section 924(c)(2) of Title 18, United States Code, to wit:
conspiracy to possess with intent to distribute and distribute narcotic controlled

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substances, an offense which can be prosecuted in a court of the United
States as a violation to Title 21, United States Code, Sections 841(a)(1),
841(b)(1)(A) and (b)(1)(c), and 860, all in violation of Title 18, United States
Code, Section 924(c)(1)(A)(ii) and 924(o) (d.e. 15 at pages 16-17 in
Cr. 06-299CCC).
On July 12, 2008, Petitioner’s court appointed counsel, Luz Ríos, file a
Second Motion to Withdraw as Attorney1 (d.e. 702 in Cr. 06-299CCC). On
August 1, 2008, Petitioner filed, pro se, a Motion to Appoint New Counsel2
(d.e. 732 in Cr. 06-299CCC). On August 12, 2008, the Court appointed
counsel Guzmán-Dupont as Petitioner’s new CJA attorney (d.e. 748 in
Cr. 06-299CCC). On January 20, 2009, counsel Guzmán-Dupont filed a
Motion to Withdraw as Attorney of Record for Defendant3 (d.e. 831 in
Cr. 06-299CCC).
On February 10, 2009, Rodríguez-Reyes filed, pro se, a Motion to
Appoint New Counsel (d.e. 848 in Cr. 06-299CCC). The Court notes that this
second motion for new counsel is exactly the same as the one which he had
previously filed requesting attorney Ríos be substituted. The only variance is
the time he has been incarcerated and the name of the attorney he wishes to
change. Once again Petitioner makes a non-specific claim that his attorney

1

Attorney Luz Ríos informed the court that Rodríguez-Reyes did not want her as his attorney
and rejected the plea offer which she conveyed to him. Petitioner insisted to counsel Ríos that a
jail house lawyer had advised him that he could get a better plea offer than the one conveyed by
counsel Ríos (d.e. 702 at p. 1).
2

Rodríguez-Reyes stated that he believed counsel Ríos was acting more like an attorney
for the government than his lawyer and that she had not complied with numerous, unspecified,
request, he had made (d.e. 732 at p. 1 in Cr. 06-299CCC).
3

Counsel informed the Court that Petitioner was not satisfied with his representation and
that he wanted another lawyer to represent him (d.e. 831 at p. 1 in Cr. 06-299CCC).

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this time, Guzmán-Dupont, had not complied with the countless requests he
had made (d.e. 848 at p. 1 in Cr. 06-299CCC).
On February 13, 2009, the Court issued an order in which it denied both
counsel Guzmán-Dupont’s request to withdraw and Petitioner’s request for
appointment of counsel (d.e. 852 in Cr. 06-299CCC).
On April 26, 2009, Petitioner filed a Motion in Limine (d.e. 910 in
Cr. 06-299CCC) requesting to exclude at trial photos of the alleged murder
victims of Rodríguez-Reyes and other conspirators which was DENIED on
May 4, 2009.
On July 30, 2009, the government filed its Informative Motion in
Compliance with Giglio and Brady Requirements (d.e. 1010 in Cr. 06-299CCC).
The United States informed that it had become aware that certain perjured
testimony before the grand jury had occurred and that based in part on said
perjured testimony the grand jury had returned the First Superseding
Indictment. It advised that after a thorough review of the matter it had been
determined that a new superseding indictment should be obtained, this with
use of new evidence not tainted or compromised by any perjured testimony
(d.e. 1010 at pp. 7-10 in Cr. 06-299CCC).
On September 9, 2009, Petitioner filed a Motion to Dismiss Indictment
(d.e. 1053 in Cr. 06-299CCC).

On September 10, 2009, a Second

Superseding indictment was filed (d.e. 1060 in Cr. 06-299CCC). The Second
Superseding Indictment charged the same two counts as the previously filed
Superseding Indictment, and alleged the same time span as the First
Superseding Indictment. What varied was the defendants charged as well as
some of the overt acts. In the Second Superseding Indictment there were eight

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(8) co defendants charged instead of the twenty five (25) of the First
Superseding Indictment (d.e. 1060 in Cr. 06-229(CCC)). The Court notes that
of the First Superseding Indictment various defendants had already plead guilty
and as to others the government had requested their dismissal.
On October 21, 2009, the government filed an Amended Notice of Intent
to Introduce Evidence in Relation to Drug Related Murders (d.e. 1087 in
Cr. 06-299CCC). Once again Petitioner was put on notice of the government’s
intent to introduce at trial evidence of his participation in a murder. The trial
began on November 9, 2009 (d.e. 1124 in Cr. 06-299CCC). On said date jury
selection was completed and the jury was sworn in. Defendant was tried
together with three (3) other defendants. On April 26, 2010, preliminary
instructions were given to the jury and the government began its presentation
of evidence.
On June 11, 2010, on the twenty ninth (29) day of trial, the jury reached
a verdict. Petitioner as well as his co defendants were found guilty as to both
counts of the Second Superseding Indictment (d.e. 1327 in Cr. 06-299CCC).
On August 4, 2010, Petitioner, pro se, filed a Motion for Judgment of
Acquittal4 (d.e. 1354 in Cr. 06-299CCC).
On October 5, 2010, Rodríguez-Reyes’ Pre Sentence Report was
submitted (d.e. 1369 in Cr. 06-299CCC).

Petitioner filed a Sentencing

Memorandum5 (d.e. 1371 in Cr. 06-299CCC).

On December 7, 2010,

4

Rodríguez-Reyes alleged that the Second Superseding Indictment on which he was tried
and convicted was obtained using false and tainted testimony before the grand jury. Petitioner
further claimed prosecutorial misconduct as to the use of perjured testimony and in his prosecution
(d.e. 1354 in Cr. 06-299CCC).
5

Rodríguez-Reyes objected to the recommended sentence of life imprisonment (d.e. 1371
at p. 6 in Cr. 06-299CCC).

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Rodríguez-Reyes’ Sentencing Hearing was held. He was sentenced to a term
of life imprisonment as to Count One and a term of imprisonment of ten (10)
years as to Count Two of the Second Superseding Indictment, to be served
consecutively to each other. A Supervised Release Term of ten (10) years as
to Count One and a term of five (5) years as to Count Two were imposed, to
be served concurrently. A Special Monetary Assessment of two hundred (200)
dollars was imposed (d.e. 1398 in Cr. 06-299CCC).
On December 15, 2010, Judgment was entered (d.e. 1407) and on that
same date Petitioner, through counsel, filed a Notice of Appeal (d.e. 1409 in
Cr. 06-299CCC). On April 11, 2013, the First Circuit Court of Appeals issued
its Opinion and Order affirming Rodríguez-Reyes’ conviction and sentence.
United States v. Rodríguez-Reyes, 714 F.3d 1 (1st Cir. 2013). On October 7,
2013, the Supreme Court denied his Petition for Certiorari. Rodríguez-Reyes
v. United States, 134 S.Ct. 259 (2013).
On May 8, 2014, Rodríguez-Reyes timely signed and certified the
placement of his 2255 Petition in the prison mailing system.
II.

DISCUSSION
Rodríguez-Reyes raises the following allegations of ineffective assistance

of counsel:
1.

Both trial and appellate counsel were ineffective for failing to
challenge the murder cross reference used to sentence him to a
term of life imprisonment.

2.

Both trial and appellate counsel were ineffective for failure to
request a psychological examination prior to trial.

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3.

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Both trial and appellate counsel were ineffective for failing to move
for a judgment of acquittal as to his conviction of Title 18, United
States Code, Section 924(c).

In addition, Rodríguez-Reyes raised the following challenges:
4.

The United States committed prosecutorial misconduct by
purposely using false evidence against him at the grand jury stage.
Appellate counsel was ineffective for his failure to raise this claim
on appeal.

5.

Petitioner’s life sentence was constitutionally unreasonable and
violated his Eighth Amendment right against cruel and unusual
punishment.

A.

28 U.S.C. § 2255 Standards and Exhaustion Requirements

Title 28 U.S.C. § 2255 allows a federal prisoner to move the court to
vacate, set aside, or correct his sentence if one of the following events
happens:
1.

the sentence was imposed in violation of the Constitution or
laws of the United States . . .

2.

the court was without jurisdiction to impose the sentence

3.

The sentence was in excess of the maximum authorized by
law or . . .

4.

The sentence is otherwise subject to collateral attack.

When a prisoner files a motion for relief pursuant to section 2255, the
court may dismiss the motion without an evidentiary hearing if “the motion and
files and records of the case show conclusively that the movant is not entitled
to relief.”

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It is settled law that claims that have been previously decided on direct
appeal are barred from being revisited through collateral proceedings. Withrow
v. Williams, 507 U.S. 680 (1983). Claims that have been previously addressed
on direct review may not be re-adjudicated collaterally under section 2255
absent equitable considerations, such as, innocence or cause and prejudice.
Berthoff v. United States, 308 F.3d 124 (1st Cir. 2002). Rodríguez-Reyes is
foreclosed from presenting any claims regarding his sentence and the term of
imprisonment imposed since the same were already raised on appeal and the
First Circuit upheld the same.
On appeal petitioner challenged, as he does now in his 2255 Petition, the
application of the murder cross reference section 2A1.1 of the Sentencing
Guidelines.

In its analysis of the issue the First Circuit Court stated in

Rodríguez-Reyes v. U.S., 714 F.3d 1, 16 (2013):
The court correctly found Rodríguez had helped to plan and
execute the Agustin murder; indeed, the evidence at trial showed
that Rodríguez was part of the group that decided to murder
Agustin and that Rodríguez was the one who ultimately shot
Agustin in the head. That finding alone would support the
application of the first degree murder cross-reference . . . .
Further, the district court also would have been entitled to rely on
the unchallenged finding in the PSR that Rodríguez participated in
the triple murder at the Llorens Torres drug point.
To the extent that Rodríguez challenges the substantive
reasonableness of the district court’s sentence, there was no error.
Given the district court’s findings about the violent nature of the
drug conspiracy and Rodríguez’s participation in at least one
murder, it was not unreasonable for the district court to weigh the
need for punishment and deterrence over the potentially mitigating
effects of Rodríguez’s personal background.
There is no doubt that the issue of the murder cross reference, its
applicability to Rodríguez-Reyes and whether it was an unduly harsh

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punishment was raised by appellate counsel as part of his appeal. The
Circuit’s ruling on the matter is clear. Rodríguez-Reyes has made no claim of
actual innocence nor has he made a showing of cause and prejudice.
Petitioner is, therefore, precluded from raising issues one (1) and five (5) as
part of his 2255 petition.
The Court will consider the remaining allegations raised by
Rodríguez-Reyes.
B.

Claim of Ineffective Assistance of Counsel

The standard for an ineffective assistance of counsel claim is whether
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 v. Washington, 466 U.S. 668 (1984); Lema v. United States,
987 F.2d 48 (1st Cir. 1993). In order to succeed in a claim of ineffective
assistance of counsel Rivera-Donate must show both incompetence and
prejudice: (1) Petitioner must show that counsel’s representation fell below an
objective standard of reasonableness, and (2) that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Argencourt v. United States, 78 F.3d 14
(1st Cir. 1996); Darden v. Wainwright, 477 U.S. 168 (1986); Lockhart v.
Fretwell, 506 U.S. 364 (1993).
Petitioner bears a “very heavy burden” in his attempt to have his
sentence vacated premised on an ineffective assistance of counsel claim.
Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996); Lema v. United
States, 987 F.2d 48, 51 (1st Cir. 1993). Even more so under Strickland
standard, “only where, given facts known at the time, counsel’s choice was so

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patently unreasonable that no competent attorney would have made it.” United
States v. Rodríguez, 675 F.3d 48, 56 (1st Cir. 2012) (quoting Tevlin v.
Spencer, 621 F.3d 59, 66 (1st Cir. 2010), which in turn quotes Knight v.
Spencer, 447 F.3d 6, 15 (1st Cir. 2006)).
In order to successfully satisfy the first prong of the Strickland test,
petitioner must show that “in light of all the circumstances, the identified acts
or omissions [allegedly made by his counsel] were outside the wide range of
professionally competent assistance.” Tejada v. Dubois, 142 F.3d 18, 22
(1st Cir. 1998) (quoting Strickland, 466 US. at 690). Petitioner must overcome
the “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Smullen v. United States, 94 F.3d 20, 23
(1st Cir. 1996) (quoting Strickland at 689). Finally, a court must review
counsel’s actions deferentially, and should make every effort “to eliminate the
distorting effects of hindsight.” Argencourt v. United States, 78 F.3d at 16
(quoting Strickland, 466 U.S. at 689).
The second prong of the Strickland test, the element of prejudice, also
sets the bar high. “An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the
error had no effect on the judgment.” Argencourt v. United States, 78 F.3d
at 16 (quoting Strickland, 466 U.S. at 691). Petitioner must “prove that there
is a reasonable probability that, but for his counsel’s errors, the result of the
proceeding would have been different.”

Knight v. United States,

37 F.3d 769, 774 (1st Cir. 1994) (citing Strickland, 466 U.S. at 687).
This means that if petitioner is successful in showing deficiencies in his
counsel’s representation, he must then conclusively establish that those

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deficiencies led to a real prejudice against him in the criminal proceedings.
Id. at 694. Petitioner has failed to meet the Strickland standard in all of his
claims.
1.

Ineffective assistance of counsel - Both trial and appellate
counsel were ineffective for failing to request a psychological
examination of Petitioner prior to trial.

Rodríguez-Reyes alleged that prior to trial he informed his counsel that
he suffered from mental illness since childhood and that he was not capable
of making sound decisions regarding his legal situation. He further claimed
that he asked his attorney to interview his family members as to his lack of
mental competence and was ignored. (d.e. 1-1 at p. 10).
Petitioner has submitted no further information on this claim. There are
no corroborating documents attesting to his mental illness, no sworn statement
by petitioner or his family members. There is only a bare allegation that due
to an alleged mental illness he was unable to make sound decisions regarding
his case.
Supreme Court precedent has long made clear that “[a] criminal
defendant may not be tried unless he is competent, and he may not . . . plead
guilty unless he does so ‘competently and intelligently.’” United States v.
Kennedy, 756 F3d 36, 43 (1st Cir. 2014) (quoting Godinez v. Moran,
509 U.S. 389, 396 (1993)). “This requirement has a modest aim: It seeks to
ensure that [the defendant] has the capacity to understand the proceedings
and to assist counsel.” Id. (quoting Godinez, 509 U.S. at 402).
In order to safeguard this constitutional to a criminal defendant, a court
must, on either the party’s motion or sua sponte, order a competency hearing
“if there is reasonable cause to believe that the defendant may presently be

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suffering from a mental disease or defect rendering him mentally incompetent
o the extent that he is unable to understand the nature and consequences of
the proceedings against him or to assist properly in his defense.”

Id.

(quoting Title 18, United States Code, Section 4241(a)).
The record in this case contradicts Petitioner’s claim.
The case file reflects a defendant who was well aware of the happenings
in his case, actively participating in his defense and requesting particular
actions be taken by his attorney. The record also reflects that on two separate
occasions he filed pro se motions with the Court requesting new counsel
(d.e. 732 and d.e. 848 in Cr. 06-299CCC). In the second request to withdraw
as counsel filed by attorney Ríos (d.e. 702 in Cr. 06-299CCC) counsel
specifically informed that Rodríguez-Reyes was unsatisfied with the plea deal
she had negotiated on his behalf, for he had consulted his case with a jail
house attorney who informed him he could get a better deal than the one she
brought forth (d.e. 702 at p. 1 in Cr. 06-299CCC). Clearly not a sign of a
defendant who was unaware of the developments in his case and unable to
participate in the same. Subsequent to those filings, Rodríguez-Reyes filed
pro se a Motion for Judgment of Acquittal (d.e. 1354 in Cr. 06-299CCC). He
also filed a pro se Notice of Appeal (d.e. 1406 in Cr. 06-299CCC). These
filings indicate that he was well aware of the events that were happening in his
case and that he actively participated.
The mere fact that Rodríguez-Reyes may have some form of mild mental
defect (as expressed by Petitioner in his PSR interview, d.e. 1368 in
Cr. 06-299CCC) does not render him mentally incompetent. “A defendant may
have serious mental illness while still being able to understand the proceedings

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and rationally assist his counsel.” United States v. Widi, 684 F.3d 216, 221
(1st Cir. 2012).
Under the Strickland standard, Rodríguez-Reyes would have to first
establish that the failure to request a mental competency evaluation constituted
ineffective assistance of counsel. In order to do so he had to raise evidence
on the record that would lead this Court to conclude that a reasonable attorney,
knowing what his attorney knew at that time, would have chosen to make such
a request. A review of the record portrays defendant as informed, active in his
defense and one who would question his attorney’s calls on the issues. Thus,
Petitioner’s claim of ineffective assistance of trial counsel for failure to request
a mental examination is DENIED.
As to the allegation that Rodríguez-Reyes’ appellate counsel was
ineffective for his failure to raise this same issue on appeal, the same is
meritless. Claims of ineffective assistance of appellate counsel are measured
under the Strickland standard. Evitts v. Lucey, 469 U.S. 387 (1985). Appellate
counsel is not required to raise every non-frivolous claim, but rather selects
among them to maximize the likelihood of success on the merits. Lattimore v.
Dubois, 311 F.3d 46 (1st Cir. 2002). Where appellate counsel is charged with
ineffectiveness for failure to raise a particular claim, “it is difficult to
demonstrate that counsel was incompetent.” Smith v. Robbins, 528 U.S. 259
at page 288 (2000). To overcome the presumption of competence of appellate
counsel, a petitioner must show that the omitted issues were “clearly stronger”
than those counsel chose to assert. Rodríguez-Reyes has not made such a
showing. Petitioner’s second allegation of ineffective assistance of counsel as

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to his trial and appellate counsel for failure to request a psychological
examination is DENIED.
2.

Ineffective assistance of counsel - Trial and appellate counsel
were ineffective in their failure to move for a judgment of
acquittal as to Petitioner’s conviction of Title 18, United States
Code, Section 924(c).

Rodríguez-Reyes contends that the record reflects that the trial evidence
failed to establish that he had knowledge of a weapon being used. He claims
he was wrongfully convicted on the section 924(c) charge and that his trial
counsel was ineffective for failing to argue his acquittal on said charge. He
further contends that his appellate counsel was ineffective in failing to raise this
issue.
Rodríguez-Reyes has misread the trial record. The evidence presented
at trial was as to the numerous use of weapons and that defendants, including
petitioner, carried and used weapons as part of their drug trafficking activities.
A review of the First Circuit Court’s opinion leaves no doubt as to this:
There was extensive testimony that Mendez, Gonzalez, and
Rodriguez each discharged firearms with the purpose of protecting
La Recta from threats to their business and/or expanding their drug
operations. United States v. Rodriguez-Reyes, 714 F.3d 1,
8 (2013).
. . . the court correctly found that Rodriguez had helped to plan and
execute the Agustin murder; indeed, the evidence at trial showed
that Rodriguez was part of the group that decided to murder
Agustin and that Rodriguez was the one who ultimately shot
Agustin in the head. Rodriguez-Reyes, 714 F.3d 16.
. . . Rodriguez-Reyes participated in the triple murder at the
Llorens Torres drug point. Id.
Not only did the evidence establish that he was well aware that there were
weapons being carried and used in relation to the drug operation but also that
he carried a weapon, shot and killed at least one person. This evidence would

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render any argument for judgment of acquittal of section 924(c) meritless. As
such there can be no valid claim of ineffective assistance of counsel as to his
trial or his appellate counsel. Having established that the argument in support
of a judgment of acquittal on the section 924(c) charge has no evidentiary
support, there can be no valid claim of ineffective assistance of counsel.
Accordingly, the same is DENIED.
The final argument before the Court is Petitioner’s allegation of
prosecutorial misconduct.
3.

The United States committed prosecutorial misconduct by
purposely using false evidence against Petitioner at the grand
jury stage. Appellate counsel was ineffective for his failure to
raise this claim on appeal.

Rodríguez-Reyes claims that the government knowingly used false
testimony before the grand jury in order to obtain an indictment against him,
hence the prosecutorial misconduct. He correctly alludes to docket entry 1010
in Cr. 06-299CCC as stating that such evidence was presented.
A review of the government’s motion entitled Motion in Compliance with
Brady and Giglio Requirements, filed on July 30, 2009, informed the Court that
the prosecutors in the case had become aware that a certain witness’
testimony as well as certain evidence used to obtain the First Superseding
Indictment against Rodríguez-Reyes and other co defendant’s was tainted as
it was either false testimony or evidence obtained pursuant to a search warrant
that was based on false information (d.e. 1010 in Cr. 06-299CCC). The United
States also informed that as a result of learning about this information it went
back, reinvestigated the case and found independent evidence that would allow
it to charge petitioner and other co-defendants, without the use any of the
tainted evidence or the perjured testimony.

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The record reflects that the government presented the case anew before
the grand jury based only on the new evidence obtained.

A Second

Superseding Indictment was issued on September 10, 2009 (d.e. 1060 in
Cr. 06-299CCC). Rodríguez-Reyes was tried based on the charges of the
Second Superseding Indictment which was obtained without the use of tainted
evidence or perjured testimony.
Petitioner’s allegation of prosecutorial misconduct relate solely to the
First Superseding Indictment which the prosecutors dutifully disclosed, once
they became aware, that it was in fact obtained by use of tainted evidence.
Hence, the prosecutors remedied the situation by presenting a completely new
Second Superseding Indictment without the use of the tainted evidence. “The
dismissal of an indictment on the grounds of prosecutorial misconduct is an
extraordinary sanction reserved for very limited and extreme circumstances.”
State v. Franco, 750 A.2d 415, 419 (R.I. 2000). Such a dismissal should be
limited “to situations in which there has been flagrant prosecutorial misconduct
accompanied by severe and incurable prejudice.” Id. A “petit jury’s subsequent
guilty verdict means not only that there was probable cause to believe that the
defendants were guilty as charged, but also that they are in fact guilty as
charged beyond a reasonable doubt.” State v. Mollicone, 654 A.2d 311, 326
(R.I. 1995) (quoting United States v. Mechanik, 475 U.S. 66, 70 (1986)). Any
error that might have occurred was cured by the filing of the Second
Superseding Indictment6 as well as Petitioner’s criminal conviction.
There is no evidence on the record nor has Petitioner brought forth any,
that the Second Superseding Indictment was tainted in any way with improperly
6

See Fernandez-Malave v. United States, 502 F.Supp. 2d 234 (D.P.R. 2007).

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obtained evidence or perjured testimony. The allegation of prosecutorial
misconduct is unsupported by the record.

Therefore, the claims of

prosecutorial misconduct and appellate’s counsel ineffectiveness for failure to
raise said argument are DENIED.
The Court has reviewed all of Petitioner’s allegations and has examined
the complete record in this case and concludes that there was no ineffective
assistance of either trial or appellate counsel.
III.

CONCLUSION
For the reasons stated, the Court concludes that Petitioner Jerry O.

Rodríguez-Reyes’ § 2255 Petition Under Title 28 U.S.C. is hereby DISMISSED.
Petitioner’s request for an evidentiary hearing is DENIED.
SO ORDERED.
At San Juan, Puerto Rico, on August 4, 2017.

S/CARMEN CONSUELO CEREZO
United States District Judge