Cruz-Vazquez v. USA

Filing 25

OPINION AND ORDER denying 23 Supplemental Motion; denying 1 Motion to Vacate. Signed by Judge Juan M. Perez-Gimenez on 3/5/19. (PMA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Luis X. Cruz Vazquez,
Petitioner

CIVIL NO. 15-2838 (PG)
Related Crim. No. 09-173-8 (PG)

v.
United States of America,
Respondent.

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. § 2255 1 (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 CruzVazquez, 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 and

In Petitioner’s supplemental motion, he requests, among other things, that this court stay the ruling until he
concludes an investigation. Cruz-Vazquez echoed Angel Ayala-Vazquez’s Supplement, which the court found to be
moot. See Civil No. 15-2447, Docket No. 30. To date, Petitioner has failed to notify the court of his findings and the
adjudication on the merits of petitioner’s motion cannot be delayed indefinitely. The court hereby denies CruzVazquez’s Supplemental Motion (Docket No. 23).
1

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marijuana, 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.”

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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 twopart 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 of

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crucial 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, codefendants

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Angel 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 must

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show 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 and then argues that counsel failed to challenge the drug
trafficking conspiracy because of the alleged conflict. Petitioner had to ascertain and explain,
rather than presume, why the concurrent representation resulted in conflicting loyalties. We
therefore agree with the Government’s argument that Petitioner has not proven anything more
than a mere possibility of conflict and thus failed to meet his burden under the applicable test.
See Docket No. 14 at 14-15.
Cruz-Vazquez also failed to establish an adverse action or inaction traceable to counsel’s
performance. Cruz-Vazquez’s argument that appellate counsel failed to challenge the drug
trafficking conspiracy fails to clarify how this inaction on trial and appellate counsel’s part “was
in fact the manifestation of divided loyalties.” See United States v. DeCologero, 530 F.3d 36, 77
(1st Cir. 2008). In other words, Petitioner failed to prove a causal link between counsel’s failure
to challenge the drug trafficking conspiracy and counsel’s alleged conflict of loyalties. For this
reason, the court denies Cruz-Vazquez’s habeas relief on this ground.
B. Multiple Conspiracy Claim
Petitioner claims that he was subject to ineffective assistance when trial and appellate counsel
“failed to investigate, prepare and present a multiple-conspiracy defense” even when the “record
easily yields the clear necessity/duty for a pretrial investigation and preparation of the well-

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established ‘supermarket’ multiple conspiracy defense…” See Docket No. 1 at 30. This argument
lacks coherence and merit.
The court has previously established that “litigants’ have the obligation of ‘highlighting the
relevant facts and analyzing on-point authority.’” Rodriguez v. Mun. of San Juan, 659 F.3d 168,
175 (1st Cir. 2011). Petitioner did not provide any coherent argument detailing why the facts of
his case called for the multiple conspiracy defense outlined in United States v. Dellosantos, 649
F.3d 109 (1st Cir. 2011). The court feels the need to stress that “[t]he court will not do counsel’s
work.” Gonzalez-Bermudez v. Abbott Labs. PR Inc., 214 F.Supp.3d 130, 156 (D.P.R. 2016).
Petitioner states that “[t]here were obvious signs of separate “Supermarket” type
arrangements…” Docket No. 1 at 29. This statement, without more, is simply not enough for the
court to determine that preparing and presenting a multiple conspiracy defense was indeed
necessary. After all, a drug trafficking organization that uses a “supermarket” setting is not in
itself an obvious sign that multiple conspiracies exist. See United States v. Sanchez-Badillo, 540
F.3d 24 (1st Cir. 2008) (finding defendants guilty of a single conspiracy in a “supermarket”
setting).
Cruz-Vazquez failed to provide grounds that a multiple conspiracy defense was necessary or
obvious. As a result, Cruz-Vazquez failed to show that trial and appellate counsel performed
below an objective standard of reasonableness, as required by Strickland, for not asserting this
defense. Therefore, the court finds this claim meritless.
C. Brady Claim
Cruz-Vazquez contends that Government deprived his rights to due process and effective
assistance of counsel when it failed to disclose a DEA-6 2 report detailing a conversation held

2

DEA is short for Drug Enforcement Administration.

Civ. No. 15-2838 (PG)

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between a confidential source (“CS”) and a task force agent. See Docket No. 1. Petitioner argues
that the CS identified Carlos Gonzalez as the supervisor of the drug distribution points controlled
by Ayala-Vazquez. On the other hand, the Government’s witnesses at trial testified that it was
Cruz-Vazquez who was in charge of the daily operations of Ayala-Vazquez’s drug point at the
Barbosa Housing Project. Therefore, Petitioner believes that this DEA-6 report could have
served as critical impeachment evidence challenging the veracity of the Government’s witnesses
at trial.
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that the Government
violates a defendant’s due process rights whenever it suppresses evidence favorable to the
accused, because it is material to determining either guilt or punishment. 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 (1999).
It is possible to impeach a witness by presenting a prior statement made by said witness that
is inconsistent with his testimony at trial. See Fed. R. Evid. 613. However, in the present case the
record does not show, nor does Cruz-Vazquez claim, that either the CS mentioned in the DEA-6
report or the task force agent that prepared said report testified at trial. As a result, Petitioner
would have been unable to use the DEA-6 report for impeachment purposes even if it had been
produced.
Even if any of the declarants mentioned in the DEA-6 report had testified at trial, Petitioner
still fails to establish the third component of a Brady violation because he has not shown that the
withholding of this document caused him prejudice. To establish prejudice, Petitioner has to
prove that there is a “reasonable probability that the result of the trial would have been different

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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). 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 (1972)). There is nothing in the report here at issue that could have reasonably led the
jury to reach a different verdict in Cruz-Vazquez’s case and Petitioner has failed to make this
showing. Therefore, the court concludes that his Brady violation claim lacks merit and his
motion is denied on those grounds.
D. Vouching
Petitioner argues that the Government vouched for the credibility of its witnesses at trial,
and, as a result, produced an unjust outcome. See Docket No. 1 at 6. Specifically, Petitioner
argues that the Government vouched in favor of (1) Maribel Olivo Rivera; (2) Jose Arce Baez;
and (3) Lizbeth Caban Olivo. Petitioner, however, did not mention any specific instance in which
improper vouching occurred. Additionally, Petitioner claims that his appeal counsel was
ineffective because he did not raise this issue on appeal. But this claim is unsupported, insofar
as the court does not find any evidence of vouching.
It is understood that “[a] prosecutor improperly vouches for a witness when she places the
prestige of her office behind the government’s case by, say, imparting her personal belief in a
witness’s veracity or implying that the jury should credit the prosecution’s evidence simply
because the government can be trusted.” United States v. Perez Ruiz, 353 F.3d 1, 9 (1st Cir.
2003). Vouching requires something more than merely asserting that a witness’ testimony ought
to be accepted as truthful by the jury. See Perez-Ruiz, 353 F.3d at 10. Additionally, the admission
of plea agreements into evidence by themselves does not constitute vouching. See United States

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v. Martin, 815 F.2d 818, 821 (1st Cir. 1987). Vouching would have occurred if the prosecution
had expressed his personal opinion that any particular witness should be trusted or if the
Government presented a redacted version of the transcript, leaving the jury with a false picture
of what bargain entailed. See id. Neither of these scenarios occurred in the present case.
Even though Petitioner did not mention exactly what comments constituted vouching, the
record shows that each time the prosecutor asked the witnesses about their responsibility to tell
the truth under the plea agreements; she also asked them about the benefits that they expected
to receive as a result of their cooperation. See Crim. Dockets No. 2999 at 42; No. 3002 at 73; No.
3012 at 46; No. 3017 at 7; and No. 3018 at 76. In light of the foregoing, the court concludes that
no vouching occurred because the jury had access to the whole picture presented by each of the
witnesses’ plea agreements and it could “assess, as best it can, the probable motives or interests
the witnesses could have in testifying truthfully or falsely.” Martin, 815 F.2d at 821.
Consequently, Petitioner’s claim on this ground fails.
Additionally, Petitioner argues that his appellate counsel was ineffective because he did not
raise the present issue on appeal. The court has previously established that there is “no
constitutional duty to raise every issue, where, in the attorney’s judgment, the issue has little or
no likelihood of success.” Colon-Diaz v. United States, 899 F.Supp. 2d 199, 134 (D.P.R. 2012)
(quoting Jones v. Barnes, 463 U.S. 745, 751-53 (1983)). Here, the argument now raised by
Petitioner had little to no likelihood of success on appeal. Thus, the court would be hard pressed
to find that appellate counsel was deficient for failing to raise it.
Finally, even assuming for argument’s sake that the attorney’s performance was deficient,
Cruz-Vazquez would still need to demonstrate prejudice–i.e., the existence of a reasonable
probability that, but for counsel’s errors, he would have prevailed on appeal. See id. Since
Petitioner has not shown such a probability, his ineffective assistance of counsel claim still fails.

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E. Perjured Testimony Claim
Cruz-Vazquez claims that the Government purposely introduced perjured testimony at trial.
Petitioner makes reference to the pleadings filed by Elvin Torres-Estrada in Crim. No. 11-045
(PG), and argues that, “[u]pon information and belief [they] contain information, including
sworn declarations, that present clear prejudicial Brady violations, because the government had
exculpatory and impeachment evidence in its possession before trial but failed to disclose that
evidence to the defense.” Civil No. 15-2447 (PG), Docket No. 1 at 23.
The court hereby adopts and incorporates, as procedurally permitted, its Opinion and Order
of Angel Ayala-Vazquez’s motion to vacate pursuant to 28 U.S.C. § 2255. See Civil No. 15-2447
(PG), Docket No. 35 at 7-8. Therein, the court found that Angel Ayala-Vazquez’s argument that
the Government purposely introduced perjured testimony at trial lacked any concrete or
verifiable facts in support, thus denying petitioner’s claim on this ground.
F. Crawford 3 Claim
Cruz-Vazquez asserts that Government violated his Sixth Amendment right to confront
witnesses by introducing a taped conversation between informant Jose Berberena-Gerena and
one of his co-conspirators, Charlie Martinez-Baez (“Charlie”). See Civil No. 15-2447 (PG), Docket
No. 1 at 24. The evidence in question was presented at trial through FBI agent Edward O. Cabral.
The informant himself did not testify. See Crim. Docket No. 3002 at 43-65. Petitioner argues
that the informant’s statements were “testimonial” and thus, within the purview of the Sixth
Amendment’s Confrontation Clause. See Civil No. 15-2447 (PG), Docket No. 1 at 28.
The court hereby adopts and incorporates, as procedurally permitted, its Opinion and Order
of Angel Ayala-Vazquez’s motion to vacate pursuant to 28 U.S.C. § 2255. See Civil No. 15-2447

3

Crawford v. Washington, 541 U.S. 36 (2004).

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(PG), Docket No. 35 at 8-13. Therein, the court found that Angel Ayala-Vazquez’s Crawford
challenges to the informant and co-conspirator evidence admitted at trial lack merit. First, the
testimony accepted was admissible under a well-established exception to the hearsay rule which
states that “the statement is not hearsay in that it is being admitted for a purpose other than
establishing the truth of the matter asserted.” See United States v. Cruz-Diaz, 550 F.3d 169, 176
(1st Cir. 2008); Civil No. 15-2447 (PG), Docket No. 35 at 10. Second, the evidence passes the
four-element test elucidated by the First Circuit in United States v. Rivera-Donate, 682 F.3d 120,
131 (1st Cir. 2012), which renders the evidence as indisputably admissible under co-conspirator
hearsay exception set forth in Fed. R. Evid. 801(d)(2)(E). Therefore, this court denied the claim
on this ground.
G. Sentencing Disparity
Cruz-Vazquez’s last claim is that he suffered ineffective assistance of trial and appellate
counsel when counsel failed to contend the sentencing disparity prior to or at sentencing. CruzVazquez is not claiming that his sentence was not substantively reasonable, but that counsel did
not provide evidence to support a sentencing disparity argument. See Docket No. 16 at 8.
Petitioner must satisfy Strickland’s aforementioned two-prong test if his argument is to
succeed. As previously set forth, the court need not address both of the prongs if evidence as to
either is lacking. Sleeper, 510 F.3d at 39. It is the court’s assessment that Petitioner failed to
prove 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.
As the Petitioner rightly argues, “Judge Thompson’s comments reveal the lack of adequate
sentencing mitigation information about Mr. Cruz Vazquez in the record.” Docket No. 1 at 40
(citing Ayala-Vazquez, 751 F.3d at 27, 32). This cannot be construed to mean that mitigating
factors exist in the first place. As the court recalls, it did not depart from the sentencing

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guidelines precisely because there were no convincing factors that would compel the court to do
so. In fact, Petitioner does not mention factors that counsel failed to use prior to or at sentencing
to contend the disparity.
“Judges are not mindreaders. Consequently, a litigant has an obligation to spell out its
arguments squarely and distinctly, or else forever hold its peace.” Echevarría v. AstraZeneca
Pharmaceutical LP, 856 F.3d 119, 139 (1st Cir. 2017) (quoting United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990)). As the court stands, counsel did not present mitigating factors during trial,
nor did the Petitioner provide them now. Cruz-Vazquez has failed to show prejudice in this
respect. His request for habeas relief on this ground is thus denied.
IV.

CONCLUSION

For the reasons previously explained, the court finds that Cruz-Vazquez’s claims lack merit.
Accordingly, his request for habeas relief under 28 U.S.C. § 2255 (Dockets No. 1, 16, 23) is
DENIED. The case is, therefore, DISMISSED WITH PREJUDICE. Judgment shall be
entered accordingly.
V.

CERTIFICATE OF APPEALABILITY

It is further ordered that no certificate of appealability should be issued in the event that the
Petitioner files a notice of appeal because there is no substantial showing of the denial of a
constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
In San Juan, Puerto Rico, March 5, 2019.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE