Alverio-Melendez v. USA, No. 3:2012cv01178 - Document 15 (D.P.R. 2013)
Court Description: 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)
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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 ALEXIS ALVERIO-MELENDEZ, Petitioner, Civil No. 12-1178 (JAF) v. (Criminal No. 09-061-02) UNITED STATES OF AMERICA, Respondent. 5 6 OPINION AND ORDER 7 Petitioner, Alexis Alverio-Meléndez, brings this pro-se petition under 28 U.S.C. 8 § 2255 for relief from sentencing by a federal court, alleging that the sentence imposed 9 on him violated his rights under federal law. He requests an order to vacate, set aside, or 10 correct the sentence imposed in Cr. No. 09-61. (Docket No. 1-2.) I. 11 12 13 14 15 On February 11, 2009, the grand jury rendered a three (3) count indictment against 16 Alexis Alverio-Meléndez , and co-defendant Armando Gómez-Ortiz. (Crim. Docket 17 No. 14.) Count One charged both defendants with conspiracy to possess with intent to 18 distribute cocaine in violation of 21 U.S.C. §§841(a)(1), 841 (b)(1)(B) and 846. (Id.) 19 Count Two charged them with the aiding and abetting in the possession of a machine gun 20 in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§924(c)(1)(A), 21 924(c)(1)(B)(ii), and §2. (Id.) On May 5, 2009, a jury found both, Alverio-Meléndez 22 and co-defendant Armando Gómez-Ortiz, guilty of Counts One and Two of the Background Civil No. 12-1178 (JAF) -2- 1 indictment. (Crim. Docket No. 52, 53.) While the jury determined that Gómez-Ortiz 2 knew the firearm was automatic, it determined that Alverio-Mélendez did not have 3 knowledge that the firearm was automatic. (Id.) On August 11, 2009, the district court 4 sentenced Alverio-Meléndez to sixty (60) months as to Count One and sixty (60) months 5 as to Count Two, to be served consecutively. (Crim. Docket No. 64, 66.) On August 17, 6 2009, Alverio-Meléndez appealed. (Crim. Docket No. 67.) On April 4, 2011, the First 7 Circuit Court of Appeals affirmed the convictions and sentences of Alverio-Meléndez 8 and co-defendant Gómez-Ortiz. United States v. Alverio-Meléndez, 640 F.3d 412 (1st 9 Cir. 2011). II. 10 11 12 13 14 A federal district court has jurisdiction to entertain a § 2255 petition when the 15 petitioner is in custody under the sentence of a federal court. See 28 U.S.C. § 2255. A 16 federal prisoner may challenge his sentence on the ground that, inter alia, it was imposed 17 in violation of the Constitution or laws of the United States. Id. The petitioner is 18 entitled to an evidentiary hearing unless the allegations, even if true, do not entitle him 19 to relief, or . . . state conclusions instead of facts, contradict the record, or are inherently 20 incredible. Owens v. United States, 483 F.3d 48, 57 (1st Cir. 2007) (quoting United 21 States v. McGill, 11 F.3d 223, 225 26 (1st Cir. 1993)); see 28 U.S.C. § 2255(b). A 22 petitioner cannot be granted relief on a claim that has not been raised at trial or direct 23 appeal, unless he can demonstrate both cause and actual prejudice for his procedural 24 default. See United States v. Frady, 456 U.S. 152, 167 (1982). Indeed, [p]ostconviction 25 relief on collateral review is an extraordinary remedy, available only on a sufficient 26 showing of fundamental unfairness. Singleton v. United States, 26 F.3d 233, 236 (1st Cir. Legal Standard Civil No. 12-1178 (JAF) -3- 1 1994). Claims of ineffective assistance of counsel, however, are exceptions to this rule. 2 See Massaro v. United States, 538 U.S. 500, 123 (2003) (holding that failure to raise 3 ineffective assistance of counsel claim on direct appeal does not bar subsequent § 2255 4 review). III. 5 6 7 8 9 Because Alverio-Meléndez appears pro se, we construe his pleadings more 10 favorably than we would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 11 89, 94 (2007). Nevertheless, Alverio-Meléndez s pro-se status does not excuse him from 12 complying with procedural and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 13 (1st Cir. 1997). 14 A. Discussion Counsel was ineffective by not challenging the sufficiency of the indictment 15 Alverio-Meléndez alleges that he was charged with aiding and abetting in the 16 possession of a machine gun in furtherance of a drug trafficking crime but the court 17 instructed the jury as to the meaning of using or carrying a firearm during and in relation 18 to a drug trafficking crime which is contrary to the actual charge of possessing a firearm 19 in furtherance of a drug trafficking crime. (Docket No. 1 at 5-6.) For this reason, he 20 claims that the court amended the indictment due to the way it instructed the jury on the 21 firearm count. (Docket No. 1 at 6-8.) 22 impossible to conclude that he carried a firearm during, and in relation to, drug 23 trafficking. (Docket No. 1 at 9.) Alverio-Meléndez also claims that it was 24 This issue was already raised and considered on appeal. Alverio-Meléndez, 640 25 F.3d at 420-23. The First Circuit has determined that [a]bsent some extraordinary 26 circumstances . . . we will not reconsider by way of collateral review arguments we have Civil No. 12-1178 (JAF) -4- 1 already resolve on direct appeal. United States v. Bull, 731, F.2d 75, 76 (1st Cir.1984). 2 Alverio-Meléndez is not entitled to litigate on collateral review issues raised and decided 3 on direct appeal. Davis v. United States, 417 U.S. 332, 342 (1974); Singleton, 26 F.3d at 4 240 (1st Cir. 1993) (issues disposed of in a prior appeal will not be reviewed again by 5 way of a 28 U.S.C. 2255 motion). 6 7 8 9 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 10 buyer-seller relationship he formed with a confidential informant, there is no evidence in 11 this case for the jury to find that he was engaged in a drug distribution conspiracy. 12 (Docket No. 1 at 10-11.) Alverio-Meléndez contends that if a buyer-seller instruction 13 would have been raised, the result would have been different and he would have been 14 acquitted. (Docket No. 1 at 11-15.) The facts presented at trial, as outlined by the Court 15 of Appeals, clearly contradict Alverio-Meléndez s claims: Alverio-Meléndez called 16 RodrÃguez-Morales offering to sell him cocaine; RodrÃguez-Morales saw Alverio- 17 Meléndez with co-defendant Gómez-Ortiz in the car at the time the drug transaction was 18 to take place; and telephone records revealed that, immediately after RodrÃguez-Morales 19 spoke with him, Alverio-Melendez s phone was used to dial the number of the phone that 20 Gómez-Ortiz had with him on the day of his arrest. Alverio-Meléndez, 640 F.3d at 416. 21 Alverio-Meléndez has attached an affidavit disputing the facts and the credibility of 22 RodrÃguez-Morales whose testimony was found credible by the jury. United States v. 23 Morales-Machuca, 546 F.3d 13, 21 (1st Cir.2008) (credibility determinations are for the 24 jury). Civil No. 12-1178 (JAF) 1 C. -5- Counsel was ineffective during closing arguments 2 Counsel cannot perform ineffectively by failing to bring an argument the evidence 3 does not support. Here, Alverio-Meléndez argues that counsel was ineffective for failing 4 to argue that he was not involved with the alleged drug exchanges during closing 5 arguments. But the evidence overwhelmingly showed that Alverio-Meléndez was 6 involved with the drug sales. The evidence revealed Alverio-Meléndez had several 7 conversations with Rafael RodrÃguez-Morales, a confidential law enforcement source, 8 about the drugs and that he arranged and met RodrÃguez-Morales, along with codefendant 9 Gómez-Ortiz, to carry out the drug transaction. Arguing that Alverio-Meléndez was not 10 involved with the drug conspiracy would have been frivolous, and counsel cannot be 11 found to be constitutionally ineffective for failing to raise what would have been a 12 frivolous argument. United States v. Ventura-Cruel, 356 F.3d 55, 61 (1st Cir. 2003) 13 (citing Acha v. United States, 910 F.2d 28, 32 (1990) (failure to raise meritless legal 14 argument cannot constitute ineffective assistance of counsel)). 15 D. Counsel was ineffective during plea bargaining and at sentencing 16 Alverio-Meléndez maintains that he qualified for a safety valve and that his legal 17 counsel should have negotiated a plea deal employing a safety valve. (Docket No. 1 at 18 17.); see 18 U.S.C. §3553(f); U.S.S.G. §5C1.2(A)(1)-(5). The defendant bears the burden 19 of demonstrating his entitlement to the safety valve. United States v. Bravo, 489 F.3d 1, 20 11 (1st Cir. 2007); United States v. Marquez, 280 F.3d 19, 23 (1st Cir. 2002). To qualify 21 for the safety valve the defendant must show, among other things, that he did not possess 22 a firearm or other dangerous weapon (or induce another participant to do so) 23 in connection with the offense. Here, the evidence showed that Alverio-Meléndez aided 24 and abetted the possession of a firearm during and in relation to a drug trafficking crime. Civil No. 12-1178 (JAF) -6- 1 Therefore, Alverio-Meléndez is precluded from receiving the benefits of a safety valve, 2 and his counsel was not constitutionally ineffective for failing to negotiate for it as part of 3 his plea deal. 4 5 6 7 E. 8 Delgado-Alejandro crossed the line from that of fact witness into expert witness 9 testimony without any objection from counsel. (Docket No. 1 at 24, 26.). Alverio- 10 Meléndez argues that Delgado-Alejandro, a Puerto Rico Police employee assigned to the 11 DEA, testified about the events seen during the surveillance operation and the meaning of 12 words that appeared in the drug ledgers. Special Agent Jimmy Alverio, who participated 13 in the operation that led to Alverio-Meléndez s arrest, testified that it is not customary to 14 bring innocent people to the drug transactions and that it is common for drug traffickers 15 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 16 Alverio-Meléndez s challenges to both witnesses are without merit because both 17 witnesses could testify on the matters they were questioned. United States v. RodrÃguez- 18 Ortiz, 455 F.3d 18, 23 (1st Cir.2006). Agents can testify that drug traffickers typically 19 maintain large amounts of cash, drug ledgers, and other documents evincing their 20 criminal activity. United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985); United States 21 v. Pierce, 493 F.Supp, 2d 611 (W.D.N.Y. 2006). It requires no special expertise for [an 22 officer] to conclude based on his observations that places which sell drugs are often 23 protected by people with weapons. United States v. Pizarro, 407 F.3d 25, 28-29 (1st Cir. 24 2005). Likewise, it is clearly permissible for properly-qualified law enforcement agents 25 to testify about their interpretation of entries in relevant papers and the meaning of slang 26 or coded words. United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987), Civil No. 12-1178 (JAF) -7- 1 (allowing testimony of DEA agent as to meaning of coded words); United States v. 2 Tejada, 886 F.2d 483, 486 (1st Cir. 1989) (finding admissible expert testimony of agents 3 who used their experience with the lexical of the cocaine community to interpret coded 4 words within a notebook). 5 Thus, the challenged testimonies of Delgado-Alejandro and Special Agent 6 Alverio were not improper, United States v. Marin, 523 F.3d 24, 29 (1st Cir.2008), and 7 Alverio-Meléndez s arguments are meritless. 8 F. Cumulative Effect of Counsel s Errors Deprived Petitioner of Due Process 9 The First Circuit has observed that [i]individual errors, insufficient in themselves 10 to necessitate a new trial may in the aggregate have a more debilitating effect. United 11 States v. Sepúlveda, 15 F.3d 1161, 1196 (1st Cir. 1993); United States v. Dwyer, 843 12 F.3d 60, 65 (1st Cir. 1988). Cumulative errors are harmless unless they affect substantial 13 rights. United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990). Thus, the 14 cumulative error analysis focuses on the underlying fairness of the trial. Delaware v. 15 Van Arshall, 475 U.S. 673, 681 (1986). 16 In evaluating the cumulative effect of alleged errors, we consider the entire record, 17 paying particular attention to such factors as the nature and number of the errors 18 committed; their interrelations, if any; their combined effect; how the district court dealt 19 with the errors as they arose; and the strength of the government s case. See Sepúlveda, 20 15 F.3d at 1196. 21 Here, Alverio-Meléndez s appeal to the cumulative error doctrine is unavailing. 22 The only error presented the instructional error was harmless and did not deprive 23 Alverio-Meléndez of a fair trial. Civil No. 12-1178 (JAF) -8IV. 1 2 3 4 5 In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever 6 issuing a denial of § 2255 relief we must concurrently determine whether to issue a 7 certificate of appealability ( COA ). We grant a COA only upon a substantial showing 8 of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, 9 [t]he petitioner must demonstrate that reasonable jurists would find the district court's 10 assessment of the constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 11 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While 12 Petitioner has not yet requested a COA, we see no way in which a reasonable jurist could 13 find our assessment of his constitutional claims debatable or wrong. Petitioner may 14 request a COA directly from the First Circuit, pursuant to Rule of Appellate Procedure 15 22. Certificate of Appealability 16 V. 17 Conclusion 18 For the foregoing reasons, we hereby DENY Petitioner s § 2255 motion (Docket 19 No. 1). Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary 20 dismissal is in order because it plainly appears from the record that Petitioner is not 21 entitled to § 2255 relief from this court. 22 IT IS SO ORDERED. 23 San Juan, Puerto Rico, this 17th day of May, 2013. 24 25 26 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE
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