Ayala-Vazquez v. USA, No. 3:2015cv02447 - Document 35 (D.P.R. 2018)
Court Description: ORDER denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255), 22 Petitioner's Reply, and 28 Supplemental Motion. Judgment shall be entered accordingly. Signed by Judge Juan M. Perez-Gimenez on 10/31/2018. (NNR)
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Ayala-Vazquez v. USA Doc. 35 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO An ge l Aya la -Vazqu e z, Petitioner, CIVIL NO. 15-2447 (PG) Related Crim . No. 0 9-0 173-1 (PG) v. U n ite d State s o f Am e rica, Respon dent. OPIN ION AN D ORD ER Before the court is Petitioner Angel Ayala-Vazquez’s (“Petitioner” or “Ayala-Vazquez”) m otion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Dockets No. 1, 22, 28 ) and the United States’ (or the “Governm ent”) opposition thereto (Docket No. 11). For the following reasons, the court D EN IES Petitioner’s m otion to vacate. I. BACKGROU N D On April 15, 20 10 , a Grand J ury returned a Second Superseding Indictm ent charging Ayala-Vazquez, his brother, Luis Xadiel Cruz-Vazquez, and sixty-three other co-defendants for their involvem ent in a drug-trafficking conspiracy. See Crim . No. 0 9-173 (PG) (herein “Crim .”), Docket No. 775. Ayala-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 8 60 (Count One); conspiracy to im port narcotics into the custom s 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 m arijuana, in violation of 21 U.S.C. §§ 841(a)(1), 8 60 and 18 U.S.C. § 2 (Counts Three to Six); conspiracies to com m it m oney laundering, in violation of 18 U.S.C. § Dockets.Justia.com Civil No. 15-2447 (PG) Page 2 of 2 0 1956(h) (Counts Seven to Eleven); and narcotics and m oney laundering forfeiture allegations, under 21 U.S.C. §§ 8 53, 8 81, and 18 U.S.C. § 982. See id. On April 13, 20 11, the court dism issed Count Eleven as to Ayala-Vazquez upon request of both the Governm ent and Petitioner’s counsel. See Crim . Dockets No. 1594, 1597, 30 19. Ayala-Vazquez proceeded to trial and the jury found him guilty on Counts One through Nine. See Crim . Docket No. 160 6. Ayala-Vazquez was senten ced to a term of life im prisonm ent. He appealed, but the First Circuit Court of Appeals affirm ed his conviction and sentence. See United States v. Ayala-Vazquez, 751 F.3d 1 (1st Cir. 20 14). II. STAN D ARD OF REVIEW Pursuant to 28 U.S.C. § 2255, a federal prison er m ay m ove to vacate, set aside, or correct his senten ce “upon the ground that the sentence was im posed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to im pose such sentence, or that the sentence was in excess of the m axim um 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. 20 0 2). In e ffe ct iv e As s is t a n ce o f Co u n s e l Cla im s The Sixth Am endm ent guarantees that in all crim inal prosecutions, the accused have a right to the assistance of counsel for their defense. U.S. Const. am end. VI. It has long been recognized that the right to counsel m eans the right to effective legal assistance. Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970 )). Where, as here, a petitioner m oves to vacate his sentence on ineffective Civil No. 15-2447 (PG) Page 3 of 2 0 assistan ce of counsel grounds, he m ust show that “counsel’s conduct so underm ined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” 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 assistan ce of counsel bears a very heavy burden). “J udicial scrutiny of counsel’s perform ance m ust be highly deferen tial.” Strickland, 466 U.S. at 689. For Petitioner’s in effective assistance of counsel claim to succeed, he m ust satisfy a twopart test. First, Petitioner needs to show that “counsel’s representation ‘fell below an objective standard of reasonablen ess.’” Padilla v. Kentucky, 559 U.S. 356, 366 (20 10 ) (quoting Strickland, 466 U.S. at 688). Second, Petitioner m ust establish that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been m ore favorable to him . See United States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 20 13) (citing Missouri v. Frye, 132 S. Ct. 1399, 140 9 (20 12)). Petitioner m ust dem onstrate both incom petence and prejudice. Failure to prove one elem ent proves fatal for the other. See United States v. Caparotta, 676 F.3d 213, 219 (1st Cir. 20 12). Nonetheless, the court “need not address both requirem ents if the evidence as to either is lacking.” Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 20 0 7). 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 697. III. D ISCU SSION On October 5, 20 15, Ayala-Vazquez filed the pending m otion to vacate under 28 U.S.C. § 2255 attacking his conviction and sentence. See Docket No. 1. At the underbelly of Civil No. 15-2447 (PG) Page 4 of 2 0 Petitioner’s argum ents lies a recurring and persistent belief that his trial was m arred with unfairness as a result of allegedly im proper conduct by the Governm ent and this court. The court will only attend the six claim s that were adequately presented and developed, alongside the litany of ineffective assistance of counsel claim s tied to each of them . Except for the judicial bias claim an alyzed in Section D of this Opinion and Order, Petitioner failed to present at least five other argum ents on appeal. Therefore, he has the added burden of proving good cause and actual prejudice with respect to the procedurally defaulted claim s. See Owens v. United States, 483 F.3d 48, 56 (1st Cir. 20 0 7) (setting forth analysis of claim s subject to procedural default doctrine). The First Circuit has held that “[o]ne way to m eet the cause requirem ent is to show constitutionally ineffective assistan ce of counsel under Strickland v. Washington, 466 U.S. 668 (1984).” Wider v. United States, 8 0 6 F.3d 653, 658 (1st Cir. 20 15). Conversely, if Petitioner fails to establish that the procedural default was the result of his attorney’s ineffectiveness, then such claim s cannot be presented by way of a § 2255 m otion. See United States v. Frady, 456 U.S. 152, 165 (1982) (holding that “a collateral challenge m ay not do service for an appeal”). Furtherm ore, the court has deem ed waived any other argum ent that is m erely m entioned in passing or is hidden behin d Petitioner’s prim ary com plaints as a m ere afterthought. See United States v. Zann ino, 8 95 F.2d 1, 17 (1st Cir. 1990 ) (holding that “issues adverted to in a perfunctory m anner, unaccom panied by som e effort at developed argum entation, are deem ed waived”). Against this background, the court will address Petitioner’s adequately developed claim s in turn. Civil No. 15-2447 (PG) Page 5 of 2 0 A. Brady claim First, Ayala-Vazquez contends that his rights to due process and a fair trial were infringed when the Governm en t failed to disclose a DEA-6 1 report detailin g a conversation held between a confidential source (“CS”) an d a task force agent. See Docket No. 1 at 19-23. Petitioner’s argum ent is centered on the fact that the confidential source identified Carlos Gonzalez as the supervisor of the drug distribution points controlled by Ayala-Vazquez. On the other hand, the Governm ent’s witnesses at trial testified that it was Xadiel Cruz-Vazquez, Ayala-Vazquez’s brother, 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 im peachm ent evidence challenging the veracity of Governm ent’s witnesses at trial. Additionally, Petitioner contends that his appellate counsel’s assistance was ineffective for failing to present this issue. See id. at 31. In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Suprem e Court held that the governm ent violates the accused’s due process rights when ever it suppresses evidence favorable to the accused, because it is m aterial to determ ining either guilt or punishm ent. A true Brady violation has three com ponents, nam ely, “[t]he evidence at issue m ust be favorable to the accused, either because it is exculpatory, or because it is im peaching; that eviden ce m ust have been suppressed by the State, either willfully or inadvertently; and prejudice m ust have ensued.” Strickler v. Greene, 527 U.S. 263, 281-28 2 (1999). 1 DEA is short for Drug Enforcem ent Adm inistration. Civil No. 15-2447 (PG) Page 6 of 2 0 It is possible to im peach a witness by presenting a prior statem ent m ade by said witness that is inconsistent with his testim ony at trial. See Fed. R. Evid. 613. However, in the presen t case the record does n ot show, nor does Ayala-Vazquez claim that either the confidential source m entioned in the DEA-6 report or the task force agent that prepared said report testified at trial. As a result, the DEA-6 report in question would have been inadm issible as im peachm ent eviden ce. Even if any of the declarants m entioned in the DEA-6 report had testified at trial, Petitioner still fails to establish the third com ponent of a Brady violation because he has not shown that the withheld docum ent 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 if the suppressed docum ents had been disclosed to the defense.” J ackson v. Marshall, 634 F. Supp. 2d 146, 160 (D. Mass. 20 0 9) (quoting Strickler, 527 U.S. at 289). Therefore, “[w]e do not … autom atically require a new trial whenever a com bing of the prosecutors’ files after the trial has disclosed eviden ce possibly useful to the defense but n ot likely to have changed the verdict.” United States v. Dum as, 20 7 F.3d 11, 15 (1st Cir. 20 0 0 ) (quoting Giglio v. United States, 40 5 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 AyalaVazquez’s case. If anything, the report would have been prejudicial to Ayala-Vazquez’s defense because it confirm s that he “controls drug distribution points located at the Barbosa and Sierra Linda housing projects in Bayam on, PR.” See Exh. 2 at Docket No. 1-1. Petitioner fails to prove that the DEA-6 report was exculpatory or im peaching and he fails to dem onstrate that the Governm ent’s failure to disclose said report caused him prejudice. Civil No. 15-2447 (PG) Page 7 of 2 0 As noted above, Petitioner fails to establish the first and third com ponents of a Brady violation. Therefore, the court concludes that his Brady violation claim lacks m erit. The court also rejects his contention that appellate counsel was ineffective for failing to raise this issue on appeal, as his attorney was “under no obligation to raise m eritless claim s. Failure to do so does not constitute ineffective assistance of counsel.” Acha v. United States, 910 F.2d 28, 32 (1st Cir. 1990 ). B. Perjured Testim ony Claim Ayala-Vazquez follows up his first argum ent by alleging that the Governm ent purposely introduced perjured testim ony at trial. In support of this claim , Petitioner m akes reference to the pleadings filed by Elvin Torres-Estrada in Crim . No. 11-0 45 (PG), and argues that, “[u]pon inform ation and belief [they] contain inform ation, including sworn declarations, that present clear prejudicial Brady violations, because the governm ent had exculpatory and im peachm ent evidence in its possession before trial but failed to disclose that eviden ce to the defense.” Docket No. 1 at 23. Ayala-Vazquez states that he will seek (1) relief in the form of disclosure of Torres-Estrada’s pleadings; (2) leave to supplem ent the issue if procedurally necessary, and (3) “an evidentiary hearing to question all declarants who m ay have subm itted declarations in support of Torres Estrada’s sealed m otions.” Id. at 24. Furtherm ore, Petitioner believes that his appellate counsel was ineffective for failing to raise this issue on appeal. See id. at 32. At the outset, Petitioner does not specify the “inform ation” that led him to conclude that the Governm ent’s withholding of the m aterials constitutes a clear Brady violation. Instead, he asks that this court accept at face value his allegation that the filings in question “would Civil No. 15-2447 (PG) Page 8 of 2 0 severely call into question the credibility of the governm ent’s cooperating and trial witnesses.” See Docket No. 1 at 24. But Petitioner does not present any concrete or verifiable facts in support of his argum ent. To add insult to injury, Petitioner fails to indicate where, am ong the thousands of docket entries, the court m ay find these filings. This court, like all federal courts, “will not ‘do counsel’s work,’ …and are not ‘obliged to dream up and articulate [parties’] argum ents for them .’” Hudson v. Town of Weare, Civil No. 11-90 (J L), 20 12 WL 6149523, at *2 (D.N.H. Decem ber 11, 20 12) (quoting Holm es v. Spencer, 685 F.3d 51, 68 (1st Cir. 20 12); Cruz-Erazo v. Rivera-Montañez, 212 F.3d 617, 622 n. 3 (1st Cir. 20 0 0 )). Therefore, Ayala-Vazquez’s underdeveloped and unsupported claim regarding the presentation of perjured testim ony is deem ed waived. See Zannino, 8 95 F.2d at 17. Ayala-Vazquez also fails to substantiate his ineffective assistance of counsel claim . The upshot, again, is that the court m ust deem ed that claim waived. “Mere assertions of ineffective assistance of counsel are just that—assertions that are n ot to be entertained by the Court. Ineffective assistance of counsel claim s raised in a perfunctory m anner … are deem ed waived.” Sanchez-Ram irez v. Mercado-Figueroa, Civil No. 12-1651 (SEC), 20 13 WL 3973379, at *6 (D.P.R. J uly 31, 20 13) (quoting Mangual-Garcia v. United States, 0 8-2241 (CCC), 20 10 WL 3390 48 , at *9 (D.P.R. J anuary 21, 20 10 )). C. Craw ford Claim Ayala-Vazquez asserts that the Governm ent violated his Sixth Am endm ent right to confront witnesses by introducing a taped conversation between inform ant J ose BerberenaGerena and one of his co-conspirators, Charlie Martinez-Baez (“Charlie”). See Docket No. 1 at 24. The eviden ce in question was presented at trial through FBI agent Edward O. Cabral. Civil No. 15-2447 (PG) Page 9 of 2 0 The inform ant him self did not testify. See Crim . Docket No. 30 0 2 at 43-65. Petitioner argues that the inform ant’s statem ents were “testim onial,” and thus, within the purview of the Sixth Am endm ent’s Confrontation Clause. See Docket No. 1 at 28. Ayala-Vazquez also claim s ineffective assistance of appellate counsel based on the attorney’s failure to raise the issue on appeal. See id. at 32. In support, Ayala-Vazquez em phasizes the Suprem e Court’s statem ent in Crawford v. Washington, 541 U.S. 36, 59 (20 0 4), that, historically, “[t]estim onial statem ents of witnesses absent from trial have been adm itted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-exam ine.” However, the holding in Crawford perm its the use of testim onial statem ents under certain circum stances even when the other party was not given a chance to cross-exam ine the witness. For exam ple, “[t]he [Confrontation] Clause does not bar the use of testim onial statem ents for purposes other than establishing the truth of the m atter asserted.” Id. at 76 n. 9 (alteration in original). This exception is firm ly rooted in the language of the Federal Rules of Evidence, which define hearsay as a statem ent, other than one m ade by the declarant while testifying at the trial or hearing, offered in evidence to p ro ve th e tru th o f th e m atte r a s s e rte d . See Fed. R. Evid. 8 0 1(c) (em phasis added). In this case, Petitioner’s trial counsel and the prosecution agreed that the inform ant’s statem ents in the audio-tape recording were to be adm itted conditionally as a m eans of putting into context the statem ents m ade by Ayala-Vazquez’s co-defendant, Charlie Martinez-Baez. See Crim . Docket No. 30 0 2 at 33-35. In other words, the inform ant’s Civil No. 15-2447 (PG) Page 10 of 2 0 statem ents were not adm itted to prove the truth of the m atter asserted. The court accepted the parties’ request and gave the following lim iting instruction to the jury: What counsel has requested is that it be conditionally adm itted, which m eans that subsequent or with another witness the tape will be supposedly fully identified and then it would be adm itted, except that since there are at least two persons in the conversation, one of them is the inform ant, and the statem ents that he m akes on that CD are not statem ents for the truth of the m atter asserted therein. These are conditioned so that you have the context in which the conversation took place between the inform ant and another individual. So th e s tate m e n ts o f th e in fo rm an t are n o t p re s e n te d h e re fo r th e tru th o f th e m atte r w h ich th e y as s e rt in th a t CD . Crim . Docket No. 30 0 2 at 43-44 (em phasis added). As a result, the inform ant’s statem ents were adm issible under a well-established exception to the hearsay rule. See United States v. Cruz-Diaz, 550 F.3d 169, 176 (1st Cir. 20 0 8) (footnote om itted) (holding that out-of-court testim ony m ay nevertheless be adm itted into evidence if “the statem ent is not hearsay in that it is being adm itted for a purpose other than establishing the truth of the m atter asserted”); United States v. Maher, 454 F.3d 13, 19-20 (1st Cir. 20 0 6) (citation om itted) (stating that “Crawford holds that a declarant’s ‘testim onial’ out-of-court statem ent is not adm issible under the Confrontation Clause unless . . . the eviden ce is adm itted for purposes other than establishing the truth of the m atter asserted”). Additionally, Petitioner contends that the court erred in adm itting Charlie’s com m ents in the tape under the co-conspirator hearsay exception in Fed. R. Evid. 80 1(d)(2)(E). 2 Specifically, Ayala-Vazquez argues that in order for the statem ent to be adm issible under 2 The exception in question states that a statem ent is n ot hearsay if it “was m ade by the party’s coconspirator during and in furtherance of the conspiracy.” Fed. R. Evid. 80 1(d)(2)(E). Civil No. 15-2447 (PG) Page 11 of 2 0 this exception, the court m ust have concluded by a preponderance of the evidence: “(1) the existen ce of a conspiracy, (2) the defen dant’s m em bership in that conspiracy, (3) the declarant’s m em bership in the sam e conspiracy, and (4) that the statem ent be m ade in furtherance of the conspiracy.” Docket No. 1 at 29 (quoting United States v. Rivera-Don ate, 68 2 F.3d 120 , 131 (1st Cir. 20 12)). Petitioner claim s that the court did not m ake these findings before adm itting the evidence, and that his trial counsel “inexplicably failed to request” the sam e. See id. The four-elem ent test elucidated by the First Circuit in Rivera-Don ate does not have to be applied at the very instant that the eviden ce in question is to be adm itted. In fact, “[a] district court faced with a challenge to the adm ission of a co-conspirator’s statem ent m ust provisionally adm it the statem ent and then wait until the end of the trial to consider whether, in light of all the evidence, [these] four conditions are satisfied by a preponderance of the evidence.” Rivera-Donate, 682 F.3d at 131 (citing United States v. Diaz, 670 F.3d 332, 348 (1st Cir. 20 12)). Thus, Ayala-Vazquez’s trial counsel did not provide constitutionallydeficient perform ance for not requesting a finding of the above-discussed elem ents at the tim e the evidence was provisionally introduced. 3 In any event, the first two elem ents were m et by the Governm ent’s evidence from which a reasonable jury could conclude that a drug trafficking conspiracy existed and that the defendant, Ayala-Vazquez, was a key m em ber of said conspiracy. See Ayala-Vazquez, 751 3 Under Strickland and its progeny, the burden of proving counsel’s deficiency falls squarely on the shoulders of the defendant, who m ust overcom e “the presum ption that, under the circum stances, that challenged action ‘m ight be considered soun d trial strategy.’” Stricklan d, 466 U.S. at 689. After a close review of Petitioner’s m otion and supplem ental pleadings, the court finds that he has failed to satisfy this burden . Civil No. 15-2447 (PG) Page 12 of 2 0 F.3d at 12 (alteration in original) (explaining that “Ayala does not contest that he distributed drugs to sellers who ultim ately sold those drugs at Barbosa. Indeed, the evidence at trial proved Ayala controlled all of the DTO’s operations there.”). The third elem ent, declarant’s m em bership in the conspiracy, was confirm ed by J ose Arce Baez’s testim ony at trial which identified Charlie, his cousin, as Ayala-Vazquez’s runner. See id.; see also Crim . Docket No. 30 0 2 at 110 . Furtherm ore, Charlie him self pled guilty to conspiring to possess with intent to distribute controlled substances. See Crim . Docket No. 1517. The fourth elem ent, that the statem ent in question be m ade in furtherance of the conspiracy, is satisfied because the tape at issue here recorded a drug transaction held between the inform ant and Charlie at the Barbosa Public Housing Project in Bayam on. This is the very drug point that Ayala-Vazquez controlled. See Crim . Docket No. 30 0 2 at 28, 51. Charlie’s recorded statem ents were m ade in furtherance of the drug trafficking conspiracy that he adm itted as belonging to, and as such, indisputably adm issible under co-conspirator hearsay exception set forth in Fed. R. Evid. 8 0 1(d)(2)(E). Based on the foregoing analysis, the court finds that Petitioner’s Crawford challenges to the eviden ce adm itted at trial lack m erit. His request for habeas relief on this ground is thus denied. Now, Ayala-Vazquez further alleges that he received ineffective assistance of appellate counsel, who did not present the purported Crawford violations on appeal. See Docket No. 1 at 32. Nevertheless, he fails to show that his appellate coun sel’s perform ance was objectively deficient, or that, but for counsel’s om issions, he would have prevailed or obtained a m ore favorable result on appeal. These shortcom ings prove fatal to his claim . See Civil No. 15-2447 (PG) Page 13 of 2 0 Strickland, 466 U.S. at 697. Im portantly, attorneys are under no obligation to present m eritless argum ents on appeal. See Acha 910 F.2d at 32. Having failed to m eet either prong of the Strickland test, Petitioner’s ineffective assistance of counsel claim fails as well. D. Alleged Im partiality by the Court (Judicial Bias Claim ) Next, Ayala-Vazquez claim s that the court failed to preserve an attitude of im partiality. In support, he points to a series of com m ents m ade by the court to the jury, together with two specific com m ents directed at Ayala-Vazquez’s counsel. See Docket No. 1 at 33. When addressing these com m ents, the court keeps in m ind that “[t]rial judges are constantly m aking judgm ents about … the need to clarify witness answers, and sim ilar m atters of trial m anagem ent. In this realm , the widest possible latitude is given to the judge on the scen e.” Deary v. City of Gloucester, 9 F.3d 191, 195 (1st Cir. 1993) (quoting Rodriguez v. Banco Cent. Corp., 990 F.2d 7, 13 (1st Cir. 1993)). Furtherm ore, “[i]t is well-established that a judge is not a m ere um pire; he is ‘the governor of the trial for the purpose of assuring its proper conduct,’ and has a perfect right—albeit a right that should be exercised with care—to participate actively in the trial proper.” Logue v. Dore, 10 3 F.3d 10 40 , 10 45 (1st Cir. 1997) (quoting Quercia v. United States, 289 U.S. 466, 469 (1933)). Additionally, when addressing allegations of judicial bias, a court m ust consider “whether the com m ents were im proper and, if so, whether the com plaining party can show s e rio u s p re ju d ice .” Ayala-Vazquez, 751 F.3d at 24 (em phasis added) (quoting United States v. DeCologero, 530 F.3d 36, 56 (1st Cir. 20 0 8 )). First, Ayala-Vazquez attacks a series of com m ents m ade by the court to let the jury know, on m ultiple occasions, that certain individuals m entioned during trial were nam ed in the Civil No. 15-2447 (PG) Page 14 of 2 0 Indictm ent, despite the fact that neither the witness nor the prosecutor tied those individuals by nam e to the Indictm ent. See Docket No. 1 at 33. Petitioner argues that in m aking these com m ents, the court expressed its belief that the charged conspiracy existed, and that AyalaVazquez was the leader. See id. Petitioner raised this issue on appeal, but the First Circuit concluded that “[b]ecause Ayala is unable to show prejudice, we need not, it turns out, determ ine whether the trial judge acted im properly in this case: even if the judge erred, we m ust affirm if we conclude that any such error was harm less.” Ayala-Vazquez, 751 F.3d at 25. He now argues that appellate counsel was ineffective because he did not argue that trial counsel was ineffective in failing to object to the court’s com m ents as soon as they were m ade. The problem for Petitioner is that if the judge’s com m ents did not cause Ayala-Vazquez prejudice, and he fails to dem onstrate so, then the argum ent that trial counsel was ineffective for not objecting to the com m ents necessarily fails the prejudice prong of the Strickland test. Second, Ayala-Vazquez claim s that the judge evinced bias when he com m ented to defense counsel during the cross-exam ination of a witness: “[b]ut the fact is that she did say that. She’s not lying to you.” See Crim . Docket No. 2999 at 10 0 . Petitioner interprets this com m ent as the court usurping the fact-finding function of the jury. See Docket No. 1 at 3435. The com m ent at issue occurred during the cross-exam ination of a particular witness, Maribel Olivo Rivera (“Olivo”). During direct exam in ation, Olivo testified that at one poin t a co-defendant in the case, J onathan Rivera Rom ero (also known as “Bebo”), handed her $ 1,0 0 0 . When she asked Bebo who sent her the m oney, he turned around and pointed over Civil No. 15-2447 (PG) Page 15 of 2 0 to a group of people that included Ayala-Vazquez. Afterwards, the prosecution asked Olivo what reason she could have had for receivin g the m oney, but she never answered because Ayala-Vazquez’s counsel quickly objected that the question was speculative. The court sustained the objection. See Crim . Docket No. 2999 at 67. During cross-exam ination, Olivo reiterated her previous testim ony that Bebo pointed his finger at a group of people an d that Ayala-Vazquez was am ong them . Defense counsel then stated that she “never testified before that ‘Bebo’ told you that.” Id. at 99. The judge decided to clarify any confusion by explaining that Olivo had, in fact, testified during direct exam ination that Bebo pointed his finger at that particular group of people. Contrary to what Petitioner suggests, the clarification of a fact already on the record does not entail, and in fact cannot be construed as vouching for the credibility of this particular witness. The last com m ent that Petitioner takes issue with occurred when the judge told AyalaVazquez’s counsel that he is “not giving all the facts.” Crim . Docket No. 2999 at 10 6. This statem ent was m ade im m ediately after the judge sustained the prosecution’s objection that defense counsel was m isstating a witness’ prior testim ony. The judge was m erely clarifying why he chose to sustain the objection. It would be a stretch of the im agination to conclude that the judge was “telling the jury what the Court believed the evidence to be.” Docket No. 1 at 35. The court thus concludes that the com m ents challenged by Petitioner were not im proper. Now, Ayala-Vazquez further contends that his appellate counsel was ineffective because he did not challenge the last two com m ents on appeal. However, upon a careful review of Petitioner’s § 2255 m otion and supplem ental filings, the court finds that he has Civil No. 15-2447 (PG) Page 16 of 2 0 dem onstrated neither an objectively deficient perform ance on this basis nor prejudice. As such, his claim fails under both prongs of the Strickland test. E. Prosecutor’s Com m ents Petitioner argues that the Governm ent vouched for the credibility of its witnesses at trial, and, as a result, m isled the jury and the court. See Docket No. 1 at 36. The instances on record that Petitioner points to in support thereof follow the sam e general pattern. That is, the Governm ent called Ayala-Vazquez’s co-defendants as witnesses, asked them about their plea agreem ents and, specifically, their responsibility under the sam e. This last question elicited the sam e answer from the witnesses, to wit, that they had agreed to give truthful testim onies at trial in the event that they were in fact called to testify. See id. at 36-40 . For the reasons that follow, the court finds that the prosecution’s questions during the exam ination of these witnesses did not constitute im proper vouching. It is understood that “[a] prosecutor im properly vouches for a witness when she places the prestige of her office behind the governm ent’s case by, say, im parting her personal belief in a witness’s veracity or im plying that the jury should credit the prosecution’s evidence sim ply because the governm ent can be trusted.” United States v. Perez Ruiz, 353 F.3d 1, 9 (1st Cir. 20 0 3). Vouching requires som ethin g m ore than m erely asserting that a witness’ testim ony ought to be accepted as truthful by the jury. See Perez-Ruiz, 353 F.3d at 10 . Additionally, the adm ission of plea agreem ents into eviden ce by them selves does not constitute vouching. See United States 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 Governm ent presented a redacted version of Civil No. 15-2447 (PG) Page 17 of 2 0 the transcript, leaving the jury with a false picture of what the bargain entailed. See id. Neither of these scenarios occurred in the present case. Here, the record shows that each tim e the prosecution asked the witnesses about their responsibility to tell the truth under the plea agreem ents, 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, 30 0 2 at 73, 30 12 at 46, 30 17 at 7, and 30 18 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 agreem ents and it could “assess, as best it can, the probable m otives or interests the witnesses could have in testifying truthfully or falsely.” Martin, 8 15 F.2d at 8 21. Consequently, Petitioner’s claim on this ground fails. Additionally, Ayala-Vazquez argues that his appellate counsel was ineffective because he did not raise the present issue on appeal. First, there is “no constitutional duty to raise every issue, where, in the attorney’s judgm ent, the issue has little or no likelihood of success.” Colon-Diaz v. United States, 899 F. Supp. 2d 119, 134 (D.P.R. 20 12) (quoting J ones v. Barnes, 463 U.S. 745, 751-53 (1983)). Second, the argum ent 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. Third, even assum ing for argum ent’s sake that the attorney’s perform ance was deficient, Ayala-Vazquez would still need to dem onstrate prejudice—i.e., the existence of a reasonable probability that, but for counsel’s errors, he would have prevailed on appeal. See id. Since Ayala-Vazquez has not shown such a probability, his ineffective assistance of counsel claim fails as well. Civil No. 15-2447 (PG) Page 18 of 2 0 F. Governm ent’s Alleged Misrepresentation Ayala-Vazquez challenges his life-sentence by alleging that the Governm ent m isled the court as to his true culpability in the charged drug conspiracy. Petitioner points out that he was nam ed the leader of the drug conspiracy charged in Crim . No. 0 9-173, but not in Crim . No. 11-0 45, where he was charged with a subordinate role. Petitioner suggests that this inconsistency shows that he was not the leader of the drug conspiracy in Crim . No. 0 9-173, thus his sentence should have been less than life. See Docket No. 1 at 40 -42. The court acknowledges that Ayala-Vazquez was, in fact, charged with conspiring to im port drugs into the United States in both Crim . No. 0 9-173 (Count Two) and Crim . No. 110 45 (Count One). When the second case cam e around, Ayala-Vazquez tried to get the im portation charge dism issed on double jeopardy grounds arguing that both cases dealt with a single conspiracy. See Crim . No. 11-0 45, Docket No. 66. The court denied his m otion upon concluding that Ayala-Vazquez had taken part in different conspiracies to com m it the sam e crim e. See id., Docket No. 97. The court now finds that the reasons stated in support of that conclusion sufficiently dispel Petitioner’s claim s regarding his culpability and role in the drug-trafficking conspiracies. In the interest of thoroughness, the court reiterates them below. As explained back then, the fact is that the conspiracy charged in Count One of Crim . No. 11-0 45 continued for m ore than a year after the one charged in Count Two of Crim . No. 0 9173. Secon d, there was no sign ificant overlap between the persons involved in both conspiracies; the defendants indicted in each of the cases were different, except for Ay alaVazquez. Finally, there was no significant correlation between the acts that gave rise to the Civil No. 15-2447 (PG) Page 19 of 2 0 conspiracies, other than the fact that they both involved im portation of cocaine. It is also im portant to m ention that the eviden ce presented at trial was enough to dem onstrate Petitioner’s leadership role in the conspiracy charged in Crim . No. 0 9-173, an d m ore im portantly, for a reasonable jury to conclude so. Indeed, in rejecting Ayala-Vazquez’s sufficiency challenge on appeal, the First Circuit held that “[f]rom this evidence, a reason able jury could conclude that Ayala was intricately involved—and indeed, controlled—the entire DTO and all of its operations at Barbosa.” Ayala-Vazquez, 751 F.3d at 12. Ayala-Vazquez contends that his trial counsel was ineffective for failing to present this inform ation to the court and that his appellate counsel was ineffective for not raising this claim on appeal. Petitioner believes that he would have received a sentence less than life had the court known about his true role in the charged drug conspiracies. But upon a careful review of his m otion, the court finds that Petitioner has not dem onstrated either prong of the Strickland test. Even assum ing for argum ent’s sake that counsel’s perform ance was objectively unreasonable on this basis, Ayala-Vazquez has not shown that, but for his attorney’s om ission, he would have received a lesser sentence or prevailed on appeal. Given the First Circuit’s conclusion, supra, presum ing prejudice is too m uch of a stretch at this stage. Thus, the court rejects Petitioner’s last-breath attem pt at attacking his conviction and sentence. IV. CON CLU SION For the reasons previously explain ed, the court finds that Ayala-Vazquez’s claim s lack m erit. Accordingly, his request for habeas relief under 28 U.S.C. § 2255 (Dockets No. 1, 22, Civil No. 15-2447 (PG) Page 2 0 of 2 0 28) is D EN IED . The case is, therefore, D ISMISSED W ITH PREJU D ICE. J udgm ent 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 m eaning of 28 U.S.C. § 2253(c)(2). IT IS SO ORD ERED . In San J uan, Puerto Rico, October 31, 20 18 . S/ J UAN M. PÉREZ-GIMÉNEZ JU AN M. PÉREZ-GIMÉN EZ SEN IOR U .S. D ISTRICT JU D GE
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