Cruz-Vazquez v. USA, No. 3:2015cv02838 - Document 25 (D.P.R. 2019)
Court Description: OPINION AND ORDER denying 23 Supplemental Motion; denying 1 Motion to Vacate. Signed by Judge Juan M. Perez-Gimenez on 3/5/19. (PMA)
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Cruz-Vazquez v. USA Doc. 25 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO Lu is X. Cru z Vazqu e z, Petitioner CIVIL NO. 15-28 38 (PG) Related Crim . No. 0 9-173-8 (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 Luis X. Cruz Vazquez’s (“Petitioner” or “Cruz-Vazquez”) m otion 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 “Governm ent”) opposition thereto (Docket No. 14). 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 CruzVazquez, his brother, Angel Ayala-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. Cruz-Vazquez was charged with conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 8 41(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, cocain e and 1 In Petition er’s supplem en tal m otion, he requests, am ong other thin gs, that this court stay the ruling un til he concludes an investigation. Cruz-Vazquez echoed An gel Ayala-Vazquez’s Supplem ent, which the court found to be m oot. See Civil No. 15-2447, Docket No. 30 . To date, Petitioner has failed to notify the court of his findin gs an d the adjudication on the m erits of petition er’s m otion can not be delayed indefinitely. The court hereby denies CruzVazquez’s Supplem ental Motion (Docket No. 23). Dockets.Justia.com Civ. No. 15-2838 (PG) Page 2 of 13 m arijuana, in violation of 21 U.S.C. §§ 841(a)(1), 860 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. § 1956(h) (Counts Seven to Eleven); and narcotics and m oney laundering forfeiture allegations, under 21 U.S.C. §§ 853, 8 8 1, 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, an d Seven. See Crim . Docket No. 160 6. Cruz-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 an d 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 prisoner m ay m ove to vacate, set aside, or correct his sentence “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 senten ce 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. 669, 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 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.” Civ. No. 15-2838 (PG) Page 3 of 13 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 senten ce based on the ineffective assistance of counsel bears a very heavy burden). “J udicial scrutiny of counsel’s perform ance m ust be highly deferential.” Strickland, 466 U.S. at 689. For Petitioner’s ineffective 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 reasonableness.’” 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, 679 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 679. III. D ISCU SSION On Novem ber 2, 20 15, Cruz-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 every argum ent contained in the m otion is the belief that Cruz-Vazquez was deprived of effective assistan ce of counsel (A) by his trial and appellate counsel an d (B) by the Governm ent’s “intentional and willful withholding of…exculpatory and im peaching m aterial and introduction of false testim ony 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 Governm ent’s intentional withholding of Civ. No. 15-2838 (PG) Page 4 of 13 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 claim s 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 assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).” Wider v. United States, 80 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 n ot 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 behind Petitioner’s prim ary com plains as a m ere afterthought. See United States v. Zannino, 895 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. A. Co n flict o f In t e r e s t cla im First, Cruz-Vazquez contends that he was deprived of his Fifth Am endm ent right to due process an d his Sixth Am endm ent right to the effective assistance of conflict-free counsel on direct appeal because m ultiple conflicts of interest infected appellate counsel’s representation. See Docket No. 1 at 19-22. More specifically, Petitioner claim s that appellate counsel’s concurrent representation of Governm ent cooperator J orge Figueroa Agosto, codefendants Civ. No. 15-2838 (PG) Page 5 of 13 Angel Esquilin (8), Luis Cedeño-Burgos (23), Sam uel 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 m erit. The Suprem e Court has held that allowing a single attorney to represent codefen dants is n ot 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 m ust establish that an actual conflict of interest adversely affected his lawyer’s perform ance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980 ). Therefore, a possibility of conflict is not sufficient to im pugn a crim inal conviction. Petitioner m ust prove (1) that there is an actual conflict of interest and (2) that the conflict caused an adverse effect in counsel’s perform ance. 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. 20 0 9). An actual conflict of interest can be established when the “defendant dem onstrates that counsel ‘actively represented conflicting interests.’” Sullivan, 446 U.S. at 350 . To prove an adverse effect in counsel’s perform ance, Petitioner m ust establish an “adverse action or inaction…that can be traced to the conflict in loyalty.” United States v. Burgos-Chaparro, 30 9 F.3d 50 , 53 (1st Cir. 20 0 2). Consequently, not only does Petitioner need to prove inadequate representation, but he m ust 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 60 0 , 60 6-60 7 (1st Cir. 1994)). The first thing the court m ust assess is whether an actual conflict of interest exists between the apparent conflictin g loyalties. To prove the existence of an actual conflict “a defendant m ust Civ. No. 15-2838 (PG) Page 6 of 13 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 , 8 19 F.2d 15, 17 (1st Cir. 1987)). Petitioner lim ited the scope of his argum ent 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 presum e, why the concurrent representation resulted in conflicting loyalties. We therefore agree with the Governm ent’s argument that Petitioner has not proven anything m ore than a m ere possibility of conflict and thus failed to m eet 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 perform ance. Cruz-Vazquez’s argum ent 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 m anifestation of divided loyalties.” See United States v. DeCologero, 530 F.3d 36, 77 (1st Cir. 20 0 8 ). In other words, Petitioner failed to prove a causal lin k 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. M u lt ip le Co n s p ir a cy Cla im Petitioner claim s that he was subject to ineffective assistance when trial and appellate counsel “failed to investigate, prepare and present a m ultiple-conspiracy defense” even when the “record easily yields the clear necessity/ duty for a pretrial investigation and preparation of the well- Civ. No. 15-2838 (PG) Page 7 of 13 established ‘superm arket’ m ultiple conspiracy defense…” See Docket No. 1 at 30 . This argum ent lacks coherence and m erit. 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 J uan, 659 F.3d 168, 175 (1st Cir. 20 11). Petitioner did not provide any coherent argum ent detailing why the facts of his case called for the m ultiple conspiracy defense outlined in United States v. Dellosantos, 649 F.3d 10 9 (1st Cir. 20 11). The court feels the need to stress that “[t]he court will not do counsel’s work.” Gonzalez-Berm udez v. Abbott Labs. PR Inc., 214 F.Supp.3d 130 , 156 (D.P.R. 20 16). Petitioner states that “[t]here were obvious signs of separate “Superm arket” type arrangem ents…” Docket No. 1 at 29. This statem ent, without m ore, is sim ply not enough for the court to determ ine that preparing and presenting a m ultiple conspiracy defense was indeed necessary. After all, a drug trafficking organization that uses a “superm arket” setting is not in itself an obvious sign that m ultiple conspiracies exist. See United States v. Sanchez-Badillo, 540 F.3d 24 (1st Cir. 20 0 8) (finding defendants guilty of a single conspiracy in a “superm arket” setting). Cruz-Vazquez failed to provide grounds that a m ultiple conspiracy defense was necessary or obvious. As a result, Cruz-Vazquez failed to show that trial and appellate counsel perform ed below an objective standard of reasonableness, as required by Strickland, for not assertin g this defense. Therefore, the court finds this claim m eritless. C. Br a d y Cla im Cruz-Vazquez contends that Governm ent deprived his rights to due process and effective assistan ce of counsel when it failed to disclose a DEA-6 2 report detailing a conversation held 2 DEA is short for Drug Enforcem ent Adm inistration. Civ. No. 15-2838 (PG) Page 8 of 13 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 Governm ent’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 im peachm ent eviden ce challenging the veracity of the Governm ent’s witnesses at trial. In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Suprem e Court held that the Governm ent violates a defendant’s due process rights whenever it suppresses evidence favorable to the accused, because it is m aterial to determ inin g 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 evidence 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, 281-282 (1999). It is possible to im peach a witness by presenting a prior statem ent m ade by said witness that is in consistent with his testim ony 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 m entioned 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 im peachm ent purposes even if it had been produced. 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 withholding of this 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 Civ. No. 15-2838 (PG) Page 9 of 13 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 not 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 Cruz-Vazquez’s case and Petitioner has failed to m ake this showing. Therefore, the court concludes that his Brady violation claim lacks m erit an d his m otion is den ied on those grounds. D . Vo u ch in g Petitioner argues that the Governm ent vouched for the credibility of its witnesses at trial, and, as a result, produced an unjust outcom e. See Docket No. 1 at 6. Specifically, Petitioner argues that the Governm ent vouched in favor of (1) Maribel Olivo Rivera; (2) J ose Arce Baez; and (3) Lizbeth Caban Olivo. Petitioner, however, did not m ention any specific instance in which im proper vouching occurred. Additionally, Petitioner claim s 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 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 ething 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 Civ. No. 15-2838 (PG) Page 10 of 13 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 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 m ention exactly what com m ents constituted vouching, the record shows that each tim e the prosecutor 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; No. 30 0 2 at 73; No. 30 12 at 46; No. 30 17 at 7; and No. 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 an d it could “assess, as best it can, the probable m otives 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 judgm ent, the issue has little or no likelihood of success.” Colon-Diaz v. United States, 899 F.Supp. 2d 199, 134 (D.P.R. 20 12) (quoting J ones v. Barnes, 463 U.S. 745, 751-53 (1983)). Here, 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. Finally, even assum in g for argum ent’s sake that the attorney’s perform ance was deficien t, Cruz-Vazquez would still need to dem onstrate prejudice– i.e., the existence of a reason able 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. Civ. No. 15-2838 (PG) Page 11 of 13 E. Pe r ju r e d Te s t im o n y Cla im Cruz-Vazquez claim s that the Governm ent purposely introduced perjured testim ony at trial. 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, in cluding sworn declarations, that present clear prejudicial Brady violations, because the governm ent had exculpatory an d im peachm ent evidence in its possession before trial but failed to disclose that eviden ce to the defense.” Civil No. 15-2447 (PG), Docket No. 1 at 23. The court hereby adopts and incorporates, as procedurally perm itted, its Opinion and Order of Angel Ayala-Vazquez’s m otion 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 argum ent that the Governm ent purposely introduced perjured testim ony at trial lacked any concrete or verifiable facts in support, thus denying petitioner’s claim on this ground. F. Cr a w fo r d 3 Cla im Cruz-Vazquez asserts that Governm ent violated his Sixth Am endm ent right to confront witnesses by introducing a taped conversation between inform ant J ose Berberen a-Geren a 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 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 Civil No. 15-2447 (PG), Docket No. 1 at 28. The court hereby adopts and incorporates, as procedurally perm itted, its Opinion and Order of Angel Ayala-Vazquez’s m otion to vacate pursuant to 28 U.S.C. § 2255. See Civil No. 15-2447 3 Crawford v. Washington , 541 U.S. 36 (20 0 4). Civ. No. 15-2838 (PG) Page 12 of 13 (PG), Docket No. 35 at 8 -13. Therein, the court found that Angel Ayala-Vazquez’s Crawford challenges to the inform ant and co-conspirator evidence adm itted at trial lack m erit. First, the testim ony accepted was adm issible under a well-established exception to the hearsay rule which states that “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.” See United States v. Cruz-Diaz, 550 F.3d 169, 176 (1st Cir. 20 0 8); Civil No. 15-2447 (PG), Docket No. 35 at 10 . Second, the evidence passes the four-elem ent test elucidated by the First Circuit in United States v. Rivera-Donate, 682 F.3d 120 , 131 (1st Cir. 20 12), which renders the eviden ce as in disputably adm issible under co-con spirator hearsay exception set forth in Fed. R. Evid. 8 0 1(d)(2)(E). Therefore, this court denied the claim on this ground. G. Se n t e n cin g D is p a r it y Cruz-Vazquez’s last claim is that he suffered in effective assistance of trial and appellate counsel when counsel failed to contend the sentencing disparity prior to or at sentencing. CruzVazquez is not claim in g that his sentence was not substantively reasonable, but that counsel did not provide evidence to support a sentencing disparity argum ent. See Docket No. 16 at 8 . Petitioner m ust satisfy Strickland’s aforem entioned two-prong test if his argum ent is to succeed. As previously set forth, the court need not address both of the prongs if eviden ce as to either is lacking. Sleeper, 510 F.3d at 39. It is the court’s assessm ent that Petitioner failed to prove that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedin g would have been m ore favorable to him . As the Petitioner rightly argues, “J udge Thom pson’s com m ents reveal the lack of adequate sentencing m itigation inform ation 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 m ean that m itigating factors exist in the first place. As the court recalls, it did not depart from the senten cing Civ. No. 15-2838 (PG) Page 13 of 13 guidelines precisely because there were no convincing factors that would com pel the court to do so. In fact, Petitioner does not m ention factors that counsel failed to use prior to or at sentencing to contend the disparity. “J udges are not m indreaders. Consequently, a litigant has an obligation to spell out its argum ents squarely and distinctly, or else forever hold its peace.” Echevarría v. AstraZeneca Pharm aceutical LP, 856 F.3d 119, 139 (1st Cir. 20 17) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990 )). As the court stands, counsel did not present m itigating 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. CON CLU SION For the reasons previously explained, the court finds that Cruz-Vazquez’s claim s lack m erit. Accordingly, his request for habeas relief under 28 U.S.C. § 2255 (Dockets No. 1, 16, 23) is D EN IED . The case is, therefore, D ISMISSED W ITH PREJ U 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, March 5, 20 19. S/ J UAN M. PÉREZ-GIMÉNEZ JU AN M. PEREZ-GIMEN EZ SEN IOR U .S. D ISTRICT J U D GE
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