Flores-Rivera v. USA, No. 3:2016cv02350 - Document 20 (D.P.R. 2018)
Court Description: OPINION AND ORDER denying 1 Motion to Vacate. Judgment shall be entered accordingly. Signed by Judge Juan M. Perez-Gimenez on 8/31/2018. (PMA)
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Flores-Rivera v. USA Doc. 20 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO Sa n d ra Flo re s -Rive ra , Petitioner CIVIL NO. 16-2350 (PG) Related Crim . No. 0 7-0 318 -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 Sandra Flores-Rivera’s (henceforth “Petitioner” or “Sandra Flores”) m otion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket No. 1) and the United States’ (or the “governm ent”) opposition thereto (Docket No. 15). For the following reasons, the court D EN IES Petitioner’s m otion to vacate. I. BACKGROU N D On February 5, 20 0 8 , Sandra Flores, alon gside another forty-six codefendants, were indicted by a grand jury in Crim inal Case No. 0 7-318 (PG). Sandra Flores was charged in Count One for conspiracy to possess with the intent to distribute narcotics within one thousand feet of a public housing project or a public school, in violation of 21 U.S.C. §§ 841, 846, and 8 60 . See Crim . No. 0 7-318 (PG), Docket No. 478. Count Two charged a conspiracy to possess firearm s in furtherance of drug trafficking crim es, in violation of 18 U.S.C. § 924(c)(1)(A) and (0 ). Counts Three through Six charged Petitioner with aiding and abetting in the possession with intent to distribute narcotics in violation of 21 U.S.C. §§ 8 41 and 860 , and 18 U.S.C. § 2. See id. at 6-28. Dockets.Justia.com Civ. No. 16-2350 (PG) Page 2 of 17 On October 13, 20 0 9, the governm ent filed an inform ation pursuant to 21 U.S.C. § 851, notifying the court that Petitioner had a previous felony drug conviction, subjecting her to a statutory m andatory m inim um of twenty years as to Count One. See Crim . No. 0 7-318 (PG), Docket No. 1562. At trial, the governm ent introduced three cooperating witnesses: Harry Sm ith Delgado (“Delgado”), Xiom ara Berrios-Rojas (“Xiom ara”), and Andy Marcano (“Marcan o”). Delgado testified that he was a part of the conspiracy, and that Sandra Flores served as both a runner and a seller of cocaine, crack, and m arijuana. See United States v. Flores-Rivera, 787 F.3d 1, 10 (1st Cir. 20 15). Xiom ara an d Marcano corroborated Delgado’s testim ony regarding Sandra Flores’ role in the drug trafficking organization. See id. Additionally, the govern m ent presented video evidence showing that Sandra Flores was a m em ber of the charged drug trafficking conspiracy, thereby corroborating all three testim onies. See Crim . No. 0 7-318 (PG), Dockets No. 1583, 160 2. Central to the defendants’ trial strategy was an attem pt to im peach Delgado, Xiom ara, and Marcano by suggesting that they had colluded to fabricate their testim onies. See Flores-Rivera, 787 F.3d at 10 . Nevertheless, the jury found Sandra Flores guilty as to Counts One, Three, Four, Five and Six of the indictm ent. See Crim . No. 0 7-318 (PG), Docket No. 1652. At som e unspecified tim e before trial, Delgado sent the lead prosecutor a handwritten letter, which was not prom ptly disclosed to defendants. See Flores-Rivera, 78 7 F.3d at 11. Likewise, two handwritten notes that Delgado kept, which contained details of his conversations with two other co-con spirators were not tim ely disclosed. The belated production of these m aterials set off a series of post-trial evidentiary hearings and m otions presented by Sandra Flores and her codefendants, Carlos Om ar Berm udez-Torres (“Om ar”) and Cruz Roberto Ram os-Gonzalez (“Ram os”). Between 20 10 and 20 13, the district court wrote four separate opin ions denying the appellants’ various requests for a new trial, which were grounded on these belated productions. Civ. No. 16-2350 (PG) Page 3 of 17 These four opinions provide a detailed account of each of the hearings conducted by, and m otions subm itted to, the district court. See United States v. Ram os-Gonzalez, 747 F.Supp.2d 280 , 28 4-8 9 (D.P.R. 20 10 ); United States v. Ram os-Gonzalez, Crim . No. 0 7-318 , 20 11 WL 2144215, at *1-2 (D.P.R. May 31, 20 11); Opinion and Order, Crim . No. 0 7-318, Docket No. 2972 at 1-3, J uly 30 , 20 12; Opinion and Order, Crim . No. 3166 at 1-6, August 9, 20 13. After denying her m otion for new trial, the district court sentenced Sandra Flores to an im prisonm ent term of two hundred forty m onths as to Count One, to be served concurrently with one hundred eighty-eight m onths as to Counts Three, Four, Five, and Six. See Crim . No. 0 7-318 , Docket No. 2626. On March 29, 20 11, Sandra Flores filed a tim ely notice of appeal. See Crim . No. 0 7-318 , Docket No. 2624. Unlike her codefendants, Om ar an d Ram os, Sandra Flores did not renew on appeal her argum ent regarding the evidence that was produced belatedly. The First Circuit Court of Appeals found that these m aterials warranted that Om ar and Ram os be tried again. As a result, the First Circuit rem anded Om ar and Ram os’ cases to the district court, and affirm ed the convictions and sentences of Sandra and Sonia Flores-Rivera. Flores-Rivera, 787 F.3d at 33. Petitioner did not file a petition for certiorari. 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). Civ. No. 16-2350 (PG) Page 4 of 17 III. D ISCU SSION On J une 14, 20 16, Sandra Flores filed a m otion to vacate under 28 U.S.C. § 2255 attacking the legality of her sentence on five different grounds. See Docket No. 1. In Grounds One and Three, Petitioner alleges that the prosecution violated her right to Due Process when it failed to turn over Delgado’s letter and notes, and she contends that her appellate counsel was ineffective for failing to renew this claim on appeal. In Ground Four, Sandra Flores argues that her sentence was unconstitutionally enhanced because the court erred in determ ining that her prior conviction for sim ple possession of m arijuana under P.R. LAWS ANN . tit. 24, § 240 4 is a “felony drug offense” under 21 U.S.C. § 8 41(b)(1)(A). Therefore, Petitioner contends that the prior conviction inform ation presented by the governm ent pursuant to 21 U.S.C. § 851 was unwarranted, an d she should not have been subjected to the m an datory m inim um sentence im posed under 21 U.S.C. § 841(b)(1)(A). Lastly, Petitioner argues in Grounds Two and Five that she received in effective assistance of counsel because trial counsel abandoned her during the post-trial proceedings and her trial and appellate counsels failed to successfully challenge the application of a two-point enhancem ent on Petitioner’s sentencing guidelines calculation under U.S.S.G. § 2D1.1(b)(1). Each of these argum en ts will be addressed in turn. A. Bra d y Cla im Firstly, Sandra Flores claim s in Ground One that the governm ent violated her right to Due Process by failing to prom ptly turn over exculpatory or im peachin g evidence in relation to Delgado’s testim ony. See Docket No. 1, at 10 . Additionally, in Ground Three Petitioner alleges that she received ineffective assistan ce of counsel when her appellate counsel failed to raise the issue on appeal. See Docket No. 1 at 11. In Brady v. Maryland, 373 U.S. 83 (1963), the Suprem e Court held that the prosecution violates due process when it suppresses evidence favorable to the accused and said evidence is Civ. No. 16-2350 (PG) Page 5 of 17 m aterial to determ inin g guilt or punishm ent. See Brady 373 U.S. at 8 7. A true Brady violation has three com ponents, nam ely: “[t]he eviden ce 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). Despite the foregoing, a § 2255 m otion is not a substitute for a direct appeal, therefore “a collateral challenge m ay not do service for an appeal.” United States v. Frady, 456 U.S. 152, 165 (198 2). Furtherm ore, a significant bar on habeas corpus relief is placed on a defendant when she fails to raise her claim s at trial or on direct review. In such cases, “a court m ay hear those claim s for the first tim e on habeas corpus review only if the petitioner has ‘cause’ for having procedurally defaulted [her] claim s, and if the petitioner suffered ‘actual prejudice’ from the errors of which [she] com plains.” Owen s v. United States, 483 F.3d 48, 56 (1st Cir. 20 0 7). It has long been understood 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 (198 4).” Wilder v. United States, 80 6 F.3d 653, 658 (1st Cir. 20 15). Petitioner m ust show actual prejudice by establishing 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 (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 evidence 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)). Civ. No. 16-2350 (PG) Page 6 of 17 In order to establish ineffective assistance of counsel, Petitioner m ust prove that her attorney’s perform ance was deficient and the deficient perform ance prejudiced her defen se. See Strickland, 466 U.S. at 687. Under Strickland, 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 sound trial strategy.’” Id., at 689. Furtherm ore, failure to satisfy either prong of the Strickland test is fatal. See id., at 697. As a result, the court is free to choose which prong to analyze first. In the present case, Sandra Flores’ discovery violation claim under Brady is procedurally barred because her appellate counsel failed to present this claim on direct appeal. Petitioner proves neither that she has cause excusing her procedural default, nor does she prove that she suffers actual prejudice from the governm ent’s error. Norm ally, “a showing that the factual or legal basis for a claim was not reasonably available to counsel or that som e interference by officials m ade com pliance im practicable would constitute cause.” J ackson, 634 F.Supp.2d at 159 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). But here, the governm ent gave Sandra Flores’ and her codefendants’ trial counsels the alleged im peachm ent eviden ce, therefore the factual basis for the claim was available to Sandra Flores at the tim e of appeal. In fact, Sandra Flores used said evidence as a m eans of supporting her m otion for a new trial. See Flores-Rivera, 787 F.3d at 15 n. 7. Despite being fully aware of his ability to do so, Petition er’s appellate counsel did n ot present this argum ent on direct appeal. See id. Sandra Flores attem pts to excuse her failure to present the Brady claim on appeal by alleging that she received ineffective assistance of counsel. Petitioner bases her ineffective assistan ce of counsel claim on the First Circuit’s statem ent that: Civ. No. 16-2350 (PG) Page 7 of 17 Sandra’s trial counsel joined Ram os and Om ar in petitioning the district court for a new trial after the prosecutor turned over Delgado’s letter and notes in 20 10 . Her appellate counsel has not renewed this claim on appeal. Counsel was clearly aware of his ability to adopt a co-appellant’s argum ents in a consolidated case pursuant to Federal Rule Appellate Procedure 28(i), since he reserved his right to do so in Sandra’s opening brief. But counsel never filed a reply brief after the court granted him an extension, nor did he m ake a m otion to adopt the other appellant’s argum ents Flores-Rivera, 787 F.3d at 15 n. 7. As the following analysis will highlight, her claim fails the second prong of the Brady and Strickland tests. In essence, Petitioner cannot show prejudice. During her trial, the governm ent presented significant corroboratin g evidence im plicating her in the drug trafficking conspiracy. As a result, she is not sim ilarly situated to her two codefendants, Ram os and Om ar, whose requests for new trials were granted. In fact, the First Circuit based its decision to grant Ram os and Om ar a new trial on the fact that the governm ent failed to present additional evidence with probative value corroborating Delgado’s testim ony, which could have been challenged by the belatedly produced Brady m aterials. See id., at 11. But, despite the First Circuit’s statem ents, here, Petitioner cannot show the prejudice prongs of the Brady and Strickland tests. Sandra Flores’ participation in the drug trafficking organization was not supported solely on Delgado and the other cooperating witnesses’ testim onies, as the governm ent presented the jury a series of videotape recordings directly im plicating her in the crim e. See Crim . No. 0 7318 , Dockets No. 1583, 160 2. The Suprem e Court has held that “eviden ce im peaching an eyewitness m ay not be m aterial if the State’s other eviden ce is strong enough to sustain confiden ce in the verdict.” Sm ith v. Cain, 565 U.S. 73, 76 (20 12). The videos presented to the jury show that Sandra Flores operated a drug point and corroborates Delgado, Xiom ara, and Marcano’s testim onies that Petitioner was a seller and runner of illicit drugs. For exam ple, during the jury trial on October 19, 20 0 9, Delgado was shown and questioned about a video Civ. No. 16-2350 (PG) Page 8 of 17 displaying Sandra Flores “tallying up” drugs and m oney with her brother, Alex Flores-Rivera, before changing shifts as drug sellers: Ms. Avila, AUSA : What other way, if any, could the seller tally up to turn over the shift to the other seller? Delgado: He could tally up with the other person that was going to continue selling. They would count the drug, they would count the m oney and they would tally up am ong them selves and they would give each other – the person that was leaving the shift would give the drug over and then that person would take the drug, he would take the m oney an d they would tally up and then they would running [sic] the shift. Ms. Avila, AUSA: I’m going to show you, sir, play again at 4:53:38 , so on, Decem ber 8 , 20 0 6. Can you please tell the jury what you are observing? Atty. Hill-Adam es: Objection again, Your Honor, lack of personal knowledge. This witness was not present when this is happening. The court: Denied. Delgado: Do I answer? The court: Yes. Delgado: Right now, Sandy [Flores-Rivera] is the [sic] tallying up with her brother, with Alex, and as you can see the tim e, it’s 4:54. It’s just about 5 o’clock, which is the change of shift of the sellers. Crim . No. 0 7-318, Docket No. 1583 at 99. Civ. No. 16-2350 (PG) Page 9 of 17 Additionally, on October 23, 20 0 9 the jury was shown another video that displayed Sandra Flores participating in num erous drug transactions with the then testifying witness, Xiom ara. When questioned about one such instance, Xiom ara’s testim ony reads as follows: Ms. Avila, AUSA: And I pause it at 3:50 :25 p.m . Who is the person that is to the side of you? Xiom ara: Sandra and I. Ms. Avila, AUSA: Which Sandra, La Caderua or Flores? Xiom ara: Sandra Flores. Ms. Avila, AUSA: I’m pausing at 3:50 :32. As I’m playing the video, I’m going to put it on play, you can describe to the jury what you are seeing, okay? Xiom ara: Yes, Prosecutor. They are giving us m oney and I go to where I have the stash to get the m aterial. Crim . No. 0 7-318, Docket No. 160 2 at 29, 30 . Later on, Xiom ara identifies Sandra Flores in another instance in which she was caught on video selling drugs: Ms. Avila, AUSA: Let m e phrase it this way, m a’am . Based on your personal observations and your experience as a seller at this drug point and working as a seller also with Sandra Flores Rivera’ [sic] drug point, I’m taking you to 2-8-20 0 6, at 4:31:42, so on, and playing it for you. Can you please tell the jury what you are observing? Xiom ara: Sandra is given the m oney. She counts it. Takes m ore m oney. Civ. No. 16-2350 (PG) Page 10 of 17 Atty. Hill-Adam es: Sam e objection, Your Honor. The court: Denied Xiom ara: She gets up. She goes into the house. Ms. Avila, AUSA: And I pause at 4:35:0 5. Does she go into her house, m a’am ? Xiom ara: No, she did not go in. Ms. Avila, AUSA: What does she do? What do you observe? Xiom ara: She gives the m oney to som eone. Ms. Avila, AUSA: Ma’am , have you see this done before as a seller there at this drug point? Xiom ara: Yes. Ms. Avila, AUSA: Is this com m on or uncom m on? Xiom ara: Yes. Ms. Avila, AUSA: Yes, what, com m on or uncom m on? Xiom ara: Yes, com m on. Ms. Avila, AUSA: And I’m playing it again. The court: That’s Marjorie, isn’t it? Xiom ara: Yesca. See, she went there, she got the m aterial, and she gave it to him , to the addict. Ms. Avila, AUSA: Do you know who the addict is, m a’am ? Civ. No. 16-2350 (PG) Page 11 of 17 Xiom ara: I do not know him by n am e, but he is from Maunabo. Ms. Avila, AUSA: And how do you know he is from Maunabo? Have you seen him before? Xiom ara: Yes. Ms. Avila, AUSA: And when you say “she” gave the m aterial to the addict, the one that you described as the one from Maunabo, who do you refer to, Yesca or Sandy? Xiom ara: To Sandra Flores. […] Ms. Avila, AUSA: Ma’am , and what type of drugs did Sandra Flores Rivera sell at the drug point? Xiom ara: Everything. Id., at 37-38 , 39. As was previously indicated, a true Brady violation requires that Petitioner prove that the suppression of the evidence in question caused her prejudice. See Greene, 527 U.S. 281-282. In the present case, the belatedly produced evidence did not prejudice Petitioner because there was sufficient corroborating evidence im plicating her in the crim in al venture. See Crim . No. 0 7-318 , Docket No. 160 2 at 29, 37-41, 53. Unlike her codefendants, Ram os and Om ar, Delgado’s testim ony was not the sole m eans for determ ining Petitioner’s guilt. In her case, the videos shown to the jury illustrating that Petitioner worked as a drug runner and seller contravenes the argum ent that there is a reasonable probability that the results of the trial could have been different had the Brady docum ents been turned over in a tim ely m anner. Thus, because San dra Flores cannot prove that the belatedly produced evidence prejudiced her, she Civ. No. 16-2350 (PG) Page 12 of 17 fails the prejudice prongs of the Brady and Strickland tests. Accordingly, her m otion to vacate is D EN IED on those grounds. B. Se n te n cin g En h an ce m e n t Ch a lle n ge In Ground Four, Sandra Flores argues that her sentence violates the Eighth Am en dm ent and her right to Due Process because the inform ation filed pursuant to 21 U.S.C. § 8 51 was done for an im proper purpose an d resulted in a sen tence that is excessive and disproportionate. 1 See Docket No. 1 at 13. Specifically, Petitioner contends that her prior conviction for sim ple possession of m arijuana under P.R. LAWS ANN . tit. 24, § 240 4 does not qualify as a “felony drug offense” pursuant to § 851. Petitioner asks the court to waive her procedural default of these claim s because both her trial and appellate counsels were ineffective by failing to argue that her prior conviction was not a qualifying felony. Her argum ents hold no water. First, the record contradicts Petitioner’s assertion that her trial counsel failed to challenge the § 8 51 enhancem ent. On February 20 , 20 11, Petitioner’s trial counsel filed the appropriate objection to the § 851 enhanced penalty, which was subsequently denied by the court on March 21, 20 11. See Crim . No. 0 7-318, Dockets No. 2597, 2617. Moreover, Petitioner’s trial counsel once again objected to the im position of the enhanced pen alty during her sentencing hearing. See Crim . No. 0 7-318, Docket No. 2683, at 7. As such, Sandra Flores’ claim that her trial counsel abandon ed her in regards to this issue is in accurate and belied by the record of this case. Second, Petitioner’s appellate counsel was under no obligation to present the aforem entioned objection, as the objection itself lacked m erit. Sandra Flores relies on the First Circuit’s decision in United States v. Davila-Felix, 667 F.3d 47 (1st Cir. 20 17), which held that 1 The proceedin gs for establishin g that a defendant has a prior con viction for sentencing calculation purposes are outlined in 21 U.S.C. § 851. Civ. No. 16-2350 (PG) Page 13 of 17 a conviction for possession of cocaine and m arijuana with intent to distribute under P.R. LAWS ANN . tit. 24, § 240 1 “cannot categorically qualify as a ‘controlled substance offense’ within the m eaning of § 4B1.2(b) because it crim in alizes conduct that falls outside the guidelines definition.” Id., at 56. Petitioner’s argum ent fails because the issue in Davila-Felix centered on whether or not the defendant’s previous possession conviction qualified as a “controlled substance offense” under U.S.S.G. § 4B1.2(b). 2 In the present case, the governm ent filed the inform ation pursuant to § 851 in order to prove that Petitioner qualified for the m andatory m inim um senten ce im posed in 21 U.S.C. § 841(b)(1)(A). Said section states that when a defendant violates § 841(b)(1)(A) “after a prior conviction for a fe lo n y d ru g o ffe n s e has becom e final, such person shall be sentenced to a term of im prisonm ent which m ay not be less than 20 years an d not m ore than life im prisonm ent . . .” 21 U.S.C. § 8 41(b)(1)(A) (em phasis added). “Controlled substance offense” is no synon ym for “felony drug offense.” The term “felony drug offense” is defined in 21 U.S.C. § 80 2(44) as “an offense that is punishable by im prisonm ent for m ore than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, m a rih u a n a, anabolic steroids or depressant or stim ulant substances.” 21 U.S.C. § 8 0 2(44) (em phasis added). See United States v. Robertson, 459 F.3d 39, 51 (1st Cir. 20 0 6) (holding that “the definition of ‘felony drug offense’ contained in § 80 2(44) unam biguously controls for the purposes of determ ining whether the penalty enhancem ent in § 841(b)(1)(A) is triggered”); 2 Section 4B1.2(b) defines a “controlled substance offense” as any offense under federal or state law that is “punishable by im prison m ent for a term exceedin g one year, that prohibits the m anufacture, im port, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to m anufacture, im port, export, distribute, or disperse.” U.S.S.G. § 4B1.2(b). Civ. No. 16-2350 (PG) Page 14 of 17 Burgess v. United States, 553 U.S. 124, 135 (20 0 8) (holding that, via the definition in § 8 0 2(44), “Congress expressly defined the term ‘felony drug offense.’ The definition is coherent, com plete, and by all signs exclusive.”). Moreover, the statute under which Sandra Flores’ previous conviction rests reads as follows: It shall be unlawful for any person, knowingly or intentionally, to possess an y controlled substance, unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his professional practice, or except as authorized by this chapter. Any person who violates this subsection shall be guilty of a felony, and, upon conviction thereof, shall be punished by im prisonm ent for a fixed term of th re e ( 3 ) ye a rs . Should there be aggravating circum stances, the fixed penalty established m ay be increased to a m axim um of five ( 5) ye ars ; if there should be extenuating circum stances, it m ay be reduced to a m inim um of tw o ( 2 ) ye ars . P.R. LAWS ANN . tit. 24, § 240 4(a) (em phasis added). The conduct prohibited by § 240 4 squarely fits the definition of a “felony drug offense” under §§ 841(b)(1)(A) and 80 2(44). First, said statute prohibits conduct relating to narcotic drugs, including m arihuana. Second, the least culpable version of the offense is punishable by a period of im prisonm ent of m ore than one year. As a result, Sandra Flores’ prior conviction for sim ple possession of m arihuana under § 240 4 con stitutes a “felony drug offense” for the purpose of applying the increased m inim um sentence im posed in § 841(b)(1)(A). Any argum ent that her appellate counsel could have presented stating otherwise would have been m eritless. See Acha v. United States, 910 F.2d 28, 32 (1st Cir. 1990 ) (holding that trial counsel is “under no obligation to raise m eritless claim s. Failure to do so does not constitute ineffective assistance of counsel”). Ultim ately, Petitioner’s argum ent that her sen tence violates the Eighth Am endm ent and Due Process, and that her appellate counsel was ineffective for not challenging it, necessarily fails because the § 851 inform ation was filed correctly by the governm ent, and the § 841(b)(1)(A) sentencing Civ. No. 16-2350 (PG) Page 15 of 17 enhan cem ent was properly applied. Due to Petitioner’s failure to excuse the procedural default of her claim , and due to her argum ent’s lack of m erit, her petition is D EN IED on those grounds. C. Ad d itio n a l In e ffe ctive As s is tan ce o f Co u n s e l Claim s Lastly, Petitioner’s rem aining two grounds consist of additional allegations that she received ineffective assistance of counsel. Sandra Flores first claim s in Ground Two that her trial counsel abandoned her during the post-trial proceedings. See Docket No. 1 at 10 . Specifically, Petitioner contends that although her trial counsel filed a m otion to join the posttrial proceedings, she failed to participate in them . See id. But, the record shows otherwise. Contrary to Petitioner’s assertions, the record dem onstrates that Petitioner’s counsel was present and actively participated in the evidentiary hearing for the m otion for new trial. See Crim . No. 0 7-318, Docket No. 2354; id., Docket No. 2364 at 114-118 . As a result, the ineffective assistan ce of counsel claim on this ground is thus D EN IED . In her fifth and final ground, Sandra Flores contends that her trial and appellate attorneys provided in effective assistance because they failed to effectively challenge a two point enhan cem ent im posed on her guideline calculation under U.S.S.G. § 2D1.1(b)(1). See Docket No. 1 at 5. Although Petitioner recognizes that her trial counsel indeed challenged the enhan cem ent, she insists that said challenge failed solely because her counsel did not adequately research the issue. In support of her argum ent, Petitioner alleges that her sim ilarly situated codefen dants did not receive the enhancem ent. See Docket No. 1 at 14. The in effective assistance of counsel claim fails on this ground because the district court correctly applied the enhancem ent. The statute in question, U.S.S.G. § 2D1.1(b)(1), provides that a defendant’s base offense level is increased by two levels “if a dangerous weapon Civ. No. 16-2350 (PG) Page 16 of 17 (including a firearm ) was possessed” in the furtherance of a federal crim e. Petition er’s codefendant, Sonia Flores-Rivera, challenged this very en hancem ent on appeal. The First Circuit held that the “firearm enhancem ent applies ‘whenever a codefendant’s possession of a firearm in furtherance of their joint crim inal venture [is] reasonably foreseeable’ by the defendant.” Flores-Rivera, 787 F.3d at 32 (quoting United States v. Bianco, 922 F.2d 910 , 912 (1st Cir. 1991)). The First Circuit further established that “’because firearm s are considered com m on tools of the drug trade,’ where firearm s are used in furtherance of drug offenses, the two-level ‘enhancem ent should be applied if [a] weapon was present, unless it is clearly im probable that the weapon was connected with the offense.’” Flores-Rivera, 78 7 F.3d at 33 (quoting United States v. Thongsophaporn, 50 3 F.3d 51, 58 (1st Cir. 20 0 7)). The Court held then that the § 2D1.1(b)(1) enhancem ent was warranted because it was not “clearly im probable” from Sonia Flores-Rivera’s perspective that firearm s would be used during and in furtherance of the drug trafficking conspiracy. See Flores-Rivera, 78 7 F.3d at 33. Following the sam e logic, it was reasonably foreseeable for Sandra Flores that weapons would be used in furtherance of the drug trafficking conspiracy. The trial testim ony showed that Sandra Flores, like Sonia Flores-Rivera, was a runner of cocaine, crack, and m arijuana, and that she would stash those kinds of drugs for the drug trafficking organization. Additionally, Petitioner had contact with several other co-conspirators, including Delgado, who had a propensity for carrying and using firearm s. 3 Because Sandra Flores was sim ilarly situated to her sister, Sonia Flores-Rivera, the § 2D1.1(b)(1) enhancem ent was warranted and her trial counsel was not in effective for not prospering. Any additional research perform ed by her counsel would have only supported the 3 “Delgado had a reputation for donning a bulletproof vest and frequently firin g gun s while at the housin g project. He testified that he was arm ed ‘all the tim e.’” Flores-Rivera, 787 F.3d at n . 29 (20 15). Civ. No. 16-2350 (PG) Page 17 of 17 court’s determ ination. Therefore, Petitioner’s ineffective assistance of counsel claim on this ground fails the secon d prong of the Strickland test, as she fails to prove that her coun sel’s actions caused her prejudice. Furtherm ore, Petitioner’s counsel had no reason to further develop or insist on an argum ent that was m eritless. See Acha, 910 F.2d at 32. As a result, the present argum ent is unfounded, and her m otion to vacate is hereby D EN IED on those grounds. IV. CON CLU SION Based on the foregoing, the court D EN IES Petitioner’s request for habeas relief under 28 U.S.C. § 2255 (Docket No. 1). As such, the case is 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, August 31, 20 18. S/ J UAN M. PÉREZ-GIMÉNEZ JU AN M. PEREZ-GIMEN EZ SEN IOR U .S. D ISTRICT JU D GE
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