Alicea-Torres v. U.S.
| Decision Date | 29 September 2006 |
| Docket Number | Crim. No. 97-076(DRD).,Civil No. 05-1544(DRD). |
| Citation | 455 F.Supp.2d 32 |
| Parties | Eduardo ALICEA-TORRES, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
Eduardo Alicea-Torres, Coleman, FL, pro se.
Nelson J. Perez-Sosa, United States Attorney's Office, San Juan, PR, for Respondent.
Eduardo Alicea-Torres (hereinafter, "Petitioner"), proceeding pro se, has moved to vacate, set aside, or correct his sentence pursuant to section 2255 of Title 28 of the United States Code ("section 2255"). Following a jury trial, Petitioner Eduardo Alicea-Torres was convicted of conspiracy to distribute narcotics and possession with intent to distribute narcotics in violation of 21 U.S.C. § 841 and § 846. The Court of Appeals affirmed the conviction on all counts. In his present pro se motion to vacate under 28 U.S.C. § 2255, Petitioner alleges that he was denied effective assistance of counsel at his trial and on direct appeal. For the following reasons, the Court DENIES his motion.
On April 10, 1997, a Federal Grand Jury returned a two count indictment against Alicea-Torres and twenty-one (21) other co-defendants (D.E.1). On December 14, 1998, a superseding indictment was returned adding another defendant to the case—the Government alleged the same charges against the same defendants listed in the original indictment. (D.E.397). Count Two charged that from or about January 1,-1990, until about March 7, 1994, all twenty-one defendants conspired to distribute more than five kilograms of heroin, more than five kilograms of cocaine, more than five kilograms of cocaine base, and more than 100 kilograms of marijuana, as prohibited by 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846.
From December 28, 1998 to June 25, 1999, eleven of the 22 defendants were tried before a jury. On June 25, 1999, the jury convicted all eleven defendants, including Alicea-Torres, on all counts with which they were charged. (D.E.852).
On January 20, 2000, Petitioner Alicea-Torres was sentenced to life imprisonment. (D.E.1126, 1134). At that sentencing hearing, the Court heard arguments in determining quantity of drugs involved in resolving the base offense level for sentencing Petitioner. Defense counsel argued that Petitioner Alicea-Torres could not have reasonably foreseen the full amount of cocaine (e.g. 150 kilograms of cocaine) attributable to the conspiracy for which he was convicted. (Sent.Tr., 01-20-00, PP. 3-10). The Government responded that the entire amount was foreseeable to Petitioner because he knew of the size and breadth of the drug conspiracy. The Government presented several witnesses linking Petitioner Alicea-Torres to the conspiracy. In essence, these witnesses testified in some detail as to the facts surrounding the issue of the amount of cocaine attributed to the Petitioner. According to government witness, Luis Torrens-Alicea, in 1993, Juan Antonio Lopez, a/k/a El Bebo, stole a shipment of cocaine in excess of 200 kilograms in the area of Fajardo and brought it to Bitumul. Petitioner's aiding and abetting the distribution of drugs was supported by testimony with regard to his activities. Additionally, Victor Negron-Maldonado, a/k/a "Pitocito", testified that, frequently at Bitumul, he cooked kilograms of cocaine base into crack cocaine. In fact, Petitioner Alicea-Torres was one of the individuals who distributed the crack. (Sent.Tr., 01-20-00, PP. 9-10, 33-34). The Court then assessed Petitioner's base offense level at thirty-eight (38).
According to the Court, Petitioner's sentencing in a drug conspiracy was guided by USSG § 2D1.1, which included a cross reference providing that "[i]f a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder)." See USSG § 2D1.1(d)(1). USSG § 2A1.1, in turn, provided simply "Base Offense Level: 43." (Sent. Tr., 01-20-00, PP. 37-38; PSR, P. 6, ¶ 17). Thus, Petitioner's offense level of 43, in combination with his criminal history category of II, resulted in a sentence of life imprisonment. The Court consequently sentenced Petitioner to life imprisonment, and judgment was entered on February 1, 2000. (D.E. 1134).
Subsequently, the Court reassessed Petitioner's sentence and determined that the life imprisonment guideline penalty provided under U.S. S.G. § 2D 1.1(d)(1) should not have been applied to Petitioner. Thus the Court set a date for a new sentencing hearing, at which the Court could vacate the original sentence and impose a new sentence.
The resentencing hearing took place on February 28, 2000. At that hearing, the Court advised that it might depart upward because the crimes of conviction involved violence. (Sent.Tr., 02-28-00, P. 2). While defense counsel argued that Petitioner should not be held accountable for all of the drugs (Sent.Tr., 02-28-00, P. 7-8), the Government argued that this same issue had already been settled in the prior sentencing hearing. (Sent.Tr., 02-28-00, P. 8). The Court then concluded that the amount of drugs called for an offense level of 38. (Sent.Tr., 02-28-00, P. 8).
Subsequently, defense counsel raised an objection to a two-point weapons enhancement. (Sent.Tr., 02-28-00, P. 9). The Government, however, argued that testimonial and scientific evidence showed that Petitioner Alicea-Torres personally possessed weapons in furtherance of the conspiracy. (Sent.Tr., 02-28-00, PP. 11-12). The Government made further reference to the testimonial evidence disclosing Petitioner's participation in a double murder where he killed an undercover police officer. (Sent.Tr., 02-28-00, P. 12). Thus, the Court properly enhanced Petitioner's sentence under § 2D 1.1(b)(1). (Sent.Tr., 02-28-00, P. 13).
The Government proposed an upward departure based on the use of violence in the crimes committed. Counsel strongly objected to the Court's upward departure, and tried to convince the Court that Petitioner had not been found guilty of any violent crime. After hearing arguments on the Government's request for an upward departure, this Court made abundantly clear its belief that the appropriate sentencing outcome for Petitioner Alicea-Torres was life imprisonment. After reviewing the criminal history record, the Court concluded that the sentencing guidelines under represented Petitioner's criminal history. The Court articulated this reason at sentencing. (Sent.Tr., 02-28-00, P. 24).
On direct appeal, Petitioner raised the following claims: 1) a generalized attack on the Government's dilatoriness in turning over discovery material; 2) an allegation that the Government knowingly offered in evidence perjured testimony from witness Cesário-Soto; 3) an argument that there were multiple Brady and Giglio violations; 4) a claim that the lower court erred in not providing the jury with a special verdict form requiring it to determine the quantity and type of drugs as to each defendant; 5) an argument that his sentence violated the rule of Apprendi. His conviction and sentence were affirmed in their entirety on direct appeal by the First Circuit. See, United States v. Soto-Beniquez, 356 F.3d 1 (1st Cir.2003).
Petitioner now moves this Court to vacate, set aside, or correct the sentence, pursuant to 28 U.S.C. § 2255, on the grounds that his attorney was ineffective because he failed to: 1) file certain motions with the court, object to the admission of evidence or request jury instructions; 2) adequately explain to him the Sentencing Guidelines or pursue plea negotiations; 3) exclude jurors, call witnesses to testify or conduct an adequate investigation; 4) that pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.E d.2d 621 (2005), he claims to have been deprived of his Sixth Amendment right to a trial because the jury did not make any specific finding as to the type or quantity of drugs or other enhancements, and that, instead, this Court made evidentiary findings based on a preponderance of the evidence; 5) counsel failed to raise on direct appeal the imposition of an upward departure based on murders not charged in the Indictment, nor determined by the jury beyond a reasonable doubt.
In his section 2255 motion, Petitioner has presented an extended number of claims. The absence of discussion of some of them is attributed to the insubstantiality of the claims and not to the Court's failure to consider them.
A. The Offense Conduct
This case is about one overarching conspiracy to distribute drugs at Bitumul (Israel Ward) in Hato Rey, San Juan, Puerto Rico and to protect that distribution through multiple murders. The Government prosecuted a violent street gang dedicated to the distribution of narcotics at six different drug points within the Bitumul Ward. The Government case relied substantially on the testimony of several cooperating co-conspirators, to wit, Ramon Cesario-Soto, Victor Negrón-Maldonado (a/k/a Pitosito), and Luis Torrens-Alicea (a/k/a Pito Salsa). From on or about January 1, 1990, until on or about March 7, 1994, the defendants would purchase multi-kilogram quantities of heroin, cocaine and marihuana at wholesale prices. They would then cut, divide and package the narcotics in small vials or plastic baggies for subsequent sale to customers at drug points. Additionally, the defendants would also cook some of the cocaine purchased and create cocaine base ("crack cocaine"), which would also be packaged in vials for sale at drug points. The defendants would use residences and other locations to store narcotics, cook cocaine into crack cocaine, and package the heroin, cocaine, crack cocaine and marihuana to be distributed at the drug points. In order...
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