Reyes-Vejerano v. U.S., CIV. 97-1652(HL).

• Decision Date: 24 October 2000
• Docket Number: No. CIV. 97-1652(HL).,No. CRIM. 94-016-(HL).,CIV. 97-1652(HL).,CRIM. 94-016-(HL).
• Citation: 117 F.Supp.2d 103
• Parties: Francisco REYES-VEJERANO, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

Page 103

117 F.Supp.2d 103

Francisco REYES-VEJERANO, Petitioner, v. UNITED STATES of America, Respondent.

No. CIV. 97-1652(HL).

No. CRIM. 94-016-(HL).

United States District Court, D. Puerto Rico.

October 24, 2000.

COPYRIGHT MATERIAL OMITTED

Rafael F. Castro-Lang, Francisco Reyes-Vejarano, M.D.C. Guaynabo, San Juan, PR, for Francisco Reyes-Vejerano aka Francisco Reyes-Vejarano, plaintiffs.

Nelson J. Perez-Sosa, U.S. Attorney's Office District of P.R., Criminal Division, Hato Rey, PR, for United States of America, defendants.

OPINION AND ORDER

LAFFITTE, Chief Judge.

Before the Court is a petition for post-conviction relief under 28 U.S.C. § 2255 filed by Francisco Reyes-Vejerano ("Reyes"). The five-count superseding indictment in his criminal case charged him with conspiring to possess heroin with intent to distribute and conspiring to make false statements in order to obtain a passport, in violation of 18 U.S.C. §§ 2 & 1542 and 21 U.S.C. §§ 841(a)(1) & 846.¹ Two other individuals were charged along with Reyes. One of them, Jaime Ocampo, pled guilty. Reyes and the other defendant, Wilfredo Jiménez Rodríguez ("Jiménez"), went to trial and were found guilty.² Reyes was sentenced to 188 months and a $50,000 fine.³ He appealed, and on December 1, 1995, the First Circuit affirmed his conviction in an unpublished opinion. See United States v. Jimenez-Rodriguez, 70 F.3d 1253, 1995 WL 709639 (1st Cir. 1995).

Reyes then filed the present petition. He claims that he was denied his Sixth Amendment right to effective assistance when his trial attorney, Luis Rafael Rivera ("Rivera"), failed to do an adequate pretrial investigation of the case; made an improper opening statement; failed to object to inadmissible evidence presented by the Government; failed to move for a severance; and failed to let Reyes testify in his own defense. Reyes further claims that his trial attorney was being investigated by the Government and that this created a conflict of interest, which was why Rivera did not let Reyes testify. He also bases his petition on the claims that he was convicted with perjured testimony, that the Government failed to disclose Brady material, and that Carmen Toledo, the Government's chief witness, received illegal benefits, as provided in United States v. Singleton, 144 F.3d 1343 (10th Cir.1998). The Court held an evidentiary hearing on this petition, during which Reyes and Rivera both testified. The parties have briefed these issues, and the Court is now ready to rule.

DISCUSSION

1. Claim of improper pretrial investigation

The Sixth Amendment guarantees a criminal defendant effective assistance of counsel in order to protect that defendant's fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). The Constitution does not guarantee a defendant a perfect or successful defense; rather, he is guaranteed "`reasonably effective assistance under the circumstances then obtaining.'" Lema v. United States, 987 F.2d 48, 51 (1st Cir. 1993) (quoting United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir.1991)). A court should evaluate the challenged conduct not with the benefit of hindsight, but from the attorney's perspective at the time of the trial. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065; Lema, 987 F.2d at 51.

A petitioner must show, first, that his counsel's performance was deficient and, second, that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Bucuvalas v. United States, 98 F.3d 652, 658 (1st Cir.1996); Bonneau v. United States, 961 F.2d 17, 20 (1st Cir.1992). The petitioner has the burden of proving both prongs of this test, and the burden is a heavy one. Bucuvalas, 98 F.3d at 658. An attorney's performance is deficient if it is "`so inferior as to be objectively unreasonable.'" Id. (quoting United States v. McGill, 11 F.3d 223, 226 (1st Cir.1993)). The petitioner must show that, but for his counsel's deficient performance, the outcome would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; United States v. Hart, 933 F.2d 80, 83 (1st Cir.1991); Carsetti v. Maine, 932 F.2d 1007, 1012 (1st Cir.1991). He must show that his counsel's errors were so serious that they deprived him of a fair trial, a trial whose result is reliable. United States v. Ademaj, 170 F.3d 58, 64 (1st Cir.1999). There is a strong presumption that the counsel's performance comes within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The defendant must overcome the presumption that his counsel's performance could "`be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). The court's scrutiny of the attorney's performance must be highly deferential. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

Reyes claims that his attorney was ineffective at the pretrial stage when he failed to interview or subpoena Lourival Quiñones, Priscila Figueroa, José Soto Ruiz ("Soto"), and Carmen Toledo's brother. Reyes claims that these individuals would all have provided testimony contradicting Toledo's version of the incidents or would have otherwise demonstrated her lack of credibility. Additionally, Toledo testified at trial that she met with Reyes and Ocampo in Vieques to plan a drug-smuggling trip.⁴ Reyes claims that if Rivera had gone to Vieques to investigate, he would have discovered that Reyes has never been in Vieques, and the fruits of this investigation could then have been used to further discredit Toledo. Finally, Reyes also argues that if Rivera had fully investigated Toledo's use of false identifications, he would have discovered that it was Toledo herself who obtained her false driver's license — and not Ocampo, as she testified — and that she used her false identifications primarily for the purpose of making numerous fraudulent credit purchases, and not for drug smuggling, as she testified. All this evidence, Reyes asserts, could have been presented to discredit Toledo.

At the evidentiary hearing, Rivera testified as to the investigation and preparation he did for Reyes' trial. Rivera stated that he did not pursue an investigation of how Toledo obtained a false driver's license because she had admitted that it was false.⁵ He did interview Toledo's brother, but he was unwilling to testify.⁶ He also interviewed Toledo's mother.⁷ Rivera also spoke with Soto, but he was scared to testify. Rivera was further concerned that calling Soto as a witness would open the door to allegations of drug use by Reyes.⁸ After Rivera interviewed Toledo, he moved for a continuance of the trial date to allow him to subpoena Quiñones as a witness, but the Court denied the request.⁹

Additionally, Rivera located and interviewed Toledo's estranged husband, Luis Noel de Jesús, and had him testify that Toledo had a reputation for lack of truthfulness, that her testimony that she had not used drugs was false, and that she had fraudulently filled out an application for a car loan.¹⁰ Although Rivera did not go to Vieques, he did track down Sara Luz Velázquez, who lives in Vieques and whose identity Carmen Toledo assumed in her false identifications. Rivera flew Velázquez to San Juan and presented her testimony to state that she did not know Reyes and had never seen him in Vieques. She testified to contradict Toledo's version as to how she obtained her false identification.¹¹ Rivera also presented Ocampo, who testified that Toledo fraudulently used his name to try to purchase an automobile, that he never met with Reyes in Vieques, and that Reyes did not have anything to do with the drug importation activities in which Ocampo had been involved.¹²

Shortly after Rivera entered the case, he met with Reyes to discuss a list that Reyes had prepared of twenty tasks which he wanted Rivera to do in preparation for the trial.¹³ For sixteen of the twenty tasks, Rivera testified that he was able to accomplish all or some of them.¹⁴ Of the other four, Rivera concluded that one was unnecessary,¹⁵ and another would have required risky investigative work in a dangerous neighborhood.¹⁶

Counsel for a criminal defendant must make a reasonable investigation in the preparation of his case. Kenley v. Armontrout, 937 F.2d 1298, 1304 (8th Cir. 1991). Counsel's assistance will be found to be ineffective if he has performed little or no investigation into the case. Id. Generally, a finding of ineffective assistance will be based on a failure to investigate where the evidence which the investigation would have produced would have made the defendant's conviction nearly impossible. Passos-Paternina v. United States, 12 F.Supp.2d 231, 236 n. 4 (D.P.R.1998), aff'd 201 F.3d 428 (1st Cir.1999) (Table case).

In the present case, the testimony at the evidentiary hearing by Rivera — who the Court finds to be a credible witness — indicates that he did a reasonable investigation and preparation for the trial. The record does not indicate that he did little or no investigation. The gist of Reyes' allegations of Rivera's improper investigation is that he did not investigate certain matters which, according to Reyes, would have produced evidence to discredit Toledo. It may be true that Rivera did not fully investigate and develop the points to which Reyes alludes in his petition. However, the record clearly demonstrates that Rivera did investigate other matters and presented witnesses to discredit Toledo. Furthermore, at trial Rivera vigorously cross-examined Toledo by questioning her on, among other things, fraudulent loan applications, criminal investigations of her for drug dealings in New York, and how she obtained her false identifications.¹⁷ Rivera's investigations and trial tactics attempted to discredit Toledo. Reyes claims that this result would have been achieved by the investigations that Reyes alleges that Rivera did...