USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2230
PEDRO SOTO-ALVAREZ,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Pedro Soto-Alvarez on brief pro se.
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Jo Ann Harris, Assistant Attorney General, Theresa M.B. Van
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Vliet, Chief, and Lena Watkins, Attorney, Criminal Division, Narcotic
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and Dangerous Drug Section, Department of Justice, on brief for
appellee.
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July 20, 1995
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Per Curiam. Petitioner Pedro Soto-Alvarez appeals the
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dismissal by the United States District Court for the
District of Puerto Rico of his motion to vacate his sentence
pursuant to 28 U.S.C. 2255. Petitioner raises three claims
on appeal.
First, Soto-Alvarez alleges that he received ineffective
assistance of counsel because his counsel previously had been
hired by Jose Panzardi Alvarez to represent Panzardi's wife,
Gloria Nieves, when she and Panzardi pled guilty to violating
the civil rights of a government informant by killing him.
Panzardi and Nieves, along with Soto-Alvarez and others, had
been members of an organization involved in the shipment of
drugs from Colombia to Puerto Rico. After pleading guilty to
killing the informant, Panzardi and Nieves agreed to testify
against members of their own organization. According to
Soto-Alvarez, his counsel's divided loyalties kept him from
effectively cross-examining Panzardi in regard to Panzardi's
testimony that he and Soto-Alvarez had traveled together to
Venezuela to purchase heroin and cocaine. Panzardi's
passport failed to reveal any travel to Venezuela at the time
in question. Soto-Alvarez also asserts that divided
loyalties prevented his counsel from effectively cross-
examining Panzardi and Nieves as to their prior records and
their agreement to cooperate with government. Such cross-
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examination would, in Soto-Alvarez' view, have undermined the
credibility of Panzardi and Nieves.
To show an entitlement to relief, Soto-Alvarez must show
that his counsel failed to pursue a plausible alternative
defense strategy because of divided loyalties. United States
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v. Garcia-Rosa, 876 F.2d 209, 231 (1st Cir. 1989). The
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record reveals that, while Soto-Alvarez's counsel did not
cross-examine Panzardi about the discrepancy between his
testimony and his passport stamp, counsel did impeach that
testimony, during closing argument, by calling the jury's
attention to the passport, which had been introduced as
evidence, and its apparent conflict with Panzardi's account.
As to the prior records of Panzardi and Nieves and their
cooperation with the government, this court has previously
found that both Panzardi and Nieves were "cross-examined
thoroughly" by counsel for Soto-Alvarez's codefendants, that
the jury was made aware of their involvement in the murder of
the informant, and that their credibility had been "more than
sufficiently explored." Garcia-Rosa, 876 F.2d at 237 & n.23.
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Therefore, further cross-examination of the witnesses by
counsel for Soto-Alvarez on these issues would largely have
been cumulative. Since Soto-Alvarez has not alleged any
specific details as to the conduct of Panzardi and Nieves
which were not explored at trial, he has failed to show the
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existence of an alternative defense strategy which was not
pursued at trial.
Soto-Alvarez also alleges that he received ineffective
assistance of counsel because counsel failed to advise him of
his right to testify in his own behalf. Even if we assume
arguendo that the bare allegation is sufficient to show that
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counsel had been constitutionally deficient, but see
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Underwood v. Clark, 939 F.2d 473, 475-76 (7th Cir. 1991)
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("barebones assertion" that attorney told client he could not
testify insufficient, absent "greater particularity," to
necessitate evidentiary hearing), Soto-Alvarez still must
show a reasonable probability that, but for counsel's error,
the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 694 (1984).
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Soto-Alvarez alleges that, if allowed to testify, he
would have refuted Panzardi's testimony as to the alleged
trip to Venezuela to purchase drugs. However, Soto-Alvarez
has failed to show either that, if allowed to testify, he
would have brought to the jurors' attention any information
of which they were not already aware or how that testimony
would have made it reasonably probable that Soto-Alvarez
would not have been convicted on the charges for which he is
now imprisoned. First, as already noted, the discrepancy in
Panzardi's account of the trip was brought to the jury's
attention. Moreover, the evidence of the trip went to prove
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that Panzardi and Soto-Alvarez were members of a conspiracy
to possess with intent to distribute cocaine and heroin and
Soto-Alvarez' conviction on the conspiracy charge has already
been reversed. United States v. Soto-Alvarez, 958 F.2d 473,
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478 (1st Cir.), cert. denied, 113 S. Ct. 221 (1992). Third,
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there was sufficient evidence of Soto-Alvarez' guilt as to
the other charges on which he was convicted without relying
on the fact that he and Panzardi traveled to Venezuela
together. Id.
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Soto-Alvarez' final claim is that the government
breached its 1985 plea agreement with him by introducing
evidence from the dismissed counts at his 1986 trial. Since
this alleged error is neither constitutional nor
jurisdictional, Soto-Alvarez is entitled to relief only if
the error was "a fundamental defect which inherently
result[ed] in a complete miscarriage of justice." Knight v.
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United States, 37 F.3d 769, 772 (1st Cir. 1994) (quoting Hill
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v. United States, 368 U.S. 424, 428 (1962)).
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According to the 1985 plea agreement, the government
agreed not to charge Soto-Alvarez with the possession with
intent to distribute 283 grams of cocaine during September
1984. During his 1986 trial, Soto-Alvarez was found guilty
of possession with intent to distribute approximately seven
kilograms of cocaine. Even if the 283 grams were improperly
included within those seven kilograms, the jury supportably
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found that, aside from these 283 grams, Soto-Alvarez
possessed with the intent to distribute almost six and three
quarters kilograms of cocaine. Since Soto-Alvarez has
provided no evidence that, even without the inclusion of the
283 grams, either the verdict or his sentence would have been
any different, we find no miscarriage of justice in this
case.
The district court order dismissing Soto-Alvarez's
petition is affirmed.
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