USA v. BERRIOS et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
║
UNITED STATES OF AMERICA and ║
GOVERNMENT OF THE VIRGIN ║
ISLANDS, ║ 1:04-cr-00105-4
║ 1:13-cv-00063
Plaintiffs, ║
║
v. ║
║
FELIX CRUZ, ║
║
Defendant. ║
________________________________________________ ║
TO: Harry Cyril Wallace, Esq., AUSA
Felix Cruz, Pro Se, Reg. No. 57593-004
Pollock USP
P.O. Box 2099
Pollock, LA 71467
REPORT AND RECOMMENDATION
THIS MATTER is before the Court upon the Order (ECF No. 878) of Chief Judge
Wilma A. Lewis in Criminal No. 04-00105-4 referring Defendant Felix Cruz’s pro se Motion
under 28 U.S.C. § 22551 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (ECF No. 753) to the undersigned for a Report and Recommendation. The
government filed a response in opposition to the motion (ECF No. 806). The time for filing
a reply has expired. For the reasons that follow, it is recommended that Felix Cruz’s motion
be denied.
1 All citations to the United States Code are to the electronic version that appears in Westlaw.
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I. BACKGROUND
As the parties are familiar with the underlying facts of this case, only those facts
relevant to this discussion will be recited.
On April 17, 2004, Defendant Cruz and his three co-Defendants engaged in a series
of crimes including car-jacking, attempted robbery, and murder. On May 31, 2006, a grand
jury returned an 11-count third superseding indictment against the four named
defendants, including Felix Cruz. Third Superseding Indictment (Docket No. 309), dated
May 31, 2006. On February 6, 2007, following a four-week trial, the jury convicted all four
Defendants on all charges. After the Court entered judgments of acquittal on Counts Three
and Four,2 Cruz was sentenced to life imprisonment on Count Five, murder first degree,
and Count Six, causing the death of a person through the use of a firearm. Judgment and
Commitment (ECF No. 578), entered June 27, 2007, and Amended Judgment (ECF No. 686),
entered January 30, 2009.3
Cruz and his co-Defendants filed a timely appeal. The Third Circuit Court of Appeals
affirmed the convictions. United States v. Berrios, 676 F. 3d 118 (3d Cir. 2012). Cruz chose
not to file a petition for writ of certiorari with the United States Supreme Court. He then
2 See United States v. Berrios, Crim. No. 2004/0105, 2008 WL 2704884 (D.V.I. July 8, 2008).
3 The sentence also included: 20 years each on Count One, conspiracy to commit robbery, and Count Two,
attempted robbery; 15 years each on Count Seven, unauthorized use of a firearm during a crime of violence,
and Count Eight, attempted car jacking; and, with the sentences on Counts One, Two, and Eight to run
consecutively to each other and sentences on Counts Five and Seven to be served after the sentences on the
other Counts. Judgment and Commitment (ECF No. 578), entered June 27, 2007, and Amended Judgment
(ECF No. 686), entered January 30, 2009.
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timely filed his Section 2255 motion to vacate, which was docketed by the Court on June 10,
2013. Cruz asserts 18 grounds for post-conviction relief.
II. LEGAL STANDARD
"Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal
prisoners can challenge their convictions or sentences that are allegedly in violation of the
Constitution." Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (citing Davis v.
United States, 417 U.S. 333, 343 (1974)). As the Davis Court notes, “[H]istory makes clear
that § 2255 was intended to afford federal prisoners a remedy identical in scope to federal
habeas corpus.” Davis v. United States, 417 U.S. 333, 343 (1974). However, not every
asserted error of law can be raised in a § 2255 motion. Id. at 346. The remedy is intended
only where the “claimed error of law was a ‘fundamental defect which inherently results in
a complete miscarriage of justice’ and [where] ‘(i)t . . . present(s) exceptional circumstances
where the need for the remedy afforded by the writ of habeas corpus is apparent.’" Id.
(quoting Hill v. United States, 368 U.S. 428 (1962) (internal quotation marks omitted)).
In order to prevail on a § 2255 motion, a petitioner must show one of the following:
1.) the sentence was imposed in violation of the Constitution or the laws of the United
States; 2.) the court was without jurisdiction to impose the sentence; 3.) the sentence was
in excess of the maximum authorized by law; or, 4.) the sentence is otherwise subject to
collateral attack. 28 U.S.C. § 2255(a). If the court finds any of these grounds, the court
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must vacate the judgment, discharge or resentence the petitioner, or grant the petitioner a
new trial as appropriate. 28 U.S.C. § 2255(b).
A § 2255 motion is not a substitute for an appeal. Hodge v. United States, 554 F.3d
372, 378-79 (3d Cir. 2009) (citing Bousley v. United States, 523 U.S. 614, 621 (1998)). Thus,
the general rule is that a movant “has procedurally defaulted all claims that he neglected to
raise on direct appeal." Hodge, 554 F.3d at 379 (citation omitted); Massaro v. United States,
538 U.S. 500, 504 (2003). Moreover, a 2255 motion may not "be used to relitigate matters
decided adversely on appeal." Government of the Virgin Islands v. Nicholas, 759 F.2d 1073,
1075 (3d Cir. 1985) (citation omitted). However, a movant properly raises ineffective
assistance of counsel arguments under § 2255 rather than on direct appeal. See, e.g.,
Massaro, 538 U.S. at 504 (explaining it is "preferable" that such claims be considered on
collateral review where the record for such claims may be properly developed); accord
United States v. Garcia, 516 F. App’x 149, 151 (3d Cir. 2013) ("It is well-settled that this
Court ordinarily does not review claims of ineffective assistance of counsel on direct
appeal.") (citing United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003)).
“A court may dismiss a motion to vacate without . . . holding an evidentiary hearing
when it is clear from both the motion and the record that the movant is not entitled to
relief.” United States v. Delbridge, 504 F. App’x 145, 148 (3d Cir. 2012); 28 U.S.C. § 2255(b).
Further, a court may decide a § 2255 “motion without requiring the production of the
prisoner at the hearing.” 28 U.S.C. § 2255(c). A petitioner's pro se pleading is construed
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liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97,
106 (1976)); see also Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013)
(explaining that the liberal construction accorded a pro se litigant's pleadings does not
include the rendering of substantive legal advice).
III. DISCUSSION
Said Defendant/Movant asserts 18 grounds for relief. Many of the grounds also
form the basis for Cruz’s claims of ineffective assistance of both trial and appellate counsel.
As recited in Cruz’s motion the grounds are stated as follows:
One: whether the conviction and sentences are unconstitutional due to
ineffective assistance of counsel
Two: whether movant was denied a fair trial when a biased juror was
impaneled after being excused by the trial court for being biased
Three: whether the trial court denied movant a fair trial where it failed to
conduct a hearing to determine whether the implied bias existed
Four: whether trial court violated movant’s Sixth Amendment right to
confrontation where it admitted Ms. Michaud’s testimony and report
that’s based on testimonial hearsay
Five: whether Ms. Michaud’s report was testimonial hearsay and its
admission, without the accompanying testimony of those specialists
who conducted the testing, violated movant’s Sixth Amendment right
Six: whether Ms. Michaud’s testimony and report that is based on
testimonial hearsay were admitted for the purpose of establishing
their truth of the matter, thus violating Fed. R. Evid. 703
Seven: whether movant was denied a fair trial where the trial court failed to
give a limiting jury instruction
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Eight: whether movant was denied a fair trial where the government
misused Fed. R. Crim. P. Rules 15 and 17 to conduct investigatory
interrogation and depositions of grand jury witnesses outside the
presence of the grand jury
Nine: whether prosecutorial misconduct denied movant a fair trial where
the government’s attorneys and case agents misused Fed. R. Crim. P.
Rule 17 to facilitate “investigatory interrogation” of a grand jury
witness Tyiasha Moore outside the presence of the grand jury
Ten: whether appellate counsel was ineffective where he refused to raise
issue that suppression was required
Eleven: whether movant was denied due process and a fair trial where the
trial court applied strict rules of evidence to exclude a material and
favorable tape recording
Twelve: whether Armando Cruz’s statements on the tape recording are not
hearsay, but fall under the non-hearsay under Fed. R. Evid. 801(d)(2)
and exclusion denied movant a fair trial
Thirteen: whether appellate counsel was ineffective in refusing to argue on
appeal the exclusion of the tape recording
Fourteen: whether the court’s jury instruction on Count Six relieved the
government’s burden, thus violating movant’s due process rights
Fifteen: whether the court violated movant’s Fifth Amendment right when it
imposed consecutive sentences and violated the double jeopardy
clause
Sixteen: whether the sentencing court violated movant’s due process rights
under Fed. R. Crim P. Rule 32
Seventeen: whether movant was denied Fifth and Sixth Constitutional rights
where the sentencing court adopted inaccurate information and made
factual findings
Eighteen: whether counsel was ineffective where he failed to launch three
objections at sentencing
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Mot. (ECF No. 753) at 4-29.4
A. Ineffective assistance of trial counsel
To succeed on an ineffective assistance of trial counsel claim a movant must show
both that 1.) counsel's representation was deficient and that 2.) the deficient performance
“prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Regarding
the “deficient” prong, a movant must demonstrate that counsel “made errors so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. As for the
prejudice prong, a movant must show “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.” Id.
at 694.5 The movant bears the burden of establishing his ineffective assistance of counsel
claims by a preponderance of the evidence. United States v. Serrano, 798 F. Supp. 2d 634,
641 (E.D. Pa. 2011) (citing Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980)). A
movant “must identify the acts or omissions of counsel that are alleged not to have been the
result of reasonable professional judgment. The court must then determine whether, in
light of the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690. Judicial scrutiny of
4 Cruz also filed a Memorandum of Law (ECF No. 756) in which he elucidates each ground for relief and
which, due to its length, is divided and attached as two attachments to the main document.
5 A court has discretion to dispose of a claim at either prong, as there is no required order to the Strickland
inquiry. Strickland, 466 U.S. at 697 (explaining a court need not “determine whether counsel's performance
was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies”
or “address both components of the inquiry if the defendant makes an insufficient showing on one”).
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counsel's performance is highly deferential, and a petitioner must overcome a “strong
presumption” that counsel's strategy and tactics “fall[ ] within the wide range of reasonable
professional assistance.” Id. at 689. In addition, “[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment. . . . Accordingly, any deficiencies in
counsel’s performance must be prejudicial to the defense in order to constitute ineffective
assistance under the Constitution.” Id. at 691-92. Thus, “[s]urmounting Strickland's high
bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
In the matter at bar, Cruz raises a general allegation of ineffective assistance of
counsel. Mot. (ECF No. 753) at 4; Mem. (ECF No. 756) at 9-10. Cruz also makes specific
charges, contending that his trial counsel was ineffective for failing to 1.) strike a biased
juror, 2.) object to a juror who recognized the brother of the deceased, 3.) object to the
admissibility of Ms. Michaud’s testimony, 4.) object to Ms. Michaud’s report on
confrontation grounds, 5.) request a limiting instruction to the jurors, 6.) move to exclude
the grand jury testimony of Tyiasha Moore and Angel Ayala, 7.) object to the jury
instruction on Count VI, and 8.) object to the “revised” presentencing report and the Court’s
findings based thereon.
As will be shown herein, the claims that underlie all of the alleged “failures” of trial
counsel are meritless. Thus, trial counsel’s alleged “failures” do not constitute
unreasonable conduct or unprofessional errors. Even assuming, arguendo, that Cruz could
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prove that trial counsel’s performance was deficient, in the absence of any evidence
showing that the result of trial would have been different had counsel acted “reasonably,”
Cruz’s claim fails.
B. Biased juror
Cruz alleges that the Court impaneled a biased juror, and, as a result, he was denied
a fair trial. Mot. (ECF No. 753) at 5; Mem. (ECF No, 756) at 10-13. Cruz also alleges that he
was denied effective assistance of counsel because his trial counsel failed to object to the
juror. Mem. (ECF No. 756) at 13-16. However, as the government explains in its response
in opposition (hereinafter, response or Response or Resp.) to the motion to vacate, the
court reporter has verified that the trial transcript contains a typographical error. See
Response (ECF No. 806) at 28-29.
The transcript identifies Juror Number 6 as stating that s/he was biased and then
also selected as a juror. The court reporter, Valerie Lawrence, attests that actually it was
Juror Number 26 who was the juror who indicated s/he could not be impartial and was
excused for cause, not Juror Number 6. See Affidavit of Valerie Lawrence, dated July 25,
2014 (filed with Response at ECF No. 806 as Attachment #1). Based upon the court
reporter’s affidavit, the Court finds that Juror Number 6 was properly selected and that a
“biased” juror was not impaneled as a member of the jury. Thus, this claim is meritless.
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C. Juror who knew decedent’s brother
For his third claim, Cruz asserts that the Court should have conducted a hearing
when it was revealed that the murder victim’s brother recognized one of the jurors. Mot.
(ECF No. 753) at 7; Mem. (ECF No. 756) at 16-23. Cruz claims that the Court’s failure to
conduct a hearing to determine whether “implied bias” existed with regard to the juror
whom the deceased’s brother recognized denied him the right to a fair trial. He also alleges
ineffective assistance of counsel because counsel failed to object to the juror or to request a
hearing to determine implied bias. Mem. (ECF No. 756) at 23-24.
Implied bias is “’bias attributable in law to the prospective juror regardless of actual
partiality.’ . . . This doctrine is rooted in the recognition that certain narrowly-drawn
classes of jurors are highly unlikely, on average, to be able to render impartial jury
service . . . .” United States v. Mitchell, 690 F.3d 137, 142 (3d Cir. 2012). The doctrine is
limited and “reserved for exceptional circumstances.” Id. at 147.
As this Court has stated: “The categories of presumptive bias under the law are:
kinship to a party, even if remote; any financial interest in the case; former jury service in
the same cause, or because the prospective juror was connected to the same society or
corporation as a party in the case.” United States v. Harper, Criminal Action No. 2011-004,
2014 WL 3708071, at *9 (D.V.I. July 25, 2014), aff'd sub nom. United States v. Flanders, 635
F. App'x 74 (3d Cir. 2015) (citations omitted). None of these categories is present with
regard to the juror at issue. In the absence of the juror falling within one of the
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presumptive-bias categories, the mere fact that the decedent’s brother recognized the juror
is insufficient to find that a hearing to determine implied bias was required. Because a
hearing to determine implied bias was not warranted, Cruz’s counsel did not act
unreasonably in failing to request a hearing.
Further, Cruz admits that this claim was not raised on direct appeal. Because Cruz
failed to raise this issue in his appeal, he has procedurally defaulted his claim.
D. Admission of Ms. Michaud’s testimony and report
Grounds Four, Five, Six, and Seven center around the testimony of the government’s
expert, Amy Michaud. Mot. (ECF No. 753) at 8-13; Mem. (ECF No. 756) at 25-50. Cruz
alleges that, because Ms. Michaud’s testimony and report were based upon the results of
testing actually carried out by others, he was denied his right to confrontation and cross
examination. Mem. (ECF No. 756) at 27-28. He also claims that her testimony and report
should not have been allowed into evidence because they constituted hearsay or, at least,
should have resulted in a limiting instruction to the jury. Id. at 46-50. In its response, the
government notes that Ms. Michaud “indicated at least six times that her testimony was
based upon her own observations and analyses.” Resp. (ECF No. 806) at 34. In addition,
the government states that, “although Ms. Michaud testified that she had prepared a report,
her report was not offered or admitted during trial.” Id. at 35.
Based upon the facts presented, the Court finds that Ms. Michaud’s testimony and
report did not constitute hearsay nor did they deprive said Defendant/Movant of the right
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to confront or cross-examine. Moreover, like the previous claims, Cruz admits that these
claims were not raised on direct appeal. Cruz does not claim innocence or provide
evidence of actual prejudice. Consequently, Cruz has procedurally defaulted these claims.
In addition, the fact that the Ms. Michaud’s testimony and report were not hearsay
and did not deprive said Defendant/Movant of his constitutional rights also resolves said
Defendant/Movant’s claim of ineffective assistance of counsel based upon counsel’s failure
to object to Ms. Michaud’s testimony and report and to request a limiting jury instruction.
However, even if Ms. Michaud’s testimony should have been excluded, said
Defendant/Movant provides no evidence that the trial would have resulted differently had
counsel objected or requested a limiting instruction.
E. Testimony of witnesses Tyiasha Moore and Angel Ayala
Cruz asserts in Grounds Eight, Nine, and Ten that the testimony of witnesses
Tyiasha Moore and Angel Ayala occurred outside of the grand jury and constituted
improper “investigatory interrogations.” Mot. (ECF No. 753) at 14-18; Mem. (ECF No. 756-
1 at 3-33) at 56-86. A review of the transcripts and the timing of the court proceedings
persuade the Court that said Defendant/Movant’s characterization and understanding of
the proceedings are in error. The Court agrees with the government’s explanation that
both witnesses were brought before the Court after failing to appear before the grand jury,
as required, and those proceedings before the Court wherein the Court questioned them
then became part of the Grand Jury proceedings. See Resp. (ECF No. 806) at 37-40.
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Consequently, the questioning of the two witnesses were not improper “investigatory
interrogations.”
Again, said Defendant/Movant failed to raise Grounds Eight and Nine on appeal;
thus, those claims have been procedurally defaulted. As explained hereinafter, Cruz’s
allegation of ineffective assistance of appellate counsel regarding these claims, in Ground
Ten, fails because he has not demonstrated how these claims were “clearly stronger” than
the bases of appeal appellate counsel ultimately chose to pursue.
F. Exclusion of Armando Cruz tape recording
Grounds Eleven, Twelve, and Thirteen concern the tape recording of Armando Cruz
that said Defendant/Movant believes was favorable to him and improperly excluded by the
trial judge. Mot. (ECF No. 753) at 19-22; Mem. (ECF No. 756-1 at 36-57 and 756-2 at 1-2) at
89-112. As the Court understands the issue, said Defendant/Movant’s counsel attempted
to introduce a tape recording of a conversation between a witness, Armando Cruz, and said
Defendant/Movant, Felix Cruz. On the recording, Armando Cruz says that he is
unemployed. United States v. Berrios, Crim. No. 2004-0105, 2008 WL 2704884 at *9 (D.V.I.
July 8, 2008). However, during live testimony at trial, Armando Cruz stated that he made
$700 a week. Id. As this Court noted, no Defendant cross-examined Armando Cruz with
regard to that particular testimony, and said Defendant/Movant tried to introduce the tape
recording during his case in chief. Id. at *10.
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The Court affirmed its prior ruling denying admission of the recording at that point
in the trial, id., relying in Fed. R. Evid. 613(b), which provides: “Extrinsic evidence of a
witness's prior inconsistent statement is admissible only if the witness is given an
opportunity to explain or deny the statement and an adverse party is given an opportunity
to examine the witness about it, or if justice so requires.” Fed. R. Evid. 613(b). The proper
time to have introduced the recording would have been during cross-examination of
Armando Cruz when he was on the witness stand. Other options would have been for said
Defendant/Movant Felix Cruz to have subpoenaed Armando Cruz to appear as his witness
or at least requested that Armando Cruz remain available during the trial to be re-called.
Berrios, 2008 WL 2704884 at *10. Said Defendant/Movant did not do any of those things in
order to give Armando Cruz an “opportunity to explain or deny” the inconsistencies
between his statements. Id. Thus, the Court properly applied the rules of evidence in
excluding the recording.
Cruz also claims that the Court improperly found Armando Cruz’s statements to be
hearsay. Cruz is mistaken. According to the transcripts and the Court’s opinion resolving
post-trial motions, the Court refused to allow the recording into evidence because Felix
Cruz’s statement, not Armando Cruz’s statement, was hearsay. Id. As Defendant/Movant
recites in his Memorandum of law, his counsel states that he is seeking to introduce the
recording because “my client categorically den[ies] that he was involved . . . .” Mem. (ECF
No. 756-1 at 47) at 100. This purpose is the very definition of hearsay, that is, to “prove the
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truth of the matter asserted.” Fed. R. Evid. 801(c). Consequently, the Court properly
excluded the recording because Felix Cruz’s statement constitutes hearsay. See Berrios,
2008 WL 2704884 at *10.
As with other issues, said Defendant/Movant failed to raise Ground Eleven and
Ground Twelve on appeal. These claims, too, have been procedurally defaulted. Further,
Cruz’s allegation of ineffective assistance of appellate counsel regarding these claims
contained in Ground Thirteen fails because he has not demonstrated how these claims
were “clearly stronger” than the issues appellate counsel chose to pursue on appeal.
G. Trial Court’s jury instruction on Count Six relieved the government’s
burden to prove beyond a reasonable doubt
Count Six of the third superseding indictment charged Defendants with causing the
death of a person through the use of a firearm. Third Superseding Indictment (Docket No.
309) at 7. Cruz alleges that the jury instruction regarding this count of the indictment
“improperly relieved the Government of the burden of proving the most critical element of
Federal law for ‘in relation to’ and ‘in furtherance of’ the crime of violence, because the Jury
Instructions did not clarify ‘in relation to’ and ‘in furtherance of’ the crime of violence . . . .”
Mem. (ECF No. 756-2 at 5) at 115.
It is well settled that, when reviewing jury instructions, the court of appeals
“consider[s] ‘whether, . . . the charge as a whole fairly and adequately submits the issues in
the case to the jury.’” United States v. Bullard, 38 F. App’x 753, 754 (3d Cir. 2002) (citation
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omitted). In other words, the Court determines whether, “[t]aking the jury instructions as
a whole[,] . . . they are [] confusing [or] misleading.” Id. at 755.
In support of his claim, Cruz quotes the jury instruction regarding Count Six. On its
face, the instruction plainly states each element of the offense and states that each must be
“proved beyond a reasonable doubt.” Jury Instruction for Count 6 – Causing the Death of a
Person Through the Use of One or More Firearms (ECF No. 806, Attachment #6). Thus, his
argument that the instruction somehow relieves the government’s burden of proof is not
borne out by the text.
In addition, as the government notes, the jury instruction regarding Count Four
contains an explanation of the phrase “in furtherance of.” Resp. (ECF No. 806) at 45; see
also ECF No. 806, Attachments #6 and #7. Taken together or, as the case law directs, taking
the jury instructions as a whole, the jury instructions adequately present the issues and are
not misleading.
Based upon the foregoing, the Court finds that the jury instruction regarding Count
Six did not relieve the government from proving any element of the offense beyond a
reasonable doubt and, because the Court adequately defined “in furtherance of” in its jury
instruction regarding Count Four, the jury instructions, taken as a whole, were not
deficient. Trial counsel did not act unreasonably or unprofessionally when he failed to
object to the jury instructions because they were adequate. In any event, said
Defendant/Movant does not demonstrate that the results of trial would have been different
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had counsel objected. Further, said Defendant/Movant failed to raise this claim on appeal
and, thus, has procedurally defaulted the claim contained in Ground Fourteen.
H. Counts V and VI = Double jeopardy
Said Defendant/Movant asserts as Ground Fifteen that the consecutive life
sentences for his convictions on Counts Five and Six violate the double jeopardy clause.
Mot. (ECF No. 753) at 25; Mem. (ECF No. 756-2 at 13) at 123. This same issue was
presented to the Third Circuit Court of Appeals by Cruz’s co-Defendant Reinaldo Berrios.
See Berrios, 676 F.3d at 138-144. The appellate court rejected Berrios’s double jeopardy
challenge, and the Court adopts its reasoning and findings, here. Thus, this claim
completely lacks any merit. The failure of appellate counsel to raise this issue is rendered
moot by the rejection of the claim. Additionally, Cruz has procedurally defaulted this claim
because he failed to raise it on appeal.
I. PSI report
The final three grounds upon which Cruz seeks relief all relate to his presentence
investigation (PSI) report. Mot. (ECF No. 753) at 26-30; Mem. (ECF No. 756-2 at 18-30) at
128-40. Said Defendant/Movant alleges that his due process rights were violated when the
sentencing court failed to ask him whether he had the opportunity to review the “revised”
presentence investigation report, thereby not allowing said Defendant/Movant to make
specific objections to the said report pursuant to Fed. R. Crim. P. Rule 32. Mem. (ECF No.
756-2 at 18-19) at 128-29. Cruz also claims that he was “denied his 5th and 6th
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Constitutional Rights. Where [sic] the sentencing Court adopted inaccurate information and
made factual findings.” Mot. (ECF No. 753) at 28. Lastly, Cruz claims that he was denied
effective assistance of counsel when counsel failed to object to the Court’s “violation” of
Fed. R. Crim. P. Rule 32 and to the “inaccurate” information in the PSI report and the
Court’s adoption thereof. Id. at 29.
Rule 32 of the Federal Rules of Criminal Procedure requires the sentencing court to
“verify that the defendant and the defendant’s attorney have read and discussed the
presentence report and any addendum to the report . . . .” Fed. R. Crim. P. 32(i)(1)(A).
Nothing in the rule itself, or in the Third Circuit case law, imposes an affirmative duty on
the Court “to ask the defendant directly whether he or she ‘has had an opportunity to read
the report, whether the defendant and counsel have discussed the report and whether the
defendant wishes to challenge any facts in the report.’” United States v. Mays, 798 F.2d 78,
80 (3d Cir. 1986) (quoting United States v. Rone, 743 F.2d 1169, 1174 (7th Cir. 1984)).
As the transcript of the sentencing hearing indicates, counsel for Cruz informed the
Court that he reviewed the presentence investigation report and gave a copy to said
Defendant/Movant. Transcript of Sentencing, June 11, 2007 (ECF No. 806-8) at 41, 43.
Said counsel also told the Court: “I visited Mr. Cruz twice in Guaynabo to go over the
presentence report. And each time I went there he refused to go over the presentence
report with me . . . .” Id. at 38. Clearly, counsel and said Defendant/Movant “had the
opportunity to read the PSI prior to sentencing.” Mays, 798 F. 2d at 79. Further, Cruz did
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not contradict his counsel regarding said statements nor did he raise any objections
specific to the presentence investigation report when he was allowed to address the Court.
See id. at 46-49; Transcript of Resentencing, January 27, 2009 (ECF No. 806-9) at 4-11.
Therefore, the Court finds no violation of Fed. R. Crim. P. Rule 32 or any due process right
thereunder.
With regard to Cruz’s allegation that the PSI report contained “inaccurate
information” that the Court adopted when it made its factual findings, Cruz seemingly takes
issue with the parts of the report that merely recite the charges contained in the
indictment. See Mem. (ECF No. 756-2 at 21-23) at 131-33. However, said
Defendant/Movant was convicted of those counts of the indictment; hence, the language to
which Cruz objects is not inaccurate. Consequently, this claim is meritless. As with the
previous claims, these claims regarding the presentence investigation report have been
procedurally defaulted due to Cruz’s failure to raise them on appeal.
The Court also finds that because Cruz’s claims regarding Fed. R. Crim. P. Rule 32
and the presentence investigation report are without merit, counsel for Cruz did not act
unreasonably when he failed to object during the sentencing hearings. Even if counsel
would have objected as Cruz desired, said Defendant/Movant has failed to show that the
trial would have resulted in a different outcome.
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J. Ineffective assistance of appellate counsel
The standard for ineffective assistance of appellate counsel is generally the same as
for trial counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). That is, the Court applies the
two-prong test enunciated in Strickland. With regard to appellate counsel’s deficiency,
when a petitioner contends appellate counsel failed to raise specific issues, a petitioner
must show that his appellate counsel's representation fell below an objective standard of
reasonableness – that is, "counsel unreasonably failed to discover nonfrivolous issues and
to file a merits brief raising them.” Smith, 528 U.S. at 285. To establish the prejudice prong,
a petitioner must show that “’there is a reasonable probability that the result of the appeal
would have been different had counsel’s stewardship not fallen below the required
standard.’" United States v. Solomon, Nos. 2:05-cr-0385, 2:12-cv-0282, 2013 WL 869648 at
*24 (W.D. Pa. Mar. 7, 2013) (quoting United States v. Mannino, 212 F.3d 835, 845 (3d Cir.
2000)).
Focusing on issues most likely to prevail "’is the hallmark of effective appellate
advocacy.’" Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (quoting Smith v. Murray,
477 U.S. 527, 536 (1986)). Accordingly, where appellate counsel is charged with
ineffectiveness for failure to raise a particular claim, "it is difficult to demonstrate that
counsel was incompetent." Smith, 528 U.S. at 288 (citation omitted). To overcome the
presumption of competence of appellate counsel, a petitioner must show the omitted issues
were "clearly stronger" than those counsel chose to assert. Id. (citing Gray v. Greer, 800
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F.2d 644, 646 (7th Cir. 1986)); Jones v. Barnes, 463 U.S. 745, 752-54 (1983) (rejecting “per
se” rule that appellate counsel must raise every nonfrivolous claim).
Cruz asserts that his appellate counsel was ineffective for failing to raise a
suppression issue regarding the grand jury testimony of Tyiasha Moore and Angel Ayala,
for failing to raise the issue of the exclusion of a tape recording “material and favorable” to
the defense, and for failing to raise a double jeopardy claim regarding Counts Five and Six.
Appellate counsel raised three nonfrivolous claims in Cruz’s direct appeal: that the
recording of the conversation between co-Defendants Berrios and Moore should not have
been admitted into evidence, that the evidence was insufficient to convict him of all of the
charges, and that the prosecutor engaged in misconduct by “vouching” for witnesses
Tyiasha Moore and Angel Ayala. United States v. Berrios, 676 F. 3d 118 (3d Cir. 2010).
As the United States Supreme Court has stated, appellate counsel is free to “select
from among [all possible claims] in order to maximize the likelihood of success on appeal.”
Smith, 528 U.S. at 288. Cruz has failed to meet his burden of showing that the claims not
raised on appeal were “clearly stronger” than the ones selected by his appellate counsel.
Moreover, Cruz has presented no evidence that the result of his appeal would have been
different had appellate counsel asserted one of the other claims Cruz raises in his § 2255
motion. Consequently, this claim is without merit.
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IV. CONCLUSION
Based upon the foregoing, IT IS HEREBY RECOMMENDED that Defendant Felix
Cruz’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside[,] or Correct Sentence by a Person
in Federal Custody (ECF No. 753) be DENIED without an evidentiary hearing,6 and
it is further RECOMMENDED that a certificate of appealability be DENIED.7
Any objections to this Report and Recommendation must be filed in writing within
fourteen (14) days of receipt of this notice. Failure to file objections within the specified
time shall bar the aggrieved party from attacking such Report and Recommendation before
the assigned District Court Judge. 28 U.S.C. § 636(b)(1); LRCi 72.3.
ENTER:
Dated: December 15, 2017 /s/ George W. Cannon, Jr.
GEORGE W. CANNON, JR.
MAGISTRATE JUDGE
6 The question of whether to order an evidentiary hearing when considering a motion to vacate a sentence
under § 2255 “is committed to the sound discretion of the district court.” Government of Virgin Islands v.
Forte, 865 F.2d 59, 62 (3d Cir.1989). A § 2255 evidentiary hearing “is unnecessary when the ‘files and records
of the case conclusively show that the prisoner is entitled to no relief.’” United States v. Padilla–Castro, 426 F.
App’x 60, 63 (3d Cir.2011) (quoting 28 U.S.C. § 2255(b)). Here, the record in this case conclusively shows that
Cruz is not entitled to relief.
7When a district court issues a final order on a § 2255 motion, it must make a determination whether it will
permit a certificate of appealability. 3d Cir. L.A.R. 22.2; Fed. R. App. P. 22(b)(1). A district court will issue a
certificate of appealability only upon a finding of a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Here, the record fails to show a violation of Cruz's constitutional rights.
Accordingly, a certificate of appealability should be denied.
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