United States Court of Appeals For the First Circuit
No. 18-1963
SANDRA I. FLORES-RIVERA,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Kayatta, Selya, and Barron, Circuit Judges.
Lydia Lizarribar-Masini for appellant. Robert P. Coleman, III, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, were on brief, for appellee.
October 29, 2021 KAYATTA, Circuit Judge. Sandra Flores-Rivera ("Flores")
is currently serving a twenty-year term of imprisonment for various
drug-trafficking offenses. Shortly after her jury returned its
verdict against her, the government revealed that it had failed to
produce several clearly relevant documents that plainly called
into question the credibility of the government's key witnesses
against Flores and her co-defendants. Forcefully claiming the
government's defalcation violated their due process rights under
Brady v. Maryland, 373 U.S. 83, 87 (1963), Flores's co-defendants
convinced this court, in their direct appeals, to vacate their
convictions and remand for a new trial. United States v. Flores-
Rivera (Flores I), 787 F.3d 1, 21 (1st Cir. 2015). Flores,
however, did not raise the Brady violation on her simultaneous and
unsuccessful appeal. Id. at 15 n.7. She now seeks vacatur of her
federal conviction and sentence pursuant to 28 U.S.C. § 2255,
arguing that her appellate counsel was constitutionally
ineffective under Strickland v. Washington, 466 U.S. 668, 687
(1984), for failing to raise the Brady claim on direct appeal.
The district court denied Flores's motion to vacate, concluding
that there was no reasonable probability that the impeachment
evidence would have made a difference at her trial. For the
reasons that follow, we reverse the judgment of the district court
and remand to the district court with instructions to grant
Flores's motion to vacate her conviction.
- 2 - I.
Our opinion in Flores I describes at length the relevant
factual background for this collateral appeal. We repeat only the
essential facts and add detail where appropriate.
The government alleged that Flores and forty-six other
people participated in a drug-trafficking conspiracy spanning
various parts of eastern Puerto Rico. Sandra Flores went to trial
with three other defendants -- Sonia Flores-Rivera, Carlos Omar
Bermúdez-Torres ("Omar"), and Cruz Roberto Ramos-González
("Ramos").
At trial, the bulk of the evidence against Flores and
her co-defendants came from three cooperating witnesses: Harry
Smith Delgado Cañuelas ("Delgado"), a seller for the drug-
trafficking organization, who was the government's "star witness";
Andy Marcano, a drug runner; and Xiomara Berríos-Rojas
("Berríos"), a drug runner and seller. All three testified that
Flores was both a runner and a seller of cocaine, crack, and
marijuana at a drug point located at the Victor Berríos Public
Housing Project in Yabucoa, Puerto Rico.
The cooperating witnesses also helped the government
present non-testimonial evidence against Flores. The government
had a police surveillance video that showed Flores doing something
at a drug point. Berríos and Delgado provided explanatory
narrative, claiming that what Flores was doing was distributing
- 3 - crack and tallying up drug money. Berríos also testified about
the cryptic contents of notebooks seized from the home of Sandra
"La Caderúa" Fernandez, a bookkeeper for the drug-trafficking
organization. On one page of the notebook, the initials "SF"
appear three times. In two of those instances, "10:00" precedes
"SF," and in the third instance "-100" precedes "SF." Berríos
claimed that "SF" meant Sandra Flores, not Sandra Fernandez or
Sonia Flores, and that the entries meant that Sandra Flores had
delivered drug proceeds at ten o'clock and borrowed $100 from those
proceeds.
After the jury returned guilty verdicts against all
defendants, the government belatedly disclosed documents created
prior to trial that could have been used to impeach the
cooperators' testimony. First, the government belatedly disclosed
a photocopy of what appears to be a letter (or perhaps part of a
letter) from Delgado to the lead prosecutor. In the letter,
Delgado described himself as the government's "best cooperator"
and pleads for assistance from the prosecutor for his family:
I need you to help me please. I promised you . . . to do everything you said and I have done it to the point that you know how this has gotten, we have more than we expected, more evidence and more strength for the case . . . .
At the bottom of the second of the two photocopied pages, Delgado
wrote, "I hope you can help me, I will" before the photocopy cuts
- 4 - off. The government was unable to produce the letter to show
whether Delgado continued on a third page to complete his sentence.
And the district court was unable to determine definitively whether
the photocopy produced was complete. Second, the government
belatedly disclosed notes that Delgado kept of conversations he
had with other cooperators while they were in prison together.
The notes indicated that Delgado was encouraging Berríos and
Marcano to testify. Third, the government belatedly disclosed
"rough notes" that federal agents took during an interview with
another cooperating witness who never testified at trial. The
rough notes showed that Marcano knew that Delgado and Berríos were
communicating in prison.
Based on this newly disclosed evidence, Ramos and Omar
moved for new trials. Flores joined Ramos's motion. The
defendants pointed out to the district court what later struck us
as obvious -- the letter would have provided a powerful tool for
directly impeaching the testimony of the three cooperators, given
their repeated claims at trial that they had not been communicating
together, and especially given the prosecution's inexplicable
inability to account for the entire letter. After holding several
evidentiary hearings, the district court nevertheless denied all
of the defendants' post-trial motions.
On direct appeal, Ramos and Omar pressed the Brady issue
forcefully and successfully. Considering the effect of the
- 5 - evidence's nondisclosure, we observed that "the possibility that
the three linchpin witnesses colluded to fabricate incriminating
testimony goes to the very core of this case and potentially
compromises every piece of factual evidence the government had
against Ramos and Omar." Flores I, 787 F.3d at 20. And we could
not "say for sure what Delgado, [Berríos], and [Marcano] would
have said had they been confronted with this evidence on the
stand." Id. at 21. We therefore remanded their cases with
instructions to grant them new trials because we found "it to be
'reasonably probable' that the impeachment evidence would have
caused the jury to acquit Ramos and Omar." Id.
Inexplicably, Flores's appellate counsel1 did not join
in raising the Brady issue on appeal even though it had been
preserved below, and even as counsel for the other appellants in
the very same case were pressing the issue. Instead, Flores's
counsel on appeal raised two other issues that had not even been
preserved below: a challenge to the trial court's evidentiary
rulings and a claim that Flores's twenty-year mandatory-minimum
sentence violated the Constitution and 18 U.S.C. § 3553(a). The
evidentiary arguments did not overcome the rigors of plain-error
review, and the sentencing arguments ran into "a stone wall of
1 At trial, Flores was represented by Anita Hill-Adames. Flores requested the appointment of new counsel for her appeal, and this court appointed H. Manuel Hernández to represent her.
- 6 - controlling precedent." See id. at 22–25. We also pointed out
that counsel left the Brady argument on the table, observing that
Flores's "trial counsel joined Ramos and Omar in petitioning the
district court for a new trial" and that her appellate counsel did
not renew the argument despite his "clear[] aware[ness] of his
ability to adopt a co-appellant's arguments in a consolidated
case . . . since he reserved his right to do so in Sandra's opening
brief." Id. at 15 n.7.
Proceeding pro se, Flores subsequently moved to vacate
her sentence pursuant to 28 U.S.C. § 2255. The same district court
judge again denied relief, concluding that even if the evidence
had been disclosed, there was no reasonable probability that she
would have been acquitted at trial because the video evidence
proved her participation in the drug-trafficking conspiracy.
We certified for appeal Flores's claims that the
government violated Brady by failing to disclose the impeachment
evidence and that her counsel was constitutionally ineffective for
failing to raise the argument on direct appeal. We appointed new
counsel for Flores; the appeal was briefed; and the panel heard
oral argument.
II.
To prevail on a claim for relief under 28 U.S.C.
§ 2255(a), Flores must show that her sentence "was imposed in
violation of the Constitution or laws of the United States" or "is
- 7 - otherwise subject to collateral attack." To make that showing,
Flores argues that the government violated her due process rights
as construed in Brady by failing to produce the relevant documents.
But because Flores did not raise this argument on her direct
appeal, she must show both that she had "cause" not to raise it
and that she suffered "actual prejudice" as a result. United
States v. Frady, 456 U.S. 152, 167–68 (1982). We address each
requirement in turn.
A.
Flores correctly asserts that she can demonstrate
adequate "cause" if she can establish that by failing to raise the
Brady issue on direct appeal her appellate counsel rendered
ineffective assistance of counsel as defined in Strickland. See
Murray v. Carrier, 477 U.S. 478, 488 (1986).
So we turn our attention to the merits of Flores's
Strickland argument. The Strickland standard for ineffective
assistance has two prongs: (1) counsel's performance must have
been deficient; and (2) the defendant must have been prejudiced by
counsel's deficient performance. 466 U.S. at 687. We address
these prongs in reverse order. See id. at 697 (explaining that a
court can address the deficient performance and prejudice prongs
in any order).
- 8 - 1.
Strickland's prejudice prong requires a defendant to
show "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Id. at 694. The parties both presume that the
relevant "proceeding" in this instance is the prior appeal. In
this case, this presumption makes sense because the prior appeal
could not have been successful under Brady absent a finding that
the timely disclosure of the withheld documents would have created
a "reasonable probability that, had the evidence been disclosed to
the defense, the result of the [trial] would have been different."
Kyles v. Whitley, 514 U.S. 419, 433–34 (1995) (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985) (opinion of
Blackmun, J.) and id. at 685 (White, J., concurring in part and
concurring in the judgment)). Thus, whether counsel's omission of
the Brady claim from Flores's direct appeal caused prejudice under
Strickland depends on the merits of the Brady claim itself.
A Brady violation has three components: "The evidence
at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued." Strickler v. Greene, 527 U.S.
263, 281–82 (1999).
- 9 - As we explained in Flores I, the withheld evidence was
clearly favorable to the defendants because it quite substantially
called into question the credibility of the three key government
witnesses. See 787 F.3d at 18–21. And there is no doubt that it
was not timely produced. So the Brady claim that was not presented
by Flores on direct appeal would have turned entirely on whether
"there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the [trial] would have
been different." Kyles, 514 U.S. at 433–34 (quoting Bagley, 473
U.S. at 682 (opinion of Blackmun, J.) and id. at 685 (White, J.,
concurring in part and concurring in the judgment)).
The Supreme Court has explained that when a court
assesses the "reasonable probability" of a different result,
"[t]he question is not whether the defendant would more likely
than not have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood as a
trial resulting in a verdict worthy of confidence." Kyles, 514
U.S. at 434. The Court has also made clear that materiality is
"not a sufficiency of the evidence test," i.e., a defendant need
not show "that after discounting the inculpatory evidence in light
of the undisclosed evidence, there would not have been enough left
to convict." Id. at 434–35; accord Strickler, 527 U.S. at 290.
That the government's failure to produce clear Brady
material caused prejudice would seem to be established by our
- 10 - opinion sustaining the appeals of Flores's co-defendants. We noted
there how the government led with its chin at trial by presenting
a case predicated almost exclusively on the testimony of
cooperating witnesses with little, if any, corroboration. See
Flores I, 787 F.3d at 18. The withheld notes could be said to
show Delgado coaching the other two cooperators. See id. And the
notes strongly suggested that the cooperators had lied at trial
when they denied coordinating their testimony. See id. We
observed, too, that the withheld letter "provid[ed] a powerful
tool in the hands of any good trial counsel to call into question
the credibility of both the key witness and, implicitly, the lead
prosecutor." Id. at 19.
The government nevertheless argues that we should find
the withheld evidence less helpful to Flores because there was
other evidence of Flores's guilt. In so arguing, the government
points only to the surveillance video and a page from one of the
notebooks found in the apartment of Sandra Fernandez. But, as we
learned at oral argument, government counsel on appeal had never
even looked at the video, relying instead on the description of
the video by one of the three cooperating witnesses. Our own
review of the video confirms that it does show Flores appearing to
hand something to someone and receive something in return. It
certainly raises a suspicion about what she is doing. But without
the narrative testimony supplied by the cooperating witnesses, the
- 11 - likelihood that the video showed Flores engaged in the drug-
trafficking specifically charged in the indictment is less than
clear. Presumably this is why the government at trial proffered
the narration and why the government on appeal relies only on that
narrative in making its assertions about the record.
As to the notebook on which the government relies,
Flores's connection to the notebook relies entirely on testimony
by one of the impeachable cooperating witnesses, who asserted that
the initials "SF" refer to Flores rather than the other persons
with similar initials mentioned in the evidence. In short, the
government's case against Flores depended quite heavily on the
largely uncorroborated testimony of the three cooperators. Hence,
she would have prevailed on the Brady issue just like her co-
defendants had she raised the issue. And for that reason, she
establishes prejudice under Strickland.
2.
So we turn next to the other required showing under
Strickland: that the failure to raise the Brady claim was the
result of deficient performance by appellate counsel. Deficient
performance occurs when counsel's actions fall below "an objective
standard of reasonableness." Strickland, 466 U.S. at 688. In our
review of counsel's performance, we make "every effort . . . to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the
- 12 - conduct from counsel's perspective at the time." Id. at 689. And
we must indulge "a 'strong presumption' that counsel's attention
to certain issues to the exclusion of others reflects trial tactics
rather than 'sheer neglect.'" Harrington v. Richter, 562 U.S. 86,
109 (2011) (quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003)
(per curiam)).
This court considers a wide range of actions to be
reasonable strategy. A decision by counsel that "prove[s]
unsuccessful, or even unwise," may nevertheless be a reasonable
strategic choice. United States v. Natanel, 938 F.2d 302, 310
(1st Cir. 1991) (holding that, after defendant's acquittal on
several counts, counsel made a reasonable "gamble" by not giving
a closing argument on a count separately submitted to jury); accord
Murchu v. United States, 926 F.2d 50, 58 (1st Cir. 1991). A
defendant must show that "given the facts known [to counsel] at
the time, counsel's choice was so patently unreasonable that no
competent attorney would have made it." Rossetti v. United States,
773 F.3d 322, 327 (1st Cir. 2014) (alteration in original) (quoting
Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006)).
This is a daunting hurdle to overcome in order to
establish deficient performance under Strickland. But that hurdle
is by no means insurmountable. A defendant's appellate counsel
performs deficiently by "ignor[ing] issues [that] are clearly
stronger than those presented." Smith v. Robbins, 528 U.S. 259,
- 13 - 288 (2000) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir.
1986)). Forgoing an argument is not a reasonable strategic
decision when "there [i]s absolutely no downside" to objecting to
an error, Prou v. United States, 199 F.3d 37, 48 (1st Cir. 1999),
or when the omitted argument would not "detract[] from" but would
"buil[d] upon" another challenge, Cirilo-Muñoz v. United States,
404 F.3d 527, 531 (1st Cir. 2005).
Here, any reasonable attorney handling Flores's appeal
would have known of the Brady claim's availability even after a
cursory review of the district court docket and the arguments
offered by Flores's co-defendants. Trial counsel had clearly
preserved the issue by moving for a new trial based on the Brady
claim. So, the issue of deficient performance turns on whether
any competent attorney aware of the Brady claim's availability
would have eschewed it on appeal.
Even under Strickland's deferential standard, the record
compels the conclusion that Flores's counsel performed in an
objectively unreasonable fashion. Appellate counsel opted to
forgo an obviously serious, preserved Brady claim in favor of two
dubious plain-error challenges, one of which was foreclosed by
binding precedent. That choice resembles rejecting a lifeboat in
favor of two lily pads. Nor was there any reason to choose among
the various potential challenges to the conviction. The short
brief had plenty of room. And counsel could have adopted the bulk
- 14 - of the co-defendants' briefs on this point had counsel wished to
do so. See Flores I, 787 F.3d at 15 n.7. Fecklessness is not a
strategy.
We have no difficulty making this determination on the
record before us. "[T]he critical facts are not genuinely in
dispute and the record is sufficiently developed to allow reasoned
consideration of an ineffective assistance claim." Natanel, 938
F.2d at 309 (considering an ineffective assistance claim on direct
appeal); cf. United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.
1993) (explaining that ineffective assistance determinations will
often, but not always, benefit from factual development in the
district court). Under these circumstances, no evidentiary
hearing is needed to say that counsel's actions were objectively
unreasonable under Strickland. Any competent lawyer would have
understood that a Brady claim on these facts is stronger than most
arguments made in good faith in criminal appeals. We can conceive
of no justification for leaving it on the cutting room floor. The
decision to do so was deficient under Strickland. Flores therefore
establishes the requisite "cause" required to overcome her failure
to raise the Brady claim on direct appeal.
B.
A showing of prejudice under Strickland and Brady
suffices under Frady to establish the required "actual prejudice"
in a proceeding under 28 U.S.C. § 2255. See Bucci v. United
- 15 - States, 662 F.3d 18, 29, 38 n.20 (1st Cir. 2011) (explaining that
the prejudice requirements of Strickland and Brady require the
same showing as the prejudice requirement of Frady); see also
Joseph v. Coyle, 469 F.3d 441, 462–63 (6th Cir. 2006). Flores has
thus shown both cause and actual prejudice. Hence Flores's motion
to vacate her sentence pursuant to 28 U.S.C. § 2255 must be
granted.
III.
For the foregoing reasons, we reverse the judgment of
the district court and remand to the district court with
instructions to grant Sandra Flores-Rivera's motion to vacate her
convictions and her sentence.
- 16 -