Soto-Alvarez v. United States

Opinion

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                                [NOT FOR PUBLICATION]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]
                                               ___________________



                                 ____________________



                                        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
            _______________                                 __________________

        Vliet, Chief, and Lena Watkins,  Attorney, Criminal Division, Narcotic
        _____             ____________

        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
                                                            _____________



            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.
                                     ___________



            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
                                                                 ___  ___



            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).   
            __________    __________



                 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,
                             ____  ______



            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.  
                       __



                 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.
                                                                ______



            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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