SANDRA I. FLORES-RIVERA v. United States of America

Boston, MA - Criminal defense lawyer represented defendant with

various drug-trafficking offenses. She now seeks vacatur of her federal conviction and sentence.

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 drugtrafficking 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

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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

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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

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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.

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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

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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).

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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).

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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

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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

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likelihood that the video showed Flores engaged in the drugtrafficking 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 codefendants 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

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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,

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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

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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

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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.

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