USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 94-2230

PEDRO SOTO-ALVAREZ,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

____________________

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,

___________
Selya and Stahl, Circuit Judges.
______________

____________________

Pedro Soto-Alvarez on brief pro se.

__________________
Jo Ann Harris,
_______________

Assistant Attorney

Vliet, Chief, and Lena Watkins,

_____
____________
and

Dangerous Drug

Section,

General,

Theresa M.B.
_______________

Attorney, Criminal Division, Narco

Department

of

appellee.

____________________

July 20, 1995

____________________

Justice, on

brief

Per Curiam.
__________

dismissal

by

the

Petitioner Pedro Soto-Alvarez

United

District of Puerto Rico of

pursuant to 28 U.S.C.

States

District

appeals the

Court

for

the

his motion to vacate his sentence

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

Panzardi

a government informant

by killing him.

and Nieves, along with Soto-Alvarez and others, had

been members

of an organization involved in

drugs from Colombia to Puerto Rico.

the shipment of

After pleading guilty to

killing

the informant, Panzardi and Nieves agreed to testify

against

members of

their own

Soto-Alvarez, his counsel's

organization.

According

divided loyalties kept him

effectively cross-examining Panzardi in regard to

to

from

Panzardi's

testimony that he

Venezuela

to

and Soto-Alvarez had traveled

purchase

heroin

and

cocaine.

together to

Panzardi's

passport failed to reveal any travel to Venezuela at the time

in

question.

Soto-Alvarez

loyalties

prevented

examining

Panzardi and Nieves as to

their

his

also

counsel

agreement to cooperate

asserts

from

effectively

divided

cross-

their prior records and

with government.

-2-

that

Such cross-

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

defense strategy because of divided loyalties.

v.

Garcia-Rosa, 876
___________

record

reveals that,

cross-examine Panzardi

testimony

F.2d 209,

(1st Cir.

while Soto-Alvarez's

about

and his passport

testimony, during

231

closing

the

United States
_____________

1989).

The

counsel did

discrepancy

stamp, counsel did

argument, by

alternative

between

not

his

impeach that

calling the

jury's

attention

to

evidence,

and its apparent conflict with Panzardi's account.

As

to the

the

passport, which

prior records

of Panzardi

cooperation with

the government,

found

Panzardi

that both

thoroughly" by counsel

had

and

been

introduced as

and Nieves

this court

and their

has previously

Nieves were

"cross-examined

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."

Therefore, further

cross-examination

counsel for Soto-Alvarez

been

cumulative.

specific details

Garcia-Rosa, 876 F.2d at 237 & n.23.

___________

of

the

on these issues would

Since Soto-Alvarez

as to the

conduct of

has

witnesses

by

largely have

not alleged

Panzardi and

any

Nieves

which

were not explored at trial, he

has failed to show the

-3-

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

arguendo that the

________

counsel

had

Underwood v.
_________

behalf.

Even if

we assume

bare allegation is sufficient to show that

been

constitutionally

Clark, 939
_____

F.2d 473,

deficient,

475-76

but
___

(7th Cir.

see
___

1991)

("barebones assertion" that attorney told client he could not

testify

insufficient,

necessitate

show

the

evidentiary

absent

"greater

particularity,"

hearing), Soto-Alvarez

still

to

must

a reasonable probability that, but for counsel's error,

result

of

the proceeding

would

have

been different.

Strickland v. Washington, 466 U.S. 668, 694 (1984).

__________
__________

Soto-Alvarez

would have

alleges that,

refuted Panzardi's

if allowed

testimony as

to testify,

to the

he

alleged

trip to Venezuela

has failed

to purchase drugs.

to show

would have brought

of which

would

either that, if

it

reasonably

account of

the trip

attention.

Moreover, the evidence

-4-

that testimony

probable that

Soto-Alvarez

charges for which he is

First, as already noted, the

Panzardi's

testify, he

any information

already aware or how

would not have been convicted on the

now imprisoned.

allowed to

to the jurors' attention

they were not

have made

However, Soto-Alvarez

was brought

discrepancy in

to

the jury's

of the trip went to prove

that Panzardi and

to possess with

Soto-Alvarez were members of

intent to distribute cocaine

a conspiracy

and heroin and

Soto-Alvarez' conviction on the conspiracy charge has already

been reversed.

478 (1st Cir.),

there

United States
_____________

cert. denied, 113 S.Ct. 221

____ ______

was sufficient evidence

the other charges on which

on

v. Soto-Alvarez, 958 F.2d 473,

____________

the

together.

fact

Id.
__

that he

and

(1992).

of Soto-Alvarez' guilt

he was convicted without

Panzardi

traveled

Third,

as to

relying

to Venezuela

Soto-Alvarez'

breached

final

its 1985

claim

plea agreement

evidence from the dismissed counts

this

alleged

error

is

jurisdictional, Soto-Alvarez

the

error

was

"a

is

that

with

him by

government

introducing

at his 1986 trial.

neither

Since

constitutional

is entitled

fundamental

the

to relief

defect

nor

only if

which

inherently

result[ed] in a complete miscarriage of justice."

Knight v.
______

United States, 37 F.3d 769, 772 (1st Cir. 1994) (quoting Hill
_____________
____

v. United States, 368 U.S. 424, 428 (1962)).

_____________

According to

the 1985

agreed

not to charge

intent

to distribute 283

plea

agreement, the

Soto-Alvarez with the

grams of cocaine

government

possession with

during September

1984.

During

his 1986 trial, Soto-Alvarez

of possession with

intent to distribute approximately

kilograms of cocaine.

included within

was found guilty

Even

seven

if the 283 grams were improperly

those seven kilograms,

the jury supportably

-5-

found

that,

aside

from

these

283

grams,

Soto-Alvarez

possessed with the intent to

quarters

kilograms

of

distribute almost six and three

cocaine.

provided no evidence that, even

Since

Soto-Alvarez

has

without the inclusion of the

283 grams, either the verdict or his sentence would have been

any

different, we

find no

The

court

miscarriage of

justice

in this

case.

district

petition is affirmed.
________

order

dismissing

Soto-Alvarez's

-6-