
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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  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.                                 ____________________                                    July 20, 1995                                 ____________________                 Per Curiam.   Petitioner Pedro Soto-Alvarez  appeals the                 __________            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-                                         -2-            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                ___________            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                                         -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  behalf.  Even if  we assume            arguendo that the  bare allegation is sufficient to show that            ________            counsel   had  been   constitutionally  deficient,   but  see                                                                 ___  ___            Underwood v.  Clark, 939  F.2d 473,  475-76  (7th Cir.  1991)            _________     _____            ("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                                         -4-            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,                            _____________     ____________            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            _____________                                            ____            v. United States, 368 U.S. 424, 428 (1962)).                 _____________                 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                                         -5-            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.                        ________                                         -6-
