               Case: 14-14614       Date Filed: 04/06/2017      Page: 1 of 53


                                                                      [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 14-14614
                              ________________________

             D.C. Docket Nos. 1:11-cv-21991-ASG; 1:04-cr-20159-ASG-2



MANUEL ISAAC MARQUEZ, SR.,

                                                                       Petitioner–Appellant,

versus

UNITED STATES OF AMERICA,

                                                                     Respondent–Appellee.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________


                                      (April 6, 2017)


Before JORDAN and JILL PRYOR, Circuit Judges, and COOGLER, * District
Judge.

         *
        The Honorable L. Scott Coogler, United States District Judge for the Northern District
of Alabama, sitting by designation.
              Case: 14-14614     Date Filed: 04/06/2017   Page: 2 of 53




COOGLER, District Judge:

      Petitioner-Appellant Manuel Isaac Marquez, Sr. (“Marquez”) appeals the

district court’s decision not to hold an evidentiary hearing before denying his 28

U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Marquez was

convicted by a jury of violating the Racketeer Influenced and Corrupt

Organizations (“RICO”) Act, 18 U.S.C. §§ 1961–1968, by participating in an

organized crime enterprise involving twenty-nine predicate acts including murders,

arsons, and illegal gambling operations, and sentenced to 240 months’

incarceration. Though it denied his § 2255 motion, the district court granted

Marquez’s request for a certificate of appealability concerning whether his defense

counsel was constitutionally ineffective at trial and on appeal. After thorough

review of the record and briefs of the parties, and having the benefit of oral

argument, we affirm the district court on all issues raised on appeal.

                                          I.

                                          A.

      The following facts were established at Marquez’s RICO trial. Marquez rose

through the ranks of an illegal gambling organization that ran “bolita,” a numbers

game based upon published horse racing results. Jose Miguel Battle, Sr. (“Battle,

Sr.”) started the enterprise in the 1960s, dubbing it “The Corporation,” and began

operating in New York and New Jersey. At that time, there were other bolita
                                               2
              Case: 14-14614    Date Filed: 04/06/2017    Page: 3 of 53


operations in the same areas, such as one owned by Abraham Rydz (“Rydz”), and

a rival operation known as “The Company” operated by Humberto Davila

(“Davila”). Each organization operated numerous “spots” or “banks,” which were

businesses or stores where a bolita worker took bets. The Corporation used

“soldiers” or “enforcers” to intimidate small business owners into maintaining

bolita spots, to check up on bankers who were under-reporting their earnings, and

to enforce the “two-block” rule, an unspoken understanding among rival bolita

operators that a new spot could not be opened within two blocks of a competitor’s

existing spot. These enforcers regularly destroyed property, assaulted and killed

people, and occasionally “burned out” rivals to protect the Corporation’s share of

the bolita market and retain the respect and fear of its competitors and the loyalty

of its bankers and employees. For many years, these operations were extremely

lucrative for those at the top; for example, Rydz managed forty bolita spots that

collected over one million dollars in bets per week.

      In 1977, Battle, Sr., along with his long-time bodyguard and Corporation

enforcer Julio Acuna (“Acuna”), were tried for the murder of one of the

Corporation’s former employees. Battle, Sr. pled guilty to conspiracy to commit

murder and was imprisoned. Upon his release in late 1979, Battle, Sr. began

working with his son, Jose Battle, Jr. (“Battle, Jr.”), who had been “tutored” in the

bolita business by Rydz at Battle, Sr.’s request. Marquez, who is Battle, Jr.’s uncle,


                                             3
              Case: 14-14614     Date Filed: 04/06/2017     Page: 4 of 53


entered into the business at that time as well, helping Battle, Jr. run the daily bolita

operations. At Rydz’s request that Battle, Sr. provide him some protection from

rival bolita operators, Battle, Sr. agreed to merge Rydz’s larger bolita operation

into the Battles’ smaller business. Battle, Sr. reorganized the Corporation, with

Rydz, Battle, Jr., and Battle, Sr. each receiving sixteen percent of the profits as

owners and Marquez being paid a percentage of the profits as a salary. The

combined organization operated in Queens, the Bronx, Brooklyn, and portions of

Manhattan.

      In 1982, Rydz and the Battles moved to Miami, and Marquez took over on-

site management of the bolita operations in New York. Rydz and Battle, Jr.

supervised Marquez through daily calls. They also traveled to New York twice a

month to review gambling records and reports, claim their percentage of the profits

in cash, and implement management decisions. Employees of the Corporation

routinely transported millions in cash from New York to Miami, delivering the

money to the Battles and Rydz, and later to Marquez, after he joined them in

Florida in 1985.

      Marquez and others within the Corporation went to ruthless lengths to

enforce their policies, including the two-block rule. The Battles and Rydz set up an

account called “UNESCO” to pay the costs of enforcing the compliance of the

rule, including bail and legal defense. By 1983, the Corporation faced intense


                                               4
              Case: 14-14614    Date Filed: 04/06/2017    Page: 5 of 53


competition from rival bolita organizations, causing Marquez to rely heavily upon

Corporation enforcers Conrad “Lalo” Pons (“Pons”) and Manny Guzman

(“Guzman”). Consuelo Alvarez (“Alvarez”) was employed as a bookkeeper for the

Corporation for many years, working directly under Marquez. Guzman and

Alvarez lived together from around 1978 to 1988. During that time, Alvarez

regularly received cash from Marquez to give to Guzman and observed Marquez

personally giving cash to Guzman at their apartment. She also heard Guzman and

Pons discussing their enforcement work on an almost daily basis. Thus, Alvarez

knew that the Corporation paid enforcers $1,500 to destroy property in a store,

$2,400 to break legs, $15,000 for arson, and $25,000 for murder. Alvarez also

knew that Marquez had ordered at least ten murders because she had to charge the

expenses for them against accounts listed in the books.

      In 1983, Battle, Sr.’s brother, Pedro, a waiter uninvolved in the Corporation,

was killed, and Jose “Palulo” Enriquez (“Enriquez”) was believed to be his

murderer. Battle, Sr. put out a $100,000 contract on Enriquez’s life. Rydz was

approached by Earl Robinson (“Robinson”), a gambling associate, in Miami.

Robinson told Rydz that he had a man who could kill Enriquez. Around the same

time, Guzman told Alvarez that he had been told to find a competent assassin to

kill Enriquez. One day, Guzman told Alvarez that Enriquez was in the hospital,

and he showed her a hospital coat that he intended to use to get into the hospital, as


                                             5
              Case: 14-14614     Date Filed: 04/06/2017   Page: 6 of 53


well as a silencer that Marquez had brought to his apartment for him (or someone

else) to use to murder Enriquez. On October 7, 1983, Enriquez was found dead in

his hospital bed with two bullet wounds to the right side of his head. The day after

Enriquez’s death, Battle, Sr. offered Rydz a glass of champagne to celebrate, and

Rydz instructed Corporation employees to pay Robinson $100,000 from the

UNESCO account. Several weeks later, Battle, Sr. gave Guzman and Pons two

bottles of Dom Perignon for a job well done.

      Alvarez also remembered an occasion in the 1980s when she overheard an

operator of a Corporation spot in Brooklyn complain to Marquez and Battle, Jr.

that he was being robbed every weekend, and that Guzman knew the robber. In the

presence of Alvarez, Guzman made arrangements for the robber’s murder and later

told Alvarez that he had to hire someone to dispose of the robber’s body. On

another occasion in 1986, Alvarez observed Marquez leave money at her

apartment for Guzman the day after Guzman told her that Battle, Sr. had instructed

him to kill a woman on 90th Street because of “problems” with her husband.

      In 1983 and 1984, Pons paid William Diaz (“Diaz”) to set fires to thirty-five

rival bolita spots to enforce the two-block rule against rival bolita operations such

as Davila’s. The testimonies of Diaz and a New York City medical examiner and

pathologist established that these fires resulted in the deaths of eight men and

women. Pons typically scolded Diaz when people died in the fires because their


                                              6
                 Case: 14-14614    Date Filed: 04/06/2017   Page: 7 of 53


deaths generated bad publicity and triggered criminal investigations. Marquez,

however, shook Diaz’s hand and told him that he was doing a fine job after he set a

fire in Brooklyn, New York.

          Guzman told Alvarez that he and Pons claimed responsibility for an arson at

410 West 56th Street in New York. After Pons was arrested for that fire, Marquez

went to Alvarez’s apartment and told Guzman to leave New York and that he

would send his weekly salary to him. Guzman then fled to Puerto Rico and Alvarez

was given money every week to send to him. Marquez also arranged for Pons’s

weekly salary to be paid to a business owned by Pons’s brother-in-law while Pons

was in jail. Marquez told Alvarez to charge these payments as expenses against the

bolita spots that Guzman and Pons had been operating, which continued to bring in

profits.

          Rydz and Battle, Jr. generally attempted to negotiate with their rivals when

the two block rule was violated, as they believed arson was bad for business and

led to bad publicity and police investigations. Rydz was especially concerned after

a newspaper reported the death of a child in one of the arsons, but when he

questioned Marquez about it, Marquez replied, “What’s done is done.” Although

Rydz and Battle, Jr. learned about the fires after the fact and advised Marquez to

minimize them, they never ordered Marquez to stop using arson as an enforcement

tactic.


                                                7
              Case: 14-14614    Date Filed: 04/06/2017   Page: 8 of 53


      The Corporation expanded to the point where by 1988, it operated 250 to

300 locations and had twelve to fifteen offices for processing bets, counting cash,

and keeping records. At a family member’s funeral on November 30, 1988, Rydz

and Battle, Jr. announced they were retiring from the bolita operations. They

collected their final bolita distributions in early 1989. Marquez, having had moved

to Florida in 1985, continued to manage the operations by reviewing bolita reports

and visiting Corporation sites and offices. Marquez began receiving a percentage

of the Corporation’s bolita profits as an owner in 1989. From 1985 through 1995,

the Corporation continued to flourish, taking in $2 million in bets weekly.

      Marquez and the other owners of the Corporation not only received direct

profits from bolita operations but also laundered those proceeds in order to obscure

the illegal source of their wealth and avoid arrest. This process began in 1982,

when the Battles, Marquez, and Rydz, with the help of the Corporation’s

accountant, Orestes Vidan (“Vidan”), began concealing millions of dollars in bolita

proceeds in bank accounts in Panama, the Netherlands Antilles, and other foreign

nations. They used nominee names or “front men” to hide the true identities of the

owners of the money. For example, Marquez’s brother, Maurillo Marquez, was

listed as a corporate director on some accounts.

      The Battles, Marquez, and Rydz then invested the monies located in these

foreign bank accounts into various entities. They set up domestic corporations to


                                             8
             Case: 14-14614     Date Filed: 04/06/2017   Page: 9 of 53


purchase real estate in south Florida, constructed multi-million dollar homes on the

land, and then “leased” the homes to themselves. For example, Marquez purchased

his home in Key Biscayne, Florida, in this manner. They also transferred money as

“loans” from the foreign accounts to a series of domestic corporations that were

partially or wholly owned by members of the Corporation. These corporations

would in turn pay Corporation members large salaries. These activities went on

largely undetected, with the exception of an incident in 1983 wherein Rydz and

Battle, Jr. were stopped at John F. Kennedy International Airport in New York

transporting $500,000 in bolita cash that they had obtained from Marquez. The

cash was seized. When stopped, Battle, Jr. was carrying a report of bolita business

for the week of April 2, 1983, which listed $2,173,448 in assets and possibly

accounts receivable, and the contents of the UNESCO account. The resulting

publicity caused the bank that had loaned money to one of the Corporation’s shell

companies to inquire as to the source of the funds that Battle, Jr. and Rydz had

loaned to the company, and consequently Battle, Jr. and Rydz were forced to cash

out of that company and reinvest in other ventures.

      In 1992, Marquez and Battle, Sr. also laundered bolita profits by investing

them in a casino in Peru. After learning that another New York bolita operator,

Luis DeVilliers (“DeVilliers”), had obtained a Peruvian casino license, Battle, Sr.

forced DeVilliers to join him and several Venezuelan partners in investing in a


                                             9
             Case: 14-14614     Date Filed: 04/06/2017    Page: 10 of 53


casino at the El Crillon Hotel in Lima. Maurillo Marquez had a Venezuelan

passport and was listed as a shareholder on the corporate documents as a

representative for Battle, Sr. and Marquez. Battle, Sr. used a different name while

in Peru, as he did not want his name on any documents. To fund the casino, Battle,

Sr. and Marquez obtained money directly from the Corporation’s New York bolita

operations, which infuriated Marquez’s successor, Willy Pozo (“Pozo”), who was

then the on-site manager of the bolita operations in New York. Pozo criticized the

casino as a mistake and a disaster. The rest of the investment funds for the casino

came from Battle, Sr.’s and Marquez’s offshore bank accounts. DeVilliers’s

investment came from his own New York bolita business. Marquez, Battle, Sr.,

and DeVilliers had invested $4.7 million, in approximately equal shares, by the

time the casino opened in 1993.

      For the first several months, the casino had no competition and made

$200,000 in profits each month. After that, it lost money, partly due to Battle, Sr.’s

penchant for giving away gambling chips to Peruvian government and military

officials. DeVilliers, Marquez, and Battle, Sr. arranged for friends and associates to

carry cash to Peru in order to meet payroll expenses. Marquez and DeVilliers

discussed how fortunate it was that their respective bolita operations in New York

were able to finance their contributions.




                                             10
             Case: 14-14614     Date Filed: 04/06/2017    Page: 11 of 53


      In October 1994, when DeVilliers and Marquez attempted to sell the casino

to a Canadian corporation, Battle, Sr. threatened DeVilliers to the point where

DeVilliers refused to go to Lima and told Marquez to do whatever he wished with

his interest in the casino. Against his better judgment, Rydz attempted to help

Marquez and DeVilliers sell the casino and recoup their investments, but Battle, Sr.

accused Marquez of betraying him and threatened to murder everyone involved.

Rydz then told Battle, Sr. that the proposed sale was off, and he advised Marquez

to hand over his interest to Battle, Sr. because the casino was a disaster. The casino

closed in 1996.

      By the late 1990s, Marquez owed $190,000 to the Corporation, which had

greatly diminished due to increasing competition. From 1995 to 2003, the

enterprise was only taking in $700,000 in bets per week. After learning that he was

being investigated for murder, Marquez fled to Spain in 1999. In November of that

year, pursuant to Marquez’s instructions and through a power of attorney,

Marquez’s son sold Marquez’s property in Key Biscayne and forwarded the profits

to Marquez to fund his life in Spain.

      In early 2000, after Pozo stopped making distributions to Marquez and

Battle, Sr., Battle, Sr. threatened to “take his bolita business back” by killing Pozo

and his associates. Regardless, the bolita operations continued under Pozo until a

series of arrests were made in the summer of 2003.


                                             11
               Case: 14-14614     Date Filed: 04/06/2017   Page: 12 of 53


         In 2001, Battle, Jr. and Rydz sold their homes in south Florida, hiding the

proceeds in their offshore accounts. When Battle, Jr. and Rydz were arrested in

March 2004, they were still receiving money from at least one domestic

corporation which had been acquired with bolita funds that had been invested and

cashed out of other ventures.

                                           B.

         On March 16, 2004, a grand jury in the United States District Court for the

Southern District of Florida indicted Marquez and 24 co-defendants on two counts:

RICO conspiracy, in violation of 18 U.S.C. § 1962(d), and illegal gambling, in

violation of 18 U.S.C. § 1955.

         Two days later, Spanish authorities arrested Marquez in Madrid, pursuant to

a provisional arrest warrant tendered by the United States to Spain in accordance

with a bilateral extradition treaty, the Treaty on Extradition Between the United

States of America and Spain, May 29, 1970, 22 U.S.T. 737. On May 12, 2004, the

United States formally requested Marquez’s extradition and attached the following

in support: (1) the prosecutor’s sworn affidavit; (2) a certified copy of the

indictment; (3) a certified copy of the arrest warrant; (4) a copy of the applicable

United States laws; and (5) the investigator’s sworn affidavit, describing the acts of

which Marquez was accused and the evidence upon which the accusations were

based.


                                                12
             Case: 14-14614     Date Filed: 04/06/2017    Page: 13 of 53


      Marquez opposed his extradition in Spain, arguing, among other things, that

there was no evidence to support the charges because the facts alleged in the

investigator’s affidavit were vague. He also contended that under the facts

presented, the Spanish courts could not determine whether the charged conduct

constituted a crime in Spain, including whether it would be barred by the

applicable Spanish statute of limitations, which barred prosecution for crimes

committed before 1999 unless they are found to be continuing crimes. After a

hearing, a three-judge panel authorized Marquez’s extradition. Marquez appealed

to the Spanish National Criminal Court. That court en banc denied his appeal and

authorized his extradition. The court rejected his argument that the facts in the

extradition paperwork were vague, noting that the first charge “ma[de] reference to

the actions of the petitioner at the heart of a mafia organization engaged in certain

activities characteristic of organized crime” and that the second charge “refer[red]

to the illegal gambling activities committed by the mafia organization to which the

petitioner allegedly belongs.” [Criminal Docket Entry No. 2687–2 at 3.] The

Spanish court wrote that “the facts contained in the extradition request are

perfectly definable under Spanish criminal law” and identified specific provisions

of the Spanish Criminal Code that criminalized the same acts Marquez was

charged with committing. [Id. at 4.] The court also wrote that under Article V of

the extradition treaty, the statute of limitations did not bar Marquez’s prosecution


                                             13
             Case: 14-14614     Date Filed: 04/06/2017   Page: 14 of 53


so long as it was not barred in the United States. On April 4, 2005, Marquez was

extradited to the United States and arrested on a warrant issued pursuant to the

indictment. Pursuant to the terms of Marquez’s extradition, twenty years’

imprisonment was the longest sentence Marquez could receive if convicted in the

United States.

      On April 28, 2005, attorney Maria Del Carmen Calzon (hereinafter

“counsel”) entered a notice of appearance on Marquez’s behalf. She was initially

retained, but when Marquez became unable to pay her fees, the district court

appointed her to continue representing him and receive compensation through the

Criminal Justice Act, 18 U.S.C.A. § 3006A.

      On May 31, 2005, the grand jury returned a one-count superseding

indictment that removed the illegal gambling count and added collection of

unlawful debt, see 18 U.S.C. § 1962(c), as an alternative theory of liability for

RICO conspiracy in violation of 18 U.S.C. §1962(d), which became the only

count. The superseding indictment charged Marquez and his co-defendants under

two alternative theories: (1) engaging in a pattern of racketeering activity which

included acts and threats involving murder, arson, illegal gambling, operation of

illegal gambling businesses, conspiracy to launder monetary instruments, and use

of interstate and foreign commerce facilities in the commission of murder for hire,

in violation of federal or state law, and (2) collecting unlawful debt incurred and


                                             14
              Case: 14-14614      Date Filed: 04/06/2017     Page: 15 of 53


contracted through illegal gambling activity. The indictment also demanded

forfeiture of numerous bank accounts, real properties, and mortgage entitlements

and payments.

       The United States offered to recommend to the district court a twenty-year

sentence of imprisonment in exchange for Marquez pleading guilty. Marquez did

not plead guilty, and his trial began in January 2006 and lasted roughly six months.

Marquez was tried with Battle, Sr., Battle, Jr., Acuna, and two other co-defendants,

while other co-defendants were severed and tried separately. During the trial, the

district court ruled that as to the first theory of liability in the indictment, the

United States was required to prove personal participation in the conspiracy by

showing that each defendant agreed to personally participate in the commission of

two or more predicate acts. As to the second theory of liability, the district court

ruled that the United States could prove collection of unlawful debt by showing

that each defendant either had agreed to personally participate in the collection of

unlawful debt or had specifically intended to otherwise participate in the affairs of

the enterprise with the knowledge and intent that co-conspirators would conduct

the enterprise’s affairs through the collection of unlawful debt.

       Most of Marquez’s co-defendants, including Battle, Sr., entered guilty pleas

during the trial, leaving only Marquez, Battle, Jr., and Acuna to proceed to




                                                15
                Case: 14-14614       Date Filed: 04/06/2017        Page: 16 of 53


verdict.1 Alvarez, Rydz, and Diaz were some of the witnesses who offered the

most devastating testimony against Marquez during the trial.

       At some point during the trial, Marquez’s counsel was transported to the

hospital due to a condition that Marquez alleges was a stroke. She returned to trial

after a few days and continued to serve as Marquez’s attorney.

       The jury returned its verdict on July 20, 2006, convicting Marquez, Battle,

Jr., and Acuna of RICO conspiracy under both theories of liability. The jury found

Marquez guilty as to each of the twenty-nine predicate acts listed in the first theory

of liability.

       On March 3, 2008, counsel filed a motion to “arrest judgment” under

Federal Rule of Criminal Procedure 34 2 based on Marquez’s purportedly improper

extradition from Spain. Marquez, through counsel, argued that the United States

violated the “rule of speciality.” This rule provides that a requesting state may

prosecute a person only for such offenses for which he or she was surrendered. See

United States v. Herbage, 850 F.2d 1463, 1465 (11th Cir. 1988). Marquez further

argued that his extradition violated the “rule of dual criminality,” which provides

that a person may be extradited only “when his actions constitute an offense in

both the requesting and requested states.” Id. With regard to the rule of speciality,

       1
        Battle, Sr. was sentenced to twenty years’ incarceration but died shortly after he was
sentenced.
       2
          Rule 34(a)(2) states that “the court must arrest judgment if the court does not have
jurisdiction of the charged offense.” Fed. R. Crim. P. 34(a)(2).
                                                    16
                Case: 14-14614        Date Filed: 04/06/2017        Page: 17 of 53


the motion claimed that Marquez was prosecuted for a charge for which he was not

extradited: RICO conspiracy for collection of unlawful debt in violation of 18

U.S.C. § 1962(c). With regard to dual criminality, Marquez argued that the Spanish

National Criminal Court incorrectly authorized his extradition because the

investigator’s affidavit was vague, making it impossible for the Spanish court to

determine whether there was criminal continuity through and beyond 1999 to

satisfy the Spanish statute of limitations. According to the motion, although

Marquez was extradited to be prosecuted for crimes still continuing after 1999, he

was actually prosecuted for crimes that ended before 1999. Marquez’s dual

criminality argument hinged upon his claim that he had withdrawn from the

conspiracy by fleeing to Spain before the five-year statute of limitations on the

RICO violation began running in March 1999. See United States v. Pepe, 747 F.2d

632, 663–64 (11th Cir. 1984) (the five-year statute of limitations prescribed in 18

U.S.C. § 3282 applies to RICO prosecutions).

       At a hearing, the district court found that Marquez waived his rule of

speciality and dual criminality objections because he did not raise them in a pretrial

motion, which he was required to do by Federal Rule of Criminal Procedure 12,

and he had no good cause for the delay. 3 However, the court also discussed and


       3
          The district court reasoned that because a challenge to the validity of an extradition is a
challenge to the court’s personal jurisdiction over the defendant, and a challenge to personal
jurisdiction is a claim of defect in the prosecution, the objections were required to be made in
                                                     17
               Case: 14-14614       Date Filed: 04/06/2017      Page: 18 of 53


rejected Marquez’s arguments on their merits. The court found that the rule of

speciality was not violated because the conduct for which the United States

actually prosecuted Marquez was directly interconnected with the acts for which he

was extradited. With respect to dual criminality, the court deferred to the Spanish

National Criminal Court’s conclusions that the conspiracy for which Marquez was

prosecuted was criminal in both the United States and Spain and that Marquez

could not assert Spain’s statute of limitations because the statute of limitations had

not expired under the laws of the requesting state.

       Counsel also filed a motion for a new trial pursuant to Federal Rule of

Criminal Procedure 33, arguing, among other things, that the United States

violated its discovery obligations under Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194 (1963); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972); and the

Jencks Act, 18 U.S.C. § 3500. The motion pointed out that Harold Marchena

(“Marchena”), the ex-manager of the El Crillon casino in Peru and a witness

during the United States’s case-in-chief, had filed a post-trial affidavit in

Marquez’s ancillary criminal forfeiture proceedings alleging that Detective David

Shanks (“Detective Shanks”), the United States’s main case agent, had made

“money promises” to him in exchange for his testimony. Marchena’s affidavit




accordance with Rule 12, which requires a motion alleging a defect in the prosecution to be
made before trial. Fed. R. Crim. P. 12(b)(3)(A).
                                                  18
             Case: 14-14614     Date Filed: 04/06/2017   Page: 19 of 53


explained that he had previously obtained a civil judgment in Peru against

Marquez and Battle, Sr. for breach of his casino employment contract. Marchena

attested that when he met with Detective Shanks and Robert O’Bannon

(“O’Bannon”), an employee of the Diplomatic Security Service, about assisting

them in Marquez’s case, he asked them about his chances of collecting on his

Peruvian judgment. According to Marchena, Detective Shanks had advised him to

follow up on his Peruvian judgment in the United States, and O’Bannon gave him

the number of a Miami attorney. Marchena retained that attorney to help in

collecting his judgment. He filed a notice of lien in Marquez’s criminal case before

trial in which he made the same allegations but added that he had not spoken to the

prosecutors about the “agreement” because he assumed that Detective Shanks was

authorized to act for the United States. Counsel argued in Marquez’s motion for

new trial that had the United States disclosed the “money promises” Detective

Shanks made to Marchena in discovery, she would have cross examined Marchena

and Detective Shanks on their financial interests in obtaining a conviction. The

district court denied Marquez’s motion at a hearing, rejecting his claim that the

United States violated any of its obligations to disclose evidence related to the

alleged agreement.

      On April 30, 2008, the district court sentenced Marquez to 240 months’

incarceration and three years’ supervised release and ordered him to pay $69,600


                                             19
              Case: 14-14614       Date Filed: 04/06/2017      Page: 20 of 53


in restitution and a $100.00 special assessment. Battle, Jr. was sentenced to 188

months’ incarceration and Acuna to life in prison.

       Counsel timely filed a notice of appeal for Marquez, but she subsequently

asked for and received a number of enlargements of time in which to file her initial

brief. On April 30, 2009, the United States requested a hearing in aid of appeal

before the district court in Marquez’s criminal case pursuant to United States v.

McClain, 4 requesting a determination on whether counsel was capable of

representing Marquez on appeal. In support, the United States noted that on

October 31, 2008, it had filed a civil action in the United States District Court for

the Southern District of Florida seeking repayment of counsel’s student loans that

were overdue. The United States further noted that counsel failed to appear at a

settlement conference in that case, prompting a show cause hearing, and at the

hearing, counsel stated that she was suffering from severe depression. The United

States also claimed in its motion that its counsel in the student loan case advised

the court that counsel had told her that she may have had a mini-stroke during

Marquez’s trial and that is why she could not remember things. The United States




       4
        823 F.2d 1457 (11th Cir. 1987), overruled on other grounds by United States v. Watson,
866 F.2d 381, 385 n.3 (11th Cir. 1989). In McClain, this Court held that failure to advise a
defendant that his attorney was under investigation before and during his trial by the same
United States Attorney’s Office that was prosecuting the defendant deprived him of a fair trial
where the defendant was not advised of the conflict of interest. Id. at 1462–63.
                                                  20
              Case: 14-14614     Date Filed: 04/06/2017   Page: 21 of 53


further advised that the court had suspended counsel from the practice of law in the

district.

       On June 12, 2009, the district court conducted a McClain hearing with

counsel and Marquez, who appeared telephonically. The court noted that counsel’s

pending student loan case had concluded with a final judgment against her. The

court inquired whether counsel had informed Marquez of her student loan case,

and both counsel and Marquez confirmed that she had. During this exchange,

Marquez stated that he did not want counsel to continue to represent him “if she

has those problems.” The court ruled that the matter of counsel’s continued

representation should first be addressed by this Court but explained that its

recommendation would be that it did not see any conflict of interest. The court

noted that counsel’s representation during trial and sentencing was thorough and

competent, stating:

       I thoroughly remember trying this case for over six months, and I
       found at the time that Ms. Calzon had been very competent in the
       representation and that she was thorough and prepared on a daily basis
       to represent Mr. Marquez’s interest and did so appropriately from
       everything I saw.

               Now, there were plenty of difficulties along the way in terms of
       money. In the beginning Mr. Marquez hired Ms. Calzon if I remember
       right . . . and ran out of money . . . to continue the representation at a
       time when this trial was set with multiple defendants and with all
       kinds of deadlines upon us, including investigations that were going
       on.



                                              21
             Case: 14-14614    Date Filed: 04/06/2017    Page: 22 of 53


            So it took quite an effort, but I was able to obtain funding
      through the CJA program to continue Ms. Calzon’s representation,
      and so I was very involved with that representation because she had to
      present her bills to me and justify everything that she was doing.

             So I have a very thorough understanding of what she was doing
      for her client, what services she needed in order to perform her duties
      ...

            The representation, as far as I’m concerned, was thorough at the
      time of trial and . . . sentencing . . .

            So both in terms of the trial and the sentencing, as far as I could
      observe, Ms. Calzon was alert, involved, prepared and appropriate.


[Criminal Docket Entry No. 2960 at 11–13.]

      On May 5, 2009, counsel filed the initial brief in Marquez’s direct appeal

before this Court. She argued that the district court erred when it denied Marquez’s

motion to arrest judgment, which challenged his extradition from Spain based upon

speciality and dual criminality grounds, his motion for new trial, which argued that

the United States violated its disclosure obligations related to the Marchena

agreement, a motion alleging deprivation of a fair trial, which claimed that the

court delayed disclosure of discovery that pertained to some witnesses, and a

motion for severance or mistrial, which argued that the closing arguments of co-

defendant Battle, Jr. were antagonistic to Marquez’s theory of defense. This Court

denied the direct appeals of Marquez’s co-defendants, United States v. Acuna, 313

F. App’x 283 (11th Cir. 2009) (unpublished), and Marquez’s direct appeal, United


                                            22
             Case: 14-14614      Date Filed: 04/06/2017    Page: 23 of 53


States v. Marquez, 594 F.3d 855 (11th Cir. 2010). With regard to Marquez’s

argument that the district court incorrectly denied his motion to arrest judgment,

this Court held that Marquez waived the challenge to his extradition by counsel’s

failure to raise it in a pretrial motion and did not reach the merits. Id. at 858–59.

The Supreme Court denied Marquez’s petition for a writ of certiorari on June 1,

2010. Marquez v. United States, 560 U.S. 947, 130 S. Ct. 3373 (2010).

      On May 5, 2010, Marquez filed a motion to appoint counsel for purposes of

filing his § 2255 motion. The motion was granted, as was a motion to appoint a

second attorney to assist with the § 2255 motion. On June 1, 2011, Marquez filed

his § 2255 motion. Marquez alleged he received ineffective assistance of counsel

based on counsel’s (1) failure to timely challenge his extradition from Spain; (2)

failure to advise him concerning his options for pleading guilty; (3) suffering a

mid-trial stroke and depression and then blaming Marquez for her downfall which

prejudiced him at closing and also in her failure to raise meritorious issues on

appeal; (4) never meeting with Marquez to discuss the case which caused her to

make numerous trial errors resulting in his convictions; and (5) failure to advise

him on his Fifth Amendment right to testify. The United States attached counsel’s

affidavit, which responded to Marquez’s allegations, in support of its response in

opposition to the § 2255 motion. On June 17, 2013, a United States magistrate

judge entered an 83-page report recommending Marquez’s § 2255 claims be


                                              23
             Case: 14-14614      Date Filed: 04/06/2017    Page: 24 of 53


denied without an evidentiary hearing. Marquez objected to the report and

recommendation, the United States responded, and Marquez replied. On

September 30, 2014, the district court issued a twenty-page order adopting the

magistrate judge’s report and recommendation to deny Marquez’s § 2255 motion.

The district court concluded that upon de novo review and upon taking the facts

alleged in Marquez’s § 2255 motion, except for those facts conclusively refuted by

the record, as true, Marquez was not entitled to relief as a matter of law and thus an

evidentiary hearing was not warranted. However, the district court granted

Marquez a certificate of appealability “on the issue of whether counsel Calzon was

ineffective at trial and on appeal.”

      This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                           II.

                                           A.

      As Marquez frames it, the only issue on appeal is whether the district court’s

denial of his request for an evidentiary hearing on the ineffective assistance of

counsel claims in his § 2255 motion was error. This Court reviews a district court’s

denial of an evidentiary hearing on a § 2255 motion for abuse of discretion. Aron v.

United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002). “A district court abuses its

discretion if it applies an incorrect legal standard, applies the law in an

unreasonable or incorrect manner, follows improper procedures in making a


                                                 24
              Case: 14-14614      Date Filed: 04/06/2017    Page: 25 of 53


determination, or makes findings of fact that are clearly erroneous.” Winthrop-

Redin v. United States, 767 F.3d 1210, 1215 (11th Cir. 2014) (quoting Citizens for

Police Accountability Political Comm. v. Browning, 572 F.3d 1213, 1216–17 (11th

Cir. 2009) (per curiam)).

      A federal prisoner may bring a collateral challenge to his sentence by

moving the court to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a).

“Unless the motion and the files and records of the case conclusively show that the

prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon,

determine the issues and make findings of fact and conclusions of law with respect

thereto.” Id. § 2255(b). “[I]f the petitioner ‘alleges facts that, if true, would entitle

him to relief, then the district court should order an evidentiary hearing and rule on

the merits of his claim.’” Aron, 219 F.3d at 714–15 (quoting Holmes v. United

States, 876 F.2d 1545, 1552 (11th Cir. 1989)). “However, a district court need not

hold a hearing if the allegations are ‘patently frivolous,’ ‘based upon unsupported

generalizations,’ or ‘affirmatively contradicted by the record.’” Winthrop-Redin,

767 F.3d at 1216 (quoting Holmes, 876 F.2d at 1553); see, e.g., Lynn v. United

States, 365 F.3d 1225, 1239 (11th Cir. 2004) (“Because the . . . affidavits

submitted by Lynn amount to nothing more than mere conclusory allegations, the

district court was not required to hold an evidentiary hearing on the issues and

correctly denied Lynn’s § 2255 motion.”).


                                               25
             Case: 14-14614     Date Filed: 04/06/2017    Page: 26 of 53


      The Sixth Amendment guarantees criminal defendants a right to “reasonably

effective” legal assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). A defendant seeking relief on the basis of ineffective assistance

of counsel must thus demonstrate that counsel’s performance failed to meet “an

objective standard of reasonableness.” Id. at 688, 104 S. Ct. at 2064. “The proper

measure of attorney performance [is] reasonableness under prevailing professional

norms.” Id., 104 S. Ct. at 2065. “Judicial scrutiny of counsel’s performance must

be highly deferential.” Id. at 689, 104 S. Ct. at 2065. Courts should presume

counsel was effective and must avoid second-guessing counsel’s performance with

the benefit of hindsight. Id. Additionally, because “[a]n error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a

criminal proceeding if the error had no effect on the judgment,” id. at 691, 104 S.

Ct. at 2066, the defendant must also establish that his rights were prejudiced as a

result of the attorney’s substandard performance. Id. at 692, 104 S. Ct. at 2067.

The prejudice requirement has been met when the petitioner has shown that “there

is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068. A

court may decline to reach the performance prong of Strickland’s test if it is

convinced that the prejudice prong has not been be satisfied. Id. at 697, 104 S. Ct.

at 2069.


                                              26
             Case: 14-14614     Date Filed: 04/06/2017    Page: 27 of 53


                                          B.

      First, Marquez argues that the district court abused its discretion in denying

his ineffective assistance of counsel claim without an evidentiary hearing because

his counsel failed to timely challenge the validity of his extradition from Spain. We

are not persuaded.

      We note that we need not decide whether counsel’s failure to raise the rules

of speciality and dual criminality objections until well after Marquez was

convicted constitutes deficient performance under Strickland because Marquez

cannot show that his objections would have been granted by the district court even

if they were timely filed. This Court has explained that “specialty is a doctrine

based on international comity. Because the surrender of the defendant requires the

cooperation of the surrendering state, preservation of the institution of extradition

requires that the petitioning state live up to whatever promises it made in order to

obtain extradition.” Gallo‐Chamorro v. United States, 233 F.3d 1298, 1305 (11th

Cir. 2000) (quoting United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986)).

However, this Court has clarified that “[r]ather than mandating exact uniformity

between the charges set forth in the extradition request and the actual indictment,

‘[w]hat the doctrine of specialty requires is that the prosecution be based on the

same facts as those set forth in the request for extradition.’” Id. (quoting United

States v. Sensi, 879 F.2d 888, 895–96 (D.C.Cir. 1989)) (internal quotation marks

                                               27
             Case: 14-14614     Date Filed: 04/06/2017    Page: 28 of 53


omitted); see also United States v. Saccoccia, 58 F.3d 754, 767 (1st Cir. 1995)

(“[O]beisance to the principle of speciality does not require that a defendant be

prosecuted only under the precise indictment that prompted his extradition or that

the prosecution always be limited to specific offenses enumerated in the

surrendering state’s extradition order.”) (citations omitted). Rather, the question is

“whether, under the totality of the circumstances, the court in the requesting state

reasonably believes that prosecuting the defendant on particular charges

contradicts the surrendering state’s manifested intentions,” or “whether the

surrendering state would deem the conduct for which the requesting state actually

prosecutes the defendant as interconnected with (as opposed to independent from)

the acts for which he was extradited.” Saccoccia, 58 F.3d at 767.

      As the district court recognized in rejecting Marquez’s speciality argument

in his motion to arrest judgment, the facts set out in the Spanish National Criminal

Court’s en banc order authorizing his extradition stated that Marquez was involved

in a conspiracy involving illegal gambling and betting. Prosecution for RICO

conspiracy based on collection of unlawful gambling debt was integrally connected

to those facts. Additionally, Marquez was extradited and prosecuted on the same

charge: RICO conspiracy in violation of 18 U.S.C. § 1962(d). Rather than add a

new count, the superseding indictment merely clarified that the newly-detailed

theory of collection of unlawful debt was an alternative theory of liability under the


                                             28
             Case: 14-14614     Date Filed: 04/06/2017    Page: 29 of 53


still‐existing Count I RICO conspiracy charge that already included the

racketeering theory. Indeed, being charged with a RICO conspiracy, Marquez was

already liable for the foreseeable acts of his co-defendants, including the unlawful

collection of debt. Thus, the addition of the collection of unlawful debt theory did

not materially alter the offense for which Marquez was extradited and did not

violate the rule of speciality. Because the district court would not have granted

Marquez’s speciality objection if it had been timely filed (and in fact rejected it on

its merits as an alternative reason to deny his motion to arrest judgment), he cannot

show that counsel’s failure to raise it before trial prejudiced him. Further, even if

Marquez could establish that counsel would have been successful in convincing the

court that the United States should not be allowed to prosecute him for RICO

conspiracy based on the collection of unlawful debt theory, he cannot show that the

outcome of his trial would have been different because the jury found Marquez

guilty of RICO conspiracy under both of the two alternative theories of liability: a

pattern of racketeering activity and collection of unlawful debt. Thus, even setting

aside the collection of unlawful debt as one theory of liability, Marquez would still

have been prosecuted and found guilty for RICO conspiracy under the pattern of

racketeering activity theory of liability, resulting in the same outcome.

      Marquez’s dual criminality argument similarly fails. While the rule requires

that the conduct for which the defendant is extradited be an offense in both the

                                              29
             Case: 14-14614      Date Filed: 04/06/2017    Page: 30 of 53


requesting state and the extraditing state, see Gallo‐Chamorro, 233 F.3d at 1306, it

“does not require that the name by which the crime is described in the two

countries shall be the same; nor that the scope of the liability shall be coextensive,

or, in other respects, the same in the two countries. It is enough if the particular act

charged is criminal in both jurisdictions.” Collins v. Loisel, 259 U.S. 309, 312, 42

S. Ct. 469, 470–71 (1922).

      We have no doubt that the conduct for which Marquez was extradited to the

United States for committing is criminal in both the United States and Spain. The

Spanish court itself recognized that the charge involved a mafia organization

engaged in activities characteristic of organized crime, stated that the facts in the

extradition request “are perfectly definable under Spanish criminal law,” and even

identified Spanish statutes under which Marquez could be prosecuted for the same

conduct. The Spanish court’s analysis would not have differed had it been

presented with the superseding indictment because it did not add a new count or

materially alter the offense for which Marquez was charged. The Spanish court

also rejected Marquez’s argument that Spanish law barring prosecution for crimes

committed before 1999 meant that the charged RICO conspiracy was not criminal

in Spain, concluding en banc that as long as the limitations period had not expired

under U.S. law, he could not assert a dual criminality argument based on Spain’s

statute of limitations. In denying Marquez’s post-trial challenge to his extradition

                                              30
             Case: 14-14614      Date Filed: 04/06/2017    Page: 31 of 53


on dual criminality grounds, the district court deferred to the Spanish court’s

explanation and application of Spanish law regarding dual criminality, rejecting

Marquez’s argument that the Spanish court incorrectly authorized his extradition,

and noted that the statute of limitations for the RICO conspiracy had not expired.

Marquez has not demonstrated that the district court would have reached a

different conclusion had it been presented with this motion prior to trial. Indeed,

the indictment charged that the conspiracy continued to operate well past the

March 1999 commencement of the statute of limitations, and the evidence at trial

established that Marquez and the other owners of the Corporation continued to

hide assets and dispose of ill-gotten gains up to the point of their arrests in 2004.

      Marquez has not presented any factual dispute that would have been

appropriate for an evidentiary hearing on this claim. Because the district court’s

rejection of Marquez’s rule of speciality and dual criminality arguments was made

on purely legal grounds, no evidentiary hearing was warranted.

                                          C.

      Next, Marquez claims that counsel was ineffective for failing to

communicate the United States’s twenty-year plea offer to him or entering into

plea negotiations on his behalf. Again, we are unpersuaded that the district court

abused its discretion in refusing to hold an evidentiary hearing on this claim.




                                               31
             Case: 14-14614      Date Filed: 04/06/2017    Page: 32 of 53


      Strickland’s two‐part test applies in determining whether counsel was

ineffective during the plea process. Coulter v. Herring, 60 F.3d 1499, 1504 (11th

Cir. 1995). Marquez must show not only deficient performance by counsel but also

“a reasonable probability that, but for counsel’s errors, he would . . . have pleaded

guilty and would [not] have insisted on going to trial.” Id. (quoting Hill v.

Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985)) (alterations in original).

      Early in the trial the United States read into the record that Battle, Sr., Battle,

Jr., and other co-defendants had all rejected plea offers and further stated that it

had extended an offer to Marquez as well:

      The Prosecutor:      . . . Approximately two weeks ago, the United
                           States went ahead and conveyed plea offers to
                           Battle, Sr., Battle, Jr., Gustavo Battle, and Argelio
                           Jiménez. Since then I have not heard any response,
                           which is fine as far as that’s concerned, but it’s
                           getting to the point where the Government is going
                           to go ahead and withdraw that plea agreement. I
                           just wanted to put on the record that the defendants
                           are aware that this plea offer has been made.
                           There’s no doubt in my mind that the plea offers
                           have been conveyed to them. What I don’t want is
                           to have a situation, you know, a year down the
                           road where somebody files a 2255 saying, you
                           know, “I never heard of the Government offering
                           any plea offer to us.”

      The Court:           So, there hasn’t been any plea offer to Mr.
                           Marquez?

      The Prosecutor:      At this time? Well there was an initial plea offer
                           that was made to Mr. Marquez. I have not had any
                           more discussion with Ms. Calzon concerning that.
                                              32
             Case: 14-14614     Date Filed: 04/06/2017     Page: 33 of 53


                          She has not returned to me one way or another
                          with regard to that.

      The Court:          All right, sir. So, that’s on record.

      ...

      Ms. Calzon:         Your Honor, the only thing I would like to
                          comment on the question that you asked the
                          Government regarding a plea for my client
                          [Marquez], and I join Mr. Blumenfeld and I want
                          the record clear that we don’t consider pleading
                          straight up to the charges a plea agreement, a plea
                          offer, so we have not been offered anything that
                          my client [Marquez] can consider.

[Criminal Docket Entry No. 1846 at 104–05]. This exchange was made in open

court, and there is nothing in the record to indicate that Marquez was not present

for this exchange. Thus, the record refutes Marquez’s assertion that he was

unaware of the twenty-year offer. Further, nowhere does the record reflect that

Marquez protested that counsel had not communicated the offer to him or that he

wanted to plead guilty. However, in the event that Marquez was not present for the

above exchange and was otherwise unaware that the Government had

communicated such an offer, he still cannot establish Strickland prejudice because

twenty years’ imprisonment is the sentence he actually received following trial. So

even if Marquez had accepted the twenty-year plea offer, the outcome of his

proceeding would not have been different.




                                             33
             Case: 14-14614     Date Filed: 04/06/2017    Page: 34 of 53


      Marquez fares no better on his claim that counsel failed to advise him to

plead guilty “straight-up” to the indictment: that is, plead guilty without a plea

agreement or enter into a “blind plea.” Marquez theorizes that had he so pled,

counsel could have attempted to convince the district court to sentence him to

fewer than twenty years’ imprisonment. We need not decide whether failing to

advise a client that he has the option to plead guilty without a plea agreement

constitutes deficient performance under Strickland because on this record there is

simply no “reasonable probability” that the district court would have agreed to

sentence Marquez to fewer than twenty years if he had pled guilty. See Strickland,

466 U.S. at 694, 104 S. Ct. at 2068. The district court expressed its frustration that

Marquez could not receive a sentence of more than twenty years’ imprisonment

pursuant to the terms of his extradition while other similarly culpable co‐

defendants involved in the same predicate acts of murder and arson faced life

sentences:

      The Court:          Hold for a second. As to Mr. Marquez, is there a
                          limitation by treaty?

      The Prosecutor:     The limitation is by treaty but it’s also by
                          Apprendi. Because of the treaty, we never listed
                          Mr. Marquez in the life enhancer section.

      The Court:          So, the most he could get is 20 years.

      The Prosecutor:     The most he can get is 20 years.



                                             34
             Case: 14-14614     Date Filed: 04/06/2017    Page: 35 of 53


      The Court:          So, the irony here is you’re saying Mr. Marquez
                          was the guy who was paying the money, knew
                          about the fires, played an active role, actively
                          participated, he can’t get more than 20 years, but
                          Mr. Battle, Jr., who didn’t want any part of the
                          business, would then get up to life. Is that what
                          you’re saying.

      The Prosecutor:     It’s our position that Mr. Battle, Jr., was the one
                          that was paying the money out of the UNESCO
                          account.

      The Court:          I mean, where’s the equity in that or the sentencing
                          disparity?

[Civil Docket Entry No. 12–21 at 238]. Additionally, the court stated at Marquez’s

sentencing that his role in the conspiracy warranted a twenty-year sentence, which

it described as falling “well below the advisory guidelines range.” [Criminal

Docket Entry No. 2900 at 19.] The court further explained what the evidence

showed at sentencing, noting that Marquez “was a member of a hierarchy of a

violent RICO enterprise and that enterprise did engage in murder, arsons and

assaults, money laundering and illegal gambling”; that he “directly participated in

many of these violent acts, including the premeditated murder of Jose Enriquez,

and was found by the jury responsible for various arsons and arson‐related

murders”; and that he “lived most of the majority of his adult life committing these

crimes on a regular basis and according to the evidence at trial, even with regard to

the serious arsons and the like, he did so without remorse.” [Id. at 19–20].



                                             35
              Case: 14-14614     Date Filed: 04/06/2017    Page: 36 of 53


      Additionally, Marquez’s sentence was in accord with the sentences of his

similarly culpable co‐defendants Battle, Sr. (240 months), Battle, Jr. (188 months),

and Acuna (life), all of whom, like Marquez, were in the hierarchy of the RICO

conspiracy. While Marquez lists a number of co-defendants who received lesser

sentences, such as the Corporation’s accountant, Vidan, he does not discuss the

evidence relating to their roles in the RICO conspiracy, and in any event, the

district court was in the best position to judge the relative culpability of the

defendants.

      Marquez ignores trial evidence that established that Battle, Sr. put in place

the ruthless policies of the enterprise, and that Marquez executed these policies by

running the day-to-day operations of the Corporation in New York, which included

ordering and paying for at least ten murders and for arsons that resulted in at least

eight deaths. Marquez also provided a silencer-equipped firearm to Guzman, an

enterprise enforcer, to use in the murder of Enriquez. Battle, Sr. and Marquez both

committed callous acts in furtherance of the conspiracy, and they both received

twenty-year sentences. Marquez argues that had he pled guilty, the court would not

have had the evidence of Marquez’s participation in the arsons or murders or his

lack of remorse to consider at the time of sentencing. We note however, that

Alvarez, Rydz, and Diaz, the most ruinous witnesses against Marquez at trial,

would likely still have given the same testimony at Marquez’s sentencing, either

                                              36
             Case: 14-14614     Date Filed: 04/06/2017    Page: 37 of 53


directly or through an interviewing agent testifying to reliable hearsay.

Consequently, the court would have had that information at sentencing.

      Because the record conclusively refutes Marquez’s allegation that had

counsel advised him to plead guilty, he would have received a lesser sentence, the

court did not abuse its discretion in refusing to hold an evidentiary hearing to

resolve this particular ineffective assistance of counsel claim.

                                          D.

      Marquez also claims that counsel suffered a stroke during his trial, fell into

depression due to various personal and financial issues, and blamed her problems

on him and the toll his case had taken on her. He asserts that these conditions

prevented her from effectively representing him in closing argument and on

appeal. We do not agree.

      The fact that an attorney has a mental or physical health problem is not

inherently prejudicial; rather, a court must evaluate whether the condition

manifests itself in counsel’s actual conduct in some detrimental manner. See White

v. Singletary, 972 F.2d 1218, 1222 (11th Cir. 1992) (“Although it is undisputed

that [counsel] had health problems, the district court specifically found that none

made his legal assistance constitutionally ineffective.”); Messer v. Florida, 834

F.2d 890, 897 (11th Cir. 1987) (“Being tired, alone, ‘does not establish

ineffectiveness. There must be some showing [counsel] committed errors because


                                               37
               Case: 14-14614         Date Filed: 04/06/2017        Page: 38 of 53


of his condition.’”) (quoting King v. Strickland, 714 F.2d 1481, 1489 (11th Cir.

1983), vacated, 467 U.S. 1211, 104 S. Ct. 2651 (1984), opinion reinstated on

remand, 748 F.2d 1462 (11th Cir. 1984) (citation omitted)); Buckelew v. United

States, 575 F.2d 515, 520–21 (5th Cir. 1978) (there was no merit in petitioners’

allegations that their trial attorney was “too old and sick” to represent them,

especially since petitioners made no adequate allegation of specific prejudice

resulting from counsel’s supposed illness).

       With regard to the claim that counsel’s mid-trial stroke caused her to deliver

a deficient closing argument, Marquez merely made the general allegations to the

district court that her closing failed to delve into sufficient details, failed to address

issues of witness credibility, failed to highlight exculpatory evidence, and instead

merely relied upon general principles of fairness and Marquez’s relationship with

the Battle family. In rejecting the claim, the district court noted that counsel’s

closing argument had in fact been “lucid and cogent” and that she covered several

pieces of evidence in detail during the one day she was allotted for closing,

including: (1) reciting Rydz’s testimony regarding Enriquez’s murder and urging

the jury to find that Marquez was not involved in that murder; 5 (2) pointing out the

inconsistent testimony of Diaz to show that Marquez was not involved in the


       5
         Counsel recited Rydz’s testimony in which he said, “I did it. I paid for it. I paid Earl or
Gordon a $100,000 for killing my friend, Mr. Sr.’s brother.” [Civil Docket Entry No. 12–21 at
223–24.]
                                                     38
               Case: 14-14614       Date Filed: 04/06/2017      Page: 39 of 53


arsons; and (3) attacking the veracity of Alvarez’s testimony. But fatal to

Marquez’s claim, according to the district court, was that Marquez did not specify

what counsel could have said that would have changed the result of the

proceedings, so he failed to set forth facts which, if true, would lead to a ruling in

his favor.

       Now Marquez claims that counsel should have spent more time emphasizing

that Robinson had provided Rydz with an assassin to murder Enriquez in Miami

and an evidentiary hearing was needed to establish whether this would have

persuaded the jury that Marquez was not involved in the murder plot. Assuming

this argument is properly before us, 6 we first note that statements made during

closing argument are generally the result of counsel’s strategic decisions and are

thus reviewed with a high degree of deference and without the distorting effects of

hindsight. See, e.g., McNeal v. Wainwright, 722 F.2d 674, 676–77 (11th Cir. 1984)

(counsel was not ineffective for conceding to manslaughter during closing

argument). Aside from pointing out that strokes often cause memory loss,

problems focusing, and mood swings, Marquez has not demonstrated that any

condition counsel may have suffered negatively impacted his trial. Indeed, that

Rydz ultimately decided to hire an outsider to murder Enriquez does not negate the

       6
         Although arguments not presented below are generally not reviewed, see Walker v.
Jones, 10 F.3d 1569, 1572 (11th Cir.1994), we will assume that this claim is a mere expansion of
the argument made below that counsel did not mention evidence showing that Marquez was not
involved in Enriquez’s murder.
                                                  39
             Case: 14-14614      Date Filed: 04/06/2017    Page: 40 of 53


overwhelming evidence showing that Marquez was involved in the murder plot,

such as the fact that after Battle, Sr. had put a contract on Enriquez’s life, Marquez,

who managed the RICO enterprise’s enforcement actions, provided Guzman, an

enterprise enforcer, with a silencer-equipped gun that could be used in Enriquez’s

murder, whether committed by Guzman or someone else. Additionally, the

Enriquez murder was only one of twenty-nine predicate acts that Marquez was

found guilty of committing, and he would have been convicted of RICO

conspiracy based upon other overwhelming evidence pertaining to his commission

of the other predicate acts alleged in the indictment. Accordingly, Marquez has

failed to establish either of Strickland’s two requirements for a prima facie

ineffective assistance of counsel claim warranting an evidentiary hearing.

      With regard to Marquez’s claim that counsel’s condition caused her to file

an appellate brief lacking key arguments, we again find that the record obviated the

need for an evidentiary hearing. We first note that although counsel suffered

personal and financial problems during the time that Marquez’s case was on

appeal, she did in fact file an appellate brief raising four issues, including

challenging Marquez’s extradition from Spain and arguing that the United States

violated its disclosure obligations during trial. Strickland’s test also applies to

ineffective assistance of appellate counsel claims. Smith v. Robbins, 528 U.S. 259,

285–86, 120 S. Ct. 746, 764 (2000). However, “a criminal defendant’s appellate


                                              40
             Case: 14-14614      Date Filed: 04/06/2017    Page: 41 of 53


counsel is not required to raise all nonfrivolous issues on appeal.” Payne v. United

States, 566 F.3d 1276, 1277 (11th Cir. 2009) (per curiam) (citing Jones v. Barnes,

463 U.S. 745, 751–54, 103 S. Ct. 3308, 3312–14 (1983)); see also Jones, 463 U.S.

at 751–52, 103 S. Ct. at 3313 (“Experienced advocates since time beyond memory

have emphasized the importance of winnowing out weaker arguments on appeal

and focusing on one central issue if possible, or at most on a few key issues.”).

“Therefore, it is difficult for a defendant to show his counsel was ineffective for

failing to raise certain issues on appeal, particularly if counsel did present other

strong issues.” Payne, 566 F.3d at 1277 (citing Smith, 528 U.S. at 287–88, 120 S.

Ct. at 765–66).

      Marquez claims that counsel should have argued on appeal that the district

court erred in admitting evidence concerning the El Crillon casino in Peru because

it was irrelevant and unfairly prejudicial. However, the superseding indictment

charged Marquez and his co-defendants with engaging in money laundering to

conceal their criminal activities; thus the casino evidence was relevant under

Federal Rule of Evidence 401 to show that the casino was used to launder illegal

bolita proceeds. We are also not persuaded that the evidence was unduly

prejudicial under Federal Rule of Evidence 403 because, as Marquez represents,

most of the evidence presented at trial was that he was a “nice guy” who never

threatened anybody. On this record, we cannot say that it was deficient


                                              41
             Case: 14-14614     Date Filed: 04/06/2017   Page: 42 of 53


performance for counsel to conclude Marquez would likely not be successful in

challenging the admission of the casino evidence on appeal.

      Marquez also faults counsel for not making various arguments about the

reasonableness of his sentence. He first says that counsel should have re-argued on

appeal the same argument she made at sentencing which was that his sentence

violated the terms of his extradition, which prohibited life sentences, because a

twenty-year sentence is a de facto life sentence. As the district court found when

counsel raised this argument at Marquez’s sentencing, the Spanish extradition

documents do not prohibit a twenty-year sentence, and because the Spanish court

had been aware of Marquez’s age when he was extradited, it could have imposed a

further limitation on his sentence but elected not to do so. A reasonable attorney

could certainly decide not to continue with this argument on appeal because it is

contradicted by the record. Marquez now argues for the first time that he should

have had an evidentiary hearing because he was extradited in 2005 but not

sentenced until 2008, and a hearing would have established that, if the Spanish

court had known that he would become physically ill due to the stress of the

criminal proceedings after his extradition, it would have required a fewer-than-

twenty-year cap on his sentence as a term of extradition because, by 2008 when he

was sentenced at age sixty-two, a twenty-year sentence effectively constituted a

life sentence for him. We need not delve into the many reasons this claim fails


                                             42
             Case: 14-14614     Date Filed: 04/06/2017   Page: 43 of 53


because Marquez did not present it to the district court. See Walker, 10 F.3d at

1572–73.

      Next, Marquez argues that because the evidence showed that Battle, Sr. was

more culpable than he but received the same sentence, he was prejudiced by

counsel’s failure to argue on appeal that his sentence was substantively

unreasonable. Marquez again ignores the overwhelming evidence showing that

although Battle, Sr. founded the Corporation and established its merciless policies,

Marquez executed the policies, including ordering and paying for at least ten

murders and arsons that resulted in at least eight deaths. Any argument that

Marquez was not as culpable as Battle, Sr. would have been contradicted by the

record and thus would have failed on appeal.

      Finally, Marquez claims that counsel should have raised the same sentencing

guideline arguments that counsel for Battle, Jr. raised, unsuccessfully, on appeal.

This Court declined to resolve Battle, Jr.’s guideline arguments, noting that the

district court had stated that it would impose the 188-month sentence through an

upward departure regardless of the guidelines sentence, and holding that the

sentence achieved through application of the 18 U.S.C. § 3553(a) factors was

reasonable. See Acuna, 313 F. App’x at 298. Marquez does not explain how he

would have been successful on such arguments when Battle, Jr. wasn’t.




                                             43
             Case: 14-14614        Date Filed: 04/06/2017   Page: 44 of 53


      Marquez also argues that counsel should have raised the same statute of

limitations argument that counsel for Battle, Jr. raised, unsuccessfully, on appeal

because Marquez was in a better position than Battle, Jr. to make the argument. In

rejecting Battle, Jr.’s argument, this Court explained that the mere fact that he and

Rydz announced in 1988 that they wanted to cease receiving direct profits in

exchange for overseeing the daily operations of bolita did not establish Battle, Jr.’s

withdrawal from the conspiracy before the statute of limitations began to run in

March 1999. See Acuna, 313 F. App’x at 294. Rather, the evidence at trial

established that in 2001, Battle, Jr. sold his home purchased with illegal gambling

proceeds and then concealed the profits through various real estate transactions and

sham bank accounts. See id. at 294–95. These actions demonstrated Battle, Jr.’s

continued personal participation in the ongoing conspiracy because concealment of

the illegal gambling proceeds protected and promoted the RICO enterprise by

preventing the detection of its criminal activities and the imposition of civil and

criminal liabilities upon its members. See id. Like Battle, Jr., Marquez sold his

home purchased with illegal gambling proceeds in November 1999, using the

profits to pay off debt and fund his life in Spain until his extradition in 2005. The

same rationale would have been applied to Marquez’s conduct, defeating his

statute of limitations argument.




                                               44
             Case: 14-14614     Date Filed: 04/06/2017    Page: 45 of 53


      Marquez’s final point of contention with counsel’s appellate performance is

that she did not contest the admission at trial of transcripts of Spanish wiretaps that

he alleges contained errors when they were translated into English. Marquez’s

failure to identify a single inaccuracy in those transcripts dooms his claim. He has

not established how such an argument on appeal would have resulted in a reversal

of his conviction.

      Although counsel did not raise on appeal the issues that Marquez believes

would have been meritorious, we find nothing objectively unreasonable about

counsel’s decision to raise the four issues she felt were the strongest. Marquez has

not demonstrated that suffering a stroke, being depressed, or having financial

problems negatively impacted her ability to represent him. Accordingly, we also

find no merit in Marquez’s claim of ineffective legal representation on appeal.

                                          E.

      We interpret Marquez’s fourth ineffective assistance of counsel claim as one

of failure to investigate possible defenses. He alleges that because counsel did not

meet and confer with him prior to and during trial, she did not learn that she should

cross examine Marchena and Detective Shanks about the alleged “money

promises” Detective Shanks made to Marchena in exchange for his testimony.

Marquez also asserts that counsel should have investigated Diaz’s testimony from

Pons’s 1980 trial for the arsons to enforce the two-block rule, including cross


                                               45
             Case: 14-14614       Date Filed: 04/06/2017   Page: 46 of 53


examining Diaz with the transcript of his prior testimony to show that he failed to

implicate Marquez in the fires.

      Marquez asserts that the notice of lien Marchena filed before trial should

have triggered counsel to investigate this alleged agreement between Marchena

and Detective Shanks, which would have later prepared her to cross examine

Marchena on his financial interest in obtaining a conviction and Detective Shanks

on the “lengths he would go to to get a conviction.” While counsel certainly has a

duty to undertake a reasonable investigation into possible defenses or to make a

reasonable decision that certain investigations are not needed, see Strickland, 104

S. Ct. at 2066, the district court was not required to hear evidence as to the scope

of counsel’s pretrial investigation because Marquez cannot establish that he was

prejudiced by counsel’s failure to cross examine Marchena and Detective Shanks

on these topics.

      As an initial matter, there is nothing in the record substantiating Marchena’s

claim that there was an oral agreement between him and Detective Shanks and

O’Bannon, where Marchena would testify and O’Bannon and Detective Shanks

would insure he would collect on his judgment. Indeed, the United States later

moved to strike Marchena’s affidavit in the post-trial forfeiture proceedings.

Marquez has not demonstrated how counsel cross examining the detective on an

unsubstantiated agreement would have changed the outcome of the trial.


                                              46
               Case: 14-14614       Date Filed: 04/06/2017      Page: 47 of 53


       Marquez’s speculation that “one never knows what a jury relies on for its

convictions and Detective Shanks was the lead detective on this case,” does not

demonstrate prejudice, especially considering that the jury determined that

Marquez had committed numerous other predicate acts, including murder and

arson, which were totally unrelated to the casino, Marchena’s financial interest in

the case, or to any alleged agreement between Marchena and Detective Shanks.

We agree with the district court’s conclusion that, based upon the entire trial

record, the jury’s verdict would not have been affected even if Detective Shanks’s

credibility had been impugned.

       Nor can Marquez establish that the outcome of his trial would have been

different had counsel cross examined Marchena on his financial interest in the

forfeited properties because co-defendant Battle, Sr.’s counsel had cross examined

Marchena on this same topic before Battle, Sr. pled guilty. Any further cross

examination by Marquez’s counsel would have been merely cumulative 7 and

indeed, Battle, Sr.’s counsel’s impeachment of Marchena’s testimony was

sufficient to allow Marquez’s counsel to argue in closing that Marchena sought to

collect on his outstanding judgment through the criminal case. Marquez’s counsel

       7
          Although we need not reach the question whether an attorney’s performance is deficient
when she fails to cross examine a witness whose testimony has already been impeached, we note
that a reasonable attorney could certainly make the strategic decision not to do so because
additional cross examination may give the witness the additional opportunity to explain away
problematic testimony. “The decision as to whether to cross-examine a witness ‘is a tactical one
well within the discretion of a defense attorney.’” Fugate v. Head, 261 F.3d 1206, 1219 (11th
Cir. 2001) (quoting Messer v. Kemp, 760 F.2d 1080, 1090 (11th Cir. 1985)).
                                                  47
             Case: 14-14614     Date Filed: 04/06/2017    Page: 48 of 53


stated in closing, “[Marchena] has an ulterior motive. He has a reason to lie to

you.” [Civil Docket Entry No. 12–21 at 219.]

      Marquez now argues for the first time that he was prejudiced because the

jury could have relied on Marchena’s testimony about the casino to find that

Marquez’s criminal conduct continued through the commencement of the statute of

limitations period and that without this testimony, “the statute of limitations would

have run on all of the charges before the Court.” If we were to consider this claim,

which we will not because Marquez did not present it to the district court, see

Walker, 10 F.3d at 1572, we would find that it fails to comprehend that evidence

that had nothing to do with the casino established Marquez’s continued

participation in the RICO conspiracy after March 1999, and in any event, it is

factually inaccurate because the laundering of RICO proceeds through the casino

ceased upon the casino’s closure in 1996. Because Marquez’s statute of limitations

argument would have failed for reasons that had nothing to do with counsel’s

failure to question witnesses about the casino in Peru, he has failed to establish

prejudice.

      With regard to Diaz, counsel did in fact tell the jury at closing that Diaz did

not implicate Marquez in the fires during Pons’s trial:

      Counsel:            . . . Willie Diaz admitted to you that he had
                          testified in many trials before he testified here.
                          Remember that?


                                             48
               Case: 14-14614        Date Filed: 04/06/2017       Page: 49 of 53


                                      Well, what he failed to say in all those other
                              trials, in all that other testimony, was that Mr.
                              Marquez had anything to do.

       The Prosecutor:        Objection, Your Honor. It assumes facts not in
                              evidence.

       The Court:             I’ll let the jury sort that out. Overruled.

       Counsel:               I asked him. All of a sudden, after decades of
                              testifying, now Mr. Diaz remembers a chance
                              encounter meeting Mr. Marquez. Never before. He
                              testified against many other people about these
                              same facts, about the same fires, about his same
                              conduct, and never once did he say, “Oh, no, it
                              wasn’t Willie Pons. It was Mr. Marquez that did
                              this and he told me you’re doing a good job.”

                                      Never once in decades of testimony.

                                     Now, do you consider that? Of course you
                              consider it because that’s something he failed to
                              say or do.


[Civil Docket Entry No. 12–21 at 183.] These statements refute Marquez’s

allegation that counsel failed to investigate Diaz’s prior inconsistent testimony.

While Marquez argues that directly impeaching Diaz by asking him to read his

prior trial testimony8 would have been a more effective means of proving he was

lying than merely mentioning the fact during closing, counsel’s strategic trial

decisions are entitled to deference under Strickland. Fugate, 261 F.3d at 1219; see


       8
         Marquez neither produced these transcripts from Pons’s trial to the district court nor
directed the court to any information regarding their whereabouts.
                                                    49
             Case: 14-14614     Date Filed: 04/06/2017    Page: 50 of 53


also Chandler v. United States, 218 F.3d 1305, 1318 n. 22 (11th Cir. 2000) (“How

a lawyer spends his inherently limited time and resources is also entitled to great

deference by the court.”). And counsel did cross examine Diaz, establishing that

Marquez never mentioned the word “fires” to him, that he received immunity for

his testimony in this case, and that he was threatened by the United States to

testify. See Fugate, 261 F.3d at 1220 (“Ineffective assistance . . . will not be found

merely because ‘other testimony might have been elicited from those who

testified.’”) (quoting Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995) (en

banc)) (quotation marks omitted). Indeed, counsel’s strategy may have been to

avoid pressing Diaz about his testimony at Pons’s trial for fear Diaz would say that

he had not implicated Marquez because he had feared violent reprisal. The state

court trial was in 1980 when the Corporation was still operating. See Waters, 46

F.3d at 1512 (“There is much wisdom for trial lawyers in the adage about leaving

well enough alone.”). For all of these reasons, Marquez has not shown that

counsel’s performance in this regard was constitutionally deficient.

      Nor can Marquez establish Strickland prejudice. The testimony at trial was

overwhelming that Marquez was involved in the arsons. Alvarez testified that it

was Marquez who discussed with Battle, Sr. committing the arson that resulted in a

baby’s death and who ensured that Pons and Guzman were paid their salaries while

they were either in jail or in hiding after being investigated for this arson. Rydz


                                              50
             Case: 14-14614     Date Filed: 04/06/2017    Page: 51 of 53


testified that Marquez was directly involved with the Corporation’s burning out of

rival stores and that he had several conversations with Marquez about the

Corporation’s arsons, including the arson that resulted in the baby’s death, and

Marquez’s answer was always “what is done is done.” Additionally, the jury found

that Marquez was culpable with regard to twenty other predicate acts that did not

involve arson, and so if these nine arsons were somehow removed as predicate

acts, Marquez would still have been found to have entered into an agreement to

participate in twenty other predicate acts and, thus, would still be guilty.

                                          F.

      Marquez’s final argument is that the district court abused its discretion in

failing to hold an evidentiary hearing to determine whether counsel was ineffective

because she did not “meaningfully” counsel him regarding his right to testify. This

claim fails as well.

      “[A] criminal defendant has a fundamental constitutional right to testify in

his or her own behalf at trial. This right is personal to the defendant and cannot be

waived either by the trial court or by defense counsel.” United States v. Teague,

953 F.2d 1525, 1532 (11th Cir. 1992) (en banc) (emphasis omitted), cert. denied,

506 U.S. 842 (1992). A claim of ineffective assistance of counsel is “the

appropriate vehicle for claims that the defendant’s right to testify was violated by

defense counsel.” Id. at 1534. If an attorney has refused to call a defendant to the


                                               51
             Case: 14-14614      Date Filed: 04/06/2017    Page: 52 of 53


stand despite his desire to testify, or if she never informed him of his right to testify

and that the decision belonged to him alone, she “has not acted within the range of

competence demanded of attorneys in criminal cases.” Id. (citing Strickland, 466

U.S. at 687, 104 S. Ct. at 2064) (quotation marks omitted).

      Because the record conclusively refutes Marquez’s allegation that counsel

deprived him of his right to testify, he cannot establish Strickland’s first

requirement that counsel’s performance was deficient. Marquez told the district

court during trial that he had, in fact, decided not to testify after he had discussed

his rights and options with counsel:

      The Court: All right. I would ask the defendants to be sworn at this
                 time.

      [The defendants were duly sworn]

      The Court: Mr. Battle, Jr., let me start with you, sir. You have a right
                 to testify in your own behalf if you elect to do so. What I
                 need to do is inquire if you have had a full and complete
                 opportunity to consider that right, discuss it with your
                 attorneys and whether the decision not to testify is yours
                 and yours alone.

      Battle, Jr.: It is, sir.

      ...

      The Court: And, Mr. Marquez, the same question to you, sir.

      Marquez:      Yes, sir.

      The Court: And this was done after having full opportunity to
                 discuss this issue with Ms. Calzon.
                                              52
             Case: 14-14614       Date Filed: 04/06/2017   Page: 53 of 53




      Marquez:      Yes, sir.

[Criminal Docket Entry No. 2306 at 82–83.] “Solemn declarations in open court

carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.

Ct. 1621, 1629 (1977). Because the record conclusively refutes Marquez’s claim,

the district court did not abuse its discretion in failing to hold an evidentiary

hearing on this claim.

                                          III.

      As to each of Marquez’s ineffective assistance of counsel claims, the record

unambiguously establishes that Marquez is entitled to no relief. As such, the

district court did not abuse its discretion in denying Marquez’s § 2255 motion

without an evidentiary hearing.

AFFIRMED.




                                                 53
