First Circuit: Appellate Counsel’s Failure to Raise Brady Claim on Direct Appeal Constituted Ineffective Assistance of Counsel Under Strickland, § 2255 Motion Granted
by Anthony W. Accurso
The U.S. Court of Appeals for the First Circuit reversed the U.S. District Court for the District of Puerto Rico’s denial of defendant’s 28 U.S.C. § 2255 motion, ruling defendant’s appellate counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668 (1984), for failing to raise a relevant claim under Brady v. Maryland, 373 U.S. 83 (1963), on appeal.
Sandra Flores-Rivera (“Flores”) was convicted of multiple crimes relating to her participation in a drug distribution conspiracy involving narcotics activity at the Victor Berrios Public Housing Project in Yubacoa, Puerto Rico. Flores was convicted alongside codefendants Sonia Flores-Rivera, Carlos Omar Bermudez-Torres, and Cruz Roberto Ramos-Gonzalez.
The Government’s case largely relied on testimony by three witnesses, all drug runners and sellers in the conspiracy themselves. In addition to testifying about Flores’ participation, the witnesses helped interpret other evidence, including a video clip allegedly showing Flores engaged in drug-related activity and a journal seized from the home of the conspiracy’s bookkeeper.
One witness stated that the journal entries referring to “SF” recorded drug cash deliveries completed by Sandra Flores, not Sonia Flores or Sandra Fernandez, two other members of the conspiracy. Two of the witnesses testified that Flores’ action in the video clip involved “distributing crack and tallying up drug money”—though these activities were unclear to a viewer unfamiliar with the operations of the drug-trafficking conspiracy without interpretation from the witnesses.
After the jury returned guilty verdicts for the defendants, the Government disclosed documents that revealed how the lead witness had communicated with the other two and that they cooperated in preparing their testimony while in prison. One document contained a fawning, pleading letter from the so-called star witness to the lead prosecutor, stating “I need you to help me please…. I promised you … to do everything you said and I have done it to the point that you know how this has gotten, we have more than we expected, more evidence and more strength for the case….” At the bottom of a photocopied page, the witness wrote, “I hope you can help me, I will” before the photocopy cuts off, and the Government claimed that it wasn’t able to locate the rest of the letter.
Attorneys for the codefendants filed new trial motions based on this belated disclosure, and Flores joined Ramos’ motion. The motions were denied. However, Flores’ two codefendants raised the issue successfully on direct appeal, and they were granted new trials.
Appellate counsel for Flores inexplicably failed to raise the Brady issue on direct appeal, despite it being preserved, instead opting to raise two easily dismissed issues, i.e., unfavorable evidentiary rulings and a sentencing argument that was clearly foreclosed by circuit precedent. Flores subsequently lost her appeal.
She then filed a pro se motion under § 2255, but this was denied when the district court decided that, “even if the [Brady] evidence had been disclosed, there was no reasonable probability that she would have been acquitted at trial because the video evidence provided her participation in the drug-trafficking conspiracy.” She appealed.
The Court stated that to prevail on a § 2255 claim, Flores must establish that her sentence “was imposed in violation of the Constitution or laws of the United States” or “is otherwise subject to collateral attack.” § 2255. Flores argues that the Government violated her due process rights by failing to satisfy its Brady obligations. However, because she failed to raise that argument on direct appeal, the Court stated that she is required to show both that she had “cause” not to raise it and that she suffered “actual prejudice” as a result. United States v. Frady, 456 U.S. 152 (1982).
As to the cause prong, the Court noted that she can establish “cause” by showing that counsel’s failure to raise the Brady claim on direct appeal constituted ineffective assistance of counsel under Strickland, which itself contains two prongs: (1) counsel’s performance was deficient and (2) defendant was prejudiced by counsel’s deficient performance.
The Court addressed the prejudice prong first, stating that it requires Flores to show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland. The Court explained that whether counsel’s failure to raise the Brady claim on direct appeal prejudiced her under Strickland “depends on the merits of the Brady claim itself.”
The Court noted that a Brady violation contains three components: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263 (1999).
As to the first component, the Court stated that the withheld evidence was clearly favorable to Flores because it cast substantial doubt as to the credibility of the Government’s witnesses. Regarding the second component, the Court observed that “there is no doubt that it was not timely produced.” Accordingly, the first two components of the test were satisfied.
Regarding the final component, Flores’ Brady claim that wasn’t raised on direct appeal, then, hinged completely on whether “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the [trial] would have been different.” Brady. The U.S. Supreme Court has made it clear that the standard is not whether the defendant would have received a different verdict but whether in the absence of the withheld evidence the defendant “received a fair trial.” Kyles v. Whitley, 514 U.S. 419 (1995). The Supreme Court has instructed that when assessing “reasonable probability” of a different result, the defendant isn’t required to show “that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict,” i.e., it’s “not a sufficiency of the evidence test”—but rather materiality. Id.
Turning to the present case, the Court had little difficulty in concluding that the result would have been different and she thus established prejudice but for the Brady violation by pointing out that Flores’ two codefendants’ appeals were sustained by the Court in their cases. The Court explained that the Government’s case rested nearly entirely on the testimony of the cooperating witnesses. Thus, the Court ruled that Flores would have prevailed on the Brady issue on direct appeal had it been raised and that she successfully established prejudice under Strickland.
The Court then turned to the deficient performance prong of Strickland, i.e., failing to raise the Brady claim constituted deficient performance by appellate counsel. Counsel provides deficient performance when counsel’s actions fall below “an objective standard of reasonableness.” Strickland. In making this determination, there’s a strong presumption that counsel’s decisions in question are the result of “trial tactics rather than ‘sheer neglect.’” Harrington v. Richter, 562 U.S. 86 (2011) (quoting Yarborough v. Gentry, 540 U.S. 1 (2003)). Unsuccessful or even unwise decisions may still constitute a reasonable strategic choice. United States v. Natanel, 938 F.2d 302 (1st Cir. 1991). However, when appellate counsel ignores issues that “are clearly stronger than those presented,” counsel performance is deficient. Smith v. Robbins, 528 U.S. 259 (2000). Failing to raise an argument isn’t a reasonable strategic decision if there’s “absolutely no downside” to doing so. Prou v. United States, 199 F.3d 37 (1st Cir. 1999).
The Court concluded that any reasonable attorney would have raised the preserved Brady claim and that it was objectively unreasonable to forego it in favor of “two dubious plain-error challenges, one of which was foreclosed by binding precedent.” Counsel’s performance was deficient under Strickland, and therefore, Flores sufficiently showed “cause” necessary to overcome her failure to raise the Brady claim on direct appeal, the Court ruled. Thus, the Court held that because Flores has shown both cause and actual prejudice, her motion to vacate her sentence under § 2255 must be granted.
Accordingly, the Court reversed the district court and remanded with instruction to grant Flores’ motion to vacate her convictions and sentence. See: Flores-Rivera v. United States, 16 F.4th 963 (1st Cir. 2021).
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Flores-Rivera v. United States
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