UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Marco Garcia

v. Case No. 13-cv-086-PB Opinion No.

United States of America

MEMORANDUM AND ORDER

Marco Garcia (“Garcia”) was convicted in this court of

conspiracy to distribute cocaine and to possess it with intent

to distribute. He was sentenced to 198 months in prison. He

now moves to vacate his sentence pursuant to

.

For the reasons that follow, I deny Garcia’s motion.1

I. BACKGROUND

A. Overview of the Conspiracy

Garcia was convicted as a participant in an international

drug conspiracy. He was tried jointly with his cousin Ciro

Garcia Lopez (“Lopez”), a coconspirator who was also convicted.

The First Circuit summarized the background of the conspiracy in

1 In this Memorandum and Order, “Doc. No.” citations indicate document numbers in this proceeding’s docket. “Trial Doc. No.” citations, however, indicate document numbers in the docket of the underlying criminal proceeding against Garcia and the other members of the conspiracy, No. 09-CR-088-PB. its decision rejecting Garcia’s direct appeal:

Lopez's cousin [and Garcia’s half-brother], Juan Garcia Hernandez (“Hernandez”), was a New Hampshire cocaine dealer, who in 2007 formed a partnership with another dealer in the state, Renaury Ramirez Garcia (“Ramirez”). In the Fall of that year, the two sought a new source of drugs in Texas, where they met with defendant Lopez, who introduced them to a man known as “Molina.” Molina later sent them several large shipments of cocaine, which Hernandez and Ramirez in turn sold to other dealers in New Hampshire, New York, and Massachusetts. Much of the drugs and the proceeds from the sales were stored in [the house of Janeth Sarmiento (“Janeth”), Hernandez’s girlfriend and one of the coconspirators,] on Brown Avenue in Manchester, New Hampshire. [In addition to Janeth, the other residents of the Brown Avenue house included her father, Jose Cisneros (“Cisneros”), and her brother, Robert Sarmiento (“Sarmiento”).] The partners were imprudent, however, and after too many sales of cocaine on credit they eventually owed Molina several hundred thousand dollars, a debt that led Ramirez to seek another source of cocaine that he could sell to pay off the debt. He found one right in New Hampshire and made a deal to buy ten kilograms of cocaine for $230,000. The source, however, was a government informant, and when Ramirez traveled to Manchester to get the drugs in March 2009, an undercover agent arrested him. As a consequence, Ramirez's girlfriend, Nicole Kalantzis, decided to cooperate with the government in order to obtain leniency for her boyfriend. In her new capacity, she met with Hernandez, who told her that a large shipment of cocaine would soon be delivered to New Hampshire, and that they had to sell it quickly because the “big guys” were coming to collect the money owed. On April 8, 2009, Lopez and Garcia arrived at the Brown Avenue house [in a white Ford pickup truck], followed four days later by a [tractor-trailer driven by one Adolfo Casas (“Casas”)] carrying the cocaine. Soon after, the police videotaped Hernandez [and Casas] transferring cocaine from [the tractor-trailer onto the bed of the pickup truck. A short time later, the police videotaped 2 Hernandez and Cisneros moving the cocaine from the pickup truck] into the trunk of a [white] Cadillac parked behind the house, with Lopez standing 15 feet away, talking on a cellphone. Later [on April 12, 2009], law enforcement officers including a SWAT team executed a warrant to search the house and arrested its inhabitants . . . Ledgers seized had details of drug shipments and several references to Garcia and Lopez. Finally, after drug-sniffing dogs confirmed the earlier surveillance evidence, the agents found a large amount of cocaine in the Cadillac parked behind the house.

United States v. Lopez Garcia,

(1st Cir.

2012). Garcia was arrested during the April 12, 2009 raid.

Following a four-day trial, he was convicted in April 2010 of

conspiracy to distribute cocaine and to possess it with intent

to distribute.

B. Evidence Against Garcia

The government produced a formidable body of evidence to

demonstrate Garcia’s involvement in the conspiracy, including

the testimony of two coconspirators and an array of physical

evidence that corroborated the coconspirators’ accounts. This

evidence included:2

 Nine ounces of cocaine were found in the basement bedroom at the Brown Avenue house. Other drug paraphernalia was also found on the table in the basement bedroom, including a heat sealer, a digital scale, packaging material, an

2 This list is taken substantially from the government’s citation of evidence, which I requested during an August 2014 hearing. See Doc. No. 25. 3 industrial-sized roll of wrapping material, and inositol.

 Drug ledgers were found in the Brown Avenue house. These ledgers contained references to Garcia, including an entry reading “18,000 (Marco and Tomas).”

 After he was arrested, Garcia admitted to the police that he had arrived at the Brown Avenue house four days before the raid in a white Ford pickup truck. Garcia claimed that he had traveled to New Hampshire to pick up a vehicle and drive it to Mexico, and he expected to receive $500 in payment for doing so. Garcia could not, however, identify the vehicle that he was to drive back to Mexico. Garcia admitted to the police that he had been sleeping in the basement bedroom where the cocaine was found the night before the raid.

 Janeth Sarmiento testified that she had first met Garcia in 2008 in Texas. She testified that she would sometimes count drug proceeds with Hernandez, Ramirez, Garcia, and Tomas Cruz (“Cruz”), another coconspirator who reported to Hernandez. Cruz and Garcia, she testified, would occasionally transport some of this money to Texas in the white Ford Mustang. She also testified that Cruz and Garcia had transported ten kilograms of cocaine to New Hampshire in the white Ford Mustang in early March 2009. She admitted, however, that she had learned of this delivery from Hernandez and that she never personally saw cocaine or money being placed into the Mustang.

 Janeth also testified that she had made certain entries in the drug ledgers found in the Brown Avenue house. She testified that certain ledger entries pertained to Garcia and Cruz and that she had deposited money into both men’s bank accounts at Hernandez’s direction.

 On March 28, 2009, the same white Ford Mustang that Cruz and Garcia used to transport cocaine was stopped in Mississippi. Police found eight kilograms of cocaine and five kilograms of heroin in the car. Cruz was a passenger in the vehicle when it was stopped. Police arrested Cruz

4 and found a water bill for Garcia and contact numbers for Lopez and Hernandez inside his wallet. The white Ford Mustang was insured in the name of Garcia’s wife, and Garcia was listed as a permitted driver.

 Ramirez testified that he met Lopez in Texas in late 2007. Lopez, Ramirez testified, planned to find another source of cocaine for Hernandez and Ramirez. He explained that he and Hernandez arranged for cocaine to be transported to New Hampshire from Texas. In late 2008 or early 2009, 50 kilograms of cocaine were delivered to New Hampshire and stored at the Brown Avenue house. Ramirez took 35 kilograms of this shipment to Lowell, Massachusetts to sell. Proceeds from these sales were then brought back to the Brown Avenue house and counted in the basement.

 Ramirez testified that he distributed ten kilograms of cocaine to another person but never received payment. He testified that Garcia and Cruz brought ten kilograms to New Hampshire to replace the ten kilograms he had lost. The ten kilograms brought by Garcia and Cruz were stored in the basement of the Brown Avenue house.

 Finally, Ramirez testified that he would sometimes pick up supplies of cocaine from Garcia at the Brown Avenue house. He also testified that he would sometimes speak to Cruz or Garcia if Hernandez was not available and that he would sometimes count drug proceeds with Cruz and Garcia.

 After the police arrested Garcia, they found a State of Texas document identifying him as the owner of the white Ford Mustang inside his wallet.

 Telephone records listed hundreds of calls between numbers associated with Hernandez and Garcia beginning on March 1, 2009.

C. Garcia’s Defense

Attorney Donald Kennedy represented Garcia at trial.

5 Garcia mounted a mere presence defense, claiming that he had

only traveled to the Brown Avenue house to retrieve a used

vehicle that he would then drive back to Texas and that he

worked with Hernandez in a drywall business. He denied any

involvement with the drug conspiracy. The following evidence

presented at trial, the defense argued, substantiated Garcia’s

theory:3

 When the police raided the Brown Avenue house on April 12, 2009, Garcia was found in the kitchen, not in the basement bedroom.

 During the morning of April 12, 2009, and before they raided the Brown Avenue house, the police did not observe Garcia outside the house at all when they videotaped Hernandez, Casas, and Cisneros transferring the drugs between the tractor trailer, the white Ford pickup truck, and the white Ford Cadillac.

 Garcia’s telephone records showed that he registered his cell phone under his own name and address and had used that phone for fourteen months. An FBI agent testified at trial that this behavior was atypical of a drug dealer.

 Ramirez testified that the white Ford pickup truck, which Garcia drove from Texas to New Hampshire with Lopez, had a mount to tow other vehicles. He also testified that Garcia had previously visited one of Ramirez’s garages to install a towing mount to a vehicle.

3 This list is taken substantially from Garcia’s citation of evidence, which I requested during an August 2014 hearing. See Doc. No. 28.

6  After he was arrested, Lopez, like Garcia, told the police that he had come to New Hampshire to bring a vehicle back to Texas.

 A New Hampshire state trooper testified about his interview of another witness following the April 12, 2009 raid. That witness told him that she had overheard Lopez talking about traveling to New Hampshire to retrieve a car.

 Casas testified that he transported money and drugs for Hernandez. Casas also testified that Hernandez had said that Cruz worked for him.

 Janeth testified that Garcia and Hernandez had started a drywall business that at times generated significant revenue. She also testified that the basement bedroom in the Brown Avenue house belonged to Sarmiento and that the heat sealer that the police found in the bedroom had been there before Garcia arrived at the house.

To impeach Ramirez, Garcia noted that Ramirez faced at

least 20 years in prison but expected to receive a sentence of

less than 10 years in exchange for his cooperation with the

government. Garcia also noted that Ramirez had not mentioned

Garcia during his first two interviews with police and only

mentioned him after police confronted him with evidence that he

had lied to them about his gun ownership. To impeach Janeth,

Garcia noted that she had admitted at trial to cooperating with

the government in an effort to help her father, Cisneros, who

had already pleaded guilty when the trial began.

7 D. Procedural History

Following his conviction in April 2010, Garcia appealed his

conviction to the First Circuit, which rejected his arguments

and affirmed his conviction in February 2012. See Lopez Garcia,

. Attorney Joseph Wroblewski, Jr. represented

Garcia on direct appeal. Garcia then moved for a new trial in

December 2012, which I denied in February 2013. Trial Doc. No.

293.

Thereafter, in February 2013, Garcia filed a pro se motion

under

to vacate, set aside, or correct his

sentence. Doc. No. 1. He claimed that his “sentence was

imposed in violation of the Constitution or laws of the United

States” on the basis of five separate errors.

In an order

that I issued on October 25, 2013, I determined that I could

“dispose of all but Garcia’s first claim on the existing

record.” Doc. No. 9. Garcia’s remaining claim alleged

ineffective assistance of counsel caused by Kennedy’s purported

failure to either investigate four potential witnesses or call

them to testify at trial. Those witnesses included Sarmiento,

Cisneros, Hernandez, and Cruz.4 Garcia’s claim, I noted,

4 Garcia also identified Casas as one such witness in one of his 8 “lack[ed] an evidentiary basis in the record.”

Nevertheless, I agreed to give Garcia “an opportunity to

substantiate his allegations.”

To that end, I scheduled an

evidentiary hearing and appointed attorney Robert Carey to

represent Garcia for the purposes of that hearing.

I conducted the evidentiary hearing on Garcia’s ineffective

assistance claims on August 26, 2014. Carey called Kennedy,

Sarmiento, and Garcia to testify at the hearing. Carey did not

attempt to subpoena Cruz and instead offered an affidavit

describing a January 2014 telephone conversation between him,

his paralegal, and Cruz regarding Garcia’s case. Similarly,

Carey did not attempt to subpoena Hernandez and instead offered

an affidavit that Hernandez had signed to support Garcia’s 2012

motion for a new trial. Although Garcia had identified Cisneros

as a potential witness in his pleadings, Carey did not press

Garcia’s ineffective assistance claim regarding Kennedy’s

failure to interview or call Cisneros.

pleadings, but he did not develop any argument regarding Casas. See Doc. No. 8. In any event, Casas testified at trial and therefore exposed himself to cross examination. 9 II. STANDARD OF REVIEW

To succeed on a claim of ineffective assistance of counsel,

a criminal defendant must show both “deficient performance by

counsel and resulting prejudice.” Peralta v. United States,

(1st Cir. 2010) (citing Strickland v. Washington,

(1984)); see also Kimmelman v. Morrison,

(1986) (adopting the two-prong Strickland standard

for claims of ineffective assistance of counsel on habeas

review). In order to satisfy the “deficient performance” prong

of this standard, a petitioner must prove that his trial

counsel’s representation fell below “an objective standard of

reasonableness.” Pina v. Maloney,

(1st Cir.

2009); Owens v. United States,

(1st Cir. 2007).

To establish prejudice, a petitioner must demonstrate “that, but

for counsel’s unprofessional error, there is a reasonable

probability that the result of the proceeding would have been

different.” Yeboa-Sefah v. Ficco,

, 70 (1st Cir.

2009). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Sleeper v. Spencer,

(1st Cir. 2007). Although a petitioner must satisfy

both the deficient performance and prejudice prongs to prevail

10 on a claim of ineffective assistance, “a reviewing court need

not address both requirements if the evidence as to either is

lacking.”

III. ANALYSIS

Garcia alleges five errors that, he argues, warrant relief

under § 2255: (1) Kennedy’s failure to investigate and call as

witnesses Sarmiento, Cisneros, Hernandez, and Cruz; (2)

Kennedy’s failure to properly impeach Janeth and Ramirez; (3)

Kennedy’s failure to investigate prosecutorial misconduct and

witness tampering; (4) an alleged violation of the Confrontation

Clause caused by Garcia’s inability to cross-examine certain

government witnesses; and (5) Wroblewski’s failure to consult

with Garcia when preparing his direct appeal and to raise

meritorious issues on appeal. See Doc. No. 5. Although none of

Garcia’s claims have merit, claim (1) requires more extensive

treatment than Garcia’s other claims. I address each claim in

turn.

A. Failure to Interview or Call Potential Witnesses

Garcia argues that both during and before trial, “Kennedy

failed to investigate, call, and secure defense witnesses

11 [Cisneros] and Robert . . . . [despite being] instructed [by

Garcia] to secure both . . . .” Doc. No. 1. His memorandum of

law alleges the same error regarding Hernandez and Cruz. See

Doc. No. 5.

1. Robert Sarmiento (“Sarmiento”)

Robert Sarmiento is the brother of Janeth Sarmiento.

Although he lived at the Brown Avenue house when the police

conducted the April 2009 raid, he was not charged in connection

with the conspiracy.

Garcia claims that he instructed Kennedy to interview

Sarmiento prior to the trial and to call him as a witness. See

Doc. No. 5. Had Sarmiento testified, Garcia alleges, he would

have testified that: (i) Garcia was uninvolved in the

conspiracy; (ii) Garcia, on the few occasions when he traveled

to New Hampshire, did so to purchase used vehicles at auction to

transport back to Texas; (iii) Garcia had sometimes assisted

Hernandez with a drywall business; and (iv) the basement bedroom

at the Brown Avenue residence that Garcia was using when he was

arrested in April 2009, and where police discovered a nine-ounce

package of cocaine and other drug paraphernalia, belonged to

Sarmiento. See id. Kennedy, Garcia claims, failed to either

12 interview Sarmiento or call him to testify at trial even though

the government had included Sarmiento on its witness list. See

id. That failure, Garcia contends, constitutes ineffective

assistance. See id.

Sarmiento testified during the August 2014 evidentiary

hearing. As Garcia predicted, Sarmiento stated that he had met

Garcia twice before the April 2009 raid and that he had never

seen Garcia participate in any drug-related activities, possess

any drug-related paraphernalia, or discuss drugs with anyone.

Nor, Sarmiento also testified, had he ever heard anyone discuss

Garcia in connection with drugs. He also testified that the

basement bedroom belonged to him and that he generally had

unimpeded access to it. Finally, Sarmiento confirmed that

Kennedy had never contacted him before the trial.

Importantly, however, Sarmiento also testified that he had

not slept in the basement bedroom on the night before the raid.

Somebody else, Sarmiento testified, used the bedroom that night,

but he could not remember who that person was. Moreover,

Sarmiento denied both knowledge and ownership of the nine-ounce

package of cocaine and other drug paraphernalia found in the

bedroom.

13 In view of Sarmiento’s testimony at the evidentiary

hearing, I need not address the reasonableness of Kennedy’s

failure to interview or call him because it is clear that Garcia

was not prejudiced by the omission of Sarmiento’s testimony.

Sarmiento’s potential testimony consists of only a series of

vague and conclusory statements that align with, but do not

meaningfully strengthen, Garcia’s mere presence defense.

Accordingly, any benefit that Garcia might have derived from

Sarmiento’s testimony is outweighed by the formidable evidence

that the government offered against Garcia at trial.

2. Jose Cisneros (“Cisneros”)

Cisneros is Janeth’s father. He also resided at the Brown

Avenue house when it was raided in April 2009. He was arrested

for his involvement in the conspiracy and pleaded guilty in

January 2010. He did not testify.

Garcia initially claimed that had Cisneros testified, he

would have corroborated other testimony establishing that Garcia

was not involved in the drug conspiracy. See Doc. No. 5.

Garcia also claimed that Cisneros would have testified that: (i)

the April 2009 shipment of cocaine was placed in the Ford pickup

truck, and not the Cadillac, because the keys to the Cadillac

14 were unavailable when the shipment arrived; and (ii) Garcia was

not involved in the conspiracy and had traveled to New Hampshire

only to tow a vehicle back to Texas. See id.

At the August 2014 evidentiary hearing, however, Garcia’s

attorney abandoned the argument that Kennedy’s failure to

interview or call Cisneros was ineffective. In any event,

Garcia’s ineffective assistance claim regarding Cisneros is

easily rejected. Before the trial, Kennedy moved to compel the

government to immunize Cisneros, a remedy that would have

obviated Cisneros’ Fifth Amendment privilege against self-

incrimination and rendered him available to testify at trial. I

denied Garcia’s motion after concluding that he had not

satisfied the standard for compelled immunization. See Trial

Doc. No. 197. In view of my decision, there was little else

that Kennedy could have done to secure testimony from Cisneros.

An attorney who does everything possible to achieve a favorable

outcome for a client is not, of course, ineffective simply

because those efforts do not succeed. Thus, I reject Garcia’s

ineffective assistance claim regarding Cisneros.

3. Juan Garcia Hernandez (“Hernandez”)

Hernandez is Garcia’s half-brother and was one of the

15 principal partners in the conspiracy. He was arrested during

the April 12, 2009 raid for his role in the conspiracy, and he

pleaded guilty in April 2010. He did not testify.

Had Hernandez testified at trial, Garcia claims, he would

have testified that: (i) Garcia had no knowledge of, or

involvement in, the conspiracy; (ii) Garcia had traveled to New

Hampshire only to pick up a used car and tow it back to Texas;

(iii) Garcia did not transport ten kilograms of cocaine to New

Hampshire in March 2009; (iv) Garcia assisted Hernandez with the

drywall business “by opening a business bank account and paying

the workers,” (v) the white Ford Mustang belonged to Hernandez,

but that Hernandez had instructed Garcia to insure the car under

Garcia’s name because neither Hernandez nor Cruz was licensed to

drive in Texas; and (vi) none of the references to Garcia found

in the ledgers were related to drugs. See Doc. No. 5.

Attorney Carey chose not to subpoena Hernandez to appear at

the evidentiary hearing. To corroborate his claim of how

Hernandez would testify, Garcia instead offered only an

affidavit that Hernandez had signed on an unknown date to

support Garcia’s 2012 motion for a new trial. In the affidavit,

Hernandez attests, in relevant part, that: (i) he hired Garcia

16 and Lopez to transport two used cars from New Hampshire to

Texas; (ii) Garcia and Lopez arrived in New Hampshire on April

9, 2010 in a truck that they were going to use to transport the

two used cars to Texas; (iii) neither Garcia nor Lopez could

leave the following day because Hernandez had not yet received

the title certificate for one of the cars, and Garcia did not

want to travel without the car’s “proper documents”; (iv) for

that reason, that Hernandez invited Garcia and Lopez to stay

with him over the Easter weekend until he could get the title

certificate on the following Monday; (v) neither Garcia nor

Lopez transported any cocaine or other contraband from Texas to

New Hampshire, and that they did not plan to transport any money

back to Texas; (vi) Garcia and Lopez were innocent of the

charges against them, and that they “were simply in the wrong

place at the wrong time”; and (vii) Hernandez “remained silent

on this matter during trial because [he] did not believe that

[Garcia] or [Lopez] . . . would be convicted when they were

actually innocent of the charges.” See Trial Doc. No. 291-1.

Garcia has not shown a reasonable probability that

Hernandez’s testimony would have changed the outcome of his

trial. First, as Garcia’s half-brother, Hernandez has an

17 obvious motivation to lie and exculpate Garcia, particularly now

that he has little to lose by doing so. Second, Hernandez, as

one of the principals in the conspiracy, would also be subject

to damaging impeachment on cross examination by virtue of his

criminal history. Third, and like the probable testimony of the

other witnesses Garcia has identified, Hernandez’s testimony is

cumulative of the mere presence defense that Garcia offered at

trial. Notwithstanding that defense, two witnesses – Ramirez

and Janeth – both testified to Garcia’s extensive involvement

with the conspiracy. Garcia has shown no reasonable probability

that Hernandez’s testimony would have persuaded the jury to

accept his mere presence defense and reject the accounts of

Ramirez and Janeth when it otherwise declined to do so.

Given the limited value of Hernandez’s testimony, it is

unlikely that Hernandez would have persuaded the jury to reject

both the testimony of two coconspirators and a formidable body

of physical evidence. The Hernandez affidavit does not explain

the references to Garcia in the drug ledgers, Garcia’s ownership

of the white Ford Mustang, the voluminous phone calls between

Garcia and Hernandez, or the drugs and paraphernalia found in

the basement bedroom. Even taken at face value, the Hernandez

18 affidavit at most offers the jury a choice to believe either

Hernandez or, alternatively, Ramirez and Janeth. Because the

physical evidence uniformly corroborates the accounts of Ramirez

and Janeth and because the Hernandez affidavit fails to even

address, much less explain, much of that evidence, there is no

reasonable probability that Hernandez’s testimony would have

altered the outcome of Garcia’s trial. Thus, Garcia suffered no

prejudice caused by the omission of Hernandez’s testimony, and

his ineffective assistance claim regarding Hernandez fails.

4. Tomas Cruz (“Cruz”)

Cruz was an alleged member of the conspiracy. At trial,

Janeth testified that Cruz sometimes counted drug proceeds with

Garcia at the Brown Avenue house and also sometimes transported

drugs and money with Garcia between Texas and New Hampshire. On

March 28, 2009, the police stopped Cruz in Mississippi while he

was driving Garcia’s white Ford Mustang. The police searched

the car, found eight kilograms of cocaine and five kilograms of

heroin, and arrested Cruz. Cruz pleaded guilty to involvement

in the conspiracy in March 2010 and did not testify at trial.

Garcia claims that had Cruz been called to testify at the

trial, he would have testified that: (i) Garcia was not involved

19 in the drug conspiracy; (ii) Garcia never transported any drugs

with Cruz when they drove together from Texas to New Hampshire

in the white Ford Mustang; (iii) police searched the Mustang

during the early March 2009 trip from Texas to New Hampshire and

found no contraband; and (iv) after that search, the police told

Cruz that Garcia had to drive the Mustang only because Cruz was

not licensed to drive. See Doc. No. 5.

To corroborate this self-serving prediction of how Cruz

would testify, Garcia offered only evidence of a January 13,

2014 telephone call between his attorney and Cruz. See Pet’r’s

Ex. 3. During that conversation, Cruz indicated, in relevant

part, that Garcia was not present when Cruz was arrested in

March 2009 – a fact that is not in dispute – and that Cruz had

never discussed drugs with Garcia. Cruz was not placed under

oath during this conversation, however, and before ending the

conversation, he told Garcia’s attorney that he “[could not]

give out any information on Marco Garcia’s case and [did] not

want to speak about Marco Garcia.” Pet’r’s Ex. 3. Moreover,

Cruz declined to sign an affidavit drafted by Garcia’s attorney

verifying the substance of the conversation. At the evidentiary

hearing, counsel for Garcia said that he did not attempt to

20 subpoena Cruz to testify because he expected Cruz to invoke his

Fifth Amendment privilege.

At the evidentiary hearing, the government offered evidence

of statements that Cruz had made to DEA agents after his arrest,

including Cruz’s assertion that Garcia had accompanied Cruz

during previous drug deliveries from Mexico to New Hampshire in

the white Ford Mustang. See Pet’r’s Ex. 5. If Cruz had

testified that he had never discussed drugs with Garcia,

therefore, he would have exposed himself on cross examination to

damaging impeachment based on his prior inconsistent statements.

Although Garcia’s counsel offered an explanation for those

inconsistent statements at the evidentiary hearing, the

inconsistency between Cruz’s statements to the police and his

hypothetical testimony limits the value of Cruz’s testimony to

Garcia’s defense.

Even aside from its susceptibility to impeachment, Cruz’s

hypothetical testimony would have added little to Garcia’s

defense. Garcia has not shown that Cruz would offer anything

more than a handful of vague and conclusory statements that are

cumulative of Garcia’s mere presence defense. Cruz’s testimony

would serve only to rebut the contradictory testimony of Janeth

21 and Ramirez, both of whom testified to Garcia’s extensive

involvement in the conspiracy. Cruz’s testimony would not

explain the damaging physical evidence that was introduced

against Garcia at trial, including the drug ledgers, the drugs

and paraphernalia found in the basement bedroom, Garcia’s

ownership of the white Ford Mustang, or the hundreds of phone

calls between Garcia and Hernandez. Against this body of

evidence and the testimony of two other witnesses, Cruz could

offer only his own dubious testimony that he had never discussed

drugs with Garcia. Garcia has not shown a reasonable

probability that this testimony would have persuaded the jury to

reject the evidence against him and, therefore, has not

demonstrated any prejudice caused by the omission of Cruz’s

testimony. Thus, I reject Garcia’s ineffective assistance claim

regarding Cruz.

B. Failure to Properly Impeach Government Witnesses

Next, Garcia alleges that Kennedy was ineffective because

he failed to “properly impeach” Sarmiento, Ramirez, and

Cisneros. See Doc. No. 5. This claim finds no support in the

record, which shows that Kennedy both impeached Sarmiento and

Ramirez and sought to bolster Garcia’s mere presence defense

22 during his cross examination of those witnesses. Beyond his

conclusory assertion that Kennedy’s cross examinations of those

witnesses were inadequate, Garcia does not identify any specific

fact that Kennedy should have elicited, or any specific question

that he should have posed, on cross examination. Thus, I reject

Garcia’s claim of ineffective assistance regarding Kennedy’s

alleged failure to properly impeach either Sarmiento or Ramirez.

I also reject Garcia’s claim regarding Cisneros because, as I

explained above, Kennedy did all that any attorney could be

expected to do in order to compel Cisneros’ testimony.

C. Failure to Investigate Prosecutorial Misconduct

Garcia claims that Cruz “informed [Garcia] that the

prosecutor approached him and offered him a reduced sentence, if

he would testify falsely and according to instruction against”

Garcia. Doc. No. 5. Garcia argues that Kennedy was ineffective

by failing to further investigate prosecutorial misconduct or

witness tampering on the government’s part. See id. Garcia,

however, offers nothing to corroborate his self-serving account

of what Cruz told him. Even taken at face value, the

prosecutorial misconduct that Garcia alleges would not prejudice

him because Cruz did not testify against him at trial. Although

23 Garcia argues that “[i]t is easily presumable” that the

government also attempted to improperly influence other

witnesses, that conclusory statement, without more, is

insufficient to meet his burden for an ineffective assistance

claim. Doc. No. 5; see Cepulonis v. Ponte,

(1st Cir. 1983) (“[C]ounsel need not chase wild factual geese

when it appears, in light of informed professional judgment,

that a defense is implausible or insubstantial as a matter of

law or, as here, as a matter of fact and of the realities of

proof, procedure, and trial tactics.”). Thus, I reject this

ineffective assistance claim as well.

D. Confrontation Clause Claim

Garcia appears to argue that the government violated his

rights under the Confrontation Clause by failing to present

Cisneros and Hernandez as trial witnesses. As for Cisneros,

Garcia argues that “Cisneros . . . made statements against [him]

and when compelled to be at trial for testimony, the Court

sustained the Government’s opposition.” Doc. No. 5. That

decision, Garcia maintains, deprived him of his right to

confront Cisneros at trial. See

Garcia’s argument fails,

of course, because Cisneros did not testify at trial, and the

24 government did not introduce any of Cisneros’ statements to the

police as evidence against Garcia. The Confrontation Clause,

therefore, simply has no bearing on Garcia’s complaint with

respect to Cisneros.

As for Hernandez, Garcia notes that Janeth was “allowed to

testify at trial as to what Hernandez either told her or she

over heard [sic] him say that [Garcia] had delivered 10-

kilograms [sic] of cocaine with Thomas Cruz in a white Ford

Mustang.” Doc. No. 5. Because Hernandez did not take the stand

at trial, Garcia argues, he could not cross-examine him even

though the Confrontation Clause entitled him to do so. See

Although Janeth never testified to specific statements made by

Hernandez, the trial record does suggest that Janeth learned of

the ten-kilogram delivery at least partially from Hernandez and

not solely from her own personal observation. Even if her

testimony regarding the delivery was based on Hernandez’s out-

of-court statements, however, admitting that testimony would not

have violated the Confrontation Clause. The Confrontation

Clause attaches only to testimonial statements, and it is well

established that “statements in furtherance of a conspiracy” are

not testimonial. Crawford v. Washington,

, 56

25 (2004); see also United States v. Malpica-Garcia,

(1st Cir. 2007) (“Statements made during and in furtherance

of a conspiracy are not testimonial.”). Thus, the Confrontation

Clause neither prohibited Janeth’s testimony nor entitled Garcia

to cross-examine Hernandez, and Garcia’s Confrontation Clause

claim regarding Hernandez therefore fails on the merits.

E. Ineffective Assistance on Direct Appeal

Garcia also faults his appellate counsel for failing to

present his confrontation clause and prosecutorial misconduct

claims on appeal.

To prevail on a claim of ineffective assistance by

appellate counsel, a petitioner must show both that the

attorney’s decision to not raise a given issue on appeal was

objectively unreasonable and that, but for the unreasonable

failure to raise that issue, the appeal would have been

successful. Smith v. Robbins,

(2000).

As I have explained, Garcia’s Confrontation Clause and

prosecutorial misconduct claims are meritless. Accordingly,

counsel’s failure to raise them on appeal cannot possibly

justify an ineffective assistance of counsel claim.5

5 Finally, to the extent that Garcia also faults appellate 26 IV. CONCLUSION

For these reasons, I deny Garcia’s motion for relief under

§ 2255. See Doc. No. 1. Because Garcia has failed to make a

substantial showing of the denial of a constitutional right, I

also decline to issue a certificate of appealability. See

(c)(2); Rule 11, Rules Governing Section 2254 and

2255 Cases in the U.S. Dist. Cts.; First Cir. LR 22.0. The

clerk of court shall enter judgment accordingly and close the

case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

December 5, 2014

cc: Marco Garcia, pro se Robert Carey, Esq. Donald Feith, Esq.

counsel for his failure to consult with Garcia, his claim fails because he cannot show that any failure to consult had any effect on his appeal.

27