Carrasquillo v. USA (Nov. 7, 2025)

Case details
Full caption
Rivera Carrasquillo v. USA
Country
United States
Jurisdiction
Puerto Rico (PR)
Decided
Nov. 7, 2025
Majority
Héctor L. Ramos-Vega (J.) (unanimous Court)
LUIS D. RIVERA-CARRASQUILLO, Petitioner, v. UNITED STATES..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3114334Only the Westlaw citation is currently available.United States District Court, D. Puerto Rico.LUIS D. RIVERA-CARRASQUILLO, Petitioner,v.UNITED STATES OF AMERICA, Respondent.EDWIN BERNARD ASTACIO-ESPINO, Petitioner,v.UNITED STATES OF AMERICA, Respondent.RAMON LANZA-VAZQUEZ Petitioner,v.UNITED STATES OF AMERICA, Respondent.CIVIL NO. 21-1198 (ADC) (HRV), CIVIL NO. 21-1210(ADC) (HRV), CIVIL NO. 21-1297 (ADC) (HRV)|Filed 11/07/2025Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.OMNIBUS MEMORANDUM AND ORDERHÉCTOR L. RAMOS-VEGA UNITED STATESMAGISTRATE JUDGEI. INTRODUCTION*1 Petitioners Luis D. Rivera-Carrasquillo (“Rivera-Carrasquillo”), Edwin Bernard Astacio-Espino (“Astacio-Espino”) and Ramón Lanza-Vázquez (“Lanza-Vázquez”)have filed separate habeas petitions under 28 U.S.C. §2255. These petitioners were jointly tried and convicted inCriminal No. 12-200 (ADC). They are currently serving lifesentences. The presiding District Judge referred these section2255 motions to me for report and recommendation. A jointevidentiary hearing is currently set for December 15, 2025.Though they originally filed their habeas petitions prose, petitioners Rivera-Carrasquillo and Astacio-Espino havesince retained counsel, and the Court has appointed counselfor Lanza-Vázquez. Through counsel, petitioners all movefor leave to amend and/or supplement their original prose petitions pursuant Fed. R. Civ. P. 15. The Governmentopposes arguing that the new claims asserted do not relateback and are, thus, time barred. Also pending before the Courtis Rivera-Carrasquillo's motion to expand the evidentiaryhearing, (Civil No. 21-1198 (ADC), Docket No. 57), Astacio-Espino's motion requesting disclosure of juror number (CivilNo. 21-1210 (ADC), Docket No. 75), and Lanza-Vázquez'sown motion to expand the scope of the evidentiary hearing.(Civil No. 21-1297 (ADC), Docket No. 42).I will address each motion separately, although some of theclaims and arguments raised overlap and/or are subject to thesame legal framework. The undersigned's goal is to providethe parties guidance regarding which claims are at play andthe scope of the upcoming evidentiary hearing. The partiesshould be aware that my analysis gives a lot of weight to thefact that the presiding District Judge already conducted aninitial review of the habeas petitions and referred the matterto me for a hearing as to most of the claims asserted.II. PROCEDURAL BACKGROUNDA. Criminal No. 12-200 (ADC)I assume the parties’ familiarity with the facts and travelsof the underlying criminal prosecution that resulted in theconvictions and sentences that the petitioners are now seekingto collaterally attack. For a good summary, the readers arereferred to the First Circuit's opinion in United States v.Carrasquillo-Rivera, 933 F.3d 33 (1st Cir. 2019).In general terms, the petitioners were charged by way ofsuperseding indictment with numerous offenses committedas members of a gang called “La ONU.” The chargesincluded RICO conspiracy, aiding and abetting violentcrimes (specifically, murder and attempted murder) in aidof racketeering (“VICAR”), and related firearms and drug-trafficking offenses. Rivera-Carrasquillo was alleged to be aleader, drug-point owner, and enforcer for the organization.Astacio-Espino and Lanza-Vázquez were drug-point ownersand enforcers. The superseding indictment alleged, and theGovernment at trial presented evidence to that effect, theparticipation of the co-defendants in several murders andother violent acts.Petitioners were tried together to a jury that was anonymouslyconvened. They were found guilty of all the offenses and
LUIS D. RIVERA-CARRASQUILLO, Petitioner, v. UNITED STATES..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2sentenced to life imprisonment. The First Circuit affirmedtheir convictions and sentences, which became final on April20, 2020, the date the Supreme Court of the United Statesdenied writ of certiorari. See 140 S. Ct. 2691.B. Habeas Petitions and the Referral Order*2 As noted earlier, petitioners originally filed their § 2255petitions pro se. On December 20, 2024, the presiding DistrictJudge issued an order referring these petitions to me “for thecelebration of an evidentiary hearing of petitioners’ claims”and for report and recommendation. (Civil No. 21-1198,Docket No. 26, Civil No. 21-1220, Docket No. 20, and CivilNo. 21-1297, Docket No. 14). Through counsel, petitionersnow seek to amend and/pr supplement their pro se habeaspetitions and ask that the supplemental claims all be part ofthe upcoming evidentiary hearing.1. Rivera-CarrasquilloIn his original petition, Rivera-Carrasquillo raised thefollowing claims premised on ineffective assistance ofcounsel: (1) failure to request a mistrial when it wasdiscovered that “Juror 27” did not disclose during juryselection that her son was incarcerated; (2) failure to object toa jury instruction that racketeering activity included firearms;(3) failure to retain a medical expert to present evidence ofhis brain injury; (4) failure to move to disqualify Judge Fustéor request a mistrial due to lack of impartiality; (5) failureto impeach the testimony of Wesley Figueroa-Cancel aboutthe murder of Angel Gonzalez-Villanueva aka “El Chaple”with an FBI-302 report; (6) failure to request a multipleconspiracies jury instruction; and (7) cumulative effect of allthe errors by trial counsel. (Civil No. 21-1198, Docket Nos. 1,and 1-1). Rivera-Carrasquillo also brought a challenge to thefirearms counts under United States v. Davis, 588 U.S. 445(2019). (Id.).In a supplemental motion filed on May 18, 2021, Rivera-Carrasquillo added a claim of ineffective assistance of trialcounsel for failure to present the sworn statement andtestimony of Alexis Betancourt to show that Governmentwitnesses who were housed together met and conferred tomake sure their testimonies at trial coincided (Id., DocketNo. 3). He also submitted an affidavit in support of the jurymisconduct claim. (Id., Docket No. 7).The Government filed its response in opposition on March21, 2022. (Id., Docket No. 11). In it, the Government arguedthat murder is a crime of violence under Davis, and that theineffective assistance of counsel claims were meritless. TheGovernment also contended that no prejudice could be shown,and that Rivera-Carrasquillo was not entitled to an evidentiaryhearing.On September 6, 2022, Rivera-Carrasquillo filed a secondsupplemental 2255 motion wherein he brings a claim underUnited States v. Taylor, 596 U.S. 845 (2022) to set asidethe RICO conspiracy and related § 924(c) counts. (Id.,Docket No. 18). Petitioner asserts that this claim relatesback to his original petition and is, therefore, timely. OnMay 2, 2023, Rivera-Carrasquillo sought leave to file yetanother supplemental memorandum of law, this time toraise a claim of prosecutorial misconduct. (Id., Docket Nos.22, 23). The gist of this claim is that the Governmentknowingly presented to the Grand Jury the perjured testimonyof Wesley Figueroa Cancel. (Id.). The Government opposedand petitioner replied. (Id., Docket Nos. 24 and 25).Following the referral to the undersigned, Rivera-Carrasquillo filed, this time through retained counsel, amotion for leave to file a supplemental § 2255 motion. (Id.,Docket No. 56). He tendered the supplemental motion onthe same date. (Id., Docket No. 54). In the supplementalmotion, petitioner argues that the juror misconduct claimpresents an issue of structural error requiring a new trial.Petitioner also expands on the previously raised claims ofprosecutorial misconduct, brings a new ground of ineffectiveassistance of counsel for failure to request the disqualificationof Judge Fusté, supplements the Davis/Taylor claim, andraises a separate challenge to the VICAR murder count.Additionally, Rivera-Carrasquillo moves the court to expandthe scope of the evidentiary hearing. (Id., Docket No. 57). Therequest is made as a result of the undersigned's statement at astatus conference stating to be inclined to limit the evidentiaryhearing to the claim of ineffective assistance of counselregarding the juror misconduct issue. Rivera-Carrasquillourges that the evidentiary hearing should also encompassthe additional claims of ineffective assistance of counsel,the claim about Judge Fusté’s bias, and the prosecutorialmisconduct allegations.*3 The Government opposes both the request for leaveto amend and the request to expand the scope of theevidentiary hearing. (Id., Docket Nos. 62 and 66). TheUnited States specifically moves to dismiss all claims that itmaintains are time-barred, opposes any attempt to backdooruntimely claims by joining the claims and arguments ofhis former co-defendants, and opposes any expansion of
LUIS D. RIVERA-CARRASQUILLO, Petitioner, v. UNITED STATES..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3the evidentiary hearing. In reply, Rivera-Carrasquillo arguesthat the Government has waived its statute of limitationsdefense by not previously raising it. (Id., Docket No. 65).On August 29, 2025, the United States filed its supplementalresponse in opposition to motion to vacate. (Id., Docket No.69). The Government insists in its position that leave toamend should be denied on claims that are time-barred butfiles its substantive opposition “[o]ut of an abundance ofcaution.” (Id. at 1).2. Astacio-EspinoOn April 30, 2021, Astacio-Espino filed his pro se motionto vacate, set aside, or correct sentence and memorandum oflaw in support. (Civil No. 21-1210 (ADC), Docket Nos. 1and 2). Petitioner raised myriad grounds to wit: a challengeto the RICO and firearms counts of conviction under Davisas well as ineffective assistance of counsel claims for (1)failure to request mistrial based on jury misconduct; (2)failure to present evidence of cooperating witnesses housedtogether conferring so that their testimonies coincide; (3)failure to move to disqualify Judge Fusté or request a mistrialon grounds of lack of impartiality; (4) failure to present anEnglish version of an affidavit proving Fourth Amendmentstanding to request suppression; (5) failure to move to strikeevidence of the helicopter incident; (6) failure to object tothe racketeering activity jury instruction; and (7) failure torequest multiple conspiracies jury instruction. Petitioner alsoargues that relief is warranted due to the cumulative effectof the errors allegedly committed by counsel and requests anevidentiary hearing.The United States filed its response in opposition on March3, 2022. (Id., Docket No. 9). According to the Government,the Davis claim fails because murder qualifies as a crimeof violence, petitioner cannot establish ineffective assistanceof counsel nor prejudice, and the court should not grant anevidentiary hearing. Astacio-Espino replied on July 8, 2022.(Id., Docket No. 11). On June 1, 2023, Astacio-Espino soughtleave to amend his petition and tendered a supplementalpleading brining a claim under United States v. Taylor. (Id.,Docket No. 18).On June 17, 2025, Astacio-Espino moved through counselfor leave to amend his section 2255 motion under Fed.R. Civ. P. 15(a). (Id., Docket No. 44). On the same date,petitioner tendered his amended petition. (Id., Docket No.46). The tendered amended § 2255 motion raises a claim ofjuror misconduct and material non-disclosure (Ground One).It also brings a claim of ineffective assistance of counsel(Ground Two) premised on four separate alleged instancesof deficient performance, namely, failure to inform the Judgeabout the juror's non-disclosure of her son's arrest and juvenileconviction; failure to object to improper jury instructions;failure to call exculpatory witness Alexis Betancourt; andfailure to move for the recusal of Judge Fusté. Astacio-Espino's third ground for relief lies in that the 18 U.S.C. §§924(c) and 924(j) are invalid under Davis and Taylor.The Government filed a response in opposition to the motionfor leave to amend, contending that the tendered amended2255 motion advances claims that do not relate back andare, therefore, barred by the applicable statute of limitations.(Id., Docket No. 68). In a separate filing, the United Statesresponds to the amended motion out of an abundance ofcaution. (Id., Docket No. 71). Astacio-Espino filed a reply.(Id., Docket No. 72). Further, on October 27, 2025, Astacio-Espino filed a motion requesting, in sum and substance,that the Court disclose to the parties the juror numbercorresponding to Juror C.D. (Carmencita Diaz). (Id., DocketNo. 75).3. Lanza-Vázquez*4 In his pro se § 2255 motion, Lanza-Vázquez bringsclaims of ineffective assistance of counsel and a claim underUnited States v. Davis. (Civil No. 21-1297 (ADC), DocketNo. 1). With respect to the latter, petitioner challenges thevalidity of the VICAR and § 924(c) and (j) convictions. Asto the former, and like his co-defendants, Lanza-Vázquezcontends that his attorney rendered ineffective assistanceby failing to move for a mistrial upon being appraised ofjuror misconduct, for failure to present the sworn statementof Alexis Betancourt to prove the witnesses prepared theirtestimonies as a group, and for failing to move for thedisqualification of Judge Fusté. Petitioner also alleges that histrial attorney provided ineffective assistance of counsel forhis failure to elicit the names of individuals that purportedlyordered the murder of Orlando Medina.The Government filed its response in opposition on February8, 2022, and argued that Lanza-Vázquez was not entitled toan evidentiary hearing. (Id., Docket No. 8). Lanza-Vázquezreplied and later supplemented his reply. (Id., Docket Nos.10 and 11).1 Subsequently, on June 6, 2022, Lanza-Vázquezfiled a motion to amend adding a claim under Missouri v Frye,566 U.S. 134 (2012) for failing to properly advise him duringthe plea-bargaining process. (Id., Docket No. 12).
LUIS D. RIVERA-CARRASQUILLO, Petitioner, v. UNITED STATES..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4Through appointed counsel, on October 13, 2025, Lanza-Vázquez filed a motion for leave to file a supplemental §2255 motion and tendered the same. (Id., Docket Nos. 38 and39). The following grounds for habeas relief are asserted: (1)violation to the right to a fair trial before an impartial jurydue to juror dishonesty; (2) ineffective assistance of counselfor failure to address juror misconduct, failure to investigateand present exculpatory evidence regarding the collusion ofGovernment witnesses, failure to move for Judge Fusté’srecusal, and failure to elicit information that the murderattributed to him was not in furtherance of La ONU; (3)prosecutorial misconduct; and (4) a Davis/Taylor challenge.Lanza-Vázquez also requests that the scope of the evidentiaryhearing encompass all the claims presented except the Davis/Taylor claim. (Id., Docket No. 42).Recently, on October 28, 2025, the United States filed aresponse opposing Lanza-Vázquez’ motion for leave to filea supplemental habeas petition, responding to the tenderedsupplemental section 2255 motion, and opposing the requestto expand the scope of the evidentiary hearing. (Id., DocketNo. 46). First, the Government argues that all of Lanza-Vázquez’ claims are time-barred and that his certificationof having placed it in the mail on April 16, 2021, with apostmark of almost two months later is suggestive of fraud.Second, consistent with its position with respect to the otherpetitioners, the Government contends that even if the Courtfound the original petition was timely, new and unrelatedclaims are time-barred for they do not meet the relation backrequirement. The Government, in any event, responds to thenew claims asserted. Lanza-Vázquez replied on November 4,2025. (Id., Docket No. 49).III. LEGAL FRAMEWORKA. 28 U.S.C. § 2255 – Evidentiary HearingsA petitioner is entitled to post-conviction relief under 28U.S.C. § 2255 if the challenged sentence “(1) was imposedin violation of the Constitution, or (2) was imposed by acourt that lacked jurisdiction, or (3) exceeded the statutorymaximum, or (4) was otherwise subject to collateral attack.”David v. United States, 134 F.3d 470, 474 (1st Cir. 1998)(citing Hill v. United States, 368 U.S. 424, 426-27 (1962)). Inother words, a prisoner in custody may move under section2255 to vacate, set aside, or correct a sentence that he or sheclaims was imposed in violation of the Constitution or lawsof the United States. See Daniels v. United States, 532 U.S.374, 377 (2001).*5 In the section 2255 context, evidentiary hearings “are theexception, not the norm.” Moreno-Morales v. United States,334 F.3d 140, 145 (1st Cir. 2003). Thus, a habeas petitioner“bears the burden of establishing the need for an evidentiaryhearing[,]” United States v. McGill, 11 F.3d 223, 225 (1st Cir.1993), and, ultimately, the decision to hold one is committedto the discretion of the court. See Bucci v. United States, 662F.3d 18, 32 (1st Cir. 2011). “Where the record, motions, andsupporting documentation demonstrate there to be a genuineissue of material fact, the Court must hold an evidentiaryhearing.” Kiley v. United States, 260 F. Supp. 2d 248, 257 (D.Mass. 2003) (citing United States v. DiCarlo, 575 F.2d 952,954 (1st Cir. 1978)). A hearing is not necessary, however, if“(1) the motion is inadequate on its face, or (2) the movant'sallegations, even if true, do not entitle him to relief, or (3)the movant's allegations need not be accepted as true becausethey state conclusions instead of facts, contradict the record,or are inherently incredible.” David v. United States, 134 F.3dat 477 (quoting United States v. McGill, 11 F.3d at 225-26).B. 28 U.S.C. § 2255 – Statute of LimitationsPursuant to 28 U.S.C. § 2255(f), a one-year period oflimitation applies to federal habeas petitions. In most cases,“[t]he limitation period shall run from ... the date on which thejudgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1); see also Clay v. United States, 537 U.S. 522 (2003).However, this limitations period is not jurisdictional andmay be forfeited or waived by the respondent. See Day v.McDonough, 547 U.S. 198, 202 (2006) (“Ordinarily in civillitigation, a statutory time limitation is forfeited if not raisedin a defendant's answer or in an amendment thereto. Fed.Rules Civ. Proc. 8(c), 12(b), and 15(a). And we would countit an abuse of discretion to override a State's deliberate waiverof a limitations defense.”); Wood v. Milyard, 566 U.S. 463,474 (2012) (waiver found because the state evinced a “clearand accurate understanding” of the statute of limitations issuebut “deliberately steered the District Court away from thequestion and towards the merits.”).C. Fed. R. Civ. P. 15 – Relation BackThe “period of limitation in 28 U.S.C. § 2255(f) should beapplied on a claim-by-claim basis.” Capozzi v. United States,768 F.3d 32, 33 (1st Cir. 2014). The burden is on the petitionerto show that his or her petition should be treated as timely.See Ramos-Martínez v. United States, 638 F.3d 315, 325(1st Cir. 2011). “Otherwise untimely pleading amendments‘relate back’ to the date of the timely-filed original pleading
LUIS D. RIVERA-CARRASQUILLO, Petitioner, v. UNITED STATES..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5provided the claim asserted in the amended plea ‘arose out ofthe conduct, transaction, or occurrence set forth or attemptedto be set forth in the original pleading.’ ” Turner v. UnitedStates, 699 F.3d 578, 585 (1st Cir. 2012) (quoting Fed. R.Civ. P. 15(c))2. To relate back, an “amended habeas corpusclaims generally must arise from the ‘same core facts,’ and notdepend upon events which are separate both in time and typefrom the events upon which the original claims depended.”Id. (quoting Mayle v. Felix, 545 U.S. 644, 657 (2005)). Forexample, “[t]he standard cannot be satisfied merely by raisingsome type of ineffective assistance in the original petition, andthen amending the petition to assert another ineffective claimbased upon an entirely distinct type of attorney misfeasance.”Ciampi, 419 F.3d at 24.IV. DISCUSSIONA. Rivera-Carrasquillo's Motion for Leave to Amend(Civil No. 21-1198 (ADC), Docket No. 56).*6 After careful consideration of the record, the timing of thefilings, and the applicable law, I find and intend to recommendto the presiding District Judge, that the following claims bedismissed as they do not relate back and are, therefore, timebarred: (1) claim of prosecutorial misconduct for allegedlypresenting perjured testimony to the Grand Jury; and (2) theclaim of ineffective assistance of counsel for failure to requestJudge Fusté’s recusal due to an alleged death threat. Theseare new and unrelated claims that made their debut in Rivera-Carrasquillo's most recent supplemental habeas petition, andthe Government has affirmatively asserted the statute oflimitations defense as to them. In any event, there is noevidentiary support for these claims to warrant an evidentiaryhearing.As to the remaining grounds, I find, first, that the Davis/Taylorclaim relates back to the original petition. However, suchclaim presents only a legal question and will be addressed inmy report and recommendation on the parties’ briefs. Second,I find that the claim of structural error for alleged jurormisconduct also relates back to the original petition and istherefore timely.The prosecutorial misconduct claim for allegedly presentingthe perjured testimony of Wesley Figueroa-Cancel at trialis untimely because I find that it does not relate backto any claim asserted in the original habeas petition. Butthe Government waived the non-jurisdictional limitationsdefense by choosing to respond to it and not raising it as partof its answers. This claim shall be limited to the allegedlyperjured testimony regarding the murder of El Chaple at trial.The Court will not allow variants of the argument related tothe murder of Christian Toledo-Sanchez aka “Pekeke” nor thekidnapping of Kiki for those claims depend on different factsand different timing and were not properly developed to meetpetitioner's burden to show either relation-back or entitlementto a hearing. Lastly, the claim of ineffective assistanceof counsel for failure to present the sworn statement ofan individual named Alexis Betancourt (Civil No. 21-1198(ADC), Docket No. 3) will also be considered inasmuch asthe Government has waived the statute of limitations defenseby responding to it. (Id., Docket No. 11). I briefly explain myreasoning.1. Juror Misconduct as Structural ErrorTo obtain relief on a claim that a juror failed to respondaccurately to questions asked during jury selection, “a partymust first demonstrate that a juror failed to answer honestlya material question on voir dire, and then further show thata correct response would have provided a valid basis fora challenge for cause.” McDonough Power Equip., Inc. v.Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 78 L. Ed.2d 663 (1984). “The outcome of this inquiry depends onwhether a reasonable judge, armed with the information thatthe dishonest juror failed to disclose and the reason behind thejuror's dishonesty, would [have struck the juror for cause].”Sampson v. United States, 724 F.3d 150, 165-66 (1st Cir.2013) (emphasis in original).In United States v. French, 909 F.3d 111, 119 (1st Cir. 2018),the First Circuit explained that it views “the presence of abiased juror as structural error -- that is, per se prejudicialand not susceptible to harmlessness analysis.” It reached thatconclusion in the context of a direct appeal of the denial of amotion for new trial, finding that such conclusion was dictatedby its prior precedent as well as precedent from the SupremeCourt. Id. It further explained that though rare, structuralerror entails “defect[s] affecting the framework within whichthe trial proceeds, rather than simply an error in the trialprocess itself” and errors that “deprive defendants of ‘basicprotections’ without which ‘a criminal trial cannot reliablyserve its function as a vehicle for determination of guilt orinnocence.” Id. (quoting Arizona v. Fulminante, 499 U.S.279, 310 (1991) and Neder v. United States, 527 U.S. 1, 8-9(1999)). Examples of structural error include trial before abiased judge and “trial before a jury whose impartiality hasbeen fatally compromised.” United States v. French, 904 F.3dat 119 (citations omitted); see also United States v. Sampson,
LUIS D. RIVERA-CARRASQUILLO, Petitioner, v. UNITED STATES..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6724 F.3d at 163 (noting that the right to an impartial jury is a“constitutional bedrock” and that ““[i]f even a single biasedjuror participates in the imposition of the death sentence, thesentence is infirm and cannot be executed.”).*7 Here, the crux of the juror misconduct claim is the allegeddishonesty of a juror identified by petitioners as CarmencitaDiaz and who was allegedly seated as juror in their trial.Specifically, the alleged misconduct consists of failing todisclose that she had a son who was convicted as a juvenileand was serving a sentence in state court. On the question oftimeliness, this claim, whether framed as a claim of structuralerror or as a claim of ineffective assistance of counsel, arisesout of the same core facts and does not depend on separatetype of events or timeframes. As such, the structural errorclaim relates back to the original ineffective assistance ofcounsel claim and is deemed timely.32. Recusal of Judge Fuste due to alleged Murder ThreatThe factual basis for this claim was not averred in neither theoriginal petition nor in any of the later-filed supplemental/amended habeas petition. At all times, petitioners have arguedthat recusal was purportedly warranted due to statementsmade by the Judge in a separate sentencing hearing thatallegedly showed bias. Rivera-Carrasquillo has profferedabsolutely no evidence that there was a murder plot againstthe Judge, or that the Jude or trial counsel knew about it. Thisclaim does not relate back to the original recusal ground. Inany event, even if timely, I would find that petitioner has notmet its burden to show entitlement to an evidentiary hearingon this claim.3. Prosecutorial Misconduct at Trial and WitnessCollusionRivera-Carrasquillo's original claim of ineffective assistanceof counsel for failure to cross-examine government witnessWesley Figueroa-Cancel with an FBI-302 report that showedan inconsistent version of the El Chaple murder has evolvedinto a claim of prosecutorial misconduct for allegedlypresenting the perjured testimony of Figueroa-Cancel at trial.Intertwined with this claim is the argument that both theGovernment and trial counsel were aware that witnesseshoused together at MDC Guaynabo colluded to fabricatetestimony.It is undisputed that the claim of prosecutorial misconductwas originally brought by Rivera-Carrasquillo pro se in hisThird Supplemental Memorandum of Law more than twoyears after the original habeas petition was filed. (See CivilNo. 21-1198 (ADC), Docket No. 23). The Government,however, did not immediately raise the limitations defenseas to this claim. Instead, the United States respondedto it on the merits arguing that “this Court shoulddeny Petitioner's request for habeas relief premised onprosecutorial misconduct because it is based on incorrectfacts.” (Id., Docket No. 24). Subsequently, in opposing themotion filed by retained counsel for leave to amend, theGovernment raised for the first time the argument that theclaim is time-barred. (Id., Docket No. 62). In doing so, theGovernment has waived the limitations defense. Walker v.United States, 134 F.3d 437, 446-47 (6th Cir. 2025) (findingwaiver of statute of limitations defense, as opposed to justforfeiture, when the Government was aware of the limitationsissue and did not raise it choosing instead to respond to themerits of the claim.).Whether sufficient evidence has been adduced regardingcollusion and perjured testimony to get to an evidentiaryhearing is a closer question. The petitioners have proffereda sworn statement of Alexis Betancourt and other evidencerelated to meetings at the cooperators’ unit at MDC Guaynaboto coordinate the testimonies in preparation for trial. Thereis also sufficient evidence proffered about a significantinconsistency and a substantive change in version regardingthe murder of El Chaple. In the FBI-302 report (Id., DocketNo. 1-3), Figueroa-Cancel puts himself removed in time andplace (15 minutes staying near the benches) from the murderof Chaple. At trial, however, he testified among other things,that he was there, right next to the person, witnessed when theshot was taken, and helped get El Chaple's body into the SUV.(Criminal No. 12-200 (ADC), Docket No. 1577).*8 This is not conclusive evidence that perjured testimonywas knowingly presented. Nor does my determination meanthat habeas relief is warranted even if there was. See Moreno-Morales v. United States, 334 F.3d 140, 148 (1st Cir. 2003)(cleaned up) (“Prosecutorial misconduct is only a ground for §2255 relief if it violates petitioner's due process rights, that is,if the conduct so infected the trial with unfairness as to makethe resulting conviction a denial of due process.”). But theproffered evidence is sufficient for a finding that the petitionermet his burden to show entitlement to an evidentiary hearingon the claim.4. Prosecutorial Misconduct before the Grand JuryAlthough I am finding, as stated above, that leave to amendshould be granted, and that the claim of prosecutorial
LUIS D. RIVERA-CARRASQUILLO, Petitioner, v. UNITED STATES..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7misconduct should be allowed to proceed, there is no basison the record to allow exploration of a claim of prosecutorialmisconduct before the Grand Jury. There was no developmentfor this claim, nor evidence proffered, by way of affidavitor otherwise, to support the allegation that the Governmentpresented perjured testimony before the Grand Jury. In histhird supplemental memorandum, Rivera-Carrasquillo makesa conclusory statement that the trial prosecutor presentedthe known perjured testimony of witness Wesley Figueroa-Cancel “to secure the Indictment.” (Civil No. 21-1198(ADC), Docket No. 23). Yet, in said pleading, the discussionfocuses only on the trial testimony. No Grand Jury transcriptsor other evidence is proffered.Furthermore, in the motion for leave to amend filed bycounsel, it is asserted that “[t]he Government incurred inprosecutorial misconduct by repeatedly presenting perjuredevidence to the Grand Jury.” (Id., Docket No. 54). However,as the argument progresses, it becomes evident that theclaim refers to the alleged coordination of testimoniesbetween Figueroa-Cancel and others and the “fabricated”nature of it. There is nothing adduced with respect to whattranspired before the Grand Jury. See United States v. Zanino,895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to ina perfunctory manner, unaccompanied by some effort atdeveloped argumentation, are deemed waived.”). The Courtwill not allow evidence to be presented or arguments to bemade regarding prosecutorial misconduct before the GrandJury.Thus, for the reasons outlined above, the motion for leaveto amend (Civil No. 21-1198 (ADC), Docket No. 56) isGRANTED in part and DENIED in part.B. Rivera-Carrasquillo's Motion to Expand EvidentiaryHearing (Civil No. 21-1198, Docket No. 57).As briefly noted, there is no need for an evidentiary hearingregarding the purely legal challenge to certain counts ofconviction under Davis and Taylor. I also find that Rivera-Carrasquillo has not met his burden to show that anevidentiary hearing is warranted regarding the followingclaims asserted in his original petition: ineffective assistanceof counsel for failure to object to jury instructions, for failureto present evidence of brain injury, for failure to requesta multiple conspiracies jury instruction, and for failure torequest Judge Fusté’s recusal on grounds of statements madeat a separate sentencing hearing. As to these claims, there areno material controversies of fact, and the Court can decidewhether petitioner is entitled to relief based on the record asit stands.Accordingly, the scope of the evidentiary hearing with respectto Rivera-Carrasquillo is limited to the following claims:• Ineffective assistance of counsel for failure to raise thematter of juror misconduct and the related claim ofstructural error;*9 • Ineffective assistance of counsel for failure toconfront Figueroa-Cancel with a contradictory FBI-302report;• Ineffective assistance of counsel for failure to presentevidence of cooperating witnesses housed togethercolluding to make their testimonies match; and• Prosecutorial misconduct for allegedly presenting theperjured testimony of Figueroa-Cancel at trial regardingthe murder of El Chaple.The motion to expand the evidentiary hearing (Docket No.57) is thus GRANTED in part and DENIED in part.C. Astacio-Espino's Motion for Leave to Amend (CivilNo. 21-1210 (ADC), Docket No. 44)Astacio-Espino's motion for leave to amend (Civil No.21-1210 (ADC), Docket No. 44) is also allowed in part andthe following claims will be deemed properly before theCourt. First, the standalone claim of juror bias and misconductas a violation to the Sixth Amendment right to an impartialjury relates back and is, thus, timely for the reasons explainedabove in addressing Rivera-Carrasquillo's motion for leave toamend. Second, the claim of ineffective assistance of counselfor failure to object to the errors in the jury instructions will beconsidered in tandem with the Davis/Taylor claim challengingthe RICO conspiracy and VICAR murder counts as crimeof violence predicates of the §§ 924(c) and (j) convictions.Both claims will be decided on the briefs and will notform part of the upcoming evidentiary hearing. The claim ofineffective assistance of counsel for failure to call exculpatorywitness Alexis Betancourt is timely and will form part of theevidentiary hearing as ordered by the presiding District Judge.These claims either relate back to the original petition or theGovernment has waived the statute of limitations defense bynot affirmatively raising it in its answer.However, the claim that trial counsel provided ineffectiveassistance for failing to move for the recusal of Judge Fusté
LUIS D. RIVERA-CARRASQUILLO, Petitioner, v. UNITED STATES..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8due to alleged death threats against him is precluded andwill not be considered. As noted above, there is no factualbasis for such claim despite petitioner's categorical assertionthat his trial counsel was “personally aware” of “a crediblethreat of assassination” against Judge Fusté by “his allegedco-conspirators.”4 Therefore, Astacio-Espino has not shownentitlement to an evidentiary hearing on that claim.Lastly, the following ineffective assistance of counsel claimsasserted in the original habeas petition will not form partof the evidentiary hearing: failure to translate affidavit toestablish standing under the Fourth Amendment; failure torequest a multiple conspiracies jury instruction; failure tomove to strike the testimony of Lt. Javier Burgos regardinghelicopter incident; and failure to object to the use of firearmspossession as a RICO predicate. As to these, Astacio-Espinohas not established a sufficient controversy of material fact towarrant an evidentiary hearing.D. Astacio-Espino's Motion for Disclosure of JurorNumber (Docket No. 75).*10 At the status conference held before the undersigned onOctober 20, 2025, counsel for Astacio-Espino demanded thatthe Court provide him the juror number for who he claimsis a juror that participated in the trial and who has beenidentified by the name of “Carmencita Díaz.” This despitehis very confident assurances in his pleading that the jurorthat he has identified as Carmencita Díaz was Juror No. 21. Iordered counsel to file a motion directing me to any authoritythat would allow the Court to disclose such information ina case where the Court previously ordered the jury to beanonymously impaneled. He complied. (Id., Docket No. 75).Astacio-Espino maintains that disclosing the juror numberwill not reveal any new identifying information to the defense.This is so because his own “independent investigation hasconfirmed that Carmencita Díaz herself has acknowledgedserving as a juror in Petitioner's trial. She was interviewedby defense investigator Janeliz Rodríguez, and confirmed herrole, and admitted recognizing Petitioner as the defendant shevoted to convict.” (Id. at 4).5Petitioner cites caselaw6 for the proposition that juror biasmust be addressed through a hearing and that courts shouldconduct reasonable investigations when allegation of jurormisconduct arise. Such proposition is not controversial.However, aside from general principles of juror bias inquiries,counsel has not directed my attention to any authority holdingthat I am authorized to disclose the juror number of whompetitioners claim is a person by the name Carmencita Díazwho was selected as juror in the petitioners’ trial.To be sure, courts are authorized to keep the names ofjurors confidential if the interest of justice so requires. 28U.S.C. § 1863(b)(7). And in this case, the decision to impanelan anonymous jury was upheld as appropriate by the FirstCircuit. See United States v. Ramirez-Rivera, 800 F.3d 1, 36(1st Cir. 2015); United States v. Rivera-Carrasquillo, 933F.3d 33, 40 (1st Cir. 2019). The discretion the Court has toestablish the scope of the juror misconduct inquiry includesthe discretion to deny requests by counsel in order to preservea juror's anonymity. See United States v. Ochoa-Vazquez, 428F.3d 1015, 1031 n. 19 (11th Cir. 2005) (finding that the districtcourt did not abuse its discretion when it refused to allow adefense attorney to return an unsolicited phone call from analternate juror “in order to preserve the juror's anonymity.”).*11 Astacio-Espino's request assumes that there is nocontroversy that a person by the name Carmencita Díaz saton the anonymous jury that convicted him. He is sure thathe has identified the right person and is merely seeking to“formalize the record.” Notwithstanding the confidence thatthe petitioner has exhibited in his investigation, the Court isbeing asked to confirm (or deny for that matter) the identityof a juror that was anonymously selected after a finding wasmade that the interest of justice so required. I cannot do sounder the circumstances of this case, and without having beenplaced in a position to find that I am legally authorized to doso.The motion at Docket No. 75 is DENIED.E. Lanza-Vázquez's Motions for Leave to Amend and toExpand Evidentiary Hearing (Civil No. 21-1297 (ADC),Docket Nos. 38 and 42).As an initial matter, the Government argues that all of Lanza-Vázquez's claims are time barred and that the certificationwhich states that Lanza-Vázquez placed his original petitionin the prison mail system prior to expiration of the limitationsperiod is highly suggestive of fraud given that the petitionis postmarked almost two months later. In support, theGovernment offers the Declaration under the penalty ofperjury of a USP Coleman representative.The Government's argument is persuasive regarding thelikelihood that petitioner fraudulently certified that he timelymailed his habeas petition. Nevertheless, as with the other
LUIS D. RIVERA-CARRASQUILLO, Petitioner, v. UNITED STATES..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.9petitioners, the Government fails to address why it chose torespond to the merits of the untimely-filed petition insteadof affirmatively asserting the statute of limitations defense.What's more, in its response to the original habeas petition,the Government conceded the point when it stated: “On April16, 2020, Ramón Lanza-Vázquez (“Lanza”) filed a timelymotion pursuant to 28 U.S.C. § 2255 ....” (Civil No. 21-1297(ADC), Docket No. 8 at 1)) (emphasis added). As I haveobserved in the context of some of the other petitioners, theGovernment waived its right to assert the statute of limitationsdefense by steering the Court towards the merits and awayfrom the limitations defense. Walker v. United States, 134 F.3dat 447.With respect to the scope of the evidentiary hearing, andfollowing the same rationale with respect to the otherconsolidated petitioners, I find that the claim of jurormisconduct, however framed, will be allowed to form part ofthe evidentiary hearing that the presiding District Judge hasordered the undersigned to conduct. The claim of ineffectiveassistance of counsel for failure to present evidence aboutwitnesses’ collusion will also be allowed to be litigated at theupcoming evidentiary hearing. The Davis/Taylor claim willbe ruled upon on the briefs.However, the claim regarding counsel's failure to move forthe disqualification of Judge Fusté on grounds of bias dueto an alleged murder plot against him suffers from the sameinfirmity as those of the other consolidated petitioners. Thereis nothing in the record establishing the factual basis for theassertion that there was a murder plot against Judge Fusté andthat he and trial counsel knew about it and failed to act. Thisclaim has been repeated by all three petitioners without factualor evidentiary support and will not be allowed.Now, there are two claims that I must separately address.Lanza-Vázquez brought a claim of ineffective assistanceof counsel under Missouri v. Fry arguing counsel providedeficient advice in the context of plea bargaining. He alsoasserted a claim of ineffective assistance of counsel for failureto elicit the names of two individuals that allegedly orderedthe murder of Orlando Medina-Serrano to show that suchmurder was not in furtherance of La ONU, but in retaliationfor the cooperation of Medina-Serrano's sister in an unrelatedmatter. The latter claim was subsequently expanded to a claimof prosecutorial misconduct for withholding exculpatoryevidence. (Id., Docket Nos. 11 and 34-1). The amendedpetition tendered by counsel includes the prosecutorialmisconduct variant of the claim.*12 I agree with the Government that these two claimshave not been sufficiently developed to reach the thresholdof entitlement to an evidentiary hearing. The claim of faultyadvice during plea negotiations on the matter of likelihoodof receiving a concurrent sentence is inadequate on its faceas it provides only conclusory allegations. For example,Lanza-Vázquez asserts that the erroneous advice relatedto a state conviction that he claims was relevant conduct,but did not explain what state conviction he was referringto. Similarly, regarding the prosecutorial misconduct claim,Lanza-Vázquez only conclusorily stated that the Governmentwas aware of two exculpatory witnesses that “could providethe real motives behind Medina Serrano's murder.” (Id.,Docket No. 39). There are no record citations, affidavits, orother evidentiary support for the claim that the Governmentknew of these witnesses and failed to provide the information.Therefore, these claims will not be considered as part of theevidentiary hearing.The motions at Docket Nos. 38 and 42 are both GRANTEDin part and DENIED in part.V. CONCLUSIONFor the above-outlined reasons, the parties should take noticeregarding the claims that are deemed time-barred as well asthe scope of the upcoming evidentiary hearing and be guidedaccordingly.IT IS SO ORDEREDIn San Juan, Puerto Rico this 7th day of November, 2025.All CitationsSlip Copy, 2025 WL 3114334
LUIS D. RIVERA-CARRASQUILLO, Petitioner, v. UNITED STATES..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.10Footnotes1The reply at Docket No. 11 was substituted by counsel at Docket No. 34 as it was incomplete and missingpages. The Court granted the request for substitution. (Civil No. 21-1297 (ADC), Docket No. 35).2Fed. R. Civ. P. 15(c) states in relevant part: “An amendment to a pleading relates back to the date of theoriginal pleading when: (A) the law that provides the applicable statute of limitations allows relation back;[or] (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrenceset out-or attempted to be set out-in the original pleading.” The First Circuit has held that Rule 15 “governsamendments to habeas petitions in a § 2255 proceeding.” United States v. Ciampi, 419 F.3d 20, 23 (1stCir. 2005).3Characterizing the claims as structural error or ineffective assistance of counsel for failure to request mistrialmay have other legal implications such as the standard under which the claim is reviewed or whether prejudiceneeds to be shown. That, in my view, is a separate inquiry to be decided later on the merits of the claim afterthe factual record has been developed at the evidentiary hearing.4I have reviewed the record and the pleadings of all petitioners. They have not directed me to, and I havenot been able to find, any reference in the record to the alleged threats made to Judge Fusté. For instance,Astacio-Espino points to his affidavit in support of the original habeas petition. Specifically, at Docket No. 46,page 2, Astacio Espino cites to Criminal No. 12-200, Docket No. 2326-2. That document is Astacio-Espino'saffidavit attached to his original § 2255 petition filed as a copy in the criminal case on April 30, 2021. There isno mention of a murder plot against, or alleged threats to, Judge Fusté. The only allegation of bias is relatedto statements made by the Judge at the sentencing hearing of another defendant.5I note that the sworn statement of the investigator (Civil No. 21-1210 (ADC), Docket No. 46-3), says nothingabout Ms. Díaz admitting that she recognized Astacio-Espino as the defendant she voted to convict.6Counsel once again resorts to citing caselaw in a misleading fashion. For example, counsel cites Smith v.Phillips, 455 U.S. 209 (1982) asserting that “[t]he Court rejected automatic disqualification rules, insistinginstead on case-specific inquiry—an inquiry that cannot proceed without identifying the juror at issue.” (Id.Docket No. 75 at 4). Nowhere in the Smith opinion is there a statement by the Court “insisting” that a jurorbias inquiry cannot proceed without identifying the juror at issue. Similarly, the motion contains a non-existentquote from United States v. Paniagua-Ramos, 251 F.3d 242, 247-48 (1st Cir. 2001), which was cited bycounsel in purported support for his contention that “limited disclosure of numerical identifiers is a practical,narrowly tailored measure to enable such review without jeopardizing juror privacy.” (Id. at 5). But Paniagua-Ramos has nothing to do with numerical identifiers or juror privacy.End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
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