United States Court of Appeals

For the First Circuit

No. 02-1570

RAFAEL MORENO-MORALES,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Circuit Judge,

Coffin, Senior Circuit Judge,

and Selya, Circuit Judge.

Irma R. Valldejuli, for appellant.

Marie K. McElderry, Attorney, Department of Justice, Civil

Rights Division, Appellate Section, with whom Ralph F. Boyd, Jr.,

Assistant Attorney General, and Jessica Dunsay Silver, Attorney,

were on brief, for appellee.

July 3, 2003
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TORRUELLA, Circuit Judge. Rafael Moreno Morales

petitions to vacate his sentence or set aside his judgment of

conviction pursuant to 28 U.S.C. § 2255 (2003) because of newly

discovered evidence and Brady violations. The district court

adopted the magistrate judge's report and recommendation and

dismissed the petition without an evidentiary hearing. After

careful review, we affirm.

I. Facts

A. Cerro Maravilla

We recount only the basic facts of the infamous events at

Cerro Maravilla. A more detailed account can be found in the

majority and minority opinions of United States v. Moreno Morales,

815 F.2d 725 (1st Cir.), cert. denied, 484 U.S. 966 (1987).

On July 25, 1978, Arnaldo Darío Rosado

and Carlos Soto Arriví were shot and killed by

police on a mountain site in Puerto Rico known

as Cerro Maravilla. The two men, both of whom

were members of the Puerto Rico independence

movement (independentistas), had gone to Cerro

Maravilla apparently intending to blow up or

otherwise sabotage a television tower located

on the mountain. The police reported after the

event that Rosado and Soto Arriví met their

death in a shootout while resisting arrest.

Id. at 729.

The Cerro Maravilla incident became a principal issue in

Puerto Rico politics as conflicting versions of the events emerged,

culminating in a six-month live-televised hearing in front of the

Puerto Rico Senate ("Senate") in late 1983. See id. at 754-55
1 There were previous inquiries by local and national law

enforcement authorities. All absolved the police officers of

culpability in the deaths.

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(Torruella, J., concurring in part and dissenting in part). The

hearings ended dramatically when four key witnesses, including

police officers Miguel Cartagena Flores ("Cartagena") and José

Montañez Ortiz ("Montañez"), were granted immunity and testified

that Soto Arriví and Rosado had surrendered and were disarmed when

they were killed by police officers in a second volley of gunfire.

Id. at 755.

As a "direct result of the evidence adduced" in the

Senate hearings, the federal authorities reopened a criminal

investigation1 into the events at Cerro Maravilla. Id.

B. The Trial: Testimony of Cartagena and Montañez

Moreno Morales was a police officer present when Soto

Arriví and Rosado were killed. Most officers asserted that the

independentistas were killed in self-defense during a shoot-out,

but the Senate hearings yielded a story of execution and cover-up.

When questioned by local prosecutors, a federal grand jury, and

attorneys conducting depositions in a civil case, Moreno Morales

claimed that there was only one volley of shots and that he was not

present when the independentistas were killed. He and nine other

officers were charged with perjury and obstruction of justice and

tried in federal court in February and March, 1985. Key government

evidence at trial included the testimony of Cartagena and Montañez.
2 Moreno Morales was later found guilty in state court of the

second degree murder of Soto Arriví, and was sentenced to twentytwo to thirty years in prison, to be served after his federal

sentence. Puerto Rico v. Pérez Casillas, 92 J.T.S. 171 (1992).

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Cartagena testified that when he was about to leave the area where

both independentistas were under arrest (and alive); he heard

shots, looked back, and saw Moreno Morales and Luis Reverón

Martínez each holding a weapon and observed each officer's hand

recoiling.

Officer Montañez testified that although he was not

present, Moreno Morales told him that Soto Arriví asked Moreno

Morales to "finish him up," and Moreno Morales took another

officer's weapon and shot the victim. Montañez also stated that

Antonio Méndez Rivera was with him at the time of the killings.

This contradicted Méndez Rivera's testimony in which he stated that

he saw Moreno Morales kill Soto Arriví.

The jury found Moreno Morales guilty of one count of

conspiring to obstruct justice, give false testimony and suborn

perjury, in violation of 18 U.S.C. § 371, and five substantive

counts of perjury, in violation of 18 U.S.C. §§ 1621 & 1623.2

Moreno Morales was sentenced to thirty years in prison. A divided

panel of this Court affirmed his conviction. Moreno Morales, 815

F.2d at 752.
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C. Post-Trial 

In 1992, Moreno Morales sought post-judgment relief under

28 U.S.C. § 2255. The district court denied relief and we

affirmed. Moreno Morales v. United States, No. 92-1157, 1992 WL

245718, at *1 (1st Cir. Oct. 1, 1992).

Moreno Morales was denied parole in July, 1995. He filed

a petition for writ of habeas corpus, arguing that the Parole

Commission's denial was arbitrary and capricious. The district

court denied relief and, in an unpublished decision, we upheld the

ruling. Moreno Morales v. United States Parole Comm'n, No. 96-

2358, 1998 WL 124718, at *4 (1st Cir. Jan. 20, 1998) (per curiam).

We noted that at his parole hearing, Moreno Morales "admitted

shooting Soto Arriví, saying he did so when he 'lost control' after

Soto Arriví shot at him." Id. at *2.

In December, 1996, the Puerto Rico Senate held another

investigation, this time to probe allegedly wrongful conduct during

the Senate's original investigation of the incident. During the

1996 hearing, Cartagena testified that he did not in fact know who

killed the victims at Cerro Maravilla. He testified that he was

pressured into changing his testimony by prosecutors. Moreno

Morales also testified, admitting that he shot at Soto Arriví,

accepting responsibility for the victim's death, and asking for

forgiveness from the relatives of the victims.
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D. Evidence Presented for Review

Moreno Morales presents three categories of evidence to

support the instant petition. First, he cites the recent testimony

of Cartagena before the Senate, in which Cartagena admitted that he

lied during trial and claims that he in fact does not know who

killed the victims at Cerro Maravilla. Cartagena has also recently

stated that before the criminal trial he took fifteen or sixteen

polygraph tests administered by the government, in which he stated

that he did not know who killed Soto Arriví or Rosado. He claims

that government officials told him he was failing the tests and

suggested that he would be prosecuted if he did not change his

story. In response to this pressure, Cartagena stated that he

changed his story to say that he saw Moreno Morales shoot one of

the victims, and the government then told him that he had "passed"

the polygraph examination. Moreno Morales claims that the

government only disclosed three polygraph examinations of Cartagena

to the defense, and alleges that the prosecutors committed

misconduct by pressuring Cartagena.

Second, Moreno Morales has recently discovered that

Cartagena gave three sworn statements during the Senate

Investigation in late 1983 stating that he did not know who killed

the victims at Cerro Maravilla. These documents were never

disclosed to the defense.
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Finally, recent Senate notes that have been released

reveal that witnesses Cartagena and Montañez told the Senate during

the 1983 investigation that they did not know who killed the

independentistas. The notes show that United States Attorney

Daniel López Romo and Assistant United States Attorney Celestino

Matta were present during the questioning of Montañez and that

Cartagena visited López Romo after he was questioned. None of

these statements were disclosed to the defense during Moreno

Morales's trial.

E. Current Petition

In August, 1998, Moreno Morales sought leave to file a

second or successive petition under § 2255, alleging that newlydiscovered evidence of witness recantation and prosecutorial

misconduct warranted relief. Finding the circumstances

"sufficiently unusual so as to 'warrant a fuller exploration by the

district court,'" we granted the application. Order of Court, No.

98-8025, Nov. 9, 1998 (citing Rodríguez v. Superintendent, Bay

State Corr. Ctr., 139 F.3d 270, 272-73 (1st Cir. 1998)). The

district court then dismissed Moreno Morales's § 2255 petition

without an evidentiary hearing and subsequently issued a

certificate of appealability. This appeal followed.

II. Standard of Review

We review the district court's dismissal of petitioner's

§ 2255 motion de novo. Ellis v. United States, 313 F.3d 636, 641
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(1st Cir. 2002). Because the district court dismissed petitioner's

claim without an evidentiary hearing, we accept as true

petitioner's sworn factual allegations "unless those allegations

are merely conclusory, contradicted by the record, or inherently

incredible." Id.

III. Discussion

Evidentiary hearings on § 2255 petitions are the

exception, not the norm, and there is a heavy burden on the

petitioner to demonstrate that an evidentiary hearing is warranted.

United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). An

evidentiary hearing "is not necessary when a [§] 2255 petition (1)

is inadequate on its face, or (2) although facially adequate, is

conclusively refuted as to the alleged facts by the files and

records of the case." United States v. DiCarlo, 575 F.2d 952, 954

(1st Cir. 1978) (quotation omitted).

A. Brady Claim

A defendant's right to due process is violated when the

prosecution suppresses evidence that is both favorable to the

accused and material either to guilt or innocence. Brady v.

Maryland, 373 U.S. 83, 87 (1963). Impeachment evidence may make

the difference between conviction and acquittal and, thus, must be

disclosed. Giglio v. United States, 405 U.S. 150, 154 (1972). The

accused does not have a duty to request favorable evidence from the

prosecution. United States v. Agurs, 427 U.S. 97, 107 (1976).
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A petitioner must demonstrate that suppressed evidence is

"material," that is, that "its suppression undermines confidence in

the outcome of the trial." United States v. Bagley, 473 U.S. 667,

678 (1985); Barrett v. United States, 965 F.2d 1184, 1189 (1st Cir.

1992). "The question is not whether the defendant would more

likely than not have received a different verdict with the

evidence, but whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of confidence."

Kyles v. Whitley, 514 U.S. 419, 434 (1995). "Materiality" is

assessed collectively, not item by item. Id. at 436.

We assess Moreno Morales's Brady claim to discern whether

he has shown the three components of a Brady violation: "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, 281-82 (1999).

1. Statements to the Senate

Moreno Morales asserts that notes and sworn statements

from the 1983 Senate investigation indicating that Montañez and

Cartagena did not know who killed the victims at Cerro Maravilla

should have been disclosed.

There is no evidence that federal prosecutors had access

to any of Cartagena's sworn statements or were aware of Cartagena's
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testimony when he denied having knowledge of who fired the fatal

shots at Cerro Maravilla. Moreno Morales claims that because the

Senate notes indicate that Cartagena was going to meet with a

federal prosecutor after he was questioned and because other

portions of the notes reveal a close collaboration between the

Senate investigators and federal prosecutors, we should assume that

either Cartagena discussed his Senate testimony and statements with

the federal prosecutor, or the federal prosecutor obtained

information regarding the witness's statements directly from the

Senate. From the evidence presented, we cannot make the leaps

necessary to support either conclusory assumption. Moreno Morales

has no evidence suggesting that the prosecutors did in fact meet

with Cartagena or that Cartagena revealed his testimony to them.

The government's duty to disclose extends beyond material

in the prosecution's possession. A prosecutor "has a duty to learn

of any favorable evidence known to the others acting on the

government's behalf in the case, including the police." Kyles, 514

U.S. at 437. However, the Puerto Rico Senate was not acting on

behalf of the federal government; rather, it was conducting

independent investigations. While federal prosecutors may have

observed some of the questioning and may have reopened their

investigation as a result of what they learned in the hearings, the

notes of the Senate hearings were under seal and there is no

evidence that they were turned over to federal prosecutors. "[T]he
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government has no duty to produce evidence outside of its control."

United States v. Hughes, 211 F.3d 676, 688 (1st Cir. 2000). The

federal prosecutors did not have access to the Senate's papers and

notes. Principles of federalism lead us to the same conclusion our

sister circuit has reached -- "the state's knowledge and possession

of potential impeachment evidence cannot be imputed to a federal

prosecutor for purposes of establishing a Brady violation." United

States v. Beers, 189 F.3d 1297, 1304 (10th Cir. 1999) (holding that

federal prosecutors had no duty to discover and disclose evidence

obtained in an unrelated state investigation). Therefore, there

was no duty to disclose Cartagena's statements.

The testimony of Montañez is different. Assuming

petitioner's allegations are true, federal prosecutors were present

when Montañez swore before the Senate that he did not know who

killed Soto Arriví or Rosado. This contradicted his testimony at

trial, and therefore was impeaching evidence that should have been

disclosed under Brady. See Giglio, 405 U.S. at 154-55 (finding

duty on part of prosecutor's office to reveal impeaching oral

evidence). At oral argument, the government asserted that it

turned over all its notes to the defense, notes which would have

included the prosecutor's notes from the hearing at which Montañez

testified. However, the record is devoid of any such disclosure to

the defense, and we cannot assume that those notes included the

impeachment evidence. We therefore accept Moreno Morales's
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contention that he was not aware of Montañez's contradictory

testimony before the Senate.

2. Polygraph Examinations

Cartagena recently stated that he was given fifteen or

sixteen polygraph examinations by the federal government before the

1985 criminal trial. During every examination, save the final one,

Cartagena denied being present when Rosado and Soto Arriví were

killed or having any knowledge of who was responsible for their

deaths. Cartagena recently stated that prosecutors threatened that

if he did not testify "truthfully," his immunity from federal

prosecution would be withdrawn and his family might be in danger.

He states that when he changed his story and admitted being present

at the scene and inculpated two officers, he suddenly 

"passed" the polygraph examination.

There were several motions regarding polygraph

examinations during the proceedings up to and including trial; the

end result was that the government was ordered to provide to the

defense results of all polygraph examinations. The government

disclosed three examinations given to Cartagena -- in two he denied

seeing the killings and in the third he inculpated Moreno Morales.

We dismiss the government's invitation to simply accept

its word that because only three polygraph examinations were

disclosed, no more than three could have been administered. Nor is

it inherently incredible that the government could have suppressed
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several polygraph examinations in this high-profile case; whether

by accidental neglect or malevolent cover-up, such Brady violations

do occur in criminal cases. Moreno Morales has presented evidence

contradicting the government's statements, and we assume his

allegations are true for purposes of this case, although there is

no evidence that the government intentionally withheld the

evidence. Accepting these allegations as true, see Ellis, 313 F.3d

at 641, the government withheld as many as thirteen polygraph

examinations that could have been used to impeach Cartagena at

trial. Assuming that it existed, that evidence should have been

disclosed to the defense.

3. Brady Analysis

Even if we assume petitioner's assertions that the

testimony of Montañez and the results of many polygraph

examinations given to Cartagena were withheld from the defense, we

find that the absence of this evidence does not undermine

confidence in the outcome of the trial and is therefore not

material under Brady. See Bagley, 473 U.S. at 678. At the time of

trial, the defense had numerous other examples of contradictory

statements made by both witnesses, including statements made under

oath. Montañez was questioned about the inconsistencies in his

testimonies, while the defense chose not to cross-examine

Cartagena. The evidence uncovered after the trial would have been

merely cumulative, and "the unavailability of cumulative evidence
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does not deprive the defendant of due process." United States v.

Sánchez, 917 F.3d 607, 618 (1st Cir. 1990); see also Zeigler v.

Callahan, 659 F.2d 254, 266 (1st Cir. 1981) (noting that cumulative

evidence is not usually material if defense had opportunity to

impeach the witness by other means).

We acknowledge the impeaching power of a witness's

evolving story. See Kyles, 514 U.S. at 444 ("[T]he evolution over

time of a given eyewitness's description can be fatal to its

reliability."). Here, however, the evolution of Cartagena's

testimony was revealed to the defense in Cartagena's conflicting

statements to grand juries. At the first grand jury proceeding in

1980 he denied seeing or hearing anything. At the second

proceeding in 1983 he admitted hearing the second volley of shots.

He later returned to reveal to the grand jury that he also saw

Moreno Morales's hand recoil immediately after the second volley of

shots were fired. This largely mirrors the evolution of his story

in the polygraph examinations that were disclosed. The defense

thus had ample evidence of a witness's story changing over time,

but chose not to utilize it.

B. Prosecutorial Misconduct

Moreno Morales claims that the prosecutors committed

misconduct in shaping Cartagena's testimony by threatening

prosecution or harm to his family.
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Section 2255 provides for post-conviction relief only

when the petitioner has demonstrated that his sentence "(1) was

imposed in violation of the Constitution, or (2) was imposed by a

court that lacked jurisdiction, or (3) exceeded the statutory

maximum, or (4) was otherwise subject to collateral attack." David

v. United States, 134 F.3d 470, 474 (1st Cir. 1998). This final

category includes "only assignments of error that reveal

fundamental defects which, if uncorrected, will result in a

complete miscarriage of justice, or irregularities that are

inconsistent with the rudimentary demands of fair procedure." Id.

(quotation omitted). Prosecutorial misconduct is only a ground for

§ 2255 relief if it violates petitioner's due process rights, see

Hill v. Brigano, 199 F.3d 833, 847 (6th Cir. 1999), that is, if the

conduct "so infected the trial with unfairness as to make the

resulting conviction a denial of due process." Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974).

It is true that due process is offended when a prosecutor

knowingly suborns perjury to obtain a conviction. Mooney v.

Holohan, 294 U.S. 103, 112 (1935). However, Moreno Morales has not

demonstrated that the government knowingly used perjured testimony

to convict him. Cartagena revealed more details each time he was

interviewed; he stated that he was not originally forthcoming

because his brother-in-law was one of the officers implicated by
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his testimony. The government could have believed that his trial

testimony was truthful and complete.

At any rate, we find that, regardless of any misconduct

in this case, Moreno Morales's due process rights were not offended

by his conviction. There was ample evidence besides Cartagena's

testimony to support Moreno Morales's conviction, including two

other witnesses who stated that Moreno Morales shot Soto Arriví.

Coupled with Moreno Morales's confession, we find that any

misconduct by the prosecutors did not deprive Moreno Morales of a

fair trial. See United States v. González-González, 258 F.3d 16,

25 (1st Cir. 2001).

C. Newly Discovered Evidence

Cartagena's statements to the Senate denying knowledge of

who killed Soto Arriví and Rosado, while not Brady evidence, do

constitute newly discovered evidence. In addition, Cartagena

recently recanted part of his trial testimony: during the 1996

Senate hearings, he stated that he did not see who shot the

independentistas. Moreno Morales seeks a new trial based on this

evidence. We note that this was the same hearing at which Moreno

Morales admitted to shooting Soto Arriví.

We need not decide whether newly discovered evidence is

a cognizable ground for obtaining a new trial in proceedings under

§ 2255. See Barrett, 965 F.2d at 1194; see also Cruz-Sánchez v.

Rivera-Cordero, 835 F.2d 947, 948 (1st Cir. 1987) (comparing
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cases). We have stated that "[a]t a minimum, petitioner would be

required to meet the conventional criteria for obtaining a new

trial on the ground of newly discovered evidence." Barrett, 965

F.2d at 1194. That would require petitioner to prove four

elements: "(1) the newly discovered evidence was unknown or

unavailable at the time of trial; (2) the defendant was duly

diligent in trying to discover it; (3) the evidence was material;

and (4) the evidence was such that it would probably result in an

acquittal upon retrial." Awon v. United States, 308 F.3d 133, 140

(1st Cir. 2002).

Regardless of whether he can show the first three

elements, Moreno Morales has failed to show that the new evidence

would result in his acquittal. The new evidence revealing

Cartagena's account of the events at Cerro Maravilla largely

matches an account given soon after the incident (an account that

was disclosed to the defense). Moreover, the new evidence Moreno

Morales seeks to introduce emerged at the same time as additional

new evidence -- the fact that Moreno Morales was responsible for

causing Soto Arriví's death. Moreno Morales was charged with lying

when he disavowed knowledge of the events at Cerro Maravilla. He

now admits not only to knowing what took place, but to killing one

of the independentistas. A new trial that considers the

recantation would also consider the confession, and in all

likelihood Moreno Morales would again be found guilty of perjury
3 At oral argument, Moreno Morales's counsel admitted that

petitioner would likely have to plead guilty at retrial.

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and obstruction of justice.3 Given Moreno Morales's confession at

the hearings, it is difficult to challenge the outcome of his

trial.

IV. Conclusion

Because Moreno Morales's § 2255 petition is "inadequate

on its face," there is no need for an evidentiary hearing.

DiCarlo, 575 F.2d at 954. We affirm the district court's dismissal

of his petition.