Rivera-Rivera v. US

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Bruce M. Selya, Appellate Judge and David J. Barron, Appellate Judge. Published. [15-1921]

Case: 15-1921

Document: 00117097416

Page: 1

Date Filed: 12/23/2016

Entry ID: 6057580

United States Court of Appeals
For the First Circuit
No. 15-1921
JOSÉ ANTONIO RIVERA-RIVERA,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Marcos E. López, U.S. Magistrate Judge]

Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.

Eric Alexander Vos, Federal Public Defender, and Hector L.
Ramos-Vega, First Assistant Federal Public Defender, on brief for
appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney, on brief for appellee.

December 23, 2016

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SELYA,

Circuit

Page: 2

Judge.

Date Filed: 12/23/2016

Where

a

case

Entry ID: 6057580

hinges

on

a

credibility call, the battle is almost always won or lost in the
trial court.

This case — in which a convicted defendant turned

federal habeas petitioner recalls the critical events differently
than his quondam lawyer — illustrates the point.

Although the

record has some ragged edges, we discern no clear error in the
magistrate judge's decision to credit the lawyer's version of
events.

Accordingly, we affirm the denial of relief under 28

U.S.C. § 2255.
I.

BACKGROUND
The pertinent facts and the travel of the case may be

swiftly chronicled.
Antonio

In May of 2008, petitioner-appellant José

Rivera-Rivera

was

charged,

along

with

over

100

codefendants, in connection with a sprawling drug-trafficking
enterprise

operating

in

and

around

Ponce,

Puerto

Rico.

Specifically, the petitioner was charged in counts one through
five and count seven.

Count one charged him with conspiracy to

possess with intent to distribute a supermarket of controlled
substances.

See 21 U.S.C. §§ 841(a)(1), 846.

Counts two through

five charged him with possession with intent to distribute heroin,
cocaine base, cocaine, and marijuana, respectively, in or near a
protected location. See id. §§ 841(a)(1), 860. Count seven sought
related criminal forfeitures.

See id. § 853.

The government's

theory of the case was that the petitioner was a "runner," meaning

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that he supervised retail sellers' day-to-day activities, supplied
them with drugs for distribution, and collected proceeds.
The petitioner surrendered to the authorities in mid2008, and the district court appointed Raymond Rivera-Esteves as
his attorney.

He was thereafter released on bail pending trial.

On January 19, 2010, the petitioner tendered a straight
guilty plea.

The parties stipulated that the quantity of drugs

for which he was accountable amounted to fifty grams of cocaine
base.

On May 7, 2010, the district court convened a sentencing

hearing.

The court explained the benefits of the safety valve

option to the petitioner.

See 18 U.S.C. § 3553(f); USSG §5C1.2.1

The petitioner declined to seek such an adjustment.

The court

proceeded to sentence him to a ten-year term of immurement (the
statutory minimum).
Shortly

after

the

court

pronounced

sentence,

the

petitioner shifted gears and told Rivera-Esteves that he was
interested in the safety valve after all.

Rivera-Esteves moved to

correct the sentence, see Fed. R. Crim. P. 35, but the court denied

1

The safety valve provision, created by statute and
incorporated into the sentencing guidelines, allows a sentencing
court to disregard an otherwise mandatory minimum sentence if the
defendant meets certain criteria. See United States v. Marquez,
280 F.3d 19, 20, 22 (1st Cir. 2002). The purpose of the provision
is "to mitigate the harsh effect of mandatory minimum sentences on
certain first offenders who played supporting roles in drugtrafficking schemes." United States v. Ortiz-Santiago, 211 F.3d
146, 150 (1st Cir. 2000).
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the motion, concluding that the charges to which the petitioner
had pleaded precluded him from receiving a shorter sentence.

The

petitioner appealed, but to no avail: we rejected his argument
that a retroactive application of the Fair Sentencing Act of 2010
entitled him to a sentence reduction. See United States v. RiveraRivera, No. 10-1817 (1st Cir. Dec. 22, 2011) (unpublished order).
In November of 2012, the petitioner moved pro se to
vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
His pro se motion raised three claims, all premised on ineffective
assistance of counsel.

The parties consented to proceed before a

magistrate judge, see id. § 636(c)(1), who ordered the government
to

respond

magistrate

to

the

judge

petitioner's

set

an

motion.

evidentiary

In

hearing

due

course,

limited

to

the
the

petitioner's third claim: that his then-attorney (Rivera-Esteves)
never told him about a nine-year plea offer.

At the same time,

the magistrate judge appointed the Federal Public Defender to
represent the petitioner.2
Both the petitioner and his former attorney, RiveraEsteves, testified at the hearing.

They told conflicting tales.

The petitioner testified that he was always willing to
plead guilty because he recognized that the evidence against him

2

At the evidentiary hearing, the petitioner's appointed
counsel withdrew the other two claims originally asserted in the
section 2255 motion. Consequently, those claims are not before
us.
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was strong. He added, though, that communication with his attorney
was poor, that they only met in person three times or so, and that
they talked mostly by telephone.

Rivera-Esteves, the petitioner

said, never informed him that the government had offered a nineyear plea bargain.

Rather, the only plea discussions that the

petitioner had with Rivera-Esteves involved the likelihood that
they could convince the government to extend an offer of either
twelve or fourteen years.
The following chronology was developed at the hearing.
The petitioner appeared in court on January 19, 2010, for the
anticipated commencement of his trial.

He testified, however,

that he did not know that his trial was scheduled to begin; RiveraEsteves simply called him the day before and instructed him to be
in court.

The petitioner thought that he was going to attend a

meeting about a possible plea deal.
The petitioner added that he and his attorney had never
met to prepare for trial.

When he learned that trial was in the

offing, the petitioner entered a straight guilty plea rather than
face an unexpected trial.
The petitioner testified that he first suspected that he
had been offered a plea deal shortly after sentencing (while he
was being held in custody at a facility in Guaynabo, Puerto Rico).
There, he came across several of his coconspirators, including

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other runners.

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Many of their sentences were less onerous than

his.3
The parties stipulated that the prosecutor had extended
a

nine-year

plea

offer

to

Rivera-Esteves,

acting

on

the

petitioner's behalf, on March 18, 2009, with an expiration date of
March 23, 2009.

The petitioner testified that his first definite

knowledge of the nine-year plea offer came when he read the
government's response to his section 2255 motion.

The petitioner

alleged that he would have accepted the offer had he known of it.
Rivera-Esteves also testified.

Although he could not

remember many of the details about the petitioner's case given the
passage of years between the dates of the critical events and the
date of the evidentiary hearing, he recalled that he had discussed
the nine-year plea offer with the petitioner no fewer than six or
seven

times.

He

testified

that

he

strongly

encouraged

the

petitioner to accept the offer, but the petitioner spurned his
advice and insisted on seeking a more favorable deal or (if none
was available) going to trial.

Rivera-Esteves could not remember

if he had communicated the plea offer to the petitioner before
March 23, 2009, but he recalled continuing to encourage the
petitioner to consider the offer beyond that date because it was

3

The magistrate judge took judicial notice of the other
runners' sentences. By and large, those sentences were shorter
than the sentence that the petitioner received.
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his understanding that there would still be an opportunity to
secure those terms.
Inasmuch as Rivera-Esteves could not plot a precise
timeline, the magistrate judge allowed him to refer to his Criminal
Justice Act (CJA) voucher, see 18 U.S.C. § 3006A(d), to refresh
his recollection.4

Rivera-Esteves cautioned, though, that not all

of his interactions with the petitioner were set out in the
voucher; instead, the voucher reflected only those interactions
for which he had decided to bill.

Pertinently, the voucher

contained entries for telephone calls on both February 18 and
February 23, 2009.

These entries specifically noted that the

petitioner and Rivera-Esteves had discussed a plea offer.

Rivera-

Esteves explained that these entries "probably" signified that the
government had made the nine-year plea offer verbally before
transmitting the written offer in mid-March.5 Rivera-Esteves filed
a motion for change of plea on February 23, 2009.

The next day,

however, he asked that the motion be stricken from the record.

At

the evidentiary hearing, he explained that he had filed the initial
motion to "take[] advantage of the plea offer that was extended,"

4

We use the term "voucher" to include both the voucher itself
and the associated voucher paperwork.
The voucher materials
contained in the record do not reflect a date of preparation. The
last date that appears on the voucher worksheet, however, is in
October of 2010.
5

Neither side introduced evidence of any other plea offer
extant during the February-March time frame.
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but moved to strike it after a telephone conversation with the
petitioner and his family during which the petitioner declared
that he did not want to accept the plea offer.
The voucher further reflected that, on March 19, 2009 —
the day after the government extended the nine-year plea offer in
writing — Rivera-Esteves made several telephone calls to the
petitioner's home.

He was apparently unable to get in touch with

the petitioner. The next communication memorialized in the voucher
(a telephone call that transpired on March 23, 2009) indicates
that Rivera-Esteves spoke to the petitioner about a plea offer.
The voucher notes that the petitioner requested to meet with
Rivera-Esteves on March 30 to discuss the offer, and Rivera-Esteves
filed

a

motion

for

an

extension

negotiations on March 23, 2009.

of

time

to

conclude

plea

The district court granted this

motion.
There is no indication in the record that a meeting ever
took place on March 30, but Rivera-Esteves testified that he and
the petitioner met at a later date to discuss both the plea offer
and the strength of the government's case.
testified

that

at

some

point

he

made

a

Rivera-Esteves also
counteroffer

to

the

government of seven or eight years, but the prosecutor would not
budge.

Rivera-Esteves stated that, faced with the government's

intransigence, the plan was to go to trial.

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On the day the trial was set to commence, however, the
petitioner had a change of heart and decided to plead guilty.

The

government was no longer disposed to settle for a nine-year prison
term; it insisted on a straight guilty plea (although it did
express a willingness to stipulate to the quantity of drugs for
which the petitioner would be held responsible).
agreed to enter such a plea.

The petitioner

The district court's acceptance of

the plea and its imposition of the ten-year sentence followed.
At

the

conclusion

of

the

evidentiary

hearing,

the

magistrate judge took the matter under advisement. He subsequently
denied the petitioner's section 2255 motion in a written rescript.
He

found

Rivera-Esteves's

"consistent and credible."

version

of

events

to

be

generally

In this regard, the magistrate judge

made eight crucial findings, which we quote below:
(1) there was a 9-year plea offer made by the government;
(2) said offer was communicated by counsel RiveraEsteves to petitioner on at least 6 or 7 occasions; (3)
petitioner made a counteroffer of 7, or possibly even 8,
years of imprisonment; (4) the government rejected the
7-8 year counteroffer; (5) petitioner failed to accept
the 9-year offer within the deadline set by the
government, prompting the government to withdraw said
offer; (6) on the day that the trial was scheduled to
begin, petitioner changed his mind and decided to enter
a guilty plea, but by that time, the government was not
interested in pursuing any plea agreements; (7)
petitioner decided to enter a straight plea, but
consciously rejected the safety valve option after being
warned by both counsel Rivera-Esteves and the court
about the benefits of the safety valve; (8) soon after
the sentencing hearing was over petitioner seemed to
regret his decision regarding the safety valve, but by
that time, the sentence had already been imposed.

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Based on these findings, the magistrate judge denied the
section 2255 motion.

The petitioner subsequently requested and

received a certificate of appealability.
Fed. R. App. P. 22(b).
II.

See 28 U.S.C. § 2253(c);

This timely appeal ensued.

ANALYSIS
We begin our analysis with a peek at the legal landscape.

Under 28 U.S.C. § 2255, an individual in federal custody may
request that the sentencing court vacate, set aside, or correct a
sentence imposed in violation of federal law.

See Ellis v. United

States, 313 F.3d 636, 641 (1st Cir. 2002). To this extent, section
2255 functions as "a surrogate for the historic writ of habeas
corpus." Id. A claim of ineffective assistance of counsel, rooted
in the Sixth Amendment, may be raised by means of a section 2255
motion.

See Casiano-Jiménez v. United States, 817 F.3d 816, 819-

20 (1st Cir. 2016); United States v. Mala, 7 F.3d 1058, 1062-64
(1st Cir. 1993).
To prevail on a claim of ineffective assistance of
counsel, a petitioner must "show that counsel's performance was
deficient."

Ouber v. Guarino, 293 F.3d 19, 25 (1st Cir. 2002)

(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).

In

other words, the petitioner must show "that counsel made errors so
serious

that

counsel

was

not

functioning

as

the

guaranteed the [petitioner] by the Sixth Amendment."

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'counsel'

Strickland,

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466 U.S. at 687.

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The petitioner also must show that he was

prejudiced by counsel's deficient representation.

See Ouber, 293

F.3d at 25.
A defense attorney in a criminal case has an obligation
to keep his client apprised of plea offers made by the government.
See Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012).

The failure

to

constitutes

inform

a

client

of

a

plea

offer

ineffective assistance of counsel.

ordinarily

See id.; United States v.

Rodriguez Rodriguez, 929 F.2d 747, 752 (1st Cir. 1991) (per
curiam).

To show that prejudice resulted from such substandard

performance,

the

petitioner

"must

demonstrate

a

reasonable

probability [that he] would have accepted the earlier plea offer
had [he] been afforded effective assistance of counsel" and "that
the end result of the criminal process would have been more
favorable by reason of a plea to a lesser charge or a sentence of
less prison time."

Frye, 132 S. Ct. at 1409.

Finally, the

petitioner must adduce facts indicating a reasonable probability
that the prosecution would not have withdrawn the plea offer and
that the district court would have imposed sentence in accordance
with the terms of the offer.

See id.

Where, as here, a petitioner appeals the denial of a
section 2255 motion following an evidentiary hearing, we review
the district court's legal conclusions de novo and its findings of
fact for clear error. See Casiano-Jiménez, 817 F.3d at 820. Clear

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error

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is

a

demanding

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standard:

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as

we

have

said,

Entry ID: 6057580

"a

party

challenging a trial court's factual findings faces a steep uphill
climb."
2006).

Ferrara v. United States, 456 F.3d 278, 287 (1st Cir.
The climb is steeper still when "the challenged findings

hinge on the trier's credibility determinations," to which a
reviewing court must afford great deference.

Id.; see Casiano-

Jiménez, 817 F.3d at 820.
Mindful of the stringency of this standard, we have made
it pellucid that when the factfinder chooses between two plausible
but competing views of the evidence, the factfinder's choice cannot
be clearly erroneous.
508 (1st Cir. 1990).

See United States v. Ruiz, 905 F.2d 499,
In the last analysis, then, we will disturb

a trial court's factual findings only if we form a definite and
firm conviction that those findings are incorrect.

See Pike v.

Guarino, 492 F.3d 61, 75 (1st Cir. 2007); Ferrara, 456 F.3d at
287; see also United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948).
Against this backdrop, we turn to the particulars of the
case at hand.

The magistrate judge was confronted with two

diametrically opposed accounts.

He saw and heard the principals

and rested his decision on a determination that Rivera-Esteves's
version

of

the

salient

petitioner's version.

events

was

more

credible

than

the

The record, considered as a whole, provides

adequate support for the magistrate judge's appraisal.

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Although the attorney was unable to recall some details
concerning his handling of the petitioner's case, he was able to
pinpoint several important contacts.

He remembered discussing the

nine-year plea offer with the petitioner on at least six or seven
occasions. In an effort to put flesh on these bones, he identified
dates in February of 2009 on which the two men discussed an
impending plea offer (albeit one that had not yet been reduced to
writing).

Similarly,

Rivera-Esteves

identified

pertinent

conversations in March: he recalled that — on the day after the
government extended the written plea offer — he made several
telephone calls to the petitioner's home. He succeeded in reaching
the petitioner on March 23, 2009 (the day the offer was set to
expire).

As he recalled it, the petitioner was not amenable to

accepting the offer.6
The record further supports Rivera-Esteves's version of
events because it shows contemporaneous court filings and CJA
voucher entries referencing plea negotiations.

The first of these

court filings — a motion for change of plea — was filed on February
23, 2009.

The second — a motion to strike the original motion —

was filed the next day.

These two motions fit seamlessly into

6

To be sure, the record is silent as to whether RiveraEsteves told the petitioner that the plea offer would expire on
March 23, if not accepted.
But that is not the petitioner's
complaint. Rather, he asserts that Rivera-Esteves did not inform
him at all about the government's nine-year plea offer.
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Rivera-Esteves's narrative (i.e., that he had been discussing a
plea offer with the petitioner and had urged him to accept it),
and the record offers no other coherent explanation for why such
motions would have been filed.
So, too, the last motion — a motion for extension of
time to conclude plea negotiations — was filed on March 23, 2009,
after the attorney's receipt of the government's written plea
offer.

This filing lends credence to Rivera-Esteves's testimony

that he called the petitioner about that offer.
Faced only with supporting evidence in the form of court
filings, we would be hard-pressed to say that the magistrate
judge's decision to credit Rivera-Esteves's testimony was clearly
erroneous.

See Ruiz, 905 F.2d at 508.

Here, however, there is

more: the conclusion suggested by the court filings is reinforced
by the CJA voucher, which also references plea negotiations at
various points.

Those entries, made long before the petitioner

brought his section 2255 motion, add weight to Rivera-Esteves's
version of events.
Let

us

be

perfectly

clear.

The

testimony

at

the

evidentiary hearing was ragged, and it is troubling that RiveraEsteves had so blurred a memory of his communications with the
petitioner.

But several years had passed between the critical

events

the

and

evidentiary

hearing,

and

the

petitioner's

testimony, like the attorney's testimony, was not a model of

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Moreover, it is difficult to square the petitioner's

claim that he never knew of any plea offer with either the court
filings or the CJA voucher.
In the end, the deferential standard of review persuades
us that we must honor the magistrate judge's choice between
imperfect alternatives.

Cf. Chen v. Holder, 703 F.3d 17, 24 (1st

Cir. 2012) (stating that because the "trial judge sees and hears
the witnesses at first hand and is in a unique position to evaluate
their

credibility,"

we

should

honor

his

or

her

"on-the-spot

judgments"); Anthony v. Sundlun, 952 F.2d 603, 606 (1st Cir. 1991)
(explaining

that

an

appellate

court

"ought

not

to

disturb

supportable findings, based on witness credibility, made by a trial
judge who has seen and heard the witnesses at first hand").

A

supportable reading of the record is that plea negotiations broke
down because the petitioner held out for a better deal that never
materialized.
To
testimony

sum

and

up,

made

the
a

magistrate
reasonable

determination regarding credibility.

judge

heard

conflicting

(though

not

inevitable)

On this scumbled record,

there is no principled way in which we can find that determination
to be clearly erroneous.
III.

See Ruiz, 905 F.2d at 508.

CONCLUSION
We need go no further. For the reasons elucidated above,

the judgment is

Affirmed.

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