Rivera-Alvarado v. USA

Filing 18

ORDER ACCEPTING REPORT AND RECOMMENDATION 14 and Petitioner Jesus Rivera- Alvarado's Motion to Vacate Sentence (Doc. 3 ) is DENIED with prejudice. The Clerk of Court is directed to terminate this action and enter judgment accordingly. IT IS FURTHER ORDERED that a certificate of appealability be denied because dismissal of the Petition is justified by procedural bar and because Petitioner has not made a substantial showing of the denial of a constitutional right. (See document for full details). Signed by Judge G Murray Snow on 10/21/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jesus Rivera-Alvarado,
Petitioner,

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ORDER

v.

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No. CV-13-00509-PHX-GMS

USA,

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Respondent.

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Pending before the Court are Petitioner Jesus Rivera-Alvarado’s Amended Motion

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to Vacate Sentence (Docs. 3, 4, 6) and United States Magistrate Judge Michelle H.

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Burns’s Report and Recommendation (“R&R”), which recommends that the Court deny

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the Motion. (Doc. 14.) Petitioner filed objections to the R&R on August 25, 2014. (Doc.

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17.) Therefore, the Court will review the record on all relevant matters de novo. For the

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following reasons, the Court adopts the R&R and denies the Motion.

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BACKGROUND

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On June 30, 2010, Petitioner was convicted of three counts: (1) conspiracy to

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distribute and distribution and possession with the intent to distribute fifty grams or more

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of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(viii), (2)

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possession of a firearm in furtherance of a drug trafficking offense, in violation of 18

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U.S.C. § 924(c)(1)(A)(I), and, (3) felon in possession of a firearm, in violation of 18

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U.S.C. §§ 922(g)(1), 924(a)(2). Petitioner was tried along with his co-defendants, and the

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jury was instructed that it should consider evidence about other defendants’ acts “only as

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they relate[d] to each charge against each defendant.” The evidence presented by the

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Government included testimony from federal agents who had observed Petitioner’s

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interactions with his co-defendants in the hours leading up to their arrests, and who

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explained that his actions were consistent with counter-surveillance tactics often used by

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local drug traffickers to evade detection. The agents also testified that Petitioner was seen

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driving one of the co-defendants to a parking lot. The co-defendant then exited the

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vehicle with a plastic bag containing over 300 grams of methamphetamine. After

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dropping off his co-defendant, witnesses indicated that Petitioner had parked nearby with

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a direct line of sight to his associate. One witness testified to Petitioner’s proximity to his

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co-defendants at the time of his arrest by referencing an aerial photograph of the parking

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lot where the defendants were taken into custody. Petitioner was arrested in the driver’s

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seat of the car, and officers discovered that he had a .357 caliber revolver in his

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waistband.

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At the close of the trial, Petitioner was sentenced to the mandatory minimum

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sentence of twenty-five years. The trial Court’s sentence calculation reflected a sentence

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enhancement based on Petitioner’s 2004 conviction for possession of cocaine and

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possession of drug paraphernalia, both felonies, for which Petitioner was incarcerated for

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less than one year. Over the Petitioner’s objection, the Court admitted a certified copy of

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the judgment of conviction pursuant to Federal Rule of Evidence 404(b) to prove his

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knowledge, intent, and/or absence of mistake during the trial as to the substantive

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offenses charged. The conviction document listed the defendant’s name as “Jesse

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Alvarado.” The Petitioner again contested the use of the conviction at the sentencing

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phase, and filed a Notice of Denial of Prior Conviction. In response, the Government

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submitted the conviction document used at trial and asked the Court to take judicial

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notice of the fact that the jury had found Petitioner guilty of one count of “felon in

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possession of a firearm” at trial. The Government also proffered testimony by the state

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trooper who alleged he could identify Petitioner as the man he arrested for the drug-

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related charges in 2004. The Court refused to consider the hearsay testimony, but
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concluded the other evidence established Petitioner’s criminal history beyond a

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reasonable doubt to justify the sentence enhancement. Petitioner’s twenty-five year

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sentence was affirmed on appeal to the Ninth Circuit.
STANDARD OF REVIEW

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A federal prisoner may seek relief under 28 U.S.C. § 2255(a) if his sentence was

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imposed in violation of the United States Constitution or the laws of the United States,

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was in excess of the maximum authorized by law, or is otherwise subject to collateral

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attack. When a prisoner petitions for post-conviction relief, this Court “may accept,

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reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate.” Id. § 636(b)(1). If a petitioner files timely objections to the magistrate’s

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R&R, the district judge must make a de novo determination of those portions of the

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report or specified proposed findings or recommendations to which objection is made.

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Id.; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see

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also Fed. R. Civ. P. 72(b).
DISCUSSION

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I.

Grounds 1–5, 7: Ineffective Assistance of Counsel

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As grounds for relief, Petitioner asserts several claims of ineffective assistance of

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counsel relating to his trial and appellate representation. For example, Petitioner contends

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that his counsel spent insufficient time on his case, improperly objected to the

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Government’s use of evidence against him, including the prior conviction, failed to raise

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grounds for severing Petitioner’s trial from his co-defendants, and was an overall

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ineffectual advocate. (See Doc. 14 at 9–14 (detailing Petitioners’ claims).) In his

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Response to the R&R, Petitioner objects only that his counsel was ineffective for

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mishandling witness identifications made over the course of the trial. (See Doc. 17 at 4–

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7.)

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Petitioner’s objection regarding his ineffective assistance claims as it involves

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eyewitness identification, even when liberally construed in his favor, is not the kind of

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specific challenge to the legal and factual findings made by the Magistrate Judge required
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to trigger de novo review of the record under Rule 72(b). (See Doc. 17); Fed. R. Civ. P.

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72(b)(3). First, Petitioner raises claims about misidentification for the first time in his

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objections to the R&R. These claims are inappropriate for consideration by the Court at

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this juncture. See Bousley v. United States, 523 U.S. 614, 621–22 (1998). Second, there is

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nothing in the trial record that reasonably calls misidentification into question, since

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Petitioner does not contest that he is the individual who was arrested in the parking lot

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with his co-defendants on August 27, 2009. To the extent that Petitioner is challenging

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the integrity of the Arkansas state trooper’s identification of him as “Jesse Alvarado,” the

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man he arrested in 2004 on felony possession charges, this amounts to a substantive

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attack on the trial court’s evidentiary ruling and not a claim of ineffective assistance of

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counsel. Because Petitioner did not raise this issue on appeal, he has procedurally

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defaulted the claim and the Court is barred from inquiring into the propriety of the trial

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Court’s decision to admit the officer’s testimony now. Bousley, 523 U.S. at 621–22.

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In any event, as the R&R indicates, the trial court properly considered the

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admissibility of the 404(b) evidence and issued a limiting instruction to the jury. (See

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Doc. 14 at 9–10.) To circumvent the procedural default doctrine, Petitioners’ allegations

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are postured as claims of ineffective assistance of counsel. However, as the R&R

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thoroughly explains, none of the actions allegedly taken (or not taken) by Petitioner’s

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counsel fell below an objective standard of reasonableness, nor has Petitioner sufficiently

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demonstrated how the outcome of his trial or sentencing would have been different had

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counsel acted otherwise. (Doc. 14 at 9–14); See Strickland v. Washington, 466 U.S. 668,

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687–88, 692 (1984) (holding that a convicted defendant must show (1) that counsel’s

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representation fell below an objective standard of reasonableness, and (2) that there is a

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reasonable probability that, but for counsel’s errors, the result of the proceeding would

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have been different in order to prevail on an ineffective assistance claim). Under the

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mandate of Strickland, Petitioner’s trial counsel is subject to a presumption of

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competency. Strickland, 466 U.S. at 689. Petitioner’s conclusory allegations that the

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prosecution relied on “perjured testimony,” “did not disclose exculpatory evidence,” and
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that he was “framed”—without providing any factual support for his averments—is

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insufficient to raise a reasonable question as to the adequacy of his trial counsel. (See

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Doc. 4 at 3–4.) Thus, based on the record, the R&R correctly concludes that that

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Petitioner’s claims of ineffective assistance of counsel should be denied on the merits. All

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ancillary claims about the events of Petitioner’s trial, such as the admission of his prior

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conviction pursuant to Federal Rule of Evidence 404(b), are procedurally defaulted.

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II.

Ground 6, 7: Insufficient Evidence

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In addition to his claims of ineffective assistance of counsel, Petitioner claims that

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the evidence presented by the Government at trial is insufficient to support a conviction

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for conspiracy and possession of a firearm in furtherance of a drug trafficking offense.

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(Doc. 4 at 20; Doc. 6 at 3.) Petitioner has filed only general objections to the Magistrate’s

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findings and recommendations regarding these claims. (Doc. 17 at 17, 18.) Despite

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Petitioner’s failure to file proper objections, the Court has reviewed the R&R de novo.

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First, as noted above and in the R&R, if a § 2255 petitioner could have raised a

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claim at trial or on direct appeal but did not, post-conviction relief on that claim is

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generally deemed waived by the procedural default doctrine. Bousley, 523 U.S. 621–22.

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A petitioner can avoid procedural default only if he can demonstrate (1) “cause” for the

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failure to raise the claim at the proper time and “actual prejudice” or that he is “actually

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innocent.” Id. at 622. Petitioner did not raise a claim of insufficiency of the evidence on

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direct appeal, nor has he articulated an excuse for his failure to raise this claim at an

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earlier stage in the litigation. Therefore, Petitioner’s claim of insufficient evidence is

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procedurally defaulted.

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Moreover, § 2255 does not allow for an attack on a Petitioner’s sentence based on

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the sufficiency of the evidence. See § 2255 (outlining grounds for attacking a sentence);

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United States v. Addonizio, 442 U.S. 178, 184–86 (1979) (explaining that an error of law

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does not provide a basis for a petitioner to collaterally challenge his sentence unless the

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claimed error constitutes “a fundamental defect which inherently results in a complete

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miscarriage of justice”); Cauley v. United States, 294 F.2d 318, 320 (9th Cir. 1961) (“[A]
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motion under section 2255 is not a proper way to review the weight of the evidence.”);

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Hastings v. United States, 184 F.2d 939, 940 (9th Cir. 1950) (“Questions as to the

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sufficiency of the evidence or involving errors either of law or of fact must be raised by

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timely appeal from the sentence if the petitioner desires to raise them.”).

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Finally, Petitioner’s claim of insufficient evidence fails on the merits. There was
ample evidence at trial to support a conviction on all counts.
CONCLUSION

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IT IS ORDERED that Magistrate Judge Michelle R. Burns’s R&R (Doc. 14) is

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ACCEPTED and Petitioner Jesus Rivera-Alvarado’s Motion to Vacate Sentence (Doc.

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3) is DENIED with prejudice.

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The Clerk of Court is directed to terminate this action

and enter judgment accordingly.

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IT IS FURTHER ORDERED that a certificate of appealability be denied

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because dismissal of the Petition is justified by procedural bar and because Petitioner has

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not made a substantial showing of the denial of a constitutional right.

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Dated this 21st day of October, 2014.

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