RIVAS-HERNANDEZ v. USA

Filing 13

ENTRY Discussing Motion for Relief Pursuant to 28 U.S.C. § 2255 and Denying Certificate of Appealability. Rivas is not entitled to relief on his § 2255 motion. There was no ineffective assistance of counsel and his sentence is not uncon stitutional. Accordingly, his motion for relief pursuant to § 2255 is denied and this action is dismissed with prejudice. Judgment consistent with this Entry shall now issue and a copy of this Entry shall be docketed in No. 1:10-cr-37-LJM-DML -1. Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing § 2255 proceedings, and 28 U.S.C. § 2253(c), the Court finds that Rivas has failed to show that reasonable jurists would find "it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore denies a certificate of appealability. Signed by Judge Larry J. McKinney on 5/4/2016. Copy sent to Petitioner via U.S. Mail. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOSE RIVAS-HERNANDEZ,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:14-cv-00898-LJM-TAB

Entry Discussing Motion for Relief Pursuant to
28 U.S.C. § 2255 and Denying Certificate of Appealability
For the reasons discussed in this Entry, the motion of Jose Rivas-Hernandez
(“Rivas”) for relief pursuant to 28 U.S.C. § 2255 must be denied. In addition, the Court
finds that a certificate of appealability should not issue.
I. Background
Rivas was charged on March 9, 2010, with unlawful re-entry into the United States
after having been deported subsequent to a conviction for an aggravated felony.
On January 29, 2013, Rivas filed a Petition to Enter a Plea of Guilty. In his guilty
plea petition, Rivas noted that he had “a very limited ability to read, speak or understand
the English language” and was being assisted by a Spanish interpreter. Rivas-Hernandez
represented to the Court that he had received a copy of the Indictment, read and
discussed it with his attorney, and was advised of the charges and possible punishment.
Rivas further declared that he was offering his plea freely and voluntarily and of his own
accord.

On that same date, the parties filed a written Plea Agreement pursuant to
11(c)(1)(B) of the Federal Rules of Criminal Procedure. The Plea Agreement provided
that Rivas would plead guilty as charged to Count One of the Indictment. The Agreement
further provided that Rivas- understood that the final determination of his sentence,
including the advisory sentencing guideline range, would be made by the Court. Rivas
acknowledged that if the Court decided to impose a sentence higher or lower than any
recommendation of either party, or determined a different advisory sentencing guideline
range, then he would not be permitted to withdraw his plea of guilty. In exchange for the
concessions made by the United States in the Plea Agreement, Rivas “expressly waive[d]
his right to appeal on any ground his conviction. . . . [and] also waive[d] the right to contest
the sentence imposed and the manner in which it was determined in any collateral attack,
including an action brought under Title 28, United States Code, Section 2255, so long as
he [was] sentenced within the range set forth by an offense level 21 and whatever criminal
history the Court determine[d].”
The Court conducted a change of plea hearing on February 14, 2013, with the
assistance of a court-certified Spanish interpreter. At that hearing, the Court inquired of
Rivas if he understood the terms of the Plea Agreement and whether his plea was entered
freely and voluntarily. Rivas acknowledged that he understood he was waiving his right
to appeal and that “no threats, promises or representations [had] been made, nor
agreements reached, other than those set forth in [the Plea Agreement] to induce [him]
to plead guilty.” Rivas also acknowledged that he understood he would be removed from
the United States upon completion of his sentence, as set out in his Plea Agreement.
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United States v. Rivas-Hernandez, 1:10-cr-37-LJM-DML-1, Dkt 51 “Plea Hearing Tr.” at
12). The Court determined that Rivas-Hernandez was “fully competent and capable of
entering an informed plea, that he’s aware of the nature of the charges and the
consequences of the plea and that the plea of guilty is a knowing and voluntary plea
supported by an independent basis in fact containing each of the essential elements of
the offense.” Id. at 16. The Court accepted his plea and adjudged him guilty as charged.
II. Discussion
Rivas now seeks relief pursuant to 28 U.S.C. § 2255. A motion pursuant to § 2255
is the presumptive means by which a federal prisoner challenges his conviction or
sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). Specifically, Rivas
claims his attorney was ineffective for (1) failing to file a notice of appeal, allowing the
Plea Agreement to contain a waiver of appeal, and for not explaining the consequences
of an appeal waiver; (2) failing to explain the rights he was forfeiting by pleading guilty;
and (3) failing to request the Court sentence him pursuant to the Department of Justice’s
Early Disposition or Fast-Track Programs. The United States responds, arguing that
Rivas waived his right to seek relief pursuant to § 2255 and that his counsel was not
ineffective.
A. Waiver of Post-Conviction Relief
In response to Rivas’s petition for relief, the United States first argues that that
Rivas waived his right to challenge his conviction and sentence. “A defendant may validly
waive both his right to a direct appeal and his right to collateral review under § 2255 as
part of his plea agreement.” Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011).
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Such waivers are upheld and enforced with limited exceptions in cases in which (1) “the
plea agreement was involuntary,” (2) “the district court relied on a constitutionally
impermissible factor (such as race),” (3) “the sentence exceeded the statutory maximum,”
or (4) the defendant claims ineffective assistance of counsel in relation to the negotiation
of the plea agreement. Id. (internal quotations omitted).
The United States has shown that Rivas’s waiver of his appellate rights must be
enforced in every respect except for his argument that his counsel was ineffective in the
negotiation of the plea agreement. First, Rivas has failed to show that his Plea Agreement
was not knowing or voluntary. In fact, Rivas testified at the Guilty Plea Hearing that his
plea was knowing and voluntary:
THE COURT: All right. Are you fully satisfied with the counsel,
representation and advice given to you in this case by your attorney, Ms.
Robinson?
THE DEFENDANT: Yes, sir.
Plea Hearing Tr. 5.
THE COURT: On page 8, sir, it says you’ve read the entire plea
agreement and discussed it with your attorney. I assume you did that with
an interpreter. Is that true?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand all the terms of the plea agreement, and
do those terms correctly reflect the results of plea negotiations?
THE DEFENDANT: Okay.
THE COURT: Are you freely and voluntarily pleading guilty in this case?
THE DEFENDANT: Yes, sir.
Plea Hearing Tr. 13.
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Rivas further has not shown, or even argued, that the Court relied on an
impermissible factor or that sentence he received exceeded the statutory maximum.
Rivas’s arguments that his counsel was ineffective in negotiating the plea are discussed
below.
B. Ineffective Assistance of Counsel
Rivas argues that the waiver provisions of his plea agreement are inapplicable to
his claims because his counsel was ineffective in the negotiation of the plea agreement.
A petitioner claiming ineffective assistance of counsel bears the burden of showing (1)
that trial counsel’s performance fell below objective standards for reasonably effective
representation and (2) that this deficiency prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 688–94 (1984); United States v. Jones, 635 F .3d 909, 915
(7th Cir. 2011). To satisfy the first prong of the Strickland test, the petitioner must direct
the Court to specific acts or omissions of his counsel. Wyatt v. United States, 574 F.3d
455, 458 (7th Cir. 2009). The Court must then consider whether in light of all of the
circumstances counsel’s performance was outside the wide range of professionally
competent assistance. Id. Rivas argues that his counsel was ineffective for failing to file
a notice of appeal, failing to inform him of the consequences of pleading guilty, and in
negotiating the plea agreement and failing to argue for certain sentencing departures.
1. Failure to File Notice of Appeal
Rivas asserts that his attorney failed to file a timely notice of appeal and did not
explain the appellate process to him. But Rivas has not demonstrated that he even
directed his counsel to appeal. In addition, as previously explained, because Rivas’s plea
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was voluntary, the waiver of appeal must be enforced. Nunez v. United States, 546 F.3d
450, 454 (7th Cir. 2008); United States v. Wenger, 58 F.3d 280 (7th Cir. 1995). In other
words, “[o]nce a defendant has waived his right to appeal not only in writing but also in
open court under Rule 11(b)(1)(N), the sixth amendment does not require counsel to
disregard the waiver.” Id. at 456. At the Guilty Plea Hearing, Rivas expressed his
understanding that he was waiving his right to appeal or otherwise challenge his
conviction and sentence.
THE COURT: Paragraph 11 says you understand that you do have a
statutory right to appeal the conviction and the sentence imposed and the
manner in which the sentence was determined; and acknowledging that
right and in exchange for the concessions made by the United States in the
plea agreement, you expressly waive your right to appeal on any ground -appeal your conviction on any ground; and you waive your right to appeal
the sentence imposed, including the right to appeal conferred by Title 18
United States Code, Section 3742, as long as the sentence is within the
range set forth by an offense level of 21 and whatever criminal history
category you have. Do you understand that?
THE DEFENDANT: Yes, I understand.
THE COURT: So if I sentence you within that level 21 and whatever your
criminal history is, you waive all these appellate rights. Do you understand
that?
THE DEFENDANT: I understand.
THE COURT: Including the rights conferred upon you by Title 28 United
States Code, Section 2255. Do you understand that?
THE DEFENDANT: Yes, sir.
Plea Hearing Tr. 11-12. In short, in his Plea Agreement, Rivas waived his appellate rights.
He has therefore failed to show that his counsel was ineffective for failing to appeal.
2. Failure to Explain Plea Waiver
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Rivas next argues that his attorney was ineffective for allowing the plea waiver to
become part of his Plea Agreement. He states that the waiver was never fully and
thoroughly explained and if it had been explained, he would not have entered into the
Plea Agreement. But Rivas testified to the contrary at his plea hearing. He stated at the
change of plea hearing that he read the plea agreement with his attorney before he signed
it and that he was satisfied his attorney’s representation of him. Plea Hearing Tr. 5.
To the extent that Mr. Rivas argues that the plea waiver or the consequences of
pleading guilty were never thoroughly explained to him, he testified under oath that he
understood the consequences of the plea waiver. Plea Hearing Tr. at 11-12. “[A]
defendant is normally bound by the representations he makes to a court during the
colloquy.” Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010). “The
presumption of verity [of a defendant’s statements in pleading guilty] is overcome only if
the defendant ‘satisfies a heavy burden of persuasion.’” United States v. Logan, 244 F.3d
553, 558 (7th Cir. 2001). Rivas has not met that burden here. Accordingly, he is not
entitled to relief based on his argument that he was not aware of the consequences of
the appeal waiver.
3. Failure to Argue for Sentencing Departures
Mr. Rivas also argues that his counsel was ineffective because he believes he
should have received a lower sentence based on possible downward variances for
“cultural assimilation” and under a “Fast-Track” program. But Rivas provides no argument
or evidence whatsoever to show that, in sentencing him, this Court would have given him
a departure for “cultural assimilation.” Similarly, Rivas’s undeveloped argument fails to
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show that he would have been entitled to a downward departure based on the “FastTrack” program. One requirement of a “Fast-Track” program is that a defendant promptly
plead guilty. See United States v. Ramirez, 675 F.3d 634, 641 (7th Cir. 2011), as
amended on denial of reh’g (Mar. 15, 2012). Here, Rivas did not plead guilty for nearly
three years. He has not provided any argument or evidence to show why he delayed so
long in pleading guilty or that this delay would not have caused him to be ineligible for a
“Fast-Track” departure.
Moreover, when he signed the Plea Agreement, Rivas agreed to submit to
whatever sentence the Court imposed. Rivas affirmed his understanding that “if the Court
decides to impose a sentence higher or lower than any recommendation of either party,
or determines a different advisory sentencing guideline rang applies in this case, or
decides to impose a sentence outside of the advisory sentencing guideline range for any
reason, then [he] will be . . . bound by his plea of guilty.” Plea Agreement at 2-3. Rivas
therefore has not shown that his counsel was ineffective for failure to argue for downward
departures based on “cultural assimilation” or a “Fast-Track” program.
III. Conclusion and Certificate of Appealability
For the reasons explained above, Rivas is not entitled to relief on his § 2255
motion. There was no ineffective assistance of counsel and his sentence is not
unconstitutional. Accordingly, his motion for relief pursuant to § 2255 is denied and this
action is dismissed with prejudice. Judgment consistent with this Entry shall now issue
and a copy of this Entry shall be docketed in No. 1:10-cr-37-LJM-DML-1.

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Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing § 2255 proceedings, and 28 U.S.C. § 2253(c), the Court finds that Rivas has
failed to show that reasonable jurists would find “it debatable whether the petition states
a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). The Court therefore denies a certificate of appealability.
IT IS SO ORDERED.

May 4, 2016
Date: _________________

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Jose Rivas-Hernandez
10877-028
Sheridan FCI
PO Box 5000
Sheridan, OR 5000
All electronically registered counsel

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