Mateo-Rivera v. United States of America

Filing 20

MEMORANDUM AND OPINION, For the reasons set forth herein, Petitioner's applications for a writ of habeas corpus pursuant to 28 USC sec. 2255 are DENIED. Because Petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 USC sec. 2253(c). The Clerk of the Court is directed to close this case. (Ordered by Judge Sterling Johnson, Jr on 7/11/2014) c/m (Galeano, Sonia)

SROOL<LYN

OEEICE

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JOSE ROBERTO MATEO-RIVERA,
03 CR 157 (SJ)

Petitioner,

10 CV 2773 (SJ)

- against -

12 CV 3797 (SJ)
MEMORANDUM &
ORDER
UNITED STATES OF AMERICA,

Respondent.

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APPEARANCES:
LORETTA E. LYNCH
United States Attorney, EDNY
271 Cadman Plaza East
Brooklyn, New York 11201
By:
Anthony M. Capozzolo
Attorneys for the United States
JOSE ROBERTO MATEO-RIVERA, Pro Se
Inmate No. 61463-053
Federal Correctional Institution Loretto
P.O. Box 1000
Loretto, PA 15940

JOHNSON, Senior District Judge:
On June 14, 2010, and subsequently on July 25, 2012, Petitioner Jose
Roberto Mateo-Rivera ("Petitioner"), acting pro se, petitioned this Court pursuant
to 28 U.S.C. § 2255 ("Section 2255") to vacate, set aside, or correct his sentence.
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The Government opposes both petitions.

For the following reasons, the Petitions

are DENIED.

BACKGROUND
On February 10, 2003, Petitioner was charged in a three-count indictment
with two counts of conspiracy to distribute cocaine and one count of possession
with intent to distribute cocaine. On March 13, 2003, Petitioner was released on an
unsecured $250,000 bond with the government's consent pursuant to a cooperation
agreement. On March 17, 2003, Petitioner pled guilty before Magistrate Judge
Marilyn D. Go pursuant to the Cooperation Agreement to one count of conspiracy
to distribute over five kilograms of cocaine, which carries a 10 year mandatory
minimum sentence.
At the plea hearing before Magistrate Judge Go, Petitioner testified under
oath that he had discussed the Cooperation Agreement with his lawyer, that he was
satisfied with his lawyer's representation, that he understood the Agreement, and
that the signature on the signature line was his own. (Mateo-Rivera Plea Transcript
at 7, 11.) Magistrate Judge Go advised the Petitioner that, by pleading guilty to the
offense, "if the guideline range were to be applied in this case, it would exceed the
statutory ten year minimum." (Mateo-Rivera Plea Transcript at 15.) The Petitioner
responded in the affirmative, indicating that he understood. (Mateo-Rivera Plea
Transcript at 15.)
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Thereafter, approximately one week after he pled guilty, Petitioner fled to
the Dominican Republic. He was arrested on July 13, 2005 and extradited to the
United States on December 1, 2005. On November 30, 2007, this Court sentenced
the Petitioner to 188 months in prison followed by 5 years of supervised release.
Petitioner appealed his conviction on the grounds that his sentence was
procedurally and substantively unreasonable, and that he received ineffective
assistance of counsel at both his plea and his sentence.

The Second Circuit

affirmed his conviction on April 22, 2009. United States v. Mateo-Rivera, 314 F.
App'x 364 (2d Cir. 2009).
On June 14, 2010, Petitioner commenced this action pursuant to 28 U.S.C. §
2255 (assigned docket number 10-cv-2773), arguing (1) the invalidity of his guilty
plea; (2) the lack of factual basis to support the conviction; (3) that the grand jury
lacked jurisdiction; and (4) ineffective assistance of counsel ("2010 Petition"). The
government responded on October 8, 2010 ("Gov't Letter of 10/8/2010").
On July 25, 2012, Petitioner submitted a second Petition (assigned docket
number 12-cv-3797), contending that his counsel, Salvador Collazo, was
ineffective at plea bargaining because Mr. Collazo had been arrested and charged
with immigration fraud in 2010 in the Southern District of New York.

The

government responded on June 16, 2014 ("Gov't Letter of 6/16/2014").
Because Petitioner's original habeas petition is still open, and because the
July 25, 2012 motion contains allegations that relate back to the original filing, the
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1

Court treats the July 25, 2012 motion as an amendment to the Petition, and has
2

therefore transferred all documents pertaining to this motion to docket 10-cv-2773 .

DISCUSSION
Petitioner's allegations throughout his filings amount to essentially three
claims: (A) that his guilty plea was invalid; (B) that he suffered from ineffective
assistance of counsel; and (C) that the grand jury lacked jurisdiction to indict him
in the Eastern District of New York.

A. Validity of Petitioner's Guilty Plea

Petitioner's arguments concerning the validity of his guilty plea fail because
the Second Circuit has already considered Petitioner's claim.

As the Circuit

explained in Yick Man Mui v. United States, with the exception of ineffective
assistance of counsel claims, "the so-called mandate rule bars re-litigation of issues
already decided on direct appeal." 614 F.3d 50, 56 (2d Cir. 2010) (citing Burrell v.
United States, 467 F.3d 160, 165 (2d Cir. 2006) and United States v. Minicone, 994
F.2d 86, 89 (2d Cir.1993)).
Here, the Second Circuit specifically found:

1

Petitioner's July 25, 2012 will herein be referred to as the "2012 Amendment."

2

The Second Circuit has held that a habeas petition submitted during the pendency of an initial §
2255 motion should be construed as a motion to amend the initial motion. Ching v. United States,
298 F.3d 174, 175 (2d Cir. 2002); see also Grullon v. Ashcroft, 374 F.3d 137, 140 (2d Cir. 2004).

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At Mateo-Rivera's plea, however, the court specifically advised
him about the nature of the crime of conspiracy, and Mateo-Rivera
stated that he understood that he was pleading guilty to
"distribut[ing] and to possess[ing] with the intent to distribute, a
substance containing cocaine in an amount of five kilograms or
more." He has thus failed to demonstrate that his guilty plea to
conspiracy was not made knowingly with an understanding of the
consequences.
United States v. Mateo-Rivera, 314 F. App'x 364, 366 (2d Cir. 2009). Because "a
§ 2255 petition cannot be used to 'relitigate questions which were raised and
considered on direct appeal,'" Petitioner's claim that his plea was invalid fails.
United States v. Pitcher, 559 F.3d 120, 123 (2d Cir. 2009) (quoting United States v.
Sanin, 252 F.3d 79, 83 (2d Cir. 2001)~ see also Douglas v. United States, 13 FJd
43, 46 (2d Cir. 1993) ("[A]ny claim raised by [petitioner] ... that was also raised ..
. on direct appeal of his conviction is precluded from consideration by this Court.").

B. Ineffective Assistance of Counsel
As discussed above, the procedural-bar rule does not apply to claims of
ineffective assistance of counsel. Petitioner asserts a number of claims under this
rubric. In sum, Petitioner asserts that his attorney, Mr. Salvador Collazo: (1) was
ineffective during plea negotiations (2010 Petition at 5-6); and (2) failed to
represent Petitioner's best interest because of Mr. Collazo's own criminal
investigation and ultimate conviction. (2012 Amendment at 6.)
"In all criminal prosecutions, the accused shall enjoy the right ... to have
the Assistance of Counsel for his defence." U.S. Const. amend VI. In Strickland v.
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Washington, the Supreme Court established a two-part test to determine whether a
counsel's assistance was ineffective. 466 U.S. 668 (1984). Under the Strickland
test, a petitioner must show: (i) "that counsel's representation fell below an
objective standard of reasonableness" under "prevailing professional norms"; and
(ii) that counsel's performance prejudiced his defense. Id. at 688, 692.
In order to satisfy the first Strickland prong, a petitioner must overcome the
/ strong presumption that counsel's action or inaction falls "within the wide range of
reasonable professional assistance." Id. at 689. When evaluating the counsel's
performance, a petitioner may not rely on "the distorting effects of hindsight,"
rather, the court must examine the circumstances of the counsel's viewpoint at the
time. Id. at 689. A counsel must also "be afforded wide latitude in determining
litigation strategy." Wing Lee Woo v. United States, No. OO-cv-2389 (DGT), 2007
WL 3034210, at *5 (E.D.N.Y. Oct. 15, 2007) (citing Henry v. Poole, 409 F.3d 48,
63 (2d Cir. 2005)).
In order to satisfy the second Strickland prong, a petitioner must
"affirmatively prove prejudice," by showing that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the case would have been
different.

Strickland, 466 U.S. at 693-94.

"A reasonable probability is a

probability sufficient to undermine confidence in the outcome." Id. at 694.

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(1) Plea Negotiations
Petitioner's claim that his attorney was ineffective during plea negotiations
is procedurally barred because this exact claim was raised on direct appeal. (See
Petitioner's Appellate Brief at 22.)
The Second Circuit has specifically held that "the only barrier to raising
ineffective assistance claims in a Section 2255 proceeding after raising such claims
on direct appeal is the mandate rule, i.e., strategies, actions, or inactions of counsel
that gave rise to an ineffective assistance claim adjudicated on the merits on direct
appeal may not be the basis for another ineffective assistance claim in a Section
2255 proceeding."

Yick Man Mui, 614 F.3d at 57. "[P]urporting to consider the

merits of repackaged claims that were rejected on the merits during direct review
would be a waste of scarce judicial resources." Beras v. United States, No. 05-cv2678, 2013 WL 1155415 (S.D.N.Y. Mar. 20, 2013).
Here, the Second Circuit specifically ruled that Petitioner's counsel was not
ineffective during plea negotiations:
Mateo-Rivera argues that he received ineffective assistance of
counsel at both his plea and sentence. But the record demonstrates
that Mateo-Rivera's bilingual counsel made numerous visits to
Mateo-Rivera while he was incarcerated and discussed the plea
and its repercussions with him. . . We therefore do not conclude
that there were "errors so serious that counsel was not functioning
as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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United States v. Mateo-Rivera, 314 F. App'x 364, 366 (2d Cir. 2009)
The grounds for Petitioner's claim present exact rearticulations of claims
that were rejected on the merits during Petitioner's direct appeal. Therefore, this
specific claim is barred.

(2) Criminal Investigation and Subsequent Conviction of Petitioner's
Attorney
Petitioner further claims, based on recently obtained information, he
discovered that his attorney was charged and convicted of immigration fraud.
(2012 Amendment, Movant Affirm. at 7.) This, Petitioner explains, caused him to
be "duped" into pleading guilty pursuant to an "unfavorable agreement." Id. To
show that his attorney's deficiency caused prejudice, a petitioner "must show that
there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland, 466 U.S. at 694.
As the Government explains in its letter dated June 16, 2014, Petitioner's
counsel was not under investigation until approximately August 2007, which would
not and could not have affected a plea taken in 2003. Furthermore, Petitioner's
counsel submitted an affidavit directly contradicting Petitioner's claims. According
to counsel, Petitioner expressed a desire to cooperate with the government and "be
out on the street." (Aff. of Salvador Collazo, Govt.'s Opp. at Exhibit C, iii! 14-15.)
Counsel was thereafter successful, negotiating Petitioner's release from custody.
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Even if the investigation had been occurring at the time of negotiations, the
plea hearing made very clear that Petitioner understood his rights and was satisfied
with his attorney. The following exchange took place with respect to Petitioner's
attorney:
The Court:

Are you fully satisfied with your attorney and the
assistance he has given you thus far in this matter?

Petitioner:

Yes.

(Mateo-Rivera Plea Transcript at 7.) With respect to the Cooperation Agreement
and sentencing, the following exchange took place:
The Court:

Does the agreement as written, fully and accurately
reflect your understanding of the agreement that you
reached with the government?

Petitioner:

Yes.

The Court:

Has anyone made any promises as to what your
sentence will be?

Petitioner:

No.

The Court:

The statute you are accused of violating in count one
of the indictment provides for a minimum term of
imprisonment of ten years and a maximum term of
life .... Do you understand?

Petitioner:

Yes.

(Mateo-Rivera Plea Transcript at 12-13.)

Thereafter, Magistrate Judge Go

specifically addressed the sentencing range pursuant to his plea of guilty, should he
fail to meet the requirements of cooperation: "if the guideline range were to be
applied in this case, it would exceed the statutory ten year minimum." (Mateo9
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Rivera Plea Transcript at 15.) Both Petitioner and Petitioner's Counsel responded
in the affirmative, indicating their agreement with Magistrate Judge's assertion.
(Mateo-Rivera Plea Transcript at 15.)
The Court finds that Petitioner's allegations in his motion are unsupported
by the Cooperation Agreement and the plea hearing.

Counsel negotiated a

cooperation agreement with the government that allowed Petitioner to be released,
and which could have resulted in the government's submission of a letter pursuant
to U.S.S.G. § 5Kl.1, allowing a sentence below the sentencing guideline range.
Instead, a week after pleading guilty, Petitioner fled the country, leading to
additional sentencing related enhancements.

Furthermore, Petitioner's counsel,

who was bilingual, "made numerous visits to [Petitioner] while he was incarcerated
and discussed the plea and its repercussions with him." Mateo-Rivera, 314 F.
App'x at 366.
Petitioner has failed to establish that the 2010 criminal conviction of his
attorney affected his 2003 plea. Counsel's actions were wholly reasonable during
plea negotiations, and Petitioner has not shown that he suffered any prejudice
relating to his attorney's later conviction.

C. Petitioner's Venue Claim
1. Procedural Bar

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Petitioner's arguments concerning venue are procedurally barred because he
did not raise them on direct appeal. Relief under Section 2255 "is an extraordinary
remedy," not a substitute for a direct appeal. See Bousley v. United States, 523
U.S. 614, 621 (1998). As a result, claims made under Section 2255 that were not
raised on direct appeal are procedurally barred by default. See id. at 621-22;
Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). Procedural default "is
particularly appropriate where, as here, the [petitioner] pled guilty" because of the
heightened concern for finality. Rosario v. United States, 164 F.3d 729, 732 (2d
Cir. 1998) (citing United States v. Timmreck, 441 U.S. 780, 784 (1979)).
A habeas petitioner who has defaulted in this way can avoid the procedural
bar only if he "can first demonstrate either cause and actual prejudice or that he is
actually innocent." Id. at 622 (internal citations and quotation marks omitted). To
demonstrate cause for failure to raise a Section 2255 claim on direct appeal, a
petitioner must show that "some objective factor external to the defense" prevented
him from raising the claim on appeal, such as the factual or legal basis for the
argument not being available at the time of appeal, or interference by officials. See
Murray v. Carrier, 477 U.S. 478, 488 (1986). Significantly, under Massaro v.
United States, this procedural-bar rule does not apply to claims of ineffective
assistance of counsel. 538 U.S. 500, 504 (2003) (abrogating Billy-Eko v. United
States, 8 F.3d 111 (2d Cir. 1993)); see also Yick Man Mui, 614 F.3d at 54.

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II

I

To show prejudice, a petitioner must show "actual and substantial
disadvantage," not merely the possibility of prejudice. Id. (quoting United States v.
Frady, 456 U.S. 152, 170 (1980)). Finally, to show actual innocence, a petitioner
must show "factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at
623.
Petitioner writes that he did not raise the venue claim in his direct appeal
because "the movant was represented by an attorney."

(2010 Petition at 10.)

Construing this argument liberally, given Petitioner's pro se status, see Williams v.
Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983), the Court understands Petitioner to
be arguing that his appeal counsel was ineffective in failing to raise the venue issue
on appeal and, therefore, that he has shown cause for failure to raise these issues on
direct appeal. It is well-established, however, that "[t]he failure to include a
meritless argument does not fall outside the wide range of professionally competent
assistance to which Petitioner was entitled." Aparicio v. Artuz, 269 F.3d 78, 99 (2d
Cir. 2001) (internal quotation marks omitted); see also Duarte v. United States, 289
F.Supp.2d 487, 491-92 (S.D.N.Y.2003). As discussed infra, Petitioner's arguments
concerning venue are meritless, therefore his lawyer's failure to raise them on
appeal does not constitute ineffective assistance of counsel and Petitioner has not
established cause to excuse this procedural default. See Murray, 477 U.S. at 488. In
addition, Petitioner has made no showing of prejudice, nor has he argued, in any of
his numerous filings currently before the Court, that he is actually innocent.
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2. Waiver
Even if Petitioner's venue claim was not procedurally barred, Petitioner
waived his objection to venue by way of his guilty plea. It is well-established that
"a defendant who knowingly and voluntarily enters a guilty plea waives all
nonjurisdictional defects in the prior proceedings." Lebowitz v. United States, 877
F .2d 207, 209 (2d Cir.1989). Because "[v ]enue is not jurisdictional," United States
v. Calderon, 243 F.3d 587, 590 (2d Cir. 2001), a valid guilty plea is a waiver of any
challenge to venue. Id. As discussed supra, both this Court and the Second Circuit
have determined that Petitioner's plea was valid, thus his venue claim fails. United
States v. Mateo-Rivera, 314 F. App'x 364 (2d Cir. 2009).

D. Remaining Claims
The Court has considered all remaining arguments.

To the extent not

specifically addressed above, the remaining arguments are either moot or without
merit.

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CONCLUSION
For the reasons set forth above, Petitioner's applications for a writ of habeas
corpus pursuant to 28 U.S.C. § 2255 are DENIED. Because Petitioner has failed to
make a substantial showing of the denial of a constitutional right, a certificate of
appealability will not issue. See 28 U.S.C. § 2253(c). The Clerk of the Court is
directed to close this case.

SO ORDERED.
Dated: Julyl 1, 2014
Brooklyn, New York

_
/if

U-S DJ

/Ster~ Johnson, Jr., U.S.D.J.

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