Rivera v. United States of America

Filing 5

ORDER: Accordingly, Rivera's First and Third Motions to Amend are GRANTED. Rivera's Second Motion to Amend is DENIED. The Government shall respond to the amended petition no later than February 21, 2020. Rivera may file a reply no later than March 13, 2020. SO ORDERED. ( Replies due by 3/13/2020.) (Signed by Judge Kimba M. Wood on 1/29/2020) (va)

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DOCUMENT
ELECTRONICALLY FILED
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DATE FILED:
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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JESUS RIVERA,

16-CV-5238 (KMW)

Petitioner,

13-CR-424 (KMW)

-againstUNITED STATES OF AMERICA,

ORDER

Respondent.

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KIMBA M. WOOD, United States District Judge:
Pending before the Court are three motions to amend Jesus Rivera' s petition to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255 . 1
Rivera filed his first motion to amend his Section 2255 petition through counsel on
January 30, 2019. (ECF No. 74.) 2 In this motion, Rivera seeks to add a claim that he did not
understand the nature of the charges against him at the time of his plea. ("First Motion to
Amend," ECF No. 74.)
On November 19, 2019, Rivera filed a pro se motion to amend, arguing that his charged
conduct fell under 18 U.S.C. § 924(c), rather than 18 U.S.C. § 924(j), the offense to which he
pleaded guilty. Rivera claims that he therefore actually pleaded guilty to a Section 924(c)
violation-notwithstanding his formal plea to a Section 924(j) violation. (" Second Motion to
Amend," ECF No. 87.) He argues that his sentence was improper and barred by the statute of
limitations applicable to Section 924( c) and his counsel was ineffective for failing to object to
the imposition of the sentence on those grounds .

1

On June 8, 2018, Rivera filed two Section 2255 petitions- one through coun sel and one prose. The Court treats
these separate filings as a single petition for present purposes.
2 All ECF citations refer to the crimittal docket, United States v. Rivera, 1; 1;3 -cr-00424 (KMW).

1

On January 9, 2019, Rivera filed, through counsel, a third motion to amend. ("Third
Motion to Amend," ECF No. 88.) 3

In this motion, Rivera argues that the attempted robbery

predicate for his conviction under 18 U.S.C. § 924G)-which establishes penalties for causing
death in the course of a crime of violence involving a firearm-qualifies as a crime of violence
only under the residual clause of 18 U.S.C. § 924(c). And because the Supreme Court held that
residual clause void for vagueness in United States v. Davis, 139 S. Ct. 2319 (2019), Rivera's
conviction is without a predicate and must be vacated.
Motions to amend Section 2255 petitions are governed by Rule 15(a) of the Federal Rules
of Civil Procedure. See Littlejohn v. Artuz, 271 F.3d 360, 362 (2d Cir. 2001). Rule 15(a)
instructs courts to "freely give leave [to amend] whenjustice so requires." Fed. R. Civ. P.
15(a)(2). "A district court has discretion to deny leave for good reason, including futility, bad
faith, undue delay, or undue prejudice to the opposing party." McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184,200 (2d Cir. 2007).

The Government has not objected to Rivera's motions to amend. The Court finds that the
interests of justice are served by granting Rivera's First and Third Motions to Amend. Rivera's
Second Motion to Amend is without merit and would be futile; regardless of whether Rivera's
plea was proper, it was a plea to a Section 924(i) violation, and not, as his motion contends, a
Section 924(c) violation.

3

This filing is captioned "Second Motion to Amend ." Counting Rivera's prose motion to amend, however, it is the
third.

2

Accordingly, Rivera's First and Third Motions to Amend are GRANTED. Rivera' s
Second Motion to Amend is DENIED. The Government shall respond to the amended petition
no later than February 21, 2020. 4 Rivera may file a reply no later than March 13 , 2020.
SO ORDERED.
Dated: New York, New York
January 'M, 2020
KIMBA M. WOOD
United States District Judge

4

In its Opposition to Rivera's 2255 petition, the Government requested that, if the Court were to direct Rivera' s
previous counsel to submit affidavits addressing their alleged ineffectiveness, the Government be permitted to
submit additional briefing in response. (ECF No . 62.) The Court did order and receive affidavits from Rivera 's
previous counsel. (ECF Nos . 76, 77 .) The Government may address these affidavits in its response to the amended
petition.

3