Rivera-Ruiz v. USA
Filing
20
ORDER denying 8 Motion to Vacate under 28 U.S.C. § 2255 filed by Reynaldo Rivera-Ruiz. The Petition is hereby DISMISSED WITH PREJUDICE. Judgment shall be so entered. Signed by Judge Juan M Perez-Gimenez on 3/23/2012. (JG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
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*
*
*
v.
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*
*
UNITED STATES OF AMERICA,
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Respondent.
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__________________________________________*
REYNALDO RIVERA-RUIZ,
Petitioner,
CIVIL NO. 08-1609(PG)
RELATED CRIM. 06-253(PG)
OPINION & ORDER
Before the Court is Petitioner’s 28 U.S.C. Sec. 2255
Habeas Corpus Petition (D.E.8),1 and his Memorandum in
Support thereof (D.E. 11). Respondent filed a Response to
the Petition (D.E.15).
Petitioner filed a Motion for
Extension of Time to Reply to the Government’s Response2
(D.E. 18) and was granted until November 7, 2011, to file
said reply (D.E. 19).
been filed.
To date no Reply or other motion has
For the reasons discussed below, the Court
finds the Petition shall be DENIED and the request for
evidentiary hearing is also DENIED.
I. BACKGROUND
On August 10, 2006, Petitioner, Reynaldo Rivera-Ruiz
(hereinafter “Petitioner” or “Rivera-Ruiz”) and seventeen
(17) additional co-defendants were indicted by a Federal
1
2
D.E. is an abbreviation of docket entry number.
The Motion for Extension of Time was filed on October 7,
2011(D.E. 18).
Civil No. 08-1609(PG)
Page 2
Grand Jury (Crim. D.E. 2).3
Petitioner was specifically
charged in all five (5) counts of the Indictment.
Count One (1) charged: Beginning in or about August of
2005, and ending in or about November of 2005, in the
District of Puerto Rico, St. Thomas, United States Virgin
Islands,
St.
British
Virgin
elsewhere
and
Marteen,
Netherlands
Islands,
within
Rivera-Ruiz
and
his
defendants
herein,
Colombia,
the
Dominican
jurisdiction
seventeen
did
Antilles,
(17)
knowingly
of
Tortola,
Republic,
this
Court,
co-defendants,
and
the
intentionally,
combine, conspire, confederate and agree together with each
other, and with other persons known and unknown to the
grand jury, to commit the following offense against the
United States: to import into the customs territory of the
United
States,
from
places
outside
thereof,
five
(5)
kilograms or more of cocaine, a Schedule II, Narcotic Drug
Controlled Substance, in violation of Title 21, United
States Code, Section 952(a).
All in violation of Title 21,
United States Code, Section 963 (Crim.D.E. 2).
Count Two (2) charges: Beginning in or about August of
2005, and ending in or about November of 2005, in the
District of Puerto Rico, St. Thomas, United States Virgin
Islands,
St.
Marteen,
Netherlands
Antilles,
Tortola,
British Virgin Islands, Colombia, the Dominican Republic,
elsewhere, and within the jurisdiction of this Court,
3
Crim.D.E. is an abbreviation of criminal docket entry.
Civil No. 08-1609(PG)
Page 3
Rivera-Ruiz and his seventeen (17) co defendants, the
defendants herein, did knowingly and intentionally combine,
conspire, confederate and agree together with each other,
and with other persons known and unknown to the grand jury,
to commit the following offense against the United States:
to possess with intent to distribute five (5) kilograms or
more of cocaine, a Schedule II, Narcotic Drug Controlled
Substance, in violation of Title 21, United States Code,
Section 841(a)(1).
All in violation of Title 21, United
States Code, Section 846 (Crim. D.E.2).
Count Three (3) charges: On or about November 17, 2005,
in the District of Puerto Rico, elsewhere and within the
jurisdiction of this Court, Rivera-Ruiz and his seventeen
(17)
co
defendants,
the
defendants
herein,
aided
and
abetted by each other, and other persons known and unknown
to the grand jury, did knowingly and intentionally import
into the customs territory of the United States, from a
place
outside
thereof,
five
(5)
kilograms
or
more
of
cocaine a Schedule II, Narcotic Drug Controlled Substance,
in violation of Title 21, United States Code, Section
952(a)
and
Title
18,
United
States
Code,
Section
2
(Crim.D.E. 2).
Count Four (4) charges: On or about November 17, 2005,
in the District of Puerto Rico, elsewhere, and within the
jurisdiction of this Court, Rivera-Ruiz and his seventeen
(17)
co
defendants,
the
defendants
herein,
aided
and
abetted by each other, and other persons known and unknown
Civil No. 08-1609(PG)
Page 4
to the grand jury, did knowingly and intentionally possess
with intent to distribute five (5) kilograms or more of
cocaine, a Schedule II, Narcotic Drug Controlled Substance,
in violation of Title 21, United States Code, Section
841(a)(1) and Title 18, United States Code, Section 2.
Count Five (5) is a forfeiture count (Crim. D.E. 2).
On August 28, 2007, Rivera-Ruiz’s Motion for Change of
Plea was filed (Crim.D.E. 202).
On August 31, 2007,
Rivera-Ruiz’s Change of Plea Hearing was held (Crim.D.E.
216).
Rivera-Ruiz entered a plea of guilty to count one
(1) of the Indictment as charged4 (Crim.D.E. 216).
On
December 13, 2007, Petitioner’s Sentencing Hearing was held
(Crim.D.E.
319).
The
Court
followed
the
parties
recommendation in the Plea Agreement and sentenced RiveraRuiz to a term of imprisonment of one hundred and twenty
(120) months as to count one (1) of the Indictment, a term
of Supervised Release of five (5) years and a Special
Monetary Assessment of one hundred (100) dollars, the
remaining counts would be dismissed upon request by the
United States, (Crim. D.E. 319).
Judgment was entered on
December 19, 2007 (Crim.D.E. 320).
As per the terms and conditions of the Plea Agreement
Rivera-Ruiz waived his right to appeal and therefore his
4
Petitioner plead guilty pursuant to the terms and conditions
of a Plea Agreement entered into with the United States. The same
was a Rule 11 (c)(1)(A) & (B) Plea Agreement. In which given
certain conditions Petitioner waived his right to appeal (Crim D.E.
217).
Civil No. 08-1609(PG)
Page 5
conviction became final on December 29, 2007.5 Accordingly,
Rivera-Ruiz’s 2255 Petition filed on May 20, 2008, is
timely (D.E. 1).
II. DISCUSSION
In
his
2255
Petition
and
Supplemental
Memorandum,
Rivera-Ruiz raises the following allegations of ineffective
assistance of counsel: (1) counsel was ineffective in that
he failed to object to the legality of the Government’s
evidence
for
sentencing
purposes;
(2)
counsel
was
ineffective in that he failed to object to Petitioner’s
Criminal History Category as calculated in the Pre Sentence
Report; (3) counsel was ineffective in that he allowed
another attorney to represent Petitioner at his Change of
Plea Hearing; (4) counsel was ineffective in that he failed
to object to the amount of drugs charged in the conspiracy;
and (5) counsel was ineffective in that he provided faulty
advise to Petitioner which lead him to change his plea to
guilty (D.E. 11).
A
review
of
the
record
clearly
indicates
that
Petitioner’s claims are either meritless or simply wrong
therefore the same shall be DENIED by the Court.
5
Paragraph eighteen (18) of Petitioner’s Plea Agreement states
that if the Court accepted the agreement and sentenced Petitioner
according to its terms and conditions, then Rivera-Ruiz would waive
and surrender his right to appeal judgment and sentence (Crim.D.E.
217). At the sentencing hearing the Court accepted the Plea
Agreement and sentenced Rivera-Ruiz in accordance with the Plea
Agreement; therefore his right to appeal was waived; the Court so
informed Petitioner during sentencing (S. Hrg. Tr. at pages 8-9).
Civil No. 08-1609(PG)
Page 6
Ineffective Assistance of Counsel Standard
The standard for an ineffective assistance of counsel
claim is whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial
cannot be relied upon as having produced a just result
Strickland v. Washington, 466 U.S. 668 (1984). In order to
succeed in a claim of ineffective assistance of counsel
Rivera-Ruiz must show both incompetence and prejudice: (1)
Petitioner must show that counsel’s representation fell
below an objective standard of reasonableness, and (2)
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, Darden v.
Wainwright, 477 U.S. 168 (1986), Lockhart v. Fretwell, 506
U.S. 364 (1993).
Petitioner fails to meet this standard
and the record so reflects it.
Failure to object to the legality of the Government’s
evidence for sentencing purposes & failure to object to
Petitioner’s Criminal History as calculated in the Pre
Sentence Report (issues one (1) and two (2)).
The
first
two
allegations
counsel
by
raised
Petitioner
as
deal
ineffective
assistance
of
with
transpired
during Rivera-Ruiz’s sentencing hearing.
what
The
Court will therefore discuss them jointly.
In Petitioner’s memorandum in support of his 2255
petition, Rivera-Ruiz makes two allegations of ineffective
assistance of counsel regarding his sentencing hearing.
The first is what the Court deems a catch all phrase
Civil No. 08-1609(PG)
Page 7
created by Petitioner in which he states that his counsel
failed
to
object
to
the
legality
evidence for sentencing purposes.
further
explanation
on
the
evidence he is referring to.
of
the
Government’s
Rivera-Ruiz provides no
matter
nor
indicates
what
As such it is a blanket
allegation which will not be entertained by the Court.
Petitioner’s second allegation regarding his sentencing
hearing relates to his Criminal History Category of III.
Rivera-Ruiz alleges that his counsel was ineffective in his
failure to object to the Pre Sentence Report determination
of a Criminal History Category of III based on his prior
1993 state conviction.
This, according to Petitioner,
should not have been used in calculating his Criminal
History Category due to the fact that it was more than ten
(10) years old (D.E.11 at pp. 13-14).
A review of the record indicates that Petitioner is
mistaken in his allegation.
The fact is that the Probation
Officer did not use Rivera-Ruiz’s prior state conviction of
1993 in arriving at a Criminal History Category of III.
The Pre Sentence Report lists his arrest related to his
1993 conviction but he is given zero (0) points for the
1993 conviction (PSR at p. 9).
Rivera-Ruiz’s Criminal History Category III is a result
of his own prior illicit activities not of an ineffective
Civil No. 08-1609(PG)
Page 8
assistance of counsel.6 This is not the case of a first time
offender but that of an individual who is quite familiar
with the legal system due to his colorful past.
Petitioner’s
allegations
of
ineffective
Hence,
assistance
of
counsel relating to sentencing (allegations one and two)
are meritless and contrary to the record and therefore are
DENIED.
Counsel was ineffective in that he allowed another attorney
to represent Petitioner at his Change of Plea Hearing
Rivera-Ruiz’s
assistance
of
third
counsel
allegation
relates
to
of
his
ineffective
Change
of
Plea
Hearing. Petitioner contends that his retained counsel was
ineffective in that on the day of the Change of Plea
Hearing Rivera-Ruiz’s retained counsel sent a substitute
counsel, without his prior knowledge or consent, whom he
did
not
know.
Petitioner
further
alleges
that
this
substitute counsel forced him to sign the Plea Agreement
and failed to provide him with any explanation of its
content.
Once
again
the
record
contradicts
Rivera-Ruiz.
Petitioner’s retained counsel was Antonio Bauza-Torres. At
his Change of Plea Hearing, Rivera-Ruiz was represented by
Rubin Morales-Rivera.
It is Morales-Rivera who Petitioner
states he did not know and who forced him to sign the Plea
6
The Court, as an example, notes that at the time of the
instant offense Rivera-Ruiz was on supervised release for a
sentence of 2011 (PSR at pag. 9).
Civil No. 08-1609(PG)
Page 9
Agreement.
A review of the transcript of the Change of Plea
Hearing paints a different picture.
The Court: Have you had enough time to consult
with your attorneys before this afternoon?
The Defendant: Yes, sir.
The Court: Are you satisfied with their services
up to know?
The Defendant: Yes, sir.
(Tr. COP of 8/31/2007 at p. 3)
From the get go the Court asked point blank if RiveraRuiz was satisfied with his attorney there beside him, and
the answer was yes.
Petitioner gave no indication to the
Court that he was clueless as to whom the attorney was.
Furthermore,
Petitioner
clearly
indicated
that
he
had
enough time to discuss the matter prior to the hearing with
his attorneys.
The Court: Did he [the attorney] explain to you
that the law provides a minimum of ten years, a
maximum of
life; a fine that could go up to
$4,000,000; a term of supervised release of at
least five years; and a $100 special monetary
assessment?
The Defendant: Yes, sir.
(Tr. COP of 8/31/2077 at p. 6)
Once again Rivera-Ruiz gave no indication to the Court
that he was unaware of the terms and conditions of the Plea
Civil No. 08-1609(PG)
Page 10
Agreement or that he was even remotely puzzled as to who
the attorney beside him is.
The Court: Has anybody threatened you in any way
to induce you to plead guilty?
The Defendant: No, sir.
The Court: Is anybody forcing you in anyway to
plead guilty?
The Defendant: No, sir.
The Court: Has anybody offered you any rewards or
other things of value to get you to plead guilty?
The Defendant: No, sir.
The Court: Has anyone made any predictions to you
as to what specific sentence I will impose?
The Defendant: No, sir.
The
Court: I have a document in front of me
entitled “Plea Agreement.”
This is an agreement
that you and your attorney have reached with the
attorney for the government.
Has your attorney
explained
not
to
you
that
I
am
part
of
the
with
an
agreement in this case?
The Defendant: Yes, sir.
(Tr. COP of 8/31/2007 at p. 7)
Again,
the
Court
provided
Petitioner
opportunity to say something as to his unwillingness to
sign the Plea Agreement or his discomfort with his counsel
and Rivera-Ruiz chose not to do so.
The Court: At paragraph 12 of the Plea Agreement
Civil No. 08-1609(PG)
Page 11
you represent to the Court that you are satisfied
with your attorney, Mr. Antonio Bauza and counsel
here
present,
effective
and
legal
that
assistance
they
to
have
you.
rendered
Is
that
correct?
The Defendant: Yes, sir.
(Tr. COP 8/31/2007 at p. 10)
Again Rivera-Ruiz gave absolutely no indication to the
Court of his dissatisfaction with his attorney.
Rivera-Ruiz
raised
an
allegation
of
ineffective
assistance of counsel that is not only unsubstantiated but
contrary
to
the
record.
Petitioner’s
allegation
of
ineffective assistance of counsel as to his substitute
attorney is hereby DENIED.
Counsel was ineffective in that he failed to object to the
amount of drugs charged in the conspiracy
Rivera-Ruiz’s fourth allegation relates to the amount
of drugs charged versus the amount he was held responsible
for.
Petitioner contends that his counsel was ineffective in
his failure to object to the amount of drugs used in his
Pre Sentence Report.
He alleges that the amount
of
cocaine used to calculate his base offense level in his Pre
Sentence Report is higher than that which was charged;
which resulted in a higher base offense level and therefore
a higher sentence.
Rivera-Ruiz
is
mistaken.
Count
One
(1)
of
the
Civil No. 08-1609(PG)
Page 12
Indictment, which Petitioner pled guilty to, charges him
and seventeen co defendants with conspiracy to import into
the United States five (5) kilograms or more of cocaine
(Crim.D.E. 2). At Rivera-Ruiz’s Change of Plea Hearing he
plead guilty to Count One (1), which is precisely the
importation
of
five
(5)
kilograms
or
more
of
cocaine
(Crim.D.E. 216).
Rivera
Ruiz’s
Plea
Agreement
states
“Pursuant
to
U.S.S.G. Sec. 2D1.1, the defendant agrees and stipulates
that
he
shall
be
held
criminally
responsible
and
for
sentencing guidelines calculations to in excess of onehundred and fifty kilograms of cocaine, which establishes
a base offense level of Thirty-Eight(38).
defendant
is
receiving
a
mitigating
However, since
role
adjustment
pursuant to U.S.S.G. Sec. 3B1.2, the base offense level is
Thirty four (34) pursuant to U.S.S.G. Sec. 2D1.1(a)(3).”
Crim.D.E. 217 at p. 4).
At the Change of Plea Hearing the Court informed
Rivera-Ruiz
what
Count
One
(1)
actually
charges
and
proceeds to read various of the overt acts included as part
of Count One (1).
The Court: ...And you are included in Overt Act
No. 3 which alleges that in or about November
2005, a number of co-conspirators coordinated and
transported
kilograms
of
a
shipment
cocaine
of
from
approximately
St.
Thomas,
300
United
States Virgin Islands, to Puerto Rico, aboard a
Civil No. 08-1609(PG)
Page 13
motor vessel.
Basically, that’s what you are
charged in Count 1.
And I ask you: Is this what
you did?
The Defendant: Yes, sir.
(Tr. COP of 8/31/2007 at p. 14).
Rivera-Ruiz accepted his guilt to Count I of the Indictment
and
accepted
his
participation
in
the
importation
of
approximately three hundred (300) kilograms of cocaine.
Further
along
in
the
Change
of
Plea
Hearing
the
Government, upon request by the Court, informed the Court
of the evidence it would have presented at trial to find
Petitioner
guilty
of
Count
One
(1).
The
Government
informed the Court that the facts as explained by the Court
(overt act number three (3)), as well as the statement of
facts attached to the Plea Agreement, would have been
proven by transcript of recorded telephonic conversations,
photographs, lab reports of the seized narcotics, and
testimony from cooperating witnesses and law enforcement
(Tr. COP of 8/31/2007 at pgs. 14-15).
Although Rivera-Ruiz accepted responsibility for and
plead guilty to the conspiracy to import approximately
three hundred (300) kilograms of cocaine as specified in
overt act three (3) of Count I of the Indictment; the
parties stipulated a lesser amount of “in excess of one
hundred and fifty kilograms of cocaine”(Crim.D.E. 217 at p.
4) for purposes of sentencing guideline calculations. This
is a benefit for Petitioner.
Civil No. 08-1609(PG)
Page 14
The Pre Sentence Report precisely reflects a guideline
calculation with the starting point of in excess of one
hundred and fifty (150) kilograms of cocaine (Sent. Tr. of
12/13/2007).
There is no error in the Pre Sentence Report,
the same follows the stipulated Plea Agreement.
What Petitioner is actually alleging is a detriment to
himself
and
his
sentence
for
he
wishes
the
guideline
calculation to start with him having been responsible for
in excess of three hundred kilograms of cocaine which in
turn provide for a higher sentence.
Enough said of such a preposterous allegation the same
is DENIED.
Counsel was ineffective in that he provided faulty advise
to Petitioner which lead him to change his plea to guilty
Rivera-Ruiz’s final allegation is that he was ill
advised by his counsel and due to this advise he choose to
plead guilty.
This
allegation
is
raised
by
Rivera-Ruiz
in
a
perfunctory manner without any reference to the record.
In
fact as prior excerpts from the Change of Plea Hearing
demonstrate Petitioner never gave a single indication that
he was dissatisfied with his Plea Agreement; that he did
not wish to plead guilty; or that he was dissatisfied with
his attorney.
Rivera-Ruiz’s
final
allegation
is
meritless
and
baseless and is therefore DENIED.
The Court wishes to note that Petitioner is not a lay
Civil No. 08-1609(PG)
man.
Page 15
By his own admission he studied up to one (1) year of
college (Tr. COP of 8/31/2007 at p.2).
in
Support
statements
of
as
his
to
2255
his
Petition,
attorney’s
In his Memorandum
Rivera-Ruiz
performance
practice of criminal law in general.
founded and incorrect.
makes
and
the
The same are ill-
Petitioner’s statement that “Such
a simple act would have been child’s play, Criminal Law
Defense (101).”( (D.E. 11 at p. 14), is not only incorrect
but not allowed in this Court; one of the fundamental
principles of advocacy is respect towards the law.
Child’s play is what every law abiding citizen does on
a daily basis: follow the law, uphold the law, respect
others
and
know
what
is
right
from
wrong
something
Petitioner Rivera-Ruiz clearly does not understand.
For the reasons previously stated this Court deems
Petitioner’s Rivera-Ruiz’s 2255 Petition DENIED. The same
fails
to
meet
the
Strickland
standard
of
ineffective
assistance of counsel.
III. CONCLUSION
For
the
reasons
stated,
the
Court
concludes
that
Petitioner REYNALDO RIVERA-RUIZ, is not entitled to federal
habeas relief on the claims.
Accordingly, it is ordered
that Petitioner REYNALDO RIVERA-RUIZ’s request for habeas
relief under 28 U.S.C. Sec. 2255(D.E.1) is DENIED, and his
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. Sec. 2255 is DISMISSED WITH PREJUDICE. Petitioner’s
request for evidentiary hearing is also DENIED.
Civil No. 08-1609(PG)
Page 16
IV. CERTIFICATE OF APPEALABILTY
For the reasons previously stated the Court hereby
denies Petitioner’s request for relief pursuant to 28
U.S.C.
Section
2255.
It
is
further
ordered
that
no
certificate of appealability should be issued in the event
that Petitioner files a notice of appeal because there is
no substantial showing of the denial of a constitutional
right within the meaning of 28 U.S.C. 2253(c)(2).
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 23rd of March, 2012.
s/ Juan M. Pérez-Giménez
JUAN M. PEREZ-GIMENEZ
UNITED STATES DISTRICT JUDGE
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