Rivera-Donate v. USA

Filing 9

ORDER denying 1 Motion to Vacate. Signed by Judge Juan M. Perez-Gimenez on 8/21/2015. (VCC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

EDIBERTO RIVERA-DONATE,
Petitioner,

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v.
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UNITED STATES OF AMERICA,
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Respondent.
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__________________________________ *

CIVIL NO. 13-1497(PG)
RELATED CRIM. 05-0417(PG)

OPINION & ORDER
Before the Court is Petitioner’s 28 U.S.C. §2255 Habeas Corpus
Petition (D.E.1)1. Respondent filed a Response to the Petition
(D.E.5). Petitioner filed a Reply to the Government’s Response (D.E.
6). 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 December 1, 2005, Petitioner, Ediberto Rivera-Donate
(hereinafter “Petitioner” or “Rivera-Donate”) along with forty one
(41) additional co-defendants, was indicted in a five (5) count
Indictment by a Federal Grand Jury. See Crim. D.E. 2 of Case No. 05417(PG)2. Rivera-Donate was charged in Counts One (1) and Three (3)
through Five (5) for distribution of controlled substances, among
related charges.
On June 12, 2006, Petitioner’s retained counsel, Jorge
Armenteros, filed a Notice of Appearance. See Crim. D.E. 372. On
March 3, 2008, after fifteen (15) days of trial the jury found
Rivera-Donate guilty as to Count One (1) of the Indictment. See Crim.
D.E. 1381.
On March 27, 2008, Petitioner filed a Motion Under Rule 29 and

1
2

D.E. is an abbreviation of docket entry number.
Crim.D.E. is an abbreviation of criminal docket entry.

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for a New Trial3. See Crim. D.E. 1405.
On April 7, 2008, the
government filed its Response in Opposition to the Motion. See Crim.
D.E. 1410. On October 8, 2008, the Court issued an order denying
Petitioner’s Motion Under Rule 29. See Crim. D.E. 1552.
On October 10, 2008, Rivera-Donate’s Sentencing Hearing was
held. After lengthy arguments by both Petitioner’s counsel and the
prosecutor, on October 10, 2008, the Court imposed a sentence of a
term of imprisonment of life as to Count One (1) of the Indictment4.
See Crim. D.E. 1560. On October 16, 2008, Petitioner filed a Notice
of Appeal. See Crim. D.E. 1561. Judgment was entered on October 20,
2008. See Crim. D.E. 1566. An Amended Judgment followed on November
12, 2008. See Crim. D.E. 1573.5
On June 7, 2012, the First Circuit Court of Appeals issued its
opinion and order affirming Rivera-Donate’s conviction and sentence.
United States v. Rivera-Donate, 682 F.3d 120 (1st Cir. 2012).
Petitioner’s conviction became final on September 5, 2012.
On June 5, 2013, Rivera-Donate signed his §2255 petition. The
same was docketed on June 24, 2013. See Docket No. 2.
As such
Rivera-Donate’s Petition for Relief Pursuant to §2255 is timely.
II. 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); Lema v. United States, 987 F.2d 48 (1st Cir. 1993). In order
to succeed in a claim of ineffective assistance of counsel RiveraDonate must show: (1) that counsel’s representation fell below an

3

In said motion counsel alleged that there were multiple conspiracies and that the
evidence showed Petitioner was a member of a separate organization. In addition,
defendant claimed that overt act #27, the murder of Luis Torres Acevedo, was
inadmissible. See Crim. D.E. 1405 at p. 2.
4

The Court dismissed remaining Counts Three (3), Four (4) and Five (5). See Crim.
D.E. 1560.
5

The Judgment was only amended to include the nature of the offense. RiveraDonate’s term of incarceration of life remained in place. See Crim. D.E. 1573.

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objective standard of reasonableness, and (2) that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Argencourt v.
United States, 78 F.3d 14 (1st Cir. 1996), Darden v. Wainwright, 477
U.S. 168 (1986), Lockhart v. Fretwell, 506 U.S. 364 (1993).
Petitioner bears a “very heavy burden” in his attempt to have
his sentence vacated premised on an ineffective assistance of counsel
claim. Argencourt, 78 F.3d at 16; Lema, 987 F.2d at 51. Even more so
under the Strickland standard, “only where, given facts known at the
time, counsel’s choice was so patently unreasonable that no competent
attorney would have made it.” United States v. Rodriguez, 675 F.3d
48, 56 (1st Cir. 2012), (quoting Tevlin v. Spencer, 621 F.3d 59, 66
(1st Cir. 2010)).
In order to successfully satisfy the first prong of the
Strickland test petitioner must show that “in light of all the
circumstances, the identified acts or omissions [allegedly made by
his counsel] were outside the wide range of professionally competent
assistance.” Tejada v. Dubois, 142 F.3d 18, 22 (1st Cir. 1998) (citing
Strickland, 466 US. at 690). Petitioner must overcome the “strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Smullen v. United States, 94
F.3d 20, 23 (1st Cir. 1996) (citing Strickland, 466 U.S. at 689).
The second prong of the Strickland test, the element of
prejudice, also sets the bar high. “An error by counsel, even if
professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the
judgment.” Argencourt, 78 F.3d at 16 (citing Strickland, 466 U.S. at
691). Petitioner must “prove that there is a reasonable probability
that, but for his counsel’s errors, the result of the proceeding
would have been different.” Knight v. United States, 37 F.3d 769, 774
(1st Cir.1994) (citing Strickland, 466 U.S. at 687).
III. DISCUSSION
In his §2255 Petition and Memorandum in Support of, RiveraDonate raises the following allegations of ineffective assistance of

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counsel6:
(1) Trial Counsel rendered ineffective assistance of counsel by
giving petitioner erroneous legal advice in connection with his
sentencing exposure and whether to accept the government’s plea
offer.
(2) Appellate counsel rendered ineffective assistance of counsel
for failing to raise a non-frivolous claim that the district
court committed legal error at sentencing.
(3) Either trial and/or appellate counsel rendered ineffective
assistance either for failing to ensure jurors were properly
instructed on multiple conspiracies and/or for failing to make
a non-frivolous claim on appeal that the district court
committed reversible error by not properly instructing jurors on
multiple conspiracies.
Finally Rivera-Donate requested an evidentiary hearing to
discuss these claims.
A.
Ineffective Assistance of Counsel regarding sentencing
exposure and plea discussions
Rivera-Donate’s first allegation of ineffective assistance of
counsel relates to his rejection of a plea offer tendered by the
government.
Petitioner alleges that the government offered him a plea deal
by which he would face a sentencing exposure of approximately twelve
(12) years of incarceration. Rivera-Donate states that his counsel
advised him that the murder of Luis Torres Acevedo could not be
applied to him nor used at sentencing because it was part of a
separate conspiracy not charged in the indictment. Petitioner stated
that counsel further advised him that if he went to trial and was
found guilty his sentencing exposure would be equivalent to what the
government was offering as a plea deal. See D.E. 1-1 at p. 4.
In addition, Rivera-Donate alleged that counsel further advised

6

In his pleadings, Rivera-Donate makes a distinction between his trial counsel and
his appellate counsel as if they were different individuals. The record reflects that
Petitioner’s counsel during trial as well as the appeal process was the same, attorney
Jorge Armenteros. The record reflects that during the trial he was Rivera-Donate’s
retained counsel and during the appeal he was Petitioner’s court-appointed counsel.

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that the evidence against him was not strong and that the plea offer
of approximately twelve (12) years was unreasonable because
Petitioner did not have a prior record.
Based on those reasons,
Petitioner alleged that his attorney advised him to reject the plea.
See D.E. 1-1 at p.4.
Rivera-Donate states that he followed his counsel’s advice, with
unforseen consequences7. See D.E. 1-1 at p. 4.
Ultimately,
Petitioner was found guilty and sentenced to a term of imprisonment
of life due to the murder cross reference.
Thus, Rivera-Donate
concludes that his counsel provided wrong advice and that his
sentence should be vacated.
In support of this allegation, Petitioner submitted a Statement
Under Penalty of Perjury signed by his former attorney Jorge
Armenteros. See D.E. 1-1 at p. 30. In said statement attorney
Armenteros attests to the following:
I advised Mr. Rivera-Donate that the murder of
Luis Torres Acevedo could not be used for
sentencing purposes as it was part of a different
conspiracy. I advised him that independently of
the District Court’s decision that it would not
hold scrutiny at the appeal level.
I advised him that the offer of 12 ½ years was
unreasonable as he did not have prior convictions
and the Court sentence should be around the same
time.
See D.E. 1-1 at p. 30.

7

It is a well settled principle that any defendant who wishes to plead guilty
pursuant to a plea agreement entered into with the government must accept his guilt and
accept responsibility for the crimes charged against him, United States v. Deppe, 509
F.3d 54, (Mass. 2007). A review of the record, particularly the Sentencing Hearing
transcript, leaves much doubt as to Rivera-Donate’s willingness to accept responsibility.
In Petitioner’s allocution before the court he denied on various occasions his
participation and role in the drug trafficking organization: “But I have never made the
mistakes at the level that they have been stated here in this courtroom.” (Sentencing
Hrg. Transcript at p. 29, October 10, 2008). “He knows [referring to God] that I am not a
hit man nor have I ever participated in anything like this.” (Sentencing Hrg. Transcript
at p. 30, October 10, 2008). “...[B]ecause by being accused of such a serious act,
without my being capable of doing something like that, people look at you
differently...I’m not that type of person.” (Sentencing Hrg. Transcript at p. 30, October
10, 2008). These statements made by Petitioner before the imposition of his sentence are
not consistent with an individual who was going to accept a plea offer; accept his
responsibility as an enforcer and assume the consequences of his actions. The Court
further notes that all of Petitioner’s filing before this Court lack any glimpse of
remorse. At no time does he accept his participation in the crimes for which he was
convicted of. Petitioner’s own words and action make less plausible Rivera-Donate’s
claim that he would have accepted the plea offer tendered.

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Defendant’s Sixth Amendment right to counsel extends to the plea
bargaining process. Lafler v. Cooper, 132 S.Ct. 1376 (2012) (citing
Missouri v. Frye, 132 S.Ct. 1399 (2012)). The Supreme Court has made
it clear that “during plea negotiations defendants are ’entitled to
the effective assistance of competent counsel.’” Lafler, 132 S.Ct.
at 1384 (citing McMann v. Richardson, 397 U.S. 759, 771 (1970)). In
Hill v. Lockhart, 474 U.S. 52 (1985) the Court held that “the two
part Strickland test applies to challenges to guilty pleas based on
ineffective assistance of counsel.” Hill, 474 U.S. at 57.
“A defense attorney in a criminal case has the duty to advise
his client fully on whether a particular plea to a charge appears to
be desirable.” United States v. Gonzalez-Vazquez, 219 F.3d 37, 41
(1st Cir. 2000)(citing Boria v. Keane, 99 F.3d 492, 496 (2nd Cir.
1996)). However, the decision to plead guilty must ultimately be
left to a client’s wishes. Boria, 99 F.3d at 496-497.
The record in this case establishes that contrary to RiveraDonate’s allegation, he was aware of his sentencing exposure since
the early stages of the case. At Petitioner’s initial appearance,
he was informed of the charges brought against him and was made aware
of the possibility of a sentence of a minimum of ten (10) years and
a maximum of life imprisonment. Furthermore, on June 12, 2006,
Petitioner’s detention hearing was held.
At said hearing the
government proffered for the court River-Donate’s participation in
this case; his role as an enforcer and alluded to the state charges
that included the murder of Luis Torres-Acevedo8 (Crim. D.E. 374).
In addition, on June 13, 2006, the Court issued its order of
detention
pending
trial
as
to
Rivera-Donate.
The
written
determination of detention expressed the following: “The government
proffers that the defendant is an enforcer in this large
organization. The defendant faces stiff penalties, up to life
imprisonment, if convicted, due in part to a 3/13/2005 drug related
8

Contrary to what Petitioner would like this Court to believe, he was not acquitted
of the charges against him in the Commonwealth courts. See Crim. D.E. 373 in Case No. 05417(PG). In fact, the state murder charge against him was “dropped because the
preliminary hearing was not held within 60 days of arrest.” Id. Thus, Petitioner’s
suggestion that the Commonwealth prosecutors were not able to prove his participation in
the murder of Luis Torres Acevedo is misleading.

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killing.” (Crim. D.E. 373 at p.1). Hence, the record clearly
establishes that, at a minimum, Rivera-Donate was made aware of his
sentencing exposure on at least three (3) separate occasions.
As to Petitioner’s allegation that attorney Armenteros based his
recommendation of rejection of the plea offer on an incorrect legal
principle, Petitioner is mistaken. The record clearly indicates that
from the onset of the case counsel Armenteros argued that the murder
of Luis Torres-Acevedo was inadmissible because it was related to a
separate conspiracy9 . That was an integral part of his strategic
trial/defense strategy. Mr. Armenteros made an evaluation of the
evidence at the time and chose what deemed to be the best course of
action based on what he had before him10. His duty towards RiveraDonate was to inform him of the plea offer and to provide legal
advice based on the facts at hand. Nothing in Petitioner’s averments
evidences that Armenteros did not discharge this duty.
In fact, the final decision as to whether to accept the plea or
proceed to trial rested on Rivera-Donate’s shoulders. On October 22,
2007, counsel Armenteros filed a motion requesting that the Court
order MDC to allow a “special visit” from Petitioner’s parents. The
motion stated that Rivera-Donate had been tendered a plea offer
“which is substantial in number of years (minimum of 10 years).”
(Crim. D.E.1159 at p.1). Since Rivera-Donate had lost the privilege
of social visits, attorney Armenteros requested that the Court order
one for the sole purpose of discussing the offer with his parents.
Armenteros stated “the magnitude of the decision is life making and
merits a special visit. In order for Mr. Rivera-Donate to consider
the offers made by the government it is imperative that he be
afforded some time to discuss said offers with his parents.”

9

Armenteros argued this in two separate motions to strike overt act twenty seven
(27), (Crim. D.E. 738,1241). He argued it in his motion to dismiss indictment (Crim. D.E.
1248), in a motion for exclusion of testimony (Crim. D.E. 1245), and in a motion under
Rule 29 and for a new trial (Crim.D.E. 1405).
10

The record indicates that there was no physical evidence tying Petitioner to the
murder of Luis Torres-Acevedo. The trial transcripts reviewed by this Court clearly
establish that the evidence against Rivera-Donate was presented by the testimony of
cooperators, hence it was up to the jury to determine their credibility. Based on the
trial transcripts and the record in this case, attorney Armenteros’ strategy of multiple
conspiracies was a plausible one.

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(Crim.D.E. 1159 at p. 1).
Clearly Rivera-Donate had the final say, as it should be, on
whether to accept or reject the plea offer. There is no doubt that
it was a decision he considered thoroughly and even attempted to
consult with those close to him, his parents. It is further worth
noting, that contrary to Petitioner’s claim that he was told by
attorney Armenteros to reject the plea and go to trial, attorney
Armenteros’ Statement Under Penalty of Perjury states that he advised
Petitioner that the offer of twelve and a half years was unreasonable
(Crim. D.E. 1-1 at p. 30).
There is a marked difference between giving a client a
recommendation based on a wrong legal principle and choosing what
turns out to be a misguided strategy. The latter, much like in the
case of Rivera-Donate, does not constitute ineffective assistance of
counsel. “It is well established that tactical decisions by trial
counsel, even if ill-advised, do not by themselves constitute
ineffective assistance of counsel.” Rivera v. State, 58 A.3d 171,
181(R.I. 2013). Counsel Armenteros’ strategy, given what he knew at
the time, was not manifestly unreasonable. Therefore, it does not
rise to the level of being ineffective assistance of counsel.
Finally, Petitioner has failed to show an additional important
element for his claim to proceed. Assuming that this Court were to
determine that attorney Armenteros’ legal advice constituted
ineffective assistance of counsel, Rivera-Donate must show that the
court would have accepted the terms of the plea agreement. Lafler,
132 S.Ct. at 1385. “It is, of course, true that defendants have ‘no
right to be offered a plea...nor a federal right that the judge
accept it.’” Lafler, 132 S.Ct. 1387(quoting Frye, 132 S.Ct. at 13881389). Petitioner has failed to address this prong.
For the reasons previously stated, Rivera-Donate’s first
allegation of ineffective assistance of counsel as it relates to his
plea offer and sentence exposure is denied.
B.
Appellate counsel rendered ineffective assistance for
failing to raise a non-frivolous claim that the district
court committed legal error at sentencing
Petitioner’s second allegation of ineffective assistance of

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counsel is based on Rivera-Donate’s misinformed theory that the
sentencing court erred in imposing his sentence.
Rivera-Donate
alleges that the court erred in not making individual drug quantities
findings in order to determine his base offense level. Secondly,
Petitioner argues that the sentencing court erred in applying the
murder cross reference since the prosecutor at sentencing stated “the
murder of Luis Torres Acevedo had ‘nothing’ to do with this case and
had ‘nothing’ to do with narcotics trafficking.” (D.E. 1-1 at p. 15)
Rivera-Donate alleged that his appellate counsel (attorney
Armenteros) was ineffective in not raising these two non-frivolous
errors.
Claims of ineffective assistance of appellate counsel are
measured under the Strickland standard. Evitts v. Lucey,469 U.S.
387(1985). Appellate counsel is not required to raise every nonfrivolous claim, but rather selects among them to maximize the
likelihood of success on the merits. Lattimore v. Dubois, 311 F.3d
46 (1st Cir. 2002). Where appellate counsel is charged with
ineffectiveness for failure to raise a particular claim, “it is
difficult to demonstrate that counsel was incompetent.” Smith v.
Robbins, 528 U.S. 259, 288 (2000)(citing Gray v. Greer, 800 F.2d 644,
646 (7th Cir. 1986)). To overcome the presumption of competence of
appellate counsel, a petitioner must show that the omitted issues
were “clearly stronger” than those counsel chose to assert. Id.
Rivera-Donate has not made such a showing. Petitioner’s motion
lacks any evidence that would lead this Court to believe that these
two
alleged
errors
occurred.
What
is
more,
Rivera-Donate
misrepresents the sentencing record in an attempt to succeed on his
claims.11 His meritless argument warrants no more analysis.
11

For example, Rivera-Donate avers that the prosecutor had admitted that the murder
of Luis Torres Acevedo was unrelated to his case. See D.E. 1-1 at page 15. In reality,
the prosecutor said the contrary when he expressed:
Mr. Vazquez: Your, Honor we respectfully submit that based on the
evidence presented, both as to the heinous murder of an innocent
person, which has nothing to do with this case, had nothing to do
with narcotics trafficking, and Mr. Rivera Donate’s position as
an enforcer which protected the trafficking of over 40 kilos of
crack, 40 kilos of cocaine, and five kilos of heroin and 20 kilos
of marijuana, clearly put him in the framework for which a
sentence of life imprisonment is more than reasonable.

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Counsel failed to ensure jurors were properly instructed
on multiple conspiracies and/or failed to make a non
frivolous claim on appeal that district court committed
reversible error

Rivera-Donate’s final argument is also frivolous and contrary
to the record. Petitioner alleges that the Court did not properly
instruct the jury as to their analysis of the evidence and whether
it supported the finding on one single conspiracy or multiple
conspiracies. He blames counsel Armenteros for not ensuring that the
jury was properly instructed.
A review of the trial transcript clearly shows that the jury did
in fact receive adequate and proper instructions as to single and
multiple conspiracies. See Trial transcript, February 29, 2008, p.
153-154. As such, Rivera-Donate’s final allegation of ineffective
assistance of counsel is also unavailing.
D.
Evidentiary hearing
Evidentiary hearings in §2255 cases are the exception, not the
norm, and there is a heavy burden on the petitioner to demonstrate
that an evidentiary hearing is warranted. Moreno-Morales v. United
Sates, 334 F.3d 140 (1st Cir. 2003). An evidentiary hearing “is not
necessary when a section 2255 petition is inadequate on its face, or
although facially adequate, is conclusively refuted as to the alleged
facts by the files and records of the case.” United States v.
DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978).
The fact is that Rivera-Donate has failed to raise any
cognizable issue under §2255. Therefore, Petitioner’s request for
an evidentiary hearing is DENIED.
III. CONCLUSION
For the reasons stated, the Court concludes that Petitioner
EDIBERTO RIVERA DONATE, is not entitled to federal habeas relief on
his claims.
Accordingly, it is ordered that petitioner EDIBERTO
RIVERA-DONATE’S request for habeas relief under 28 U.S.C. Sec.
2255(D.E.1) be DENIED, and his Motion to Vacate, Set Aside, or

See Sentencing Hrg. Transcript at p. 27-28, October 10, 2008.

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Correct Sentence under 28 U.S.C. Sec. 2255 is DISMISSED WITH
PREJUDICE.
Petitioner’s request for evidentiary hearing is also
DENIED.
IV. CERTIFICATE OF APPEALABILTY
For the reasons previously stated the Court hereby denies
Petitioner’s request for relief pursuant to 28 U.S.C. §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 21st of August 2015.
S/JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE