Rivera v. USA

Filing 13

OPINION AND ORDER granting in part and denying in part 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 12-691) filed by Teddy Rivera. We reduce Petitioner's term of supervised release to three years, and an Ame nded Judgment shall issue to that effect in Cr. 12-691-11. Pursuant to Rule 4(b) of the Rules Governing § 2255 Proceedings, summary dismissal is in order for the remainder of his claims because it plainly appears from the record that Rivera is not entitled to § 2255 relief on those claims. Judgment will be entered accordingly. Signed by Judge Jose A. Fuste on 04/23/2015.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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TEDDY RIVERA,
Petitioner,

Civil No. 14-1668 (JAF)

v.

(Crim. No. 12-691-11)

UNITED STATES OF AMERICA,
Respondent.
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OPINION AND ORDER

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Petitioner Teddy Rivera (“Rivera”) comes before the court with a petition under

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28 U.S.C. § 2255 to vacate, set aside, or correct the sentence we imposed in Criminal

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No. 12-691-11. (Docket No. 1). For the following reasons, we reduce his term of

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supervised release to three years, but deny the remainder of his claims.

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I.

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Background

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On June 13, 2013, Rivera pleaded guilty to using and carrying firearms during and

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in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). (Crim.

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No. 12-691-11, Docket Nos. 1084, 1085, 1086.) On September 11, 2013, we sentenced

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Rivera to one-hundred forty-four (144) months imprisonment and to five (5) years

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supervised release. (Crim. No. 12-691-11, Docket No. 1501.) On September 4, 2014,

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Rivera filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255.

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(Docket Nos. 1, 4.)

Civil No. 14-1668 (JAF)

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II.

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Jurisdiction

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Rivera is currently in federal custody, having been sentenced by this district court.

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To file a timely motion, Rivera had one year from the date his judgment became final. 28

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U.S.C. § 2255(f). Because he filed the instant motion less than a year after sentencing, he

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is within the one-year time limit for a § 2255 petition.

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III.

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Analysis

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A. Supervised Release

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Rivera alerts us that his plea agreement stated the maximum supervised release

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term could only be three years, but that we sentenced him to five. 1 (Docket No. 1 at 6.)

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Five years is the correct maximum under the statute. See 18 U.S.C. § 3583. However,

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the plea agreement incorrectly stated three years, and we ourselves repeated that mistake

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in the change-of plea-hearing. (Crim. No. 12-691-11, Docket Nos. 1085 at 2; 1680 at 8.)

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As a matter of equity, we reduce Rivera’s term of supervised release to three years.

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B. Judicial Misconduct

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Rivera argues that we interfered with the plea negotiation because we induced a

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“fear of a life sentence” by telling him that he was facing a life sentence if he lost at trial.

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(Docket No. 4 at 1.) However, it was quite proper of the court to inform Rivera of the

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penalties he was facing. 2 Therefore, this claim is denied.

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Rivera couches this in terms of ineffective assistance of counsel. However, we correct the error without
commenting on fault.
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The count to which he pleaded guilty carried a maximum sentence of life imprisonment. (Crim. No. 12691-11, Docket No. 1085 at 2.) Had he not pleaded and instead gone to trial, he would have been charged with
additional crimes carrying additional penalties. (Crim. No. 12-691-11, Docket No. 3.)

Civil No. 14-1668 (JAF)
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C. Ineffective Assistance of Counsel

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Rivera argues that he received ineffective assistance of counsel on several

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grounds. (Dockets No. 1, 4.) To prove this, Rivera must show that both: (1) the

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attorney’s conduct “fell below an objective standard of reasonableness;” and (2) there is a

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“reasonable probability that, but for counsel’s unprofessional errors, the result of the

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proceeding would have been different.” Strickland v. Wash., 466 U.S. 688-94 (1984). In

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the context of plea agreements, the prejudice prong requires a “reasonable probability

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that, but for counsel’s errors, he would not have pleaded guilty and would have insisted

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on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58 (1985); Lafler v. Cooper, 132 S. Ct.

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1376, 1384 (2012).

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Rivera argues that his attorney failed to investigate where he lived for the previous

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twenty-five years. (Docket No. 1 at 6; Docket No. 4 at 6.) However, Rivera’s counsel

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specifically told the court that he had sought documentation on Rivera’s residency

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“because [my client contends that] he was living in the United States, and that

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documentation will help me or help us prove that.” (Crim. No. 12-691-11, Docket

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No. 1605 at 5-6.) At sentencing, Rivera’s counsel argued for the lower end of the range,

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stating that “for long period of time during the conspiracy, my client lived in the United

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States.” (Crim. No. 12-691-11, Docket No. 1665 at 6.)

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Rivera also argues that his attorney failed to investigate his “lack of a gun.”

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However,

during the plea colloquy, Rivera specifically admitted that he “used and

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carried firearms.” (Crim. No. 12-691-11, Docket No. 1680 at 12.)

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First Circuit, “[w]ithout independent corroboration, we not only view his plea colloquy as

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evidential, but sufficiently conclusive to contradict his claims.” U.S. v. Santiago

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Miranda, 654 F.3d 130, 138 (1st Cir. 2011) (internal citations omitted).

According to the

Civil No. 14-1668 (JAF)

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Rivera argues that his attorney was ineffective for failing to gather evidence that

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he had no involvement with “any police agency or any law enforcement agency.”

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(Docket No. 4 at 8.) This is impossible due to his prior drug-related convictions in

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Florida. (Crim. No. 12-691-11, Docket No. 1451 at 22.) Even were it not, Rivera has not

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shown that such evidence would have stopped him from pleading guilty in this case.

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Rivera also argues that his counsel was ineffective for failing to explain his

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“offense level based on guidelines.” (Docket No. 1 at 6.) However, as we explained in

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the change of plea hearings: “[T]his is not a guideline case properly speaking. This is a

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statutory type case in the sense that the Statute provides what the punishment should be.”

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(Crim. No. 12-691-11, Docket No. 1680 at 8.)

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Rivera verbally indicated that he

understood. Id.

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Rivera argues that “Counsel remarks that the Federal Government is never wrong

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shows a bias and predisposition to plead the case out,” in violation of the law. (Docket

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No. 1 at 9) (sic). We searched the record and found no such remarks.

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Rivera also argues that his counsel was ineffective because he failed to object to

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our allegedly-improper judicial remarks. (Docket No. 4 at 2.) Because we already found

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that it was proper to advise Rivera of his sentencing exposure, this assertion lacks merit.

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Finally, Rivera vaguely argues that his Counsel was ineffective for failure to

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explain the evidence.

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perfunctory manner absent developed argumentation are waived.”

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Brown, 669 F.3d 10, 16 n.5 (1st Cir. 2010).

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It is well-established that “issues that are adverted to in a
United States v.

In sum, we do not find that Rivera received ineffective assistance of counsel. 3
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We note that we resolved the supervised release claim, supra, on grounds of equity rather than ineffective
assistance of counsel.

Civil No. 14-1668 (JAF)
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D. Lack of Underlying Offense

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Rivera argues that, because he was never convicted of a drug offense, he cannot be

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guilty of using and carrying firearms during and in relation to a drug-trafficking crime.

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(Docket No. 1 at 7.) This is simply untrue. The statute does not require an underlying

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conviction for the drug charge. See 18 U.S.C. § 924(c)(1)(A).

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IV.

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Certificate of Appealability
In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever

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issuing a denial or partial denial of § 2255 relief we must concurrently determine whether

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to issue a certificate of appealability (“COA”). In this respect, we state that it has become

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common practice to collaterally challenge federal convictions in federal court by raising

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arguments of dubious merit. This practice is overburdening federal district courts to the

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point of having some of these criminal cases re-litigated on § 2255 grounds. We look at

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this matter with respect to the rights of litigants, but also must protect the integrity of the

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system against meritless allegations. See Davis v. U.S., 417 U.S. 333, 346 (1974) (in a

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motion to vacate judgment under §2255, the claimed error of law must be a fundamental

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defect which inherently results in a complete miscarriage of justice); see also Dirring v.

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U.S., 370 F.2d 862 (1st Cir. 1967) (§ 2255 is a remedy available when some basic

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fundamental right is denied—not as vehicle for routine review for a defendant who is

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dissatisfied with his sentence).

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We grant a COA only upon “a substantial showing of the denial of a constitutional

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right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[t]he petitioner must demonstrate

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that reasonable jurists would find the district court's assessment of the constitutional

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claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting

Civil No. 14-1668 (JAF)

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Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While Rivera has not yet requested a

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COA, we see no way in which a reasonable jurist could find our assessment of his

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constitutional claims debatable or wrong. Rivera may request a COA directly from the

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First Circuit, pursuant to Rule of Appellate Procedure 22.

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V.

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Conclusion

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For the foregoing reasons, we hereby GRANT IN PART and DENY IN PART

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Rivera’s § 2255 motion (Docket No. 1). We reduce his term of supervised release to

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three years, and an Amended Judgment shall issue to that effect. Pursuant to Rule 4(b) of

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the Rules Governing § 2255 Proceedings, summary dismissal is in order for the

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remainder of his claims because it plainly appears from the record that Rivera is not

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entitled to § 2255 relief on those claims.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 23rd day of April, 2014.

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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE