Rivas v. United States, Case No. 17 C 5467

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtAMY J. ST. EVE, District Court Judge
PartiesJOEL RIVAS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Decision Date20 June 2018
Docket NumberCase No. 17 C 5467

JOEL RIVAS, Petitioner,

Case No. 17 C 5467


June 20, 2018


AMY J. ST. EVE, District Court Judge:

Pro se Petitioner Joel Rivas filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.1 For the following reasons, the Court denies Rivas's § 2255 motion and declines to certify any issues for appeal under 28 U.S.C. § 2253(c)(2).


On February 1, 2011, a grand jury returned a superseding indictment charging Rivas with: (1) conspiracy to possess with intent to distribute 5 kilograms or more of cocaine and quantities of marijuana in violation of 21 U.S.C. § 846 (Count One); (2) possession with intent to distribute quantities of cocaine and marijuana in violation of 21 U.S.C. § 841(a)(1) (Count Two); (3) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count Three); and (4) possession of a firearm by a felon in violation of 18 U.S.C. § 922(g) (Counts Four and Five).

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On February 25, 2011, the government filed a notice pursuant to 21 U.S.C. § 851 informing Rivas of the government's intention to seek increased punishment as a result of Rivas's three prior Illinois felony controlled substance violations. See 720 ILCS 570/401. The notice informed Rivas that because he had at least one prior conviction for a felony drug offense, he was subject to a mandatory minimum sentence of 20 years and a maximum sentence of life pursuant to 21 U.S.C. § 841(b)(1)(A)(ii).

On September 20, 2011, Rivas's co-defendant, Ismael Miranda, pleaded guilty, whereas, in July 2013, Rivas proceeded to trial. On July 18, 2013, a jury convicted Rivas on all counts of the superseding indictment. Moreover, the jury found, via a special verdict form, that Rivas was responsible for more than 5 kilograms of cocaine in connection with the drug conspiracy in Count One. In addition, the jury found that Rivas had possessed two firearms in furtherance of the drug charge in Count Two. Thereafter, on September 1, 2013, Rivas filed a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29 and a motion for a new trial pursuant to Rule 33. The Court denied both motions on October 18, 2013. On October 23, 2013, the Court sentenced Rivas to a total term of 360 months in prison. See U.S.S.G. § 4B1.1(c)(3).

Rivas then filed a timely notice of appeal on November 11, 2013. On appeal, Rivas argued that the Court violated the Confrontation Clause of the Sixth Amendment and abused its discretion by denying him the ability to cross-examine the fingerprint identification expert at trial. On August 5, 2016, the United States Court of Appeals for the Seventh Circuit affirmed the Court's ruling. United States v. Rivas, 831 F.3d 931 (7th Cir. 2016).

On July 24, 2017, Rivas filed this timely § 2255 motion. Construing his pro se § 2255 motion and filings liberally, see Terry v. Spencer, 888 F.3d 890, 893 (7th Cir. 2018), Rivas

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argues that both his trial and appellate counsel were constitutionally ineffective in violation of the Sixth Amendment. Also, Rivas asserts that the Court improperly sentenced him as a career offender because the Court erred when counting his Illinois drug convictions as predicate offenses in light of the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016). See United States v. Montez, 858 F.3d 1085, 1092 n.3 (7th Cir. 2017) ("Although Mathis was an Armed Career Criminal Act case, courts have observed that the approaches used to apply the career-offender enhancement and the Armed Career Criminal Act are similar and thus that Mathis is controlling in a Guidelines case.") (citation omitted).


On February 18, 2010, Elgin police officers executed a search warrant at a storage unit located at 1460 Illinois Parkway in Elgin, Illinois ("Elgin storage unit"). At trial, Calvin Stringer, the owner of the storage unit, testified that he rented the unit to Rivas's co-defendant, Ismael Miranda, in late 2008 or early 2009. Further, Stringer testified that Miranda and Rivas worked on cars at the Elgin storage unit and that they had installed security cameras outside of the unit. Stringer also stated that Rivas wore a blue mechanic shirt with the nametag "Tony" on it when he worked at the storage unit.

During the February 18, 2010 search, Elgin police officers recovered quantities of marijuana and cocaine, as well as two firearms, namely, a 9mm handgun and a .357 loaded handgun. A trial, one of Rivas's wholesale customers, Corey Glass, testified that he gave Rivas the 9mm handgun to pay off a drug debt. Also at trial, Elgin Police Detective Beth Sterricker testified about the items recovered, and the government introduced photographs of the items and the actual items into evidence. Detective Sterricker also testified that they recovered a shirt

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hanging on the wall with the nametag on the front pocket of the shirt that said "Tony." The shirt had a small bag in the pocket containing 2.1 grams of cocaine.

In total, the Elgin police officers recovered approximately 210 grams of cocaine and 490 grams of marijuana during their search of the storage unit. In addition, the Elgin police seized drug paraphernalia, including a vacuum sealer, several boxes of plastic bags, digital scales, bottles of Inositol Power (a cutting agent), a body-wire detector, and a large sprayer full of orange peels that emitted a strong citrus order. In the toolbox where police found the loaded .357 handgun, they also found five boxes of .38 caliber ammunition, a radio frequency scanner, a body-wire detector, two bags with cocaine, a large digital scale, and a bottle of Inositol. Further, the Elgin police recovered paperwork belonging to Rivas.

Rivas's co-defendant Miranda was at the storage unit when the Elgin police executed the search warrant. Police arrested him on state drug charges that same day. While detained at the Kane County Jail, Miranda called Rivas on March 3, 2010. The jail recorded the call and the government introduced it as evidence at trial. In doing so, the government called a Spanish interpreter to testify regarding the English translation of the call. During the call, the following exchange took place:

MIRANDA: Hey, what's happening, bro? The ... the law come down on us!

RIVAS: Yeah .... right?

MIRANDA: I just ... got ... got ...got hold of a phone card; it was hard to get a hold of your number. Um...

RIVAS: I see.

MIRANDA: Um ... put a stop ... put a stop to all...

RIVAS: Yeah.

MIRANDA: ... the shit, dude, because it's goddamn D.A., loco.

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RIVAS: Oh, yeah?

MIRANDA: Yeah, it's not the feds. I thought it was the ... the ... the ... the big one but no, it's just the D.A.

(R. 226, Trial Tr., at 760-61.) Also, during the call, Miranda told Rivas that the police were looking for him and that Miranda would not talk to the police about Rivas:

MIRANDA: And truth is they're looking for you, loco.

RIVAS: Mch! Naah?!

MIRANDA: For real, loco. They asked me about you and don't know you.

RIVAS: No shit.

(Id., Trial Tr., at 761.)

Two of Rivas's wholesale cocaine and marijuana customers, Mark Liby and Corey Glass, also testified at the July 2013 jury trial. Liby testified how he had discussed purchasing cocaine from Rivas, and how Rivas had him meet his friend "Mexico" to pick up the cocaine. Liby identified co-defendant Miranda as "Mexico." Furthermore, Liby testified that after receiving cocaine from "Mexico," Liby paid Rivas for it. Liby also testified that he purchased the following quantities of cocaine from Rivas: (1) four ounces; (2) 4.5 ounces on two occasions; (3) nine ounces on one to two occasions; and (4) a kilogram of cocaine two to three times. Likewise, Glass testified that he began purchasing marijuana from Rivas in late 2008, and typically purchased between two and five pounds at a time. In addition, Glass testified that he purchased cocaine from Rivas specifically testifying that he purchased the following quantities of cocaine: (1) a half ounce; (2) one once on two occasions; (3) two ounces; (4) nine ounces; and (5) eighteen ounces "four or five, maybe six times."

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Special Agent Christopher Labno of the Bureau of Alcohol, Tobacco & Firearms ("ATF") gave expert testimony at trial regarding narcotics trafficking. He testified, in part, that drug dealers keep guns at stash locations "[f]or the purpose of protecting themselves and their drug proceeds from robbery, debt collection, that type of thing." The government also called Edward Rottman, a fingerprint expert with the Illinois State Police, to testify at trial. Rottman specifically testified that he developed a latent partial print from the 9 mm handgun found in the storage unit, and that after he had conducted the side-by-side ACE-V test, he concluded that he was "totally certain" that the latent print was Rivas's fingerprint. During cross-examination, when defense counsel attempted to question Rottman regarding a different fingerprint examiner's conclusion in an unrelated case, the Court sustained the government's objection.


"Relief under [§ 2255] is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice." Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013). To obtain relief under § 2255, a petitioner must show that his "sentence was imposed in violation of the Constitution or laws of the United States, the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack." 28 U.S.C. § 2255. A motion under § 2255 is not a substitute for a direct appeal nor is it a means by which a defendant may appeal the same claims a second time. See Bousley v. ...

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