Rivera-Nazario v. United States
| Decision Date | 30 April 2018 |
| Docket Number | CIVIL NO. 16-1386 (PG) |
| Parties | Erick Rivera-Nazario, Petitioner v. United States of America, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
Before the court is petitioner Erick Rivera-Nazario's ("petitioner" or "Rivera") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket No. 1), and the United States' (or the "government") opposition thereto (Docket No. 15). For the reasons explained below, the court DENIES petitioner's motion to vacate.
On October 12, 2012, a grand jury returned a five-count indictment in Rivera's related criminal case. See Crim. No. 12-738 (PG) (hereinafter "Crim."), Crim. Docket No. 2. Modifying the first indictment and containing six counts naming Rivera, a second superseding indictment was filed on August 2, 2013. See Crim. Docket No. 116. Count One charged Rivera with willfully depriving Jose Luis Irizarry Perez ("Irizarry Perez") of the right secured by the Constitution to be free from unreasonable force when another police officer held him and Rivera physically struck him with a dangerous weapon, causing bodily injury, in violation of 18 U.S.C. §§ 242 and 2. Count Two and Three charged Rivera for failing to intervene when another police officer assaulted Irizarry Perez with a deadly weapon causing bodily injury, willfully depriving him of the right secured by the Constitution to be free from unreasonable force, in violation of 18 U.S.C. §§ 242 and 2. Count Four charged Rivera with knowingly making false entries in a document with the intent to impede, obstruct and influence an investigation related to Counts One and Two, in violation of 18 U.S.C. §1512 (b) (3). Count Eleven charged Rivera with knowingly making false statements to a Special Agent of the FBI, in violation of 18 U.S.C. §1001. Count Fifteen charged Rivera with making a false material declaration while under oath and before a grand jury, in violation of 18 U.S.C. §1623. See id.
On August 24, 2014, Rivera filed a motion for change of plea. The district court held the change of plea hearing on August 25, 2014 wherein Rivera entered a plea of guilty as to Count One of the Second Superseding Indictment. See Crim. Docket Nos. 285 and 403. The government filed the plea agreement pursuant to Rule 11(c) (1) (A) and (B) along with an attached account of facts that Rivera acknowledged to be true. See Crim. Docket No. 285 at p. 9. Rivera signed each page of the agreement and, in turn, Rivera's counsel signed a statement assuring that he had fully explained said agreement in Spanish to his client and that he understood Rivera was voluntarily and intelligently pleading guilty. Id.
According to the facts included in the agreement, on November 5, 2008, in Yauco, Puerto Rico, Rivera, then a Police of Puerto Rico officer, while acting under color of law, willfully deprived Irizarry Perez of his constitutional right to be free from unreasonable seizure. While another police officer restrained Irizarry Perez, Rivera struck and assaulted him with a police baton, resulting in bodily injury. Rivera agreed that during the incident, he swung his police baton into Irizarry Perez's upper body while he was injured, restrained and not posing a threat to anyone and as a result of this inflicted bodily injury. See Crim. Docket No. 285 at pp. 10-11.
On December 24, 2014, the Presentence Investigative Report (PSI) was disclosed to Rivera pursuant to Local Rule 132. See Crim. Docket No. 309. On January 15, 2015, Rivera's counsel moved to reschedule the sentencing hearing in order to meet with his client and review the PSI. See Crim. Docket No. 322. The district court held the sentencing meeting on March 6, 2015 and imposed a 96-month imprisonment sentence in relation to Count One, as recommended by the government in the plea agreement. See Crim. Docket Nos. 285 and 359.
On March 4, 2016, Rivera filed a timely motion to vacate his sentence. See Crim. Docket No. 407. In said petition, Rivera claims that his attorney was ineffective during the plea bargaining process as well as beyond that stage of his processing. See Docket Nos. 1 and 3. Additionally, Rivera raises a double jeopardy claim. Id. On August 4, 2016, enhanced his petition with a motion to amend and correct his prior motion.
Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the courtwas without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C § 2255(a); Hill v. United States, 368 U.S. 424, 426-427 (1962); Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).
The Sixth Amendment guarantees that in all criminal prosecutions, the accused have a right to the assistance of counsel for their defense. U.S. Const. amend. VI. It has long been recognized that the right to counsel means the right to effective legal assistance. Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970)). Where, as here, a petitioner moves to vacate his sentence on an ineffective assistance of counsel basis, he must show that "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 466 U.S. at 686; see also Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996) (). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689.
For petitioner's ineffective assistance of counsel claim to succeed, he must satisfy a two-part test. First, petitioner needs to show that "counsel's representation 'fell below an objective standard of reasonableness.'" Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland, 466 U.S. at 688). Second, petitioner must establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been more favorable to him. See United States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 2013) (citing Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012)). Thus, petitioner must demonstrate both incompetence and prejudice. Failure to prove one element proves fatal for the other. See United States v. Caparotta, 676 F.3d 213, 219 (1st Cir. 2012). Nonetheless, the court "need not address both requirements if the evidence as to either is lacking." Sleeper v. Spencer, 510 F.3d 32, 39 (1st Cir. 2007). Thus, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice...that course should be followed." Strickland, 466 U.S. at 697.
"The Sixth Amendment right to effective assistance of counsel extends to the consideration of plea offers that lapse or are rejected." Frye, 132 S. Ct. at 1402. When the petitioner's challenge concerns a guilty plea, he must "show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v.Lockhart, 474 U.S. 52, 58 (1985). That is to say, "[d]efendants must show that their decision to plead guilty were actually and materially influenced by their counsels' errors." Panzardi-Alvarez v. United States, 879 F.2d 975, 982 (1st Cir. 1989) (internal quotations omitted).
Rivera's ineffective assistance of counsel claims make up four groups of allegations regarding counsel's failure to: 1) adequately assist him during the plea-bargaining stage; 2) investigate and obtain discovery from the government; 3) adequately assist him during the sentencing stage; and 4) counsel's failure to argue collateral estoppel. Alternatively, Rivera claims that the alleged errors made by counsel had a cumulative effect, which prejudiced his right to a fair trial. The court will address these claims below in turn.
Rivera claims that he received ineffective assistance of counsel because counsel did not ensure he had entered into a plea agreement knowingly and voluntarily. Rivera alleges that he did not understand counsel's advice regarding his plea agreement and did not understand the contents of the plea agreement itself. See Docket No. 1-1 at p. 11. Referring to a submitted sworn statement, he claims he understood he was pleading guilty to "hitting the father, but not the son [Irizarry Perez]." See id. at pp. 11, 34. In other words, Rivera claims to have confused the identity of the person he pleaded guilty to have assaulted in November 2008.
Rivera alleges only "informal, untrained and unvetted interpreters" assisted in attorney-client communication in all out-of-court interactions "even though counsel is a monolingual English speaker and Mr. Rivera-Nazario is a monolingual Spanish speaker." See Docket No. 1-1 at p. 11. Rivera further alleges that counsel never engaged a formally trained interpreted nor vetted the informal interpreters he used. See id. at pp. 11, 15. To sum things up, Rivera claims his inability to confer with counsel in the same language along with counsel's alleged failure to retain a certified translator led to miscommunication, which resulted in him mistakenly pleading guilty to having had assaulted IrizarryPerez.1 The court finds the record belies Rivera's allegations and renders them wholly incredible.
First off, Rivera acknowledged that he fully understood and voluntarily signed his plea agreement and that counsel explained it to him in Spanish. See Crim. Docket No. 285 at p. 9. His attorney also signed a statement acknowledging he had fully explained the agreement in Spanish to...
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