Rivera-Rivera v. United States
| Decision Date | 23 December 2016 |
| Docket Number | No. 15-1921,15-1921 |
| Parties | José Antonio RIVERA-RIVERA, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Eric Alexander Vos , Federal Public Defender, and Hector L. Ramos-Vega , First Assistant Federal Public Defender, on brief for appellant.
Rosa Emilia Rodríguez-Vélez , United States Attorney, Nelson Pérez-Sosa , Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez , Assistant United States Attorney, on brief for appellee.
Before Howard, Chief Judge, Selya and Barron, Circuit Judges.
Where a case hinges on a credibility call, the battle is almost always won or lost in the trial court. This case—in which a convicted defendant turned federal habeas petitioner recalls the critical events differently than his quondam lawyer—illustrates the point. Although the record has some ragged edges, we discern no clear error in the magistrate judge's decision to credit the lawyer's version of events. Accordingly, we affirm the denial of relief under 28 U.S.C. § 2255.
The pertinent facts and the travel of the case may be swiftly chronicled. In May of 2008, petitioner-appellant José Antonio Rivera-Rivera was charged, along with over 100 codefendants, in connection with a sprawling drug-trafficking enterprise operating in and around Ponce, Puerto Rico. Specifically, the petitioner was charged in counts one through five and count seven. Count one charged him with conspiracy to possess with intent to distribute a supermarket of controlled substances. See21 U.S.C. §§ 841(a)(1), 846. Counts two through five charged him with possession with intent to distribute heroin, cocaine base, cocaine, and marijuana, respectively, in or near a protected location. Seeid.§§ 841(a)(1), 860. Count seven sought related criminal forfeitures. See id.§ 853. The government's theory of the case was that the petitioner was a "runner," meaning that he supervised retail sellers' day-to-day activities, supplied them with drugs for distribution, and collected proceeds.
The petitioner surrendered to the authorities in mid-2008, and the district court appointed Raymond Rivera-Esteves as his attorney. He was thereafter released on bail pending trial.
On January 19, 2010, the petitioner tendered a straight guilty plea. The parties stipulated that the quantity of drugs for which he was accountable amounted to fifty grams of cocaine base. On May 7, 2010, the district court convened a sentencing hearing. The court explained the benefits of the safety valve option to the petitioner. See18 U.S.C. § 3553(f) ; USSG § 5C1.2.1 The petitioner declined to seek such an adjustment. The court proceeded to sentence him to a ten-year term of immurement (the statutory minimum).
Shortly after the court pronounced sentence, the petitioner shifted gears and told Rivera-Esteves that he was interested in the safety valve after all. Rivera-Esteves moved to correct the sentence, seeFed. R. Crim. P. 35, but the court denied the motion, concluding that the charges to which the petitioner had pleaded precluded him from receiving a shorter sentence. The petitioner appealed, but to no avail: we rejected his argument that a retroactive application of the Fair Sentencing Act of 2010 entitled him to a sentence reduction. See United States v. Rivera – Rivera, No. 10–1817 (1st Cir. Dec. 22, 2011) (unpublished order).
In November of 2012, the petitioner moved pro se to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. His pro se motion raised three claims, all premised on ineffective assistance of counsel.
The parties consented to proceed before a magistrate judge, see id.§ 636(c)(1), who ordered the government to respond to the petitioner's motion. In due course, the magistrate judge set an evidentiary hearing limited to the petitioner's third claim: that his then-attorney (Rivera-Esteves) never told him about a nine-year plea offer. At the same time, the magistrate judge appointed the Federal Public Defender to represent the petitioner.2
Both the petitioner and his former attorney, Rivera-Esteves, testified at the hearing. They told conflicting tales.
The petitioner testified that he was always willing to plead guilty because he recognized that the evidence against him was strong. He added, though, that communication with his attorney was poor, that they only met in person three times or so, and that they talked mostly by telephone. Rivera-Esteves, the petitioner said, never informed him that the government had offered a nine-year plea bargain. Rather, the only plea discussions that the petitioner had with Rivera-Esteves involved the likelihood that they could convince the government to extend an offer of either twelve or fourteen years.
The following chronology was developed at the hearing. The petitioner appeared in court on January 19, 2010, for the anticipated commencement of his trial. He testified, however, that he did not know that his trial was scheduled to begin; Rivera-Esteves simply called him the day before and instructed him to be in court. The petitioner thought that he was going to attend a meeting about a possible plea deal.
The petitioner added that he and his attorney had never met to prepare for trial. When he learned that trial was in the offing, the petitioner entered a straight guilty plea rather than face an unexpected trial.
The petitioner testified that he first suspected that he had been offered a plea deal shortly after sentencing (while he was being held in custody at a facility in Guaynabo, Puerto Rico). There, he came across several of his coconspirators, including other runners. Many of their sentences were less onerous than his.3
The parties stipulated that the prosecutor had extended a nine-year plea offer to Rivera-Esteves, acting on the petitioner's behalf, on March 18, 2009, with an expiration date of March 23, 2009. The petitioner testified that his first definite knowledge of the nine-year plea offer came when he read the government's response to his section 2255 motion. The petitioner alleged that he would have accepted the offer had he known of it.
Rivera-Esteves also testified. Although he could not remember many of the details about the petitioner's case given the passage of years between the dates of the critical events and the date of the evidentiary hearing, he recalled that he had discussed the nine-year plea offer with the petitioner no fewer than six or seven times. He testified that he strongly encouraged the petitioner to accept the offer, but the petitioner spurned his advice and insisted on seeking a more favorable deal or (if none was available) going to trial. Rivera-Esteves could not remember if he had communicated the plea offer to the petitioner before March 23, 2009, but he recalled continuing to encourage the petitioner to consider the offer beyond that date because it was his understanding that there would still be an opportunity to secure those terms.
Inasmuch as Rivera-Esteves could not plot a precise timeline, the magistrate judge allowed him to refer to his Criminal Justice Act (CJA) voucher, see18 U.S.C. § 3006A(d), to refresh his recollection.4 Rivera-Esteves cautioned, though, that not all of his interactions with the petitioner were set out in the voucher; instead, the voucher reflected only those interactions for which he had decided to bill. Pertinently, the voucher contained entries for telephone calls on both February 18 and February 23, 2009. These entries specifically noted that the petitioner and Rivera-Esteves had discussed a plea offer. Rivera-Esteves explained that these entries "probably" signified that the government had made the nine-year plea offer verbally before transmitting the written offer in mid-March.5 Rivera-Esteves filed a motion for change of plea on February 23, 2009. The next day, however, he asked that the motion be stricken from the record. At the evidentiary hearing, he explained that he had filed the initial motion to "take [ ] advantage of the plea offer that was extended," but moved to strike it after a telephone conversation with the petitioner and his family during which the petitioner declared that he did not want to accept the plea offer.
The voucher further reflected that, on March 19, 2009—the day after the government extended the nine-year plea offer in writing—Rivera-Esteves made several telephone calls to the petitioner's home. He was apparently unable to get in touch with the petitioner. The next communication memorialized in the voucher (a telephone call that transpired on March 23, 2009) indicates that Rivera-Esteves spoke to the petitioner about a plea offer. The voucher notes that the petitioner requested to meet with Rivera-Esteves on March 30 to discuss the offer, and Rivera-Esteves filed a motion for an extension of time to conclude plea negotiations on March 23, 2009. The district court granted this motion.
There is no indication in the record that a meeting ever took place on March 30, but Rivera-Esteves testified that he and the petitioner met at a later date to discuss both the plea offer and the strength of the government's case. Rivera-Esteves also testified that at some point he made a counteroffer to the government of seven or eight years, but the prosecutor would not budge. Rivera-Esteves stated that, faced with the government's intransigence, the plan was to go to trial.
On the day the trial was set to commence, however, the petitioner had a change of heart and decided to plead guilty. The government was no longer disposed to settle for a nine-year prison term; it insisted on a straight guilty plea (although it did express a willingness to stipulate to the quantity of drugs for which the petitioner would be held responsible). The petitioner agreed to enter such a plea. The district court's acceptance of the plea and its imposition of the ten-year sentence followed.
At the conclusion of the evidentiary...
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