Rivera-Rodriguez v. United States

• Decision Date: 10 March 2015
• Docket Number: Civil No. 11–02262 ADC.
• Citation: 91 F.Supp.3d 214
• Parties: Gabriel RIVERA–RODRIGUEZ, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Puerto Rico

91 F.Supp.3d 214

Gabriel RIVERA–RODRIGUEZ, Petitioner

v.UNITED STATES of America, Respondent.

Civil No. 11–02262 ADC.

United States District Court, D. Puerto Rico.

Signed March 10, 2015.

Gabriel Rivera–Rodriguez, Coleman, FL, for Petitioner.

Nelson J. Perez–Sosa, U.S. Attorney's Office, San Juan, PR, for Respondent.

OPINION AND ORDER

[Related to Crim. No. 07–00121(ADC) ]

AIDA M. DELGADO–COLÓN, Chief Judge.

Before the Court is petitioner Gabriel Rivera–Rodriguez's (“petitioner” or “Rivera–Rodriguez”) motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255 (“ § 2255 motion”) (ECF No. 1 ), and U.S. Magistrate Judge Camille L. Vélez–Rivé's Report and Recommendation (“R & R”) that the § 2255 motion be denied on its merits. ECF No. 14.

Petitioner claims ineffective assistance of trial and appellate counsel. He alleges that appellate counsel failed to: (1) argue that his sentence exceeded the statutory maximum prescribed for the least-serious, single drug for which he was convicted of conspiring to possess with intent to distribute (“Claim 1”), and (2) argue that the District Court erred in not applying the “clear and convincing evidence” standard in considering a cross-referenced murder (“Claim 2”); and that trial counsel failed to: (3) object to a weapons and supervisory role enhancement at sentencing (“Claim 3”), (4) inform him of a 235 month (19–year) plea offer (“Claim 4”), and (5) miscalculated the maximum sentence petitioner could receive if he rejected another 15–year plea offer (“Claim 5”). Id.

The government opposed petitioner's § 2255 motion (ECF No. 8), and petitioner filed a reply to the government's response (ECF No. 13). The Court referred the § 2255 motion to Magistrate Judge Velez–Rive for a R & R. ECF No. 11. On November 29, 2012, Magistrate Judge Velez–Rive issued the R & R, recommending dismissal of the § 2255 motion on its merits. ECF No. 14.

On December 20, 2012,¹ petitioner objected to Magistrate Judge Vélez–Rivé's legal findings, conclusions, and actual recommendation as to Claims 3, 4, and 5, and re-iterated his initial arguments as to Claims 1 and 2. ECF No. 15. Later, on July 25, 2013, petitioner submitted a supplemental objection to the R & R. ECF No. 21.

I. Review of a Magistrate Judge's Report and Recommendation

A district court may refer pending motions to a Magistrate Judge for a R & R. 28 U.S.C. § 636(b)(1)(B) ; Fed.R.Civ.P. 72(b) ; D.P.R. Civ. R. 72(a). Any party adversely affected by the recommendation issued may file written objections within fourteen (14) days of being served with the R & R. Fed.R.Civ.P. 72(d). A party that files a timely objection is entitled to a de novo determination of “those portions of the report or specified proposed findings or recommendations to which specific objection is made.” Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191–92 (D.P.R.2005) (citing United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) ). “The district court need not consider frivolous, conclusive, or general objections.” Rivera–Garcia v. United States, No. 06–1004, 2008 WL 3287236, at *1 (D.P.R. Aug. 7, 2008) (citing Battle v. U.S. Parole Comm'n, 834 F.2d 419 (5th Cir.1987) ). Moreover, to the extent the objections amount to no more than general or conclusory objections to the R & R, without specifying to which issues in the report the party is objecting, or where the objections are repetitive of the arguments already made to the magistrate judge, a de novo review is unwarranted. Id. In conducting its review, the Court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate-judge.” 28 U.S.C. § 636(a), (b)(1) ; see also Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985) ; Alamo–Rodriguez v. Pfizer Pharma., Inc., 286 F.Supp.2d 144, 146 (D.P.R.2003).

Finally, “[a] district court is under no obligation to discover or articulate new legal theories for a party challenging a report and recommendation issued by a magistrate judge.” Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998) (additional citation omitted). “Instead, the report and recommendation is reviewed by the district judge for clear error.” Rivera–Garcia, 2008 WL 3287236, at *1 (citing Camardo v. Gen. Motors Hourly–Rate Employees Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992) (“It is improper for an objecting party to ... submit[ ] papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a ‘second bite at the apple’ when they file objections to a R & R.”)).

II. Discussion²

Reviewing the Magistrate Judge's R & R, the Court arrives at the same conclusions as to all claims, but supplements portions of the findings.

A. Ineffective Assistance of Appellate Counsel Claims

1. Claim 1

Petitioner first claims that appeal counsel failed to argue that his sentence exceeded the statutory maximum prescribed for less than 100 grams of heroin, the least-serious, single drug in conspiracy for which he was convicted. ECF No. 1–1 at 3–6. Magistrate Judge Velez–Rive found that Claim 1 lacked merit because this Court was not required to sentence petitioner below the statutory maximum for the least-serious drug, since the jury returned a specific verdict—rather than a general verdict—as to which drugs and what amount of drugs were part of the conspiracy. ECF No. 14 at 227–29. The Magistrate Judge reasoned that if appellate counsel had raised Claim 1 on appeal, it would have been unsuccessful, and appellate counsel is not required to raise every non-frivolous claim, and, much less, a frivolous claim, on appeal. Id. at 228–29.

The Magistrate Judge found that, if the jury had returned a general verdict without specifying which drugs they had found were part of the conspiracy, the trial court would have been required to sentence petitioner below the statutory maximum for the least punishable drug in the conspiracy. Id. at 227–28 (citing United States v. Rhynes, 196 F.3d 207 (4th Cir.1999) ). In Rivera–Rodriguez's case, however, the jury returned a specific verdict, finding him guilty of conspiring to possess with intent to distribute 50 grams or more of cocaine base (crack), less than 100 grams of heroin, 5 kilograms or more of cocaine, and 100 kilograms or more of marijuana. See Crim. No. 07–121(ADC), ECF No. 1124. The Court adds that the proper way to determine a base offense level for a conviction involving several controlled substances, as in Rivera–Rodriguez's case, is to use the Drug Equivalency Tables of the Sentencing Guidelines. See United States Sentencing Commission, Guidelines Manual, § 2D1.1 (Nov.2007), comment, (n. 10). This is precisely what the Court described at sentencing: “When you have different types of drugs you just take those drugs and convert everything to marijuana, and you make an analysis of what is the base offense level ...” See Crim. No. 07–121(ADC), ECF No. 1935 at 11. This analysis, however, was unnecessary in Rivera–Rodriguez's case since the Court applied the cross-reference, drug-related murder in establishing a base offense level of 43.³

Finding Claim 1 unmeritorious, the Court ADOPTS the Magistrate Judge's recommendation as supplemented herein, and DENIES that claim.

2. Claim 2

Petitioner argues that appellate counsel provided ineffective assistance of counsel by not arguing on appeal that the District Court erred when it failed to apply the “clear and convincing evidence” standard to a cross-referenced murder. ECF No. 1–1 at 7–11. The Magistrate Judge first found that a court may establish by a preponderance of the evidence that there had been a killing that would constitute murder under 18 U.S.C. § 1111. See ECF No. 14 at 229 (citing, inter alia, United States v. Reyes–Echevarria, 345 F.3d 1, 7 (1st Cir.2003) ). Next, the Magistrate Judge determined that there was evidence presented at trial that implicated Rivera–Rodriguez in the murder. Id. at 229–30.

The Court adds that at petitioner's sentencing, the Court cited to substantial evidence that provided a more than adequate basis for attributing a murder to petitioner:

According to the testimony of Carlos Brito–Pacheco, ... Defendant Axel Muniz, ... along with the Defendant Gabriel Rivera–Rodriguez, ... Mr. Carlos Rivera–Moreno, ... and Wilbert Arroyo–Rosario, ... killed Ricardo Haddock–Collazo, ... out in the woods of Guayama.

This information was provided by Defendant Axel Muniz to Defendant Brito–Pacheco. And, as I mentioned, this was while acting in furtherance of the conspiracy and while seeking Mr. Brito's help in disposing or hiding of the body to either avoid or delay police detection.

According to the testimony, [Mr. Haddock] was hit with a stick ... or a heavy object over the head because he was cooperating with local authorities providing information regarding the drug distribution activities occurring at the Borinquen Ward, Guayama. This clearly establishes the motives for such murder.

This witness also stated that the victim had been tied and beaten up. And, as previously mentioned, all circumstances or ways in which the body was found, the body was dressed, were clearly depicted by this witness as testifying of his personal observations when he got to the place, and what had been done and where the body had been moved to.

Crim. No. 07–121(ADC), ECF No 1936 at 14–15. The Sentencing Court also found that Brito–Pacheco's testimony was corroborated by the testimony of a Puerto Rican police officer from the homicide division and a forensic pathologist. Id. at 15.

Furthermore, as the Magistrate Judge points out, petitioner has failed to make a requisite showing of prejudice. ECF No. 14 at 229–30. “Even if such cross reference murder guideline was not applied, the amount of drugs attributed to Rivera–Rodriguez ... would have still allowed for the sentence imposed ..., making such a sentencing...