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Rivera-Rivera v. United States

United States Court of Appeals, First Circuit

June 29, 2016

JOSÉ A. RIVERA-RIVERA, Petitioner, Appellant,
v.
UNITED STATES OF AMERICA, Respondent, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. José Antonio Fusté, U.S. District Judge]

          Lydia Lizarríbar-Masini on brief for appellant.

          Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, on brief for appellee.

          Before Torruella, Lipez, Thompson, Circuit Judges.

          LIPEZ, Circuit Judge.

         Appellant José Rivera-Rivera was convicted in 2005 on three charges stemming from the armed robbery of a lottery ticket business at a mall in Caguas, Puerto Rico. On direct appeal, a divided panel of this court affirmed his conviction and sentence. See United States v. Rivera-Rivera, 555 F.3d 277 (1st Cir. 2009). Rivera subsequently petitioned for post-conviction relief under 28 U.S.C. § 2255, claiming ineffective assistance of counsel based on multiple instances of alleged inadequate representation. The district court concluded that none of the asserted flaws warranted relief. We granted a certificate of appealability on the one question linked to the issue that split the prior panel: "whether petitioner's trial attorney had provided ineffective assistance of counsel in failing to move for a judgment of acquittal on the Hobbs Act charge." After carefully considering Rivera's claim, we affirm.

         I. Background

         Rivera and co-defendant Ramón Sánchez-Rosado were convicted for taking approximately $9000 and other items from a lottery ticket business at the Muñiz Gallery shopping mall after forcing the mall manager, at gunpoint, to open the business's safe. See Rivera-Rivera, 555 F.3d at 280-81. A jury found the defendants guilty on all three counts charged: (1) aiding and abetting an armed robbery affecting interstate commerce, in violation of the Hobbs Act, (2) using a firearm in connection with the robbery, and (3) being a felon in possession of a firearm. Id. at 281-82. Rivera was sentenced to 415 months' imprisonment.

         Among other issues raised in their direct appeal, the defendants claimed that the government had failed to offer sufficient evidence of the robbery's effect on interstate commerce, as required to support a Hobbs Act violation.[1] In rejecting this claim, the panel majority applied plain error review because the claim had not been raised below.[2] The majority noted, however, that "[e]ven if we were reviewing the appellants' sufficiency claim de novo, . . . we would be hard pressed to find the evidence regarding the interstate commerce nexus insufficient to support the verdict." Id. at 287. The dissenting judge found the evidence inadequate because "the record lacks proof of future interstate purchasing by [the] business on which the robbery could have had an impact." Id. at 295 (Lipez, J., dissenting).

         Following disposition of his direct appeal, Rivera filed a pro se petition under 28 U.S.C. § 2255 seeking relief from his sentence and a new trial based on ineffective assistance of counsel in violation of his Sixth Amendment rights. He argued, inter alia, that counsel was ineffective in failing to move for acquittal on the Hobbs Act charge based on the insufficiency of the evidence linking the lottery business to interstate commerce.[3] The district court denied the motion. With respect to the Hobbs Act claim, the court held that, "because there was sufficient evidence to prove a nexus to interstate commerce, [it could not] find counsel deficient in his choice not to raise a futile sufficiency argument." The court declined to issue a certificate of appealability on any issue. See Rule 11(a), Rules Governing § 2255 Proceedings (directing the district court to "issue or deny a certificate of appealability when it enters a final order adverse to the applicant").

         Rivera then applied to this court for a certificate of appealability on four claims. See Fed. R. App. P. 22(b)(1) ("[I]n a 28 U.S.C. § 2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)."); Rule 11(a), Rules Governing § 2255 Proceedings ("If the [district] court denies a certificate, a party may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22."). We granted the certificate only on the issue of counsel's failure to move for acquittal on the Hobbs Act charge.[4] We also granted Rivera's motion for appointment of counsel. This appeal followed.

         II. Discussion

         To succeed with a claim of ineffective assistance of counsel, a criminal defendant must establish both that "his attorney's performance was deficient under an objective standard of reasonableness; and [that] his defense suffered prejudice as a result." United States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 2013); see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Here, we begin and end with the prejudice inquiry. See Carrigan, 724 F.3d at 44 ("Failure to satisfy one of the Strickland prongs is fatal and, therefore, we are free to tackle either prong first.").

         Under Strickland, "[i]t must be 'reasonably likely' that the result of the criminal proceeding would have been different" if counsel had performed as the defendant asserts he should have. Hensley v. Roden, 755 F.3d 724, 736 (1st Cir. 2014) (quoting Strickland, 466 U.S. at 696). Moreover, "that likelihood 'must be substantial, not just conceivable.'" Id. (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)). Hence, Rivera's Sixth Amendment claim will fall short unless he can show a substantial likelihood that he would have obtained a different outcome on the Hobbs Act count if his attorney had moved for judgment of acquittal based on inadequate evidence of the robbery's impact on interstate commerce.[5] Rivera is unable to satisfy that standard.

         Rivera's post-conviction claim that his attorney unreasonably failed to challenge the evidence on interstate commerce was presented to the same judge who presided over his trial. In evaluating that claim, the trial judge expressly agreed with the view of the First Circuit panel majority, holding that "there was sufficient evidence to prove a nexus to interstate commerce." This determination means it is unlikely that a motion for judgment of acquittal filed during trial would have ...


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