JOSÉ A. RIVERA-RIVERA, Petitioner, Appellant,
UNITED STATES OF AMERICA, Respondent, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. José Antonio Fusté, U.S.
Lizarríbar-Masini on brief for appellant.
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.
Torruella, Lipez, Thompson, Circuit Judges.
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.
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
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. In rejecting this
claim, the panel majority applied plain error review because
the claim had not been raised below. 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,
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. 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").
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. We also granted Rivera's
motion for appointment of counsel. This appeal followed.
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.").
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. Rivera is unable to satisfy that standard.
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 ...