Rivera-Rivera v. United States , 827 F.3d 184 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 11-2132
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]
Before
Torruella, Lipez, Thompson,
Circuit Judges.
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.
June 29, 2016
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
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(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).
1 The Hobbs Act provides that "[w]hoever in any way or degree
obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce, by robbery or
extortion . . . shall be fined . . . or imprisoned." 18 U.S.C.
§ 1951(a).
2 The panel majority observed that the defendants had moved
for judgment of acquittal on the robbery and related firearm
charges, but had not done so "on the basis that the government
failed to present sufficient evidence that the lottery business
was engaged in interstate commerce." Rivera-Rivera, 555 F.3d at
285 n.7. The dissenting panel member nonetheless considered the
issue preserved because the district court had cut off counsel's
motion in mid-sentence, thus denying defendants the opportunity to
"specifically refer to the interstate commerce element." Id. at
294 n.17.
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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
3 Rivera also alleged ineffective assistance based on his
attorney's failure to move to suppress evidence, object to certain
jury instructions, request other instructions, and make an opening
statement, and he also cited counsel's acquiescence to certain
factual stipulations.
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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
4 On the other claims, we concluded that Rivera had "failed
to make 'a substantial showing of the denial of a constitutional
right.'" Rivera-Rivera v. United States, No. 11-2132, Order (Nov.
5, 2013) (quoting 28 U.S.C. § 2253(c)(2)).
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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 succeeded. In effect, the
judge to whom such a motion would have been submitted has stated
that the motion would have been denied.
5 Both the robbery conviction and related firearms conviction
would be unsupportable if there were insufficient evidence of the
robbery's impact on interstate commerce. See Rivera-Rivera, 555
F.3d at 285 n.5, 282.
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Nor has Rivera shown the requisite likelihood of a different
result in the direct appeal if this particular sufficiency claim
had been preserved at trial. To the contrary, the majority
strongly indicated that its conclusion would have been the same
under a de novo review of the record. Indeed, the issue turned
primarily on the interpretation and application of precedent,
which both the majority and dissent discussed at some length. See
Rivera-Rivera, 555 F.3d at 285-89, 293-98. We thus see no chance
that plenary review would have changed the majority's analysis.6
Finally, we note that Rivera also criticizes his attorney for
failing to develop evidence showing that "the business contacts
with interstate commerce were remote and did not amount to the
required nexus."7 However, this contention is materially different
from the issue on which we granted the certificate of
appealability, i.e., counsel's failure to challenge the adequacy
of the evidence presented by the government on that element.
Moreover, under the panel majority's reasoning, we see no
likelihood that additional evidence would have changed the result.
6Because the sufficiency claim necessarily involved
application of legal precedent to the evidence adduced at trial,
we also discern no abuse of discretion in the district court's
decision not to hold an evidentiary hearing on this claim. See 28
U.S.C. § 2255(b) (stating that an evidentiary hearing must be held
"[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief").
7 The defense presented no evidence at trial.
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Pointing to testimony that some of the lottery business customers
were from out of state, the majority declared that "[t]his evidence
alone suffices to establish the requisite interstate commerce
nexus." Rivera-Rivera, 555 F.3d at 288. We therefore do not
further address this variation on Rivera's Sixth Amendment claim.
Accordingly, even assuming that counsel's failure to move for
acquittal based on insufficient evidence of the robbery's effect
on interstate commerce was deficient performance under Strickland,
Rivera has not satisfied the prejudice prong of the two-part
inquiry into ineffective assistance of counsel.8 Hence, we affirm
the denial of his petition for relief under 28 U.S.C. § 2255.
So ordered.
--Dissenting Opinion Follows--
8 Although the dissent presents a compelling case for
deficient performance by Rivera's counsel, we disagree, as
explained above, that the record permits us to find that Rivera
has met the requisite prejudice standard. Specifically, given the
post-trial rulings of the original panel and the district court,
we cannot agree that a sufficiency-of-the-evidence objection at
trial based on the interstate commerce element would have had a
substantial likelihood of success. Indeed, all indications are to
the contrary. The original panel majority rejected the view of
the law advanced by the dissent here (and in the original case),
and the district court followed the majority's lead in its post-
conviction review. That legal judgment, based on an analysis of
the precedent, would not be limited to the plain error context.
Hence, the original panel's suggestion that the outcome of the
case would not change on de novo review cannot be dismissed as
mere dicta.
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TORRUELLA, Circuit Judge, Dissenting. The sole issue before
us is whether Appellant José Rivera-Rivera's ("Rivera") trial
attorney was derelict in his duty to provide Rivera with legal
representation that complies with the standard established by the
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
Rivera's claim is based on his allegation that his trial counsel
failed to challenge the sufficiency of the evidence presented by
the Government to establish the interstate commerce element of the
Hobbs Act violations for which Rivera was charged and convicted.9
The majority essentially holds that because a panel of this court
found under plain error review that the Government presented
sufficient evidence to support the Hobbs Act charges, United States
v. Rivera-Rivera, 555 F.3d 277, 285 (1st Cir. 2009) ("Rivera I"),
Rivera cannot now prevail in his claim that his counsel was
ineffective for having failed to raise the issue at trial. Because
I disagree with this reasoning and find under a de novo standard
of review that the Government did not present sufficient evidence
to support a Hobbs Act violation, I respectfully dissent.
Strickland requires both (1) "that counsel's performance
was deficient," meaning that counsel made errors so serious that
9 The charges in this case were brought, and the jury was
charged, under the interstate commerce requirement of the Hobbs
Act. 18 U.S.C. § 1951(a) ("Whoever in any way or degree obstructs,
delays, or affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion . . . shall be
fined . . . or imprisoned . . . .").
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"counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment" and (2) "that the deficient
performance prejudiced the defense." 466 U.S. at 687. The
majority's opinion focuses on the second prong of this test, under
which a defendant must show "'a reasonable probability that the
end result of the criminal process would have been more favorable'
but for the defense counsel's deficient performance." United
States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 2013) (quoting
Missouri v. Frye, ___ U.S. __, 132 S. Ct. 1399, 1409 (2012)).
To determine whether there was prejudice in the trial
attorney's failure to challenge the sufficiency of the
Government's evidence on the Hobbs Act charges, it is necessary to
evaluate the merits of the underlying claim. See Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986) (arguing that the merits of the
underlying claim is "one element of proof of [the defendant's]
Sixth Amendment claim"). In finding a lack of prejudice, the
majority appears to rely on Rivera I's statement that "[e]ven if
we were reviewing the appellants' sufficiency claim de novo, which
we are not, we would be hard pressed to find the evidence regarding
the interstate commerce nexus insufficient to support the
verdict." 555 F.3d at 287. This statement is mere dicta given
Rivera I's holding that its review would be for plain error.
Rivera I did not, in fact, apply a de novo standard and its findings
under the highly deferential plain error standard should not bind
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this court's analysis under a de novo standard. The differences
between these two standards of review are significant and
meaningful. Under plain error review, the error in question has
to be "plain," "clear," or "obvious." United States v. Olano, 507
U.S. 725, 734 (1993); see also United States v. Delgado-Marrero,
744 F.3d 167, 184 (1st Cir. 2014) (stating that the error must be
"clear or obvious"). De novo review, on the other hand, does not
give such deference to lower court determinations and permits this
court to independently evaluate the sufficiency of the evidence
presented by the Government to support its Hobbs Act charges.
Under this more rigorous level of examination, defense
counsel's performance was constitutionally deficient because he
failed to present arguments that no reasonable trier of fact could
have found that the business allegedly robbed by Rivera was in
commerce within the meaning of the Hobbs Act at the time the
alleged robbery took place. The fact that a business is in
interstate commerce at some point is not an unchangeable
designation that is thereafter carried on without limit ad
infinitum, as if it were a permanent tattoo. Cf. Sucrs. de A.
Mayol & Co. v. Mitchell, 280 F.2d 477, 480 (1st Cir. 1960)
(establishing that interstate commerce ceases under the Fair Labor
Standards Act when the goods come to rest); Guzman v. Irmadan, 322
F. App'x 644, 645 (11th Cir. 2009) (finding that goods purchased
at a hardware store, which previously had moved in interstate
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commerce, were already removed from interstate commerce once they
arrived at the retail store); United States v. Skoczen, 405 F.3d
537, 544 (7th Cir. 2005) (holding that an interstate good loses
its interstate quality when it arrives at its final destination);
Dunlop v. Indus. Am. Corp., 516 F.2d 498, 499 (5th Cir. 1975)
(recognizing that a garbage removal service was not engaged in
interstate commerce merely because it purchased gasoline and other
products from an entity that had moved them from out of state).
In this case, the Government's evidence concerning the
alleged interstate nexus of the business in question was limited
to: the purchase of machinery and parts for use in the store that
were manufactured in Rhode Island, but obtained by Rivera from the
Commonwealth of Puerto Rico's Treasury Department five years prior
to the alleged robbery; testimony regarding the possible purchase
of replacement equipment and parts at some undefined time in the
future; evidence of sporadic purchases of lottery tickets produced
in Puerto Rico by tourists visiting Caguas, a city in the center
of Puerto Rico; and the incidental use of the business's gaming
room by tourists who visited Caguas. Considering the sparsity and
tenuousness of this alleged interstate commerce connection,
defense counsel should have at a minimum argued to the trial court
the caveat given by the Supreme Court in United States v. López,
514 U.S. 549, 557 (1995), and United States v. Morrison, 529 U.S.
598, 618 (2000), against expanding the interstate commerce reach
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into what has been clearly reserved to local police power
jurisdiction. On these facts, no reasonable trier of fact could
have found a sufficient nexus between the lottery business and
interstate commerce, and Rivera was entitled to have those charges
dismissed rather than submitted to the jury.
If Rivera's counsel had objected to the Government's
failure to present sufficient evidence to establish that the
business allegedly robbed by Rivera was engaged in interstate
commerce, the court would have had to dismiss the charges against
Rivera.10 This, however, is what actually transpired during the
Rule 29 colloquy:
DEFENSE COUNSEL: [W]e pray the Court to grant a Rule
29 and enter a not guilty verdict on this particular
case at this time, because I submit that there is
insufficient evidence for the robbery, the firearm,
and the fact --
THE COURT: I think there is overwhelming evidence of
the fact that this robbery took place as testified
to by the witnesses. Motion denied.
OTHER DEFENSE COUNSEL: We adopt the motion.
THE COURT: Anything else?
10 The majority opinions points to the district court's
rejection of this argument in its review of Rivera's § 2255
petition and argues that it is probative of prejudice because it
means "it is unlikely that a motion for judgment of acquittal filed
during trial would have succeeded." Supra at x. This argument is
rather beside the point. In evaluating a claim for ineffective
assistance of counsel, we must assume that the trial court would
have accurately applied the law.
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Nothing else was said regarding the Rule 29 motion, and the
proceedings continued in another direction.11
Having established that the failure to object to the
sufficiency of the evidence under the Hobbs Act did result in
prejudice to his case, we proceed to analyze the first prong of
Strickland: did the performance of the trial attorney fall "below
the constitutional norm"? Scarpa v. Dubois, 38 F.3d 1, 8 (1st
Cir. 1994). "The proper measure of attorney performance remains
simple reasonableness under prevailing professional norms."
Strickland, 466 U.S. at 688. It is not reasonable for a trial
attorney to fail to challenge the sufficiency of the Government's
evidence when that evidence has in fact been insufficient. No
11 From this interchange it is clear that the court
interrupted defense counsel's discussion before he had completed
his Rule 29 objections, in particular, regarding any
jurisdictional issues counsel may have wished to raise. The judge
rushed to judgment without hearing the remainder of the attorney's
contentions. Nevertheless, as can be seen from the text of the
brief encounter of the Rule 29 colloquy, trial counsel was given
the opportunity by the court to speak further regarding its ruling,
but for reasons unknown, counsel chose not to take this
opportunity, and thus failed to specifically raise what at this
point we can only surmise was the jurisdictional issue. Given
these circumstances, the question remains whether we are faced
with a failure that lays not in counsel's performance but rather
in the trial judge's erroneous action. I believe that counsel's
silence, given the substantial jurisdictional question raised by
the failure of the Government's evidence, overrides the trial
court's precipitous ruling and is sufficiently serious to
constitute a Strickland violation. Moreover, as we have seen,
Rivera I held the issue to have been waived by trial counsel's
actions and treated the question under plain error review rather
than de novo review.
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strategic choice or reasonable tactical decision could account for
the trial attorney's failure in this regard. See, e.g., id. at
690 (explaining that a lawyer's "strategic choices . . . are
virtually unchallengeable" on Sixth Amendment grounds); United
States v. Jackson, 918 F.2d 236, 243 (1st Cir. 1990) (finding that
an attorney's representation is not inadequate if the relevant
conduct could be viewed as "a reasonable tactical decision").
Finding both prongs of Strickland's test to have been
met, I would grant Rivera's request, reverse his conviction and
grant a new trial.
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