United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISCUSSING MOTION FOR RELIEF PURSUANT TO 28
U.S.C. § 2255 AND DENYING CERTIFICATE OF
WALTON PRATT, JUDGE
reasons explained in this entry, Petitioner Juan
Rivera-Puga's motion for relief pursuant to 28 U.S.C.
§ 2255 must be denied and the action dismissed with
prejudice. In addition, the Court finds that a certificate of
appealability should not issue.
The § 2255 Motion
motion pursuant to 28 U.S.C. § 2255 is the presumptive
means by which a federal prisoner can challenge his
conviction or sentence. See Davis v. United States,
417 U.S. 333, 343 (1974). A court may grant relief from a
federal conviction or sentence pursuant to § 2255
“upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). The scope of relief
available under § 2255 is narrow, limited to “an
error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in
a complete miscarriage of justice.” Borre v. United
States, 940 F.2d 215, 217 (7th Cir. 1991) (internal
Rivera-Puga was indicted on August 17, 2011, on five counts
of drug offenses. Crim. dkt. 42. On August 3, 2012, Mr.
Rivera-Puga pled guilty to one count pursuant to an agreement
with the United States. See crim. dkt. 168. Notable
terms of that agreement are as follow:
• Mr. Rivera-Puga agreed to plead guilty to Count I of
the indictment, which charged him with conspiring to possess
with intent to distribute, and to actually distribute, 500
grams or more of a mixture or substance containing a
detectable amount of methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and 846. Crim. dkt. 103 at
• The government agreed to move to dismiss the remaining
counts of the indictment upon entry of Mr. Rivera-Puga's
• The government agreed to recommend the minimum
sentence within the applicable U.S. Sentencing Guidelines
range. Id. at ¶ 11(d).
• Mr. Rivera-Puga agreed that, in calculating his
Guidelines range, his offense level would be increased by two
levels based on his aggravating role as a supervisor or
director of another conspirator's activities.
Id. at ¶ 11(b).
• The government agreed that Mr. Rivera-Puga's
offense level would be decreased by three levels based on his
acceptance of responsibility. Id. at ¶ 11(c).
• In exchange for the government's concessions, Mr.
Rivera-Puga agreed to waive his right to appeal his
conviction and sentence. Id. at ¶ 10.
Court accepted Mr. Rivera-Puga's guilty plea on August 3,
2012, and dismissed the remaining counts in the indictment.
Crim. dkt. 144. Based on the terms of the agreement, the
Court calculated Mr. Rivera-Puga's Guidelines range at
135-168 months in prison. Crim. dkt. 168 at 18:9-19:20.
Consistent with the agreement, and based on the
government's recommendation, the Court entered a sentence
of 135 months in prison. Id. at 20:24-22:12; crim.
Rivera-Puga now asks the Court to vacate his conviction and
Rivera-Puga asserts four bases for relief in his motion. All
are variations on the argument that Mr. River-Puga was not
provided with effective assistance by his trial attorney,
Richard Ford, and that he therefore was convicted and
sentenced in violation of the Sixth Amendment.
petitioner claiming ineffective assistance of counsel bears
the burden of showing that (1) trial counsel's
performance fell below objective standards for reasonably
effective representation, and (2) this deficiency prejudiced
the defense. Strickland v. Washington, 466 U.S. 668,
688-94 (1984); United States v. Jones, 635 F .3d
909, 915 (7th Cir. 2011). To satisfy the first prong of the
Strickland test, the petitioner must direct the
Court to specific acts or omissions of his counsel. Wyatt
v. United States, 574 F.3d 455, 458 (7th Cir. 2009). The
Court must then consider whether, in light of all of the
circumstances, counsel's performance was outside the wide
range of professionally competent assistance. Id. In
order to satisfy the prejudice component, the petitioner must
establish that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.”
Strickland, 466 U.S. at 694.
reasons explained below, Mr. Rivera-Puga's claims of
ineffective assistance fall short of this standard.
Failure to Properly Advise Regarding Aggravating Role and
Rivera-Puga argues that Mr. Ford “provided incorrect
advice” by misrepresenting the effect of his upward
adjustment for playing an aggravating role in the conspiracy
and “the finality effect” of his appellate
waiver. Dkt. 2 at 5. This amounts to an argument that Mr.
Rivera-Puga did not enter his guilty plea knowingly and
voluntarily because he was not “advised by competent
counsel” and therefore was not “made aware of the
direct consequences of the plea.” See, e.g.,
United States v. Jordan, 870 F.2d 1310, 1316 (7th
Cir. 1989), quoted in Hurlow v. United States, 726
F.3d 958, 967-68 (7th Cir. 2013) (“a plea . . . cannot
be ‘knowing and voluntary' if it resulted from
ineffective assistance of counsel.'”). When
assessing the voluntariness of a petitioner's guilty plea
under § 2255, “representations made to a court
during a plea colloquy are presumed to be true.”
Hurlow, 726 F.3d at 968 (internal quotations and
citations omitted). A petitioner “cannot obtain relief
by the expedient of contradicting statements freely made
under oath, unless there is a compelling reason for the
disparity.” Nunez v. United States, 495 F.3d
544, 546 (7th Cir. 2007), judgment vacated and remanded
on other grounds, 554 U.S. 911 (2008).
that Mr. Ford failed to competently advise Mr. Rivera-Puga
concerning the effects of the aggravating-role adjustment or
the appellate waiver Mr. Rivera-Puga still must establish
that he was prejudiced by Mr. Ford's incompetence. And,
when a defendant pleads guilty pursuant to an agreement with
the government, prejudice is difficult to establish.
“In the context of plea agreements, the prejudice prong
focuses on whether the deficient information was the decisive
factor in a defendant's decision to plead guilty or to
proceed to trial.” Julian v. Bartley, 495 F.3d
487, 498 (7th Cir. 2007) (applying Hill v. Lockhart,
474 U.S. 52, 58-59 (1985)).
misrepresentations Mr. Ford may have made before Mr.
Rivera-Puga entered his guilty plea, Mr. Rivera-Puga's
statements during his plea colloquy indicate that he fully
understood the consequences of his guilty plea, his ...