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Rivera-Puga v. United States

United States District Court, S.D. Indiana, Indianapolis Division

June 15, 2018




         For the 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.

         I. The § 2255 Motion

         A 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 citations omitted).

         II. Factual Background

         Mr. Rivera-Puga was indicted on August 17, 2011, on five counts of drug offenses. Crim. dkt. 42.[1] 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 ¶ 1.
• The government agreed to move to dismiss the remaining counts of the indictment upon entry of Mr. Rivera-Puga's sentence. Id.
• 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.

         The 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. dkt. 144.

         Mr. Rivera-Puga now asks the Court to vacate his conviction and sentence.

         III. Discussion

         Mr. 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.

         A 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.

         For the reasons explained below, Mr. Rivera-Puga's claims of ineffective assistance fall short of this standard.

         A. Failure to Properly Advise Regarding Aggravating Role and Appellate Waiver

         Mr. 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).

         Assuming 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)).

         Whatever 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 ...

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