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, 

(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

.          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


                                   - 2 -
(3) being a felon in possession of a firearm.                   

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."       

      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."     

(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." 

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." 

n.17.


                                      - 3 -
     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.


                                     - 4 -
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, 

, 44 (1st Cir.

2013); see also Strickland v. Washington, 

, 687-88

(1984).     Here, we begin and end with the prejudice inquiry.          See

("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)).


                                    - 5 -
counsel had performed as the defendant asserts he should have.

Hensley v. Roden, 

, 736 (1st Cir. 2014) (quoting

).         Moreover, "that likelihood 'must be

substantial, not just conceivable.'"           

v.

Richter, 

, 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 

n.5, 282.


                                      - 6 -
       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

-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.


                                       - 7 -
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."   

.     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.


                               - 8 -
     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, 

(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, 

, 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 . . . .").


                              - 9 -
"counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment" and (2) "that the deficient

performance prejudiced the 

.        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, 

, 44 (1st Cir. 2013) (quoting

Missouri v. Frye, ___ U.S. __, 

, 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, 

, 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

.    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


                                - 10 -
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, 

, 734 (1993); see also United States v. Delgado-Marrero,

, 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, 

, 480 (1st Cir. 1960)

(establishing that interstate commerce ceases under the Fair Labor

Standards Act when the goods come to rest); Guzman v. Irmadan, 

, 645 (11th Cir. 2009) (finding that goods purchased

at a hardware store, which previously had moved in interstate


                                    - 11 -
commerce, were already removed from interstate commerce once they

arrived at the retail store); United States v. Skoczen,       

, 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., 

, 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,

, 557 (1995), and United States v. Morrison, 

, 618 (2000), against expanding the interstate commerce reach


                                - 12 -
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.


                                    - 13 -
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, 

, 8 (1st

Cir. 1994).    "The proper measure of attorney performance remains

simple    reasonableness   under     prevailing   professional   norms."

.        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.


                                   - 14 -
strategic choice or reasonable tactical decision could account for

the trial attorney's failure in this regard.    See, e.g., 

(explaining that a lawyer's "strategic choices . . . are

virtually unchallengeable" on Sixth Amendment grounds); United

States v. Jackson, 

, 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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