Filed: Sep. 14, 2020
Latest Update: Sep. 15, 2020
Summary: Case: 18-10377 Document: 00515563486 Page: 1 Date Filed: 09/14/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 14, 2020 No. 18-10377 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Amanda Nicole Risovi, also known as Amber Nicole Risovi, also known as "Nikki", Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC 4:17-CV-842 Before Jolly, Jones, and
Summary: Case: 18-10377 Document: 00515563486 Page: 1 Date Filed: 09/14/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 14, 2020 No. 18-10377 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Amanda Nicole Risovi, also known as Amber Nicole Risovi, also known as "Nikki", Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC 4:17-CV-842 Before Jolly, Jones, and W..
More
Case: 18-10377 Document: 00515563486 Page: 1 Date Filed: 09/14/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 14, 2020
No. 18-10377
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Amanda Nicole Risovi, also known as Amber Nicole
Risovi, also known as "Nikki",
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC 4:17-CV-842
Before Jolly, Jones, and Willett, Circuit Judges.
Per Curiam:*
Amanda Nicole Risovi appeals the denial of a writ of habeas corpus
under 28 U.S.C. § 2255, contending that her two claims of ineffective
assistance of counsel warranted, if not granting the writ, then at least holding
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 18-10377 Document: 00515563486 Page: 2 Date Filed: 09/14/2020
No. 18-10377
an evidentiary hearing on her petition. We disagree and will not disturb
Risovi’s conviction. The judgment of the district court is AFFIRMED.
BACKGROUND
In October 2015, after eight members of an alleged drug conspiracy
were arrested, and two others admitted participating in it, federal
investigators focused on Risovi’s accounting work for a large-scale
methamphetamine distributor. She retained Steve Jumes as counsel
regarding an eventual indictment. Ultimately, on the advice of Jumes, Risovi
pleaded guilty to count 2 of an information charging her with conspiracy to
possess with intent to distribute a controlled substance.
Risovi cut a favorable plea deal. The PSR originally set her guidelines
sentence at a minimum of 360 months, but plea negotiations reduced the
charge to a crime with a 240-month maximum. The judge imposed a
sentence of 220 months’ imprisonment. A notice of appeal was filed, but
Risovi decided to voluntarily dismiss the appeal.
Almost a year later, Risovi filed pro se a § 2255 motion challenging her
conviction, in which she identified 13 claims for relief based on ineffective
assistance of counsel.
Responding that Risovi’s claims were conclusory and refuted by the
record, the government also presented an affidavit by Jumes and noted that
Risovi’s § 2255 motion was unsworn, in contravention of Rule 2(b)(5) of the
Rules Governing Section 2255 Proceedings. In turn, Risovi filed an
opposition and moved for an evidentiary hearing. In a second “statement of
evidence” she swore her statements to be “true and correct to the best of her
knowledge under penalty of perjury.” As ordered by the court, the
government filed a sur-reply featuring a second affidavit by Jumes.
2
Case: 18-10377 Document: 00515563486 Page: 3 Date Filed: 09/14/2020
No. 18-10377
Without holding an evidentiary hearing, the district court addressed
the § 2255 motion in a memorandum opinion and order under seal. It found
that Risovi had attempted to “fudge” the verification requirement under
Rule 2(b)(5) by declaring that her declarations under penalty for perjury were
only to the best of her knowledge. Although concluding that dismissal would
have been appropriate on this ground, the court nevertheless chose to
address the merits of the § 2255 motion. It concluded that Risovi had not
meaningfully challenged the information provided in the affidavits of her trial
counsel. The court denied a certificate of appealability (“COA”). Risovi
timely appealed.
This court granted a COA on two of Risovi’s ineffective-assistance
claims, no COA is necessary to challenge a district court’s failure to conduct
an evidentiary hearing prior to denying § 2255 relief, see Norman v. Stephens,
817 F.3d 226, 234 (5th Cir. 2016). We appointed counsel to represent Risovi
on appeal.
STANDARD OF REVIEW
This court “review[s] the district court’s denial of § 2255 relief de
novo.” United States v. Allen, 918 F.3d 457, 460 (5th Cir. 2019). We
“review[] a district court’s refusal to grant an evidentiary hearing on a § 2255
motion for abuse of discretion.” United States v. Cavitt,
550 F.3d 430, 435
(5th Cir. 2008).
DISCUSSION
On appeal, Risovi presents two theories of ineffective assistance of
counsel. First, counsel should have sought a professional evaluation of her
competency to enter a guilty plea. Second, her trial counsel should have
moved to suppress statements made during an uncounseled interview with
law enforcement. In addition, the district court should have held an
evidentiary hearing on both issues.
3
Case: 18-10377 Document: 00515563486 Page: 4 Date Filed: 09/14/2020
No. 18-10377
To prove ineffective assistance of counsel, Risovi must show (1) that,
based “on the facts of the particular case, viewed as of the time of counsel’s
conduct,” her “counsel’s representation fell below an objective standard of
reasonableness . . . under prevailing professional norms,” and (2) “that there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688-89, 694,
104 S. Ct. 2052, 2060, 2064–65,
2066 (1984). Risovi has failed to make the requisite showings, and she has
failed to establish that an evidentiary hearing was necessary for either
ineffective-assistance claim.
I. Failure to Seek Evaluation of Competency
Risovi’s initial theory of ineffective assistance is failure to seek a
competency hearing. 1 According to Risovi’s motion for a COA, her trial
counsel performed deficiently by his “failure to ask for a competency hearing
after appellant attempted suicide while in county [jail], seven days before
guilty plea.” A certificate of appealability was granted regarding “failing to
seek a psychological evaluation based on her drug abuse and suicide
attempts.”
Risovi bases her claim on her trial counsel’s alleged awareness of four
facts: (1) Her medication was not being properly adjusted. (2) She
attempted suicide seven days before her guilty plea. (3) She was placed in
isolation after that attempt, and (4) she “asked to have a competency
1
“A defendant is considered legally competent if [he] has 1) sufficient present
ability to consult with his lawyer with a reasonable degree of rational understanding, and
2) a rational as well as a factual understanding of the proceedings against him.” United
States v. McKnight, 570 F.3d 641, 648 (5th Cir. 2009). This standard applies in the context
of guilty pleas. Austin v. Davis,
876 F.3d 757, 782 (5th Cir. 2017).
4
Case: 18-10377 Document: 00515563486 Page: 5 Date Filed: 09/14/2020
No. 18-10377
evaluation (because a couple of nurses and one female doctor told her to
inform her attorney she needed one).”
Of these four potential grounds, the first three, at least, are insufficient
to establish deficient performance. In United States v. Davis, this court
determined that no competency hearing was necessary on the basis of “an
apparent suicide attempt,” within three days of a hearing, by a defendant who
was “depressed,” who had “had similar episodes in the past when
confronted with stress,” and who was currently hospitalized. 61 F.3d 291,
300–01, 304 (5th Cir. 1995). Davis involved a court’s failure to hold a
competency hearing, not counsel’s failure to seek one, but the principle
established there naturally applies here: an apparent suicide attempt, even
shortly before a hearing, and even when combined with certain other
conditions, does not create a need for a competency evaluation. Likewise, in
this case, Risovi’s apparent suicide attempt, seven days before her plea, even
in combination with her unspecified need for medication adjustments and her
being moved to isolation, does not establish a need for a competency
evaluation. See also Austin v. Davis,
876 F.3d 757, 785 (5th Cir. 2017)
(“[S]uicidality and depression are not necessarily indications of
incompetence.”).
In contrast, a competency evaluation might have been in order if
Jumes had believed that prison medical staff considered her incompetent.
Risovi does not allege that Jumes manifested any such belief. Instead, she
alleges she told Jumes that prison medical staff “told her to inform her
attorney she needed [a competency hearing].” But according to Jumes’s
unrefuted affidavit, he went himself and “discussed Ms. Risovi’s mental
health care multiple times with nursing staff at Parker County Jail.” Cf.
Bouchillon v. Collins, 907 F.2d 589, 596 (5th Cir. 1990) (finding deficient
performance where counsel “did no investigation of any kind”). During
those discussions, “[o]fficials in the medical section expressed that
5
Case: 18-10377 Document: 00515563486 Page: 6 Date Filed: 09/14/2020
No. 18-10377
Ms. Risovi was malingering and her wounds were not genuine suicide
attempts.” Further, “at no point did Ms. Risovi express delusions,
confusion, or any difficulty comprehending her legal predicament.” 2
Reviewing, as we must, “the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s
conduct,” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, we cannot say that
Risovi’s trial counsel acted objectively unreasonably by not seeking a
psychological evaluation prior to her guilty plea. Indeed, this holds true even
assuming that everything in Risovi’s affidavit is true.
Risovi argues finally that the district court should have held an
evidentiary hearing before dismissing her competency-hearing theory of
ineffective assistance. She contends that failure to do so was an abuse of
discretion either (1) because the decision should have been made without
consideration of the trial counsel’s affidavit, or (2) because that affidavit
merely sets up “a swearing match,” Neither position holds up.
A judge considering a § 2255 petition “may direct the parties to
expand the record by submitting additional material relating to the motion.”
R. Gov’g Section 2255 Proc’gs for the U.S. Dist. Cts. 7(a). Affidavits, in
particular, “may also be submitted and considered as part of the record.” Id.
at 7(b). Indeed, “[i]f the motion is not dismissed, the judge must review . . .
2
On appeal, Risovi cites Drope v. Missouri, 420 U.S. 162, 181,
95 S. Ct. 896, 908
(1975), as well as United States v. Ruston,
565 F.3d 892 (5th Cir. 2009), in maintaining that
“assuming Risovi was competent at some point in time prior to the day she entered her
guilty plea does not establish she was competent at the time she entered her plea.” In those
cases, though, the defendant was either absent from the hearing in
question, 420 U.S. at
181, 95 S. Ct. at 908, or experienced “delusions [that] were readily apparent throughout
the . . . hearing,”
Ruston, 565 F.3d at 903. In this case, Risovi was present for her plea, and
she has pointed to no manifestation of incompetence at that hearing. It is sheer speculation
to suggest that Jumes had reason to doubt Risovi’s legal competence in the brief interval
between two occasions on which he reasonably found no reason to doubt that competence.
6
Case: 18-10377 Document: 00515563486 Page: 7 Date Filed: 09/14/2020
No. 18-10377
any materials submitted under Rule 7 to determine whether an evidentiary
hearing is warranted.” Id. at 8(a). Contrary to Risovi’s contention,
therefore, the district court did not err by considering the affidavit of trial
counsel in determining whether to hold an evidentiary hearing on an
ineffective-assistance claim. Cf. McDonald v. Johnson,
139 F.3d 1056, 1060
(5th Cir. 1998). 3
Because, as discussed above, the affidavits do not create genuine
disputes of material fact, it follows that “[t]he district court had sufficient
facts before it to make an informed decision on the merits of [Risovi’s] claim
and, accordingly, did not abuse its discretion in refusing to hold an
evidentiary hearing.” Id.
II. Failure to Suppress
Risovi contends also that Jumes performed deficiently by failing to
move to suppress statements she made during an interview with law
enforcement. Even assuming for argument’s sake that counsel erred, 4 Risovi
must still establish that her trial counsel’s allegedly deficient performance
prejudiced her defense. In particular, Hill v. Lockhart requires that she
“show that there is a reasonable probability that, but for counsel’s errors,
[she] would not have pleaded guilty and would have insisted on going to
3
This point finds no contradiction in Risovi’s lone proposed authority, Schriro v.
Landrigan, 550 U.S. 465, 474,
127 S. Ct. 1933, 1940 (2007).
4
It is most unlikely that Risovi has shown deficient performance. For example, she
does not deny that she confirmed to officers conducting the interview that she was not
under arrest and was free to leave at any time. Moreover, Risovi has not denied her trial
counsel’s explanation that Risovi’s outlined goal was to obtain the most beneficial sentence
possible. Such a goal likely rendered counsel’s decision not to file a suppression motion
reasonable, and not constitutionally deficient.
7
Case: 18-10377 Document: 00515563486 Page: 8 Date Filed: 09/14/2020
No. 18-10377
trial.” 474 U.S. 52, 59,
106 S. Ct. 366, 370 (1985). 5 In Hill, the defendant
failed even to allege such prejudice
, id. at 60, 371; so, too, has Risovi failed.
Nowhere in briefing or in her pleadings does Risovi express any desire
to have gone to trial rather than plead guilty. Instead, her only description of
prejudice is that trial counsel “took advantage of her decreased mental
capacity to have her PLEAD GUILTY,” and he did so “in a way which
stripped her of important constitutional rights.” Then, in a discussion of
alleged legal flaws in her sentencing, she mentioned that “‘when [Task Force
Agent McMeans] was finished with her,’ [he] put her in the hands of the
DEA.”
Indeed, confronted with the government’s reliance on Hill on appeal,
Risovi’s reply brief to this court has no response. Risovi cannot allege Hill
prejudice for the first time on appeal, and without an allegation of prejudice,
an ineffective-assistance claim cannot succeed. Further, “[b]ecause
petitioner in this case failed to allege the kind of ‘prejudice’ necessary to
satisfy the second half of the Strickland v. Washington test, the District Court
did not err in declining to hold a hearing on petitioner’s ineffective assistance
of counsel claim.” Hill, 474 U.S. at 60, 106 S. Ct. at 371.
The judgment of the district court is AFFIRMED.
5
Also, she must prove that a “decision to reject the plea bargain would have been
rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372,
130 S. Ct. 1473,
1485 (2010).
8
