KATHERINE B. FORREST, District Judge.
The Court has reviewed petitioner Alfredo Rivera's motion, through counsel, to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on grounds of ineffective assistance of counsel. (Pet., 10-cr-316, ECF No. 134; 15-cv-8328, ECF No. 1.)
Rivera now argues that he received ineffective assistance of counsel because his trial counsel failed to pursue and/or advise Rivera regarding the acceptance of a plea bargain with the Government, and rendered constitutionally defective advice as to the likelihood of prevailing at trial. (Pet. at 1.) These arguments are wholly without merit, and for the reasons set forth below, Rivera's motion is DENIED.
No evidentiary hearing is necessary in this action. The combined submissions of the parties provide a sufficient basis upon which to deny the petition, and the Court concludes that a full testimonial evidentiary hearing would not offer any reasonable chance of altering its view on the facts as alleged by Rivera, including the details added in his petition.
On April 12, 2010, Rivera, a retired New York City police officer, and his codefendant, Rafael Jimenez, an auxiliary New York City police officer, were indicted (ECF No. 1), and Rivera was arrested the following day, April 13, 2010. Rivera was initially represented by the Federal Defenders of New York. On June 22, 2010, David Goldstein entered a Notice of Appearance on behalf of Rivera, and was substituted as his counsel. (ECF No. 16;
The Government filed a superseding indictment (the "Indictment") on September 26, 2011, that contained three counts. (ECF No. 56.) Count One charged Rivera and Jimenez with conspiracy to distribute and to possess with intent to distribute at least five kilograms of cocaine, from January 2010 through March 2010, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 846. Count Two charged Jimenez with attempting to distribute and to possess with intent to distribute at least 100 grams of heroin, on January 14, 2010, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 846, and 18 U.S.C. § 2. Finally, Count Three charged Rivera and Jimenez with using and carrying a firearm during and in relation to a drug trafficking crime, and with possessing a firearm in furtherance of such crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (c)(1)(C), and 2. These charges stemmed from the defendants' agreement to provide armed protection for a large shipment of cocaine from Long Island to the Bronx, which was, in fact, a sting operation. On November 2, 2011, Jimenez pled guilty to Count One of the Superseding Indictment pursuant to a written plea agreement with the Government. (
Rivera chose to proceed to trial. A jury trial on the Superseding Indictment commenced on January 30, 2012 and ended on February 2, 2012. As further detailed below, the evidence at trial, which consisted largely of video and audio recordings, translated transcripts, and physical evidence, established that Rivera conspired to transport and safeguard a shipment of cocaine, and that he possessed a gun in furtherance of that conspiracy.
Evidence introduced at trial demonstrated that Jimenez first offered to recruit Rivera to participate in the transportation of cocaine in early January 2010. On January 12, 2010, Jimenez met with confidential informant 1 ("CI-1") and told CI-1 that he had an armed retired police officer (i.e. Rivera) who could assist with the transportation and protection of a shipment of cocaine. (Tr. 51-52; GX 101D, 101.)
On February 11, 2010, Rivera met CI-2 for the first time, with Jimenez present. (Tr. 63-64, GX 104D.) Rivera showed CI-2 a card identifying him as a retired police officer and a gun that Rivera described as a "fifteen plus one" (i.e. a gun holding 15 bullets in the magazine and one in the chamber). (GX 104D, 104.) During the meeting, CI-2 told Rivera that he needed "someone responsible enough ... to move my stuff" (i.e. cocaine) "around New York," from "point A, . . . meaning my warehouse . . . where I keep my stuff to my customers." (GX 104D, 104.) In response to CI-2's question as to what would happen if the police stopped Rivera while he was transporting the cocaine, Rivera stated, "I just show them my I.D. and my shield and . . . they always say `get out of here' . . . I never have trouble when the cops stop me." (GX 104D, 104.)
On February 23, 2010, Rivera met for a second time with CI-2 and Jimenez. (Tr. 67; GX 105D, 105.) When CI-2 asked Rivera if he would accept $10,000 for the job, Rivera responded that he would prefer $1,500 per kilogram of cocaine, for a total of $15,000. (GX 105D, 105.) Rivera ultimately agreed to accept $1,200 per kilogram and to pay Jimenez his share from that total. (GX 105D, 105.)
On March 12, 2010, Rivera met with confidential informant 3 ("CI-3") whom Rivera believed to be an associate of CI-2. (Tr. 80; GX 106D.) Rivera and CI-3 discussed obtaining prepaid cellphones to use in connection with the deal; Rivera said he would wait for CI-3's call about the deal. (GX 106D, 106.)
On March 23, 2010, Rivera received a call from CI-3 and drove to a shopping center in the Bronx while armed with a gun, picked up an SUV and then drove it to a warehouse in Long Island. (Tr. 86-89, 186.) Rivera met CI-2 at the warehouse, at which CI-2 told Rivera there were ten kilograms of cocaine (which in actuality was sham cocaine) in a bag in a nearby car. (Tr. 335.) Rivera took the bag, placed it in the SUV, and drove back to the Bronx. (Tr. 338-40.) Rivera—still armed with the gun—went into a restaurant, where CI-3 gave him a bag containing $12,000 in cash. (Tr. 90-95, 185-87.) On March 24, Rivera made two cash deposits, totaling $8,000, into his bank account. (GX 901, 902, 903.)
On March 25, 2010, Jimenez called Rivera asking for his share of the payment. (GX 201D, 201-A.) Rivera replied that he didn't know what Jimenez was talking about and said that if someone had told Jimenez that something had happened with respect to the cocaine deal, then that person was lying. (GX 201D, 201-B.) The next day, March 26, Rivera met with CI-3, who told Rivera to pay Jimenez $2,000 to make sure that Jimenez wouldn't speak to the police. (GX 110D, 110.) Rivera stated that he had already used the money and didn't have it anymore, and said that he "d[id]n't have a problem knocking [Jimenez] out" if necessary, but he "d[id]n't wanna kill him." (GX 110D, 110.)
As stated above, Rivera was arrested on April 13, 2010. (Tr. 357.) At the time of his arrest, Rivera was carrying a card that identified him as a retired NYPD officer and a nine millimeter handgun loaded with 15 rounds of ammunition. (GX 401, 403, 404, 405, 406, 702, 703.) Following his arrest, Rivera admitted that he had agreed with Jimenez and another person (CI-2) to transport 10 kilograms of cocaine in exchange for a $12,000 payment. (Tr. 359.) Later that day, FBI agents searched Rivera's apartment and found a .38 caliber handgun as well as the replica NYPD badge that Rivera had previously shown to CI-2. (Tr. 188.)
The defense case primarily relied on a theory of entrapment. Rivera testified at trial that during his initial January 26 call with Jimenez and CI-2—when he told Jimenez and CI-2 that he was "ready"—he was referring to the transportation of equipment he used in connection with a security job he worked with Jimenez. (Tr. 420.) Rivera then admitted to participation in the transaction that was the subject of the Government's case. He claimed, however, that he only agreed to meet with the people he believed to be drug dealers because of relentless pressure from Jimenez, on whom he depended for employment income, and that after the initial meeting with CI-2 he was afraid to back out and feared for his life if he refused to participate. (Tr. 411, 422-26.) Rivera claimed that he ultimately transported what he believed to be cocaine because he "felt trapped" and was afraid that "he might get hurt" if he backed out of the deal. (Tr. 429-31.) On cross-examination, Rivera admitted to coming up with several ideas in connection with the transportation of the cocaine, including taking the cocaine to his house for a day for the cocaine to "cool down," getting his son-in-law involved in the deal, negotiating for a higher fee, proposing a suitable drop-off location, obtaining a prepaid cellphone, and trying to cut Jimenez out of the deal. (Tr. 440-42, 456-63.)
On February 2, 2012, the jury returned a verdict of guilty as to both counts in which Rivera was charged. (Tr. 626-28.)
On April 3, 2012, this Court sentenced Jimenez principally to a term of 127 months' imprisonment. (ECF No. 92.) On June 27, 2012, this Court sentenced Rivera to a term of a 180 months' imprisonment,
On October 5, 2015, Rivera brought the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (ECF No. 134.) In support of his motion, Rivera submitted a declaration in which he makes allegations as to the ways in which he believed that Mr. Goldstein provided him ineffective assistance. (Pet., Ex. C ("Rivera Decl."), ECF No. 134.) In his declaration, Rivera admits that Mr. Goldstein did inform him that the Government made him a plea offer calling for a 10-year minimum sentence, and states that he was aware that Jimenez decided to accept a plea deal and understood that Jimenez's plea would lead to a 10-year sentence. (Rivera Decl. ¶¶ 15, 23.) Rivera claims, however, that Mr. Goldstein did not inform him that there was a deadline to accept the Government's plea offer, did not advise him about the benefits of a plea agreement or the risks of losing at trial, did not advise him about the strength of the Government's case or the weakness of his entrapment defense, and that Mr. Goldstein advised him in December 2011 that it was too late to consider a plea agreement when Rivera said that he wished to accept a plea agreement and refused to discuss the matter further. (Rivera Decl. ¶¶ 9, 18, 25-27.)
In response to this Court's October 23, 2016 Order (ECF No. 136), Mr. Goldstein submitted a declaration responding to Rivera's allegations of ineffective assistance (Goldstein Decl., ECF No. 138). In his declaration, Mr. Goldstein states that he has been engaged in the practice of law (focusing on criminal law) for the past 40 years; over that time, he has represented over 10,000 defendants, including several hundred in federal criminal proceedings, and has tried more than 100 criminal cases. (Goldstein Decl. ¶ 2.) Mr. Goldstein further explains that, after being retained, he reviewed the discovery provided by the Government and learned that the prosecution had strong evidence that Mr. Goldstein believed would conclusively establish that Rivera had transported what Rivera believed to be 10 kilograms of cocaine while carrying a gun, in exchange for a large cash payment. (Goldstein Decl. ¶ 4.) Mr. Goldstein states, however, that Rivera never denied the essential facts of the charges against him, but insisted that he was entrapped and therefore was not guilty of the charges. (Goldstein Decl. ¶ 4.)
Mr. Goldstein's declaration further explains that he filed several pretrial motions, including to sever Rivera's from that of Jimenez and to suppress various types of evidence. (Goldstein Decl. ¶ 5.) Mr. Goldstein states that he attempted to obtain a favorable plea offer from the Government, but the Government declined to provide a formal, written plea offer, instead representing that if Rivera was prepared to plead guilty to Count One (the conspiracy to distribute charge) and accept a two-level enhancement for possessing a gun in connection with that offense, the Government would agree to dismiss the remaining charges against him. (Goldstein Decl. ¶ 7.) The proposed plea would have subjected Rivera to a mandatory minimum of 10 years' imprisonment. (Goldstein Decl. ¶ 7.)
Mr. Goldstein states that he shared the Government's informal plea offer with Rivera soon after receiving it, and advised Rivera that he could avoid a 15-year mandatory minimum sentence if he pled guilty before trial, but that he could not be sentenced to less than 10 years' imprisonment under the terms of the plea offer. (Goldstein Decl. ¶ 8.) Rivera rejected the plea offer, continuing to insist that he had been entrapped and was therefore not guilty. (Goldstein Decl. ¶ 8.) Mr. Goldstein states that he advised Rivera that it would be difficult to convince a jury that he—a retired police officer—had been entrapped, and told Rivera, as is Mr. Goldstein's general practice, that the Government prevails in approximately 95% of federal criminal trials. (Goldstein Decl. ¶ 9.) Rivera responded that he was not guilty and that if he was going to get at least 10 years' imprisonment if he pled guilty, he might as well take his chances at receiving a 15 year sentence following a trial. (Goldstein Decl. ¶ 10.) At numerous subsequent meetings, Mr. Goldstein continued to advise Rivera to seriously consider the Government's plea offer, and never refused to discuss the possibility of a plea. (Goldstein Decl. ¶¶ 10-11.) Rivera continued to insist that he was entrapped and expressed confidence that he would prevail at trial. (Goldstein Decl. ¶ 12.) Mr. Goldstein states that it was on that basis, and based on Rivera's refusal to accept a deal that would require him to plead guilty to a mandatory minimum of 10 years' imprisonment, that he rejected the Government's informal plea offer and proceeded to trial. (Goldstein Decl. ¶ 12.)
On February 6, 2016, the Government filed its opposition to Rivera's petition. (ECF No. 39.) As set forth in the Court's October 23, 2015 Order (ECF No. 136), Rivera's reply brief was due not later than 30 days after the Government filed its opposition. Rivera's reply was thus due on March 7, 2016. To date, Rivera has not submitted a reply brief, nor has he requested an extension of time to do so.
"In general, a defendant is barred from collaterally challenging a conviction under § 2255 on a ground that he failed to raise on direct appeal."
To prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) his or her counsel's performance "fell below an objective standard of reasonableness" measured under "prevailing professional norms," and (2) he or she was prejudiced by counsel's deficient performance such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
As to the first prong of
As to the second prong of
Rivera's motion asserts that Mr. Goldstein, Rivera's counsel in the underlying criminal proceeding from June 2010 up until Rivera filed his direct appeal, rendered ineffective assistance in several respects bearing on Rivera's decision whether to accept the Government's plea offer or proceed to trial.
To prevail on his ineffective assistance claim, Rivera must first show that his counsel's performance "fell below an objective standard of reasonableness" measured under "prevailing professional norms."
First, in his declaration, Rivera himself acknowledges that Mr. Goldstein informed him that the Government made him a plea offer that would result in a 10year minimum sentence. (Rivera Decl. ¶ 15.) Rivera thus has conceded that Mr. Goldstein informed him of the terms of the Government's plea offer.
Second, Mr. Goldstein's declaration clearly explains that Mr. Goldstein was able to solicit an informal plea offer from the Government and that he shared that offer—including that it would result in a 10-year mandatory minimum sentence versus a potential 15-year sentence if the Government succeeded at trial—with Rivera soon after receiving it. (Goldstein Decl. ¶¶ 7-8.) Mr. Goldstein further states that he—an attorney with 40 years of experience practicing criminal law who has represented over 10,000 criminal defendants—informed Rivera that it would be difficult to succeed on an entrapment defense and that the Government had a high likelihood of success, and continued to advise Rivera to seriously consider the plea offer, but that Rivera continued to assert that he was not guilty and that he desired to take his chances at trial. (Goldstein Decl. ¶¶ 2, 9-10.) By informing Rivera of the terms of the plea offer, the strengths and weaknesses of the case against him, and the alternative sentences to which he would most likely be exposed, Mr. Goldstein provided constitutionally effective advice regarding Rivera's decision to reject the Government's plea offer.
Third, to the extent that Rivera's declaration contains generalized allegations that contradict Mr. Goldstein's sworn testimony as to the advice that he provided Rivera in relation to the plea offer, his assertions are self-serving, unsupported by any other evidence, highly improbable in light of all the relevant circumstances, and belied by the record of the underlying criminal proceeding; the Court rejects Rivera's assertions on those bases.
Fourth, even if Mr. Goldstein told Rivera that his entrapment defense had a reasonable possibility of succeeding at trial, such advice did not constitute ineffective assistance based on the record in this case. Mr. Goldstein presented sufficient evidence to get the Government to concede its inducement of the crimes charged, thereby shifting the burden to the Government to demonstrate that Rivera was predisposed to commit the crimes with which he was charged beyond a reasonable doubt.
Additionally, even if Rivera could succeed on the first
First, nowhere in Rivera's declaration does he assert that, had he received different advice from counsel, he would have accepted the Government's plea offer subjecting him to a 10-year mandatory minimum sentence and a gun enhancement that would have increased his Guidelines exposure and may well have resulted in a sentence approaching the one ultimately imposed after trial. While Rivera alleges that he expressed a desire to accept a plea agreement in December 2011 (Rivera Decl. ¶ 25), he does not state that he would have accepted the only plea agreement that was offered to him. The absence of such an assertion is particularly significant in light of Mr. Goldstein's statement that Rivera said he would rather risk receiving a 15-year sentence after trial than a 10-year mandatory minimum sentence after a guilty plea. (Goldstein Decl. ¶ 10.)
Second, to the extent that Rivera suggests that he failed to accept the plea because Mr. Goldstein misrepresented the strength of the Government's case and the weakness of Rivera's entrapment defense, that claim is self-serving and inherently improbable under the circumstances. Mr. Goldstein's contrary assertions, that he warned Rivera that it would be difficult to succeed on an entrapment defense as a retired police officer and that the Government prevails in 95% of federal criminal trials (a statement that Mr. Goldstein asserts is part of his usual practice in advising clients) (Goldstein Decl. ¶ 9), render Rivera's bald assertions utterly implausible.
For the reasons set forth above, Rivera's petition to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 is DENIED.
The Court declines to issue a certificate of appealability because there has been no "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2);
The Clerk of the Court is directed to terminate the motion at ECF No. 134 in 10-cr-316 and to terminate the action in 15-cv-8328.
SO ORDERED.
