Miguel Rivera v. United States, 915 F.2d 1557, 1st Cir. (1990)
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Scribd Government DocsMiguel Rivera v. United States, 915 F.2d 1557, 1st Cir. (1990)
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Scribd Government Docs915 F.
2d 1557
Unpublished Disposition
NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished
opinions may be cited only in related cases.
Miguel RIVERA, Petitioner, Appellant,
v.
UNITED STATES of America, Respondent, Appellee.
No. 89-2071.
United States Court of Appeals, First Circuit.
Sept. 19, 1990.
Appeal from the United States District Court for the District of
Massachusetts, Frank H. Freedman, District Judge.
Miquel Rivera on brief, pro se.
Wayne A. Budd, United States Attorney, and Mary Elizabeth Carmody,
Assistant U.S. Attorney, on brief, for appellee.
D.Mass.
AFFIRMED.
Before BREYER, Chief Judge, and SELYA and CYR, Circuit Judges.
PER CURIAM.
Miguel Rivera (the petitioner) appeals from a district court judgment denying
his motion to vacate, set aside or correct his sentence under 28 U.S.C. Sec.
2255. We find no error and accordingly affirm.
I.
2
In 1988, petitioner was employed as an armored car guard. On May 13 of that
year, he and two other guards, Hector Melendez and Mark Arena, are alleged to
have stolen $65,000 from the armored car they were operating. Charged with
one count of larceny from a federally insured bank in violation of 18 U.S.C.
Secs. 2113(b) and 2, Melendez and Arena subsequently pled guilty, while
petitioner was convicted following a jury trial. On December 27, 1988,
petitioner was sentenced to a twelve-month prison term, to be followed by three
years of supervised release, and was fined $25,505. At both trial and
sentencing, he required the services of an interpreter as well as a courtappointed attorney who spoke Spanish.
3
Petitioner filed no notice of appeal within ten days of the January 4, 1989
judgment, as required by Fed.R.App.P. 4(b). On February 23, 1989, however,
he submitted a pro se letter to the district court stating that he "wish[ed] to
appeal the case," a letter which the district court construed as a notice of appeal.
Following issuance of a show cause order, we dismissed this appeal as invalid
on April 4, 1989. Petitioner's letter, we indicated, had not been filed within the
time period in which the district court could extend the time for filing a notice
of appeal. Consequently, even if the district court had intended to allow the
notice of appeal to be filed out-of-time (a point we did not decide), it was
without jurisdiction to do so. Petitioner then filed in this court what was
construed as a motion for reconsideration and rehearing en banc, in which he
alleged (1) that his counsel had provided ineffective assistance by "not properly
... advising" him of his appellate rights, and (2) that the disparity between his
sentence and those of his codefendants indicated that he had been penalized for
asserting his right to trial and thereby denied due process. On May 1, 1989, we
denied this motion because of our lack of jurisdiction.
Three weeks later, petitioner reasserted these two claims in the district court in
a pro se motion styled as one "for Vacating Sentence of Defendant and
Resentenc[ing] the Defendant in Order that he may Pursue a Timely Appeal."
Construing the motion as one for correction of sentence under Fed.R.Crim.P.
35, the district court properly found it to be procedurally defective.1 And
construing the motion in the alternative as a section 2255 petition, see, e.g.,
United States v. Zuleta-Molina, 840 F.2d 157, 158 (1st Cir.1988) (per curiam),
the court determined that it stated no grounds for relief. The court therefore
denied the motion without a hearing. We likewise find petitioner's allegations,
viewed as a request for section 2255 relief, to be unavailing.2
Although petitioner has not requested such relief, the only colorable issue
arising from the ineffective-assistance claim is whether his underlying factual
allegations are sufficient to warrant an evidentiary hearing. As we have often
stated, a Sec. 2255 petition cannot be dismissed without a hearing unless: (1)
the factual allegations, if accepted as true, would not entitle the petitioner to
relief, or (2) those allegations cannot be accepted as true because they are
contradicted by the record, are inherently incredible, or comprise conclusions
rather than statements of fact. See, e.g., Hernandez-Hernandez v. United States,
904 F.2d 758, 762 (1st Cir.1990); Dziurgot v. Luther, 897 F.2d 1222, 1225 (1st
Cir.1990) (per curiam); United States v. Mosquera, 845 F.2d 1122, 1124 (1st
Cir.1988) (per curiam). Petitioner's allegations here prove to be entirely
conclusory, devoid of any specific assertion that might give rise to a cognizable
sixth amendment claim.
6
Petitioner's district court motion set forth his sixth amendment claim in a single
sentence: it alleged that the action "of counsel not advising Rivera to file a
timely notice of appeal, when Rivera desired him to do so, constituted
ineffective assistance of counsel." The government in response submitted an
affidavit from Lazar Lowinger, petitioner's appointed trial attorney. Lowinger
averred that, immediately after sentencing, he explained to petitioner that he
had ten days to appeal, but that petitioner disclaimed any interest in doing so
with the comment that they "might as well leave it as it is."3 Petitioner was not
afforded an opportunity to contest this affidavit; the district court issued its
decision four days after the government's response. He has responded to it,
however, in his appellate brief. He contends generally that Lowinger has made
"untrue statements" in an effort to "cover up" his deficient assistance. And he in
particular rejects the "might as well leave it as it is" attribution as a "total lie."
His response to the Lowinger affidavit contains no affirmative allegations,
however; he fails to explain what conversation if any occurred with counsel
after sentencing and he makes no allegation that he ever specifically requested
Lowinger to file an appeal or even informed him that he was contemplating an
appeal.
The Lowinger affidavit by itself does not warrant summary dismissal of
petitioner's claim. "Material issues of fact may not be resolved against the
petitioner solely by relying on ex parte, sworn or unsworn, statements of the
government ... or defense counsel." United States v. Butt, 731 F.2d 75, 77-78
(1st Cir.1984). See also Miller v. United States, 564 F.2d 103, 106 (1st
Cir.1977) ("Affidavits may assist only in determining if there is a genuine issue
of fact to resolve."), cert. denied, 435 U.S. 931 (1978); Bender v. United States,
387 F.2d 628, 630 (1st Cir.1967) (per curiam). The issue is whether petitioner
has set forth sufficiently specific factual allegations so as to be entitled (in light
of the Lowinger affidavit) to a hearing.
Petitioner's sole allegation--that counsel provided ineffective assistance by "not
advising Rivera to file a timely notice of appeal, when Rivera desired him to do
so"--is subject to several, equally conjectural interpretations. To the extent he is
contending that he was never informed of his right to appeal, the record
demonstrates otherwise. Pursuant to Fed.R.Crim.P. 32(a)(2), the district court at
sentencing advised petitioner of his right to appeal and of his right to appointed
counsel if indigent. It also stated that the clerk of court would file a notice of
appeal on behalf of petitioner upon request.4 To the extent he is contending that
Lowinger, although requested to do so, failed to file a timely notice of appeal,
his allegations lack the necessary specificity. Such a charge, if true, might
indeed constitute ineffective assistance of counsel. See, e.g., Rodriguez v.
United States, 395 U.S. 327 (1969); Estes v. United States, 883 F.2d 645, 64849 (8th Cir.1989); Leventhal v. Gavin, 396 F.2d 441, 442 (1st Cir.1968) (per
curiam). Yet petitioner here has nowhere alleged that he specifically requested
Lowinger to file an appeal--an omission which fatally undermines any
contention along these lines. See, e.g., Smith v. Lockhart, 882 F.2d 331, 333-34
(8th Cir.1989), cert. denied, 110 S.Ct. 739 (1990); United States v. EstelaMelendez, 878 F.2d 24, 26-27 (1st Cir.1989) (per curiam); United States v.
McAdams, 759 F.2d 1407, 1409 (9th Cir.1985).
9
To the extent petitioner is contending that Lowinger failed to advise him simply
of the ten-day filing requirement (which the sentencing court did not mention),
his allegations are similarly inadequate. Whether such a failure can ever
constitute ineffective assistance--under circumstances where a defendant
expresses a desire, for example, to appeal pro se, or to consult with new counsel
before appealing, or to ponder for a time whether to appeal or not--we need not
decide. See generally Miller v. United States, 356 F.2d 63, 64-65 (5th Cir.),
cert. denied, 384 U.S. 912 (1966). Given the lack of any allegation here that
petitioner ever informed Lowinger that he was considering an appeal, any
failure to advise petitioner of the ten-day limitation cannot be deemed deficient
performance. The reasoning of the cases listed above involving the absence of
any request that an appeal be filed would seem equally applicable in this
context. Finally, to the extent petitioner is contending that he changed his mind
and decided to appeal only after the filing period had expired, he of course
states no claim of ineffective assistance of counsel. See, e.g., United States v.
Estela-Melendez, 878 F.2d at 27.
10
Petitioner here is proceeding pro se. He lacks facility with the English
language. His pleadings, if less than lucid, are nonetheless coherent. We have
attempted to construe them as broadly as possible. Yet we cannot "conjure up
unpled allegations." McDonald v. Hall, 610 F.2d 16, 19 (1st Cir.1979).
Petitioner made no reference to this sixth amendment claim in his February 23,
1989 letter to the district court or in his response to our show cause order. He
first raised it in his motion for reconsideration and rehearing en banc in this
court, in a verbal formulation nearly identical to that contained in the instant
Sec. 2255 petition. In our order denying the motion for reconsideration, we
expressed uncertainty as to what exactly petitioner was claiming in this regard.
Petitioner advanced this claim on three subsequent occasions--in his Sec. 2255
petition (filed three weeks after our order), in his notice of appeal from the
district court's denial of same, and in his appellate brief. Nowhere did he
elaborate on his initial, ambiguous allegation. Indeed, as mentioned, see note 2
supra, he has pressed the issue only tangentially on appeal. Under these
circumstances, we find petitioner's ineffective-assistance-of-counsel claim to be
merely conclusory and appropriately subject to summary dismissal.
II.
11
Petitioner's disparate-sentencing claim is patently without merit. He received a
twelve-month term, within the sentencing-guideline range of eight to fourteen
months. Melendez, considered the most culpable of the three defendants,
received a fifteen-month term. Arena, who assisted in the investigation,
received a suspended sentence. We find nothing in these circumstances, and
petitioner has alleged no other facts, that might create a "reasonable
apprehension" that his sentence was "a retaliatory consequence" of his refusal
to plead guilty. Longval v. Meachum, 693 F.2d 236, 238 (1st Cir.1982), cert.
denied, 460 U.S. 1098 (1983); see also United States v. Mazzaferro, 865 F.2d
450 (1st Cir.1989); United States v. Crocker, 788 F.2d 802 (1st Cir.1986). In
any event, we have lately held that "we have no appellate jurisdiction to
consider a sentence that was within the applicable guideline range," correctly
determined. United States v. Vega-Encarnacion, No. 89-2137, slip op. at 14
(1st Cir. Sept. 12, 1990). The sentence here was of this type. Being
unappealable on this basis, the sentence is not open to collateral attack as
"retaliatory."
12
Affirmed.
As amended as of November 1, 1987, Rule 35 no longer provides a vehicle by
which a defendant may seek a reduction in sentence. Rather, it permits
correction of a sentence only pursuant to a remand from an appellate court or on
motion of the government to reflect changed circumstances
The issues petitioner has raised on appeal bear scant resemblance to those
advanced below. His motion in the district court, construed broadly, involved
four allegations: (1) that his attorney's failure to advise him as to the procedures
for filing an appeal constituted ineffective assistance of counsel; (2) that his
sentence represented in part a punishment for his having opted for trial; (3) that
his speedy trial rights were violated; and (4) that his "language barrier" and
inadequate legal assistance prevented him from understanding a possible plea
bargain. It is questionable whether he has preserved any of these issues for
appeal. He now argues: (1) that his trial attorney's submission of an affidavit to
the district court in connection with the ineffective-assistance claim violated
the attorney-client privilege; (2) that his sentence of three years supervised
release following his prison term was neither "uniformly nor properly"
imposed; and (3) that his $25,505 fine was improper. Read liberally, the first
issue on appeal is arguably a variation of the ineffective-assistance claim raised
below, and his reference to "uniform" sentencing in the second issue on appeal
is arguably evocative of his disparate-sentencing claim. We need not decide
whether these two claims have been properly preserved, as they prove in any
event to be without merit. The remaining claims, having been either abandoned
on appeal or not raised below, need not be addressed
3
The Lowinger affidavit reads in relevant part as follows:
That on December 27, 1988, after the court sentenced Mr. Rivera, upon exiting
the courtroom I explained to Mr. Rivera that he has ten (10) days to appeal, and
that I was sorry of the outcome, whereupon Mr. Rivera, thanked me for
everything I did for him, and "believing in him", and then said to me in Spanish
... "might as well leave it as it is".
That I further told him that should he decide to appeal I would no longer be
interested in appealing because in my opinion the weight of the evidence was
overwhelming.
That a few days later I received a call from an attorney from Springfield,
Massachusetts, informing me that Mr. Rivera's brother was there with Mr.
Rivera considering an appeal. I never heard from the attorney again.
He also indicated that he was fluent in Spanish and had "at no time"
encountered any communication difficulties with petitioner.
Immediately prior to sentencing, Lowinger moved for a stay of execution of
sentence pending appeal--which also presumably alerted petitioner to the
availability of appeal
