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Rivera v. Holland

United States District Court, E.D. Kentucky, Southern Division, London

May 19, 2014

JOSE RIVERA, Petitioner,
J. C. HOLLAND, Warden, Respondent.


KAREN K. CALDWELL, Chief District Judge.

Jose Rivera is an inmate confined by the Bureau of Prisons ("BOP") in the United States Penitentiary-McCreary in Pine Knot, Kentucky. Rivera has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 [R.1], challenging the federal life sentence which he is currently serving. Rivera has paid the $5.00 filing fee. [R. 7]

The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F.Appx. 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule 1(b)). The Court evaluates Rivera's petition under a more lenient standard because he is not represented by an attorney, Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003), accepts his factual allegations as true, and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

As explained below, the Court will deny Rivera's habeas petition because the claim which he asserts cannot be pursued under 28 U.S.C. § 2241.


1. Criminal Conviction, Appeal, and § 2255 Proceedings

In November of 1996, Rivera and five co-defendants were indicted by a New York federal grand jury for drug and firearms offenses, violations of 21 U.S.C. §§ 841(a)(1) and (b)(1) and 846, and 18 U.S.C. § 924(c)(1), as well as a violation of the Hobbs Act, 18 U.S.C. § 1951.[1] See United States v. Ryan Cambrelen, et al., No. 96-CR-1044 (E.D.N.Y. 1996). Prior to trial, the grand jury returned a superseding indictment and a second superseding indictment against Rivera and his co-defendants. [ Id., at Record Nos. 53, 99 therein] The charges arose out of a series of robberies and attempted robberies of money and drugs from New York-area drug dealers by Rivera and his five co-defendants.

Rivera proceeded to trial after rejecting the government's proposed plea agreement, but was subsequently convicted on Counts 1, 2, 3, 7, and 8 of the second superseding indictment. [ Id., at R. 208, therein] On November 13, 1998, Rivera was sentenced to a term of 262 months on the drug charges, and a 300-month prison term on the two firearm charges, which was ordered to run consecutively to the drug sentences. Due to Rivera's prior felony conviction, however, his sentence was enhanced to a mandatory life sentence under § 841(b)(1).[2] [ Id. ] Rivera and the five co-defendants appealed, but on March 6, 2001, the Second Circuit Court of Appeals affirmed the conviction and sentences. United States v. Cambrelen, et al., 5 F.Appx. 30, 2001 WL 219285 (2d Cir. 2001).

On February 26, 2002, Rivera filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that during both his criminal proceeding and on direct appeal of his conviction, he had been denied ineffective assistance of counsel. Rivera v. United States, No. 1:02-CV-1349-RJD (E.D.N.Y. 2002) On June 28, 2004, the district court denied Rivera's § 2255 motion, noting that many of his ineffective assistance of counsel claims had been rejected on direct appeal and could not be re-litigated in a § 2255 proceeding. [R. 10, therein, p. 2] The district court then addressed the merits of Rivera's remaining claims alleging ineffective assistance of both his trial and appellate counsel, finding that for various reasons, his claims lacked merit and did not warrant relief under § 2255. [ Id., pp. 3-6, therein] Rivera appealed, but the Second Circuit denied him both pauper status on appeal and a certificate of appealability, concluding that he had not made a substantial showing of the denial of a constitutional right. [R. 15-16, therein; see also Rivera v. United States, No. 04-4922 (2d Cir. Mar. 1, 2005)]

In October 2012, Rivera filed a motion seeking post-judgment relief under Fed.R.Civ.P. 60(b). [R. 19 therein; also filed as Rivera v. United States, No. 1:12-CV-5748-RJD (E.D.N.Y. 2012) [R. 1, therein] Rivera asked the district court to set aside its June 28, 2004, Order denying his § 2255 motion, again alleging that he had received ineffective assistance of both trial and appellate counsel, and that pursuant to the Supreme Court's decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), he was entitled to relief from his sentence. [ Id. ]

On December 14, 2012, the district court denied Rivera's motion, finding that Martinez did not afford Rivera relief from his sentence under Rule 60(b). See R. 20, therein; see also No. 1:12-CV-5748-RJD [R. 2, therein]. The district court noted that Martinez involved "... the predicament of a state prisoner, seeking relief under 2254, who, in procedurally defaulting on his claim that trial counsel was ineffective, may have been the victim of post-conviction counsel's ineffectiveness (or the lack of representation altogether)." [ Id, p, 2, therein] However, the district court distinguished Martinez from Rivera's situation by pointing out that no right to counsel exists in federal proceedings brought under 28 U.S.C. § 2255, and further observed that after Martinez, other courts district courts in Virginia, Pennsylvania, and Minnesota had reached the same conclusion. [ Id. pp. 3-4 (citations omitted)]

The district court further determined that for another reason, Martinez provided no substantive basis for allowing Rivera to re-open his § 2255 motion, stating as follows:

Thus, whereas Martinez involved procedural default resulting from a prisoner's failure to have raised a claim in a state's initial-review proceeding, this Court found that Rivera was "barred" from re-litigating his trial ineffectiveness claim on 2255 because he had previously raised it both on appeal and, initially, in his post-trial motion before Judge Nickerson, who afforded it thorough treatment in his published decision. See Cambrelen, 18 F.Supp.2d at 231-32. Of note for Martinez purposes, in the two venues in which Rivera challenged trial counsel's ineffectiveness he was represented by appointed counsel whose effectiveness he does not challenge. Finally, after finding Rivera's ineffectiveness allegations "barred" on 2255, this Court proceeded to reject them on the merits. Rivera , slip op. at 3.
In sum, neither the letter nor the spirit of the Supreme Court's holding in Martinez provides a basis for ...

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