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Rivera v. United States

United States Court of Appeals, First Circuit

February 24, 2016

TEDDY RIVERA, Petitioner, Appellant,
v.
UNITED STATES, Respondent, Appellee. UNITED STATES, Appellee,
v.
TEDDY RIVERA, Defendant, Appellee. IN RE: TEDDY RIVERA, Petitioner.

Before Howard, Chief Judge, Torruella and Thompson, Circuit Judges.

JUDGMENT

Petitioner-Appellant Teddy Rivera has launched several proceedings in relation to the district court's denial of his motion pursuant to 28 U.S.C. § 2255 and related matters. We turn first to Rivera's applications for a certificate of appealability ("COA") in appeals 15-1675 and 15-1773. After careful consideration of Rivera's papers and relevant portions of the record, we conclude that the district court's denial of § 2255 relief, as well as its denial of Rivera's motions for recusal, were neither debatable nor wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (COA standard). Rivera claims that his guilty plea was rendered involuntary by alleged off-the-record statements by the district court. The district court's rejection of the claim was neither debatable nor wrong. Review of the record as a whole reveals multiple inconsistent allegations by Rivera as to the nature and content of the alleged off-the-record statements, and the district court was not required to afford weight to such contradictory statements. See United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993) (explaining that a court entertaining a § 2255 motion "need not give weight to conclusory allegations, self-interested characterizations, discredited inventions, or opprobrious epithets" and need not hold an evidentiary hearing in order to resolve disputes centering about such statements). Based on the record as a whole, it ultimately cannot be said that Rivera has made a "substantial showing of the denial of a constitutional right" with the claim. 28 U.S.C. § 2253(c)(2).

To the extent Rivera relatedly claims that his counsel provided ineffective assistance in relation to the alleged district court statements, we have considered the claim carefully and conclude that, with his cursory presentation of the claim, Rivera has failed to satisfy either prong of the standard set out in Strickland v. Washington. See 466 U.S. 668, 688, 694 (1984) (requiring petitioner to demonstrate objectively unreasonable performance and prejudice flowing therefrom); see also United States v. Jiminez, 498 F.3d 82, 88 (1st Cir. 2007) (explaining that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived"). We also have considered carefully the other claim of ineffective assistance presented in Rivera's application for COA in appeal 15-1675 -- his claim that counsel should have conducted independent research as to Rivera's past residency and should have pursued arguments based thereupon -- and we conclude again that, with the claim, Rivera has failed to satisfy either prong of the Strickland standard. See 466 U.S. at 688, 694. In sum, the district court's rejection of Rivera's claims of ineffective assistance was neither debatable nor wrong.

We turn next to Rivera's claim that the district court erred by entering an order forbidding Rivera from having direct contact with court personnel. We assume without deciding that such a claim might properly be encompassed by Rivera's notice of appeal and application for COA in appeal 15-1675. Even so, Rivera failed to challenge the order before the district court, and, in presenting the claim to this court, he points to no relevant authority and offers little or nothing in the way of actual legal argument. See Jiminez, 498 F.3d at 88 (discussing perils of perfunctory presentation). More to the point, after careful consideration of relevant portions of the record, we conclude that Rivera cannot demonstrate any prejudice flowing from the district court's order. Cf. Perry v. Blum, 629 F.3d 1, 17 (1st Cir. 2010) ("[A] party who claims to be aggrieved by a violation of procedural due process must show prejudice."). Accordingly, we conclude that the district court's ruling was neither debatable nor wrong.

We arrive at the same conclusion regarding the district court's orders denying Rivera's motions for recusal (appeal 15-1773). The decision whether to recuse himself from the case rested in the discretion of the district court judge, and, in order to demonstrate an abuse of discretion, Rivera needed to identify a "factual basis" for his claim of partiality that would have led "an objective, knowledgeable member of the public . . . to . . . doubt[] the judge's impartiality." See In re United States, 666 F.2d 690, 695 (1st Cir. 1981) (standard of review and general principles). Having reviewed relevant portions of the record and having considered Rivera's arguments carefully, we conclude that the record does not provide a sufficient "factual basis" to support Rivera's claim of partiality. Id. Accordingly, the district court's ruling was neither debatable nor wrong, and Rivera's request for a COA on the issue is denied.

In accordance with the foregoing, Rivera's applications for COA in appeals 15-1675 and 15-1773 are DENIED. The appeals are hereby TERMINATED.

That leaves the direct appeal (16-1051) and petition for writ of mandamus (16-1123) that Rivera initiated in relation to his attempts to procure copies of certain transcripts and other documents from the district court. As an initial matter, the petition for writ of mandamus is DENIED because such a petition may not be used as a substitute for direct appeal, and, as evidenced by appeal 16-1051, Rivera indeed has availed himself to the direct appeal process. See In re Urohealth Systems, Inc., 252 F.3d 504, 507 (1st Cir. 2001) ("[I]t is well-established that an extraordinary writ, such as a . . . writ of mandamus, may not be used as a substitute for an appeal and will not lie if an appeal is an available remedy.").

As for the direct appeal (16-1051), it appears that Rivera filed his notice of appeal outside the applicable fourteen-day Fed. R. App. P. 4(b)(1)(A)(i) period but also within the period for requesting an extension of that deadline pursuant to Fed. R. App. P. 4(b)(4). We assume without deciding that the appeal may proceed. See United States v. Reyes-Santiago, 804 F.3d 453, 458 (1st Cir. 2015) (explaining that Rule 4(b)(1)(A)(i) time limit is a non-jurisdictional claims-processing rule). Nonetheless, we conclude pursuant to Local Rule 27.0(c) that Rivera has failed to elucidate a "substantial question" on appeal and that summary affirmance, therefore, is in order. Rivera simply has not demonstrated any prejudice flowing from the district court's rulings denying copies of the transcripts and documents. Cf. Perry, 629 F.3d at 17 (1st Cir. 2010) ("[A] party who claims to be aggrieved by a violation of procedural due process must show prejudice."). The "criminal complaint" Rivera seeks does not appear on the docket sheet, which, according to the docket, has been sent to Rivera. As for the "arrest warrant" Rivera seeks, the limited information pertaining to Rivera set out in that document is known to Rivera, is available elsewhere, and does not further any claim Rivera has pursued. Rivera also seeks a transcript from his arraignment, but a transcript of that hearing does not appear on the docket. Regardless, we have considered Rivera's proposed use for the transcript, as set out in his petition for writ of mandamus, and, while it is very difficult to understand the specifics of the claim Rivera wishes to pursue, it does appear that, to the extent viable at all, any such claim could only have been pursued on direct appeal or as part of Rivera's original § 2255 motion.

That leaves Rivera's requests for copies of his change-of-plea and sentencing transcripts. It appears from the district court docket that copies of those transcripts were sent or were supposed to be sent to Rivera, see 3:12-cr-00691 Dkt. # 1601, though careful review reveals no information in the transcripts capable of furthering Rivera's § 2255 claims or any other claim he might legitimately be allowed to pursue at this late date. Regardless, as a one-time courtesy, the Clerk's Office is DIRECTED to send one copy each of the change-of-plea and sentencing transcripts to Rivera (3:12-cr-00691 Dkt. # 1680 and # 1665, respectively) along with his copy of this judgment. Beyond that, because there is no ...


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