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United States District Court, Southern District of New York

September 10, 2003


The opinion of the court was delivered by: Shirley Kram, Senior District Judge


Ralph Rivera petitions this Court, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence for possession with intent to distribute heroin (2 counts), operation of a continuing criminal enterprise, and criminal forfeiture, in violation of 21 U.S.C. § 812, 841(a)(1), 848(a), 853(a)(1), (a)(2), and (p). The Court referred this matter to Magistrate Judge Kevin Nathaniel Fox, who issued a Report and Recommendation recommending the dismissal of the petition on several grounds. Rivera, through counsel, objects to the Magistrate's Report, and the Court will consider de novo those matters to which objections have been made. See Fed.R.Civ.Proc. 72(b). For the reasons set forth below, the Report and Recommendation of Magistrate Judge Fox is adopted and the petition is dismissed.


Magistrate Judge Fox clearly set forth the relevant background facts in the Report and the Court need not repeat them here in detail. See Report and Recommendation of Magistrate Judge Kevin [ Page 2]

Nathaniel Fox (hereiiiafter the "Report"), dated october 1, 2001, at 3-5. Rivera was convicted by a jury of conspiracy to distribute heroin, in violation of 21 U.S.C. § 846; possession with intent to distribute heroin, in violation of 21 U.S.C. $Sec; 812, 841(a)(1) (2 counts); and operation of a continuing criminal enterprise, in violation of 21 U.S.C. § 848(a). Rivera later pled guilty to a charge of criminal forfeiture, in violation of 21 U.S.C. § 853 (a)(1), (a) (2), and (p), pursuant to a plea agreement that provided his plea could be vacated if his narcotics conviction was overturned.

On October 12, 1994, Rivera was sentenced by this Court to life imprisonment. Rivera's appeal from his judgment of conviction was affirmed by the Second Circuit on April 14, 1997, with the exception of his narcotics conspiracy conviction. United States v. Rosario, 111 F.3d 293, 300-01 (2d Cir. 1997). The Second Circuit overturned the narcotics conspiracy conviction pursuant to its recent holding in Rutledge v. United States, 517 U.S. 292 (1996), in which it held that convictions for both a narcotics conspiracy and a continuing criminal enterprise could not stand, because entry of a judgment on both offenses would amount to cumulative punishment that Congress did not authorize. United States v. Rosario, 111 F.3d at 301. However, the Second Circuit rejected Rivera's due process claim regarding the trial court's decision to question a juror about alleged bias. Id. at 299-300. [ Page 3]

Rivera objects to the Magistrate Judge's findang that neither his trial counsel nor his appellate counsel were ineffective; renews his request for an evidentiary hearing with regard to his allegations of ineffective assistance of counsel; requests a modification of his sentence as a result of the Second Circuit's decision to vacate his narcotics conspiracy conviction; claims a due process violation because of the Government's seizure of his assets; and, seeks to amend his § 2255 petition to add a claim based upon Apprendi v. New Jersey, 530 U.S. 466 (2000).


A. Ineffective Assistance of Counsel — Conflict of Interest

Rivera's claim that David Richman, one of his trial attorneys, suffered a conflict of interest which resulted in the rendering of ineffective assistance must be dismissed. Magistrate Judge Fox did not consider the merits of this claim because the Court of Appeals had addressed it directly and found that the district court had properly fulfilled its investigation obligations under United States v. Stantini, 85 F.3d 9 (2d Cir. 1996). See Report at 6; see also United States v. Rosario, 111 F.3d 124 (Table), 1996 WL 868385 (2d Cir. Dec. 9, 1996). Accordingly, petitioner's first claim was litigated and dismissed on direct appeal, and is hereby dismissed. [ Page 4]

B. Ineffective Assistance of Trial Counsel — Juror Bias

Rivera also craims that Richman rendered ineffective assistance by failing to timely notify the Court of allegations of potential juror bias. The Court adopts the recommendation of Magistrate Fox's report that this claim is procedurally barred.

"Failure to raise a particular ground on direct appeal will bar consideration of that claim in a § 2255 motion unless the [petitioner] can show that there was cause for failing to raise the issue, and prejudice resulting therefrom." Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993), superceded by statute on other grounds. A petitioner is required to show cause and prejudice for not raising an ineffective assistance of counsel claim on direct appeal if "petitioner was represented by new appellate counsel on direct appeal, and . . . the claim is based solely on the record developed at trial." Abbamonte v. United States, 160 F.3d 922, 928 (2d Cir. 1998) (citing Billy-Eko v. United States, 8 F.3d 111, 115 (2d Cir. 1993)).

Rivera was represented before the Second Circuit by counsel other than his trial counsel and the trial record was sufficiently developed for him to present on direct appeal the ineffective assistance of trial counsel claim arising from the issue of juror bias. Report at 8. On direct appeal, Rivera raised the issue of juror bias, but asserted a different claim with respect to that issue; instead of ineffective assistance of counsel, Rivera argued that his due process rights were violated because he was excluded [ Page 5]

from the room while the trial court questioned the juror. Id. Rivera has not shown both"cause for failing to raise his current ineffective assistance of counsel claim on direct appeal and prejudice resulting therefrom, and this claim, is procediirally barred and must be dismissed.

Additionally, petitioner objects to the Report's characterization of his juror bias claim as merely a "naked assertion" and requests a hearing to establish that trial counsel's handling of the issue was incompetent. Assuming arguendo that the claim is not barred, Rivera has not met his burden to show that trial counsel was ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 687-96 (1984). Under this standard, Rivera must show that his counsel's performance was not within the realm of reasonableness under the prevailing professional norms, and that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. Rivera's objections to the Report fail to specify the basis for this claim, and he has not shown any basis to find that trial counsel's decision failed to meet an objective standard of reasonableness, or that the decision resulted in prejudice. Furthermore, the Second Circuit held that the Court's scope of inquiry and determination that there was no bias on the part of the accused juror was proper. See United States v. Rosario, 111 F.3d at 299-300. Thus, Rivera's request for a hearing to "substantiate" the ineffective assistance claim is denied. [ Page 6]

C. Modification of Sentence

Rivera's third objection to the Report concerns his allegation that his Continuing Criminal Enterprise ("CCE") conviction was flawed in light of the Second Circuit's decis.ion to vacate his narcotics conspiracy conviction. Rivera argues that since his narcotics conspiracy conviction was vacated by the Second Circuit as a lesser-included offense of CCE, only the two narcotics possession convictions should count toward his offense level, and a modification to his sentence is warranted.

As noted by Magistrate Judge Fox, the jury unanimously found that Rivera committed the minimum three narcotics felonies. Report at 14. Rivera has not proffered any support for his argument that a modification of his sentence is necessary as a result of the Second Circuit's decision to vacate the narcotics conspiracy charge; instead, he makes generalized objections to the Report. Although the Second Circuit vacated the narcotics conspiracy conviction in light of Rutledge v. United States, 517 U.S. 292, "vacating the conviction does not erase the fact that the jury unanimously agreed that petitioner committed an act of narcotics conspiracy." Report at 14. The Court agrees with and adopts the findings of the Report on this issue.

As discussed in the Report, although Rivera's conviction for narcotics conspiracy was vacated, it was not "a declaration that petitioner had not engaged in a criminal conspiracy; rather, it was an acknowledgment that where a conviction for a narcotics [ Page 7]

conspiracy and CCE are achieved in the same prpsecutcion, there can be no `double sentencing' or `double punishment' for these convictions because the conspiracy is a lesser-included offense of CCE." Report at 17. However, even if the Court were to readjust Rivera's total offense level to reflect only the quantity of drugs that pertain to the substantive narcotics possession and distribution offenses, the applicable sentencing range would be 360 months to life imprisonment. Report at 16-17. The sentence Rivera received is within that range and, based upon his criminal conduct, the Court reaffirms its position that a serious sentence was warranted. Therefore, Rivera's request for a modification of his sentence is denied.

D. Violation of Due Process and Right to Counsel of Choice

Rivera contends that he was deprived of his Fifth Amendment right to due process of law and his Sixth Amendment right to counsel of choice when the trial court ordered a pre-trial restraint of his assets. Rivera objects to Magistrate Judge Fox's finding that his claim that the Government acted improperly in restraining his assets pre-trial was procedurally barred. However, Rivera has not supported this objection with any citations to law or fact. Nor has Rivera adequately explained his failure to raise this issue on direct appeal. Although he supposedly "lacked proof" of the Government's alleged misconduct at that time, this lack of proof would not act as a bar to raising that claim. Rivera has not demonstrated adequate cause for his failure to raise this claim in [ Page 8]

his direct appeal. Nor has he made the requisite showing that but for the restraint of his assets, the outcome of his trial would have been different. See Douglas, 13 F.3d at 46.

E. Civil Forfeiture and Double Jeopardy Claim

In contrast to Rivera's claim that the civil forfeiture proceedings instituted against him were punishment as contemplated by the Double Jeopardy Clause, it is clear that civil forfeitures pursuant to 21 U.S.C. § 881 are not punishments for purposes of the Double Jeopardy Clause. See United States v. Urserv, 518 U.S. 267, 288-92 (1996). In addition, the Second Circuit has already ruled on Rivera's civil forfeiture/double jeopardy claim and found it to be without merit. United States v. Rosario, 111 F.3d 124, 1996 WL 868385 at **1. Although Rivera purports to distinguish his current claim from that raised on appeal, his current arguments do not demonstrate that the forfeiture claim was a pretext to "pauperize and punish him prior to trial." Report at 20-21. Although the Government admitted it could not prove that all of Rivera's assets were directly traceable to narcotics, this allegation alone does not sufficiently demonstrate that civil forfeiture was a pretext to pauperize and punish Rivera. Report at 21.

F. Challenge to Final Order of Forfeiture

As noted in the Report, Rivera failed to raise a challenge to the final order of forfeiture on direct appeal. Report at 22. In this petition he has demonstrated neither cause for his failure to raise this claim on appeal, nor prejudice resulting therefrom. [ Page 9]

Underwood v. United States 166 F.38 at 87. Therefore, peeteitioner's challenge to the final order of forfeiture is denied.

G. Ineffective Assistance of Counsel — Withdrawal of Guilty Plea

Rivera generally objects to Magistrate Judge Fox's recommendation that his claim of ineffective assistance of counsel regarding the withdrawal of his guilty plea on the forfeiture count be dismissed. However, once again, Rivera has not provided the Court with any specific objection or relevant case law and purports to rely on the arguments set forth in his initial § 2255 petition.

On September 23, 1999, this claim was previously addressed by the Court and resolved against petitioner. Rivera has failed to present evidence demonstrating that Richman, his trial counsel, rendered advice with regard to that plea that fell below an objective standard of reasonable professional assistance. As he has not provided the Court with anything more than broad assertions regarding his trial counsel's conduct, Rivera's motion to withdraw his guilty plea to the forfeiture count is dismissed.

H. Apprendi Argument

Rivera also seeks to amend his petition to assert a claim under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Second Circuit has recently held that Apprendi is not retroactive to cases on collateral review. See Coleman v. United States, 329 F.3d 77, 82 (2d Cir. 2003). Accordingly, Rivera's application to amend his § 2255 petition to include a claim based upon the retroactivity of Apprendi on collateral review is denied. [ Page 10]


For "the reasons set forth above, Rivera's habeas corpus petition is denied. Furthermore, it is hereby

ORDERED that the Report and Recommendation issued by Magistrate Judge Kevin Nathaniel Fox on October 1, 2001, is accepted in accordance with 28 U.S.C. $sec; 636(b). Accordingly, it is further

ORDERED that in accordance with the Report and Recommendation of the Magistrate, the petitioners motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2254 is denied. The petitioner may not appeal this order to the Court of Appeals unless `at circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253 (c) (1). A certificate will be granted "only if the applicant has made a showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The Court finds that the petitioner will not be able to sustain his burden. Thus, the Court declines to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. See Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). Should the petitioner seek to appeal in forma pauperis, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from [ Page 11]

this Order would not, be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).



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