Hector Rivera v. United States

Background

Hector Rivera was convicted after a six-day jury trial of conspiracy to commit murder for hire, substantive murder for hire, and a firearms offense connected to the conspiracy. The court sentenced him to mandatory life sentences on the first two counts, followed by a 25-year sentence on the firearms count. The United States Court of Appeals for the Second Circuit affirmed the conviction, and the Supreme Court later denied review.

Rivera filed a motion under 28 U.S.C. § 2255, a federal procedure that allows a person in federal custody to challenge a conviction or sentence based on certain constitutional, jurisdictional, or fundamental legal errors. Rivera represented himself. He claimed that his trial lawyers, Mark B. DeMarco and Karloff Commissiong, provided ineffective assistance in several respects.

Claims and analysis

The court declined to hold a hearing because the filings and case record conclusively showed that Rivera was not entitled to relief. Applying the two-part test for ineffective assistance of counsel, the court considered whether counsel’s performance fell below an objectively reasonable standard and whether any deficient performance probably changed the result.

The court rejected Rivera’s claim that counsel should have challenged the delay before his indictment. The charges were filed within the applicable limitations period, Rivera did not identify specific evidence lost because of the delay, and he did not show that the Government intentionally delayed the indictment to gain a tactical advantage. The court also noted that the hired gunman’s death occurred relatively soon after the murder and that Rivera did not explain how the gunman’s testimony would have helped him.

The court rejected Rivera’s challenge concerning interstate travel and communications. It found that the evidence showed Rivera caused Morales to travel to Puerto Rico to recruit a gunman and used an interstate telephone network in furtherance of the murder-for-hire scheme. The court also noted that the Second Circuit had already rejected a related argument about the interstate-commerce element.

The court found that counsel’s cross-examination of the cooperating witnesses was lengthy and effective, including questioning about their cooperation agreements, motives to lie, criminal histories, and inconsistent statements. Rivera did not identify what additional investigation or questioning would have materially improved the defense.

The court rejected Rivera’s challenges to the jury instructions on the murder-for-hire statute and to the wording of the indictment. Rivera did not identify a specific instructional defect, and the instructions largely followed model instructions and instructions used by other judges in the district. The court also held that the phrases used in the indictment concerning a facility of interstate or foreign commerce were interchangeable under Second Circuit precedent, so Rivera was not harmed by the wording.

The court found reasonable counsel’s decision not to pursue an alternative-perpetrator theory based on an internal police memorandum. The officer Rivera wanted to question did not know about the memorandum or the reported threat, and counsel chose instead to focus on whether the Government had proved its case. The court also rejected the claim concerning a lesser-included instruction for being an accessory after the fact because that theory conflicted with Rivera’s trial position that he was not involved in the murder and lacked identified factual support in the trial record.

Finally, the court rejected Rivera’s claim concerning his military service and sentencing. Counsel had presented Rivera’s service in Vietnam in the sentencing submission, and the mandatory life sentences on two counts prevented a lower sentence through a downward departure. The court noted that a different sentencing mechanism could have been available if the mandatory life sentence had not applied, but it found no ineffective assistance.

Disposition

The court concluded that Rivera could not show either objectively unreasonable lawyering or prejudice—that is, a reasonable probability that counsel’s alleged errors changed the result. It therefore denied Rivera’s motion for relief under § 2255. The court directed the clerk to terminate the pending motions and stated that the related civil and criminal cases were closed.

The court also declined to issue a certificate of appealability and certified that an appeal would not be taken in good faith. It denied Rivera permission to appeal without paying court fees.