Opinion
4:20-CR-8-CDL-MSH 4:23-CV-71-CDL
04-19-2024
ERNESTO RIVERA-RODRIGUEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Petitioner Ernesto Rivera-Rodriguez's motion to vacate his sentence under 28 U.S.C. § 2255 (ECF No. 102).For the reasons explained below, it is recommended that Rivera's motion be denied.
The Court notes that in recent filings, Petitioner is identified as Mr. “Rivera-Rodriguez,” while at trial he was referred to-including by the defense-as Mr. “Rivera.” To be consistent with the name used during the trial, the Court will refer to Petitioner by his first surname, Rivera.
BACKGROUND
Rivera, a disabled veteran, retired from the United States Army in 2013 after nearly thirty years of service. Tr. II 8:20-22, 14:25-15:6, ECF No. 92; Presentence Report (“PSR”) ¶ 47, ECF No. 75. Before retirement, he and his wife, Maria, purchased a time share at the Regal Palms resort in Orlando, Florida, thinking it would be good for their children. Tr. II 15:7-16:6; Gov't. Ex. 6, ECF No. 68-3. In November 2017, Rivera and his family went to the timeshare to celebrate his and his wife's anniversary. Tr. II 16:22-25. On the morning of November 25, 2017-the day before Rivera and his family were planning to return home-Rivera was sitting on the back porch of his timeshare, smoking a marijuana cigarette, which he sometimes did to help with pain and anxiety arising from his military service. Id. at 17:1-15; Tr. I 143:18-19, ECF No. 91.
At the same time, Lieutenant Larry Davis and Deputy Kush of the Polk County Sheriff's Office (“PCSO”) were patrolling the Regal Palms resort as part of an effort to prevent daytime burglaries occurring while residents were visiting the theme parks. Tr. I 138:2-7, 138:13-143:6. While doing so, they detected the smell of marijuana and saw Rivera smoking the marijuana cigarette on his porch. Id. at 143:10-19. Kush approached Rivera and took the cigarette from him. Id. at 145:9-11. Then Davis, who had served six years in the army, saw that Rivera was wearing an 82nd Airborne hat and began questioning him to ensure he was actually a military veteran and not an impersonator. Id. at 137:23138:1, 146:25-147:2. After Davis was satisfied Rivera was a real veteran, he told him selfmedication through marijuana use was not an effective way to address his post-traumatic stress disorder. Id. at 147:18-148:1. The officers also telephoned Maria-who was on the second floor of the timeshare and unaware of what was transpiring-and asked her to bring her husband's wallet downstairs, which she did. Tr. II 18:15-19:3. They then asked Rivera if there was any more marijuana in the house, and when he said there was, they asked Maria to go get it for them, which she also did. Id. at 20:1-5. Because Polk County was a “proarrest” county, Davis and Kush then arrested Rivera in front of his wife and kids and took him to jail on a misdemeanor charge. Id. at 20:7-20; Tr. I 148:6-17, 162:7-9; PSR ¶ 32. He was released around 10:30 p.m. Tr. II 21:25-22:6.
The next day, Rivera and his family returned to their home in Cataula, Harris County, Georgia. Id. at 6:24-25, 22:19; Tr. I 44:25-45:1. While the interaction between Rivera and the PCSO officers was cordial and non-confrontational, upon Rivera's return home, he posted comments on Facebook about killing police officers, with quotes referring to “kill-a-cop” month or day, “join the killing machine,” and “kill corrupt cops.” Tr. I 47:3-11, 146:7-11. Concerned citizens reported the posts to the FBI tip line and the Harris County, Georgia Sheriff's Office, and eventually the posts were reviewed by Agent Gabe Coulter of the FBI. Id. at 45:15-46:5. In February 2018, Rivera went to the FBI office in Columbus, Georgia and spoke to Coulter about the posts. Id. at 50:15-17. It was an hour long conversation during which Rivera admitted to making the posts and explained his frustration with the events in Polk County, Florida. Id. at 50:20-51:5, 88:2-14. Coulter described it as a “pretty good conversation.” Id. at 51:2-3. Near the end of the meeting, Rivera indicated a desire to go down to Florida to confront the officer who arrested him, but Coulter encouraged him to instead ask for an internal affairs investigation. Id. at 51:514.
Approximately nine months passed without any further issues. However, in November 2018, Coulter was contacted by a detective with the PCSO, who stated the Polk County Crime Stoppers tip web site had received a “tip” from Rivera stating basically, “[Y]ou've taken too long. This infantry solder is going to bring fire to Polk County.” Tr. I 52:8-13. He also indicated an intent to make a citizen's arrest of a lieutenant with the PCSO. Id. at 52:13-19. On November 8, 2018, Coulter called Rivera about the tip, and Rivera admitted making it. Id. at 53:3-8. He stated he had filed a complaint as suggested by Coulter but grew tired of waiting for a resolution. Id. at 53:8-12. Rivera said he had chosen his words poorly and had not meant to sound threatening. Id. at 53:13-14. He said by “bring fire,” he had just meant to put some pressure on them and that he did not intend to act violently to the PCSO. Id. at 53:15-19.
In the meantime, Rivera and his family had not returned to the timeshare following his arrest in 2017. Tr. II 22:20-24. Unfortunately, that did not stop Regal Palms from sending notifications about maintenance fee dues. Over the course of the next several months, Regal Palms sent numerous past-due notices, with the amount due continuing to increase. Id. at 27:9-14; Gov't Ex. 5, ECF No. 68-2. They also called Rivera, and he emailed them in response. Gov't Ex. 1, 0:05-0:32, 1:00-05. On December 13, 2019, Rivera called a number-one appearing on the past-due notices received in the mail-belonging to Soleil Management, a property management company based in Las Vegas, Nevada, that managed Regal Palms. Tr. I 78:13-79:24, 103:3-15; Gov't Ex. 5, at 2. Michelle Maskevich, a Soleil Management employee located in Las Vegas, answered the call. Tr. I 103:2-5, 104:10-15. At the beginning of the call, Rivera stated he was returning a call, and when Maskevich explained the call had been about past-due maintenance fees, Rivera admitted he had not paid his fees, attributed it to the events occurring in November 2017- for which he believed Regal Palms was partly to blame- and stated he was not paying until the situation was fixed. Gov't Ex. 1, 0:01-2:06. Rivera told Maskevich to tell “your people” to stop calling and harassing him about maintenance fees. Id. at 3:55-4:01. He warned, “Don't make me go over there and start spilling blood over there in Orlando.” Id. at 4:07-11. He followed up by adding he would go to Florida and “take it on somebody over there” and “if that cop shows up, I'm taking his fucking head off too.” Id. at 6:19-25. He ended the call by stating, “So please call somebody and give me my money so I don't have to go over there.” Id. at 6:25-28.
On January 9, 2020, Rivera called Soleil Management in Las Vegas again, and this time, the call was answered by Sarah Laidler. Tr. I 117:1-6, 118:5-9. Rivera referred to a previous phone call he had made to Soleil Management on December 23rd or 29th of 2019 and efforts he had made to resolve his issues through “Owner Services” without success. Gov't Ex. 2, 3:26-4:16. He told Laidler he needed to know “for this last time” if they were going to do anything, and that when the call was over “you're not gonna have a timeshare left unless I get what I need.” Id. at 4:16-26. He stated this was not a threat but “a fact because I have been waiting for two years and I've been trying to tell you guys what I'm gonna do unless I get my money back.” Id. at 4:28-36. He then explained he was not a criminal and would only become one if he did not get his money. Id. at 6:40-45. Rivera then recapped the events of November 2017, and he again made clear that he considered Regal Palms to be partly responsible. Id. at 6:48-8:14. He told Laidler he needed “an answer like tomorrow” if they were going to return his money. Id. at 8:14-32. Later in the call, Rivera stated he would wait twenty-four hours and that after that, he would not be responsible from that point forward. Gov't Ex. 2, 12:38-43. He said after that, the situation would be under his “command” and he would be the one “making the decisions.” Id. at 12:46-12:52. Rivera told Laidler he would go to Florida with his “AR-15,” and he was “gonna pick up a check or I'm gonna have somebody pay right there and then with their head.” Id. at 13:07-17. Laidler then cautioned Rivera he could not use that type of language and reminded him he was being recorded. Id. at 13:31-36.
Following the January 9, 2020, phone call, Soleil Management reported both that call and the December 13, 2019, call to PCSO, which then reported them to Coulter on January 10, 2020. Tr. I 57:13-24. Coulter listened to recordings of the two phone calls and then immediately called Rivera. Id. at 57:25-58:18. Coulter reminded Rivera he had come very close to being arrested in 2017 and that while he could voice his opinions, there were lines he could not cross. Id. at 60:1-4. He told Rivera not to threaten physical harm to a person or threaten to take a weapon to any place because that crossed a line. Id. at 60:4-7, 61:2-4. Coulter informed Rivera he was going out of town but that they needed to sit down and talk when he returned. Id. at 61:4-6. During the conversation, Rivera admitted making the calls to Soleil Management. Id. at 60:20-23. Coulter testified at trial that over the course of two years beginning when he first contacted Rivera, they spoke around ten times over the phone and had the one in-person interview in February 2018. Tr. I: 84:20-85:7, 89:6.
On January 13, 2020-three days after his conversation with Coulter-Rivera called Soleil Management again. Id. at 82:10-13. Michelle Maskevich again answered the call. Id. at 106:15-19. Rivera pointed out that he had gotten a call from the FBI and that they were now “back to square one” because Regal Palms still owed him $75,000 and he continued to receive maintenance fee notices. Gov't Ex. 3, 0:48-1:03. He asked if he was going to get his money back or if he had to make a trip to Orlando. Id. at 1:20-26. He noted he was a veteran and had weapons. Id. at 2:51-54. He said, “I'm taking all those weapons with me over there to Orlando.” Id. at 2:54-57. He stated that when he went over to Regal Palms, he was going to get into an argument, 911 and PCSO would be called, and that he would then have “both perpetrators exactly where I want them at. Okay. In the timeshare where everything started. And I'm not going to prison. And I'm not going to jail.” Id. at 3:07-22. He noted that when “the shit goes down,” he had the evidence “you guys” were the ones who “provoked me.” Id. at 3:43-48.
At that point, Maskevich asked Lakeisha LeBlue-her manager-to speak to Rivera, and so LeBlue was brought onto the call. Gov't Ex. 3, 8:16-19. Rivera pointed out to LeBlue that he had given them twenty-four hours to get him a check and that he wanted it “yesterday.” Id. at 9:33-58. He then complained about Regal Palms' lack of responsiveness to his complaints. Id. at 9:58-10:04. He stated, “Nobody notified anybody until I started making a threat saying I'm gonna take my weapons and I'm gonna take my AR-15 with me over there. And I told them why, and then they called the FBI.” Id. at 10:04-13. Rivera continued by saying, “I don't want to go over there and do harm, but if I'm forced to go over there, there's gonna be harm. Because I know when I get loud as a veteran, they're gonna get scared, and they're gonna call 911. And guess who's coming to me? There's gonna be Polk County Sheriff and you guys there.” Id. at 11:28-43. Referring to Regal Palms and PCSO, Rivera then emphasized, “Now I got-look-both perpetrators, I got them in where I want them at.” Id. at 11:45-55. He again noted he was not going to prison or jail. Gov't Ex. 3, 11:57-12:11. Rivera told LeBlue they were giving him no other option than “to take action” and that he was “gonna take it on anybody else around me because I don't give a shit.” Id. at 12:12-18. He warned her, “I'm very close to going up there in the middle of the night and I'm going to tear up everybody apart.” Id. at 12:32-36. LeBlue then explained Rivera had not purchased the time share from Soleil Management, and so they would not be refunding him any money. Id. at 14:25-32. When Rivera asked what route he should take, she told him the only route she wanted him to take was to stop calling and making threats to their employees. Id. at 15:07-22. Rivera responded, “Absolutely not. That's not gonna happen.” Id. at 15:23-25. At the end of the call, Rivera told LeBlue, “Don't worry. You're gonna . . . you're going to see how much I can do. Good luck to you. God bless you, all of you. God help us all.” Gov't Ex. 3, 15:28-33.
Rivera was arrested after this last call. Tr. II 27:22-29:2. On February 12, 2020, a federal grand jury indicted Rivera on a single count of threats in interstate communications. Indictment, ECF No. 16. In relevant part, the indictment alleged:
That between on or about December 1, 2017, and on or about January 13, 2020, in the Columbus Division of the Midde District of Georgia, and elsewhere within the jurisdiction of this Court, Ernesto Rivera-Rodriquez, Defendant herein, did knowingly and willfully transmit in interstate and foreign commerce from the state of Georgia to the state of Nevada a series of communications containing threats to injure the person of another, to wit: the Defendant threatened to shoot numerous individuals connected with Soleil Management and the Polk County, Florida Sheriff's Office, to wit: the Defendant advocated for “kill a cop” day,” and welcomed others to “join the killing machine”; the Defendant stated that he had weapons and someone would pay “with their head;” and the Defendant stated that he was “going to tear everybody apart,” in addition to numerous related threats; all in violation of Title 18, United States Code, Section 875(c).Id. Thus, the indictment charged two threats connected specifically to the Facebook posts in 2017, a threat made during the January 9, 2020, call to Soleil Management (pay with their head comment), and a threat made during the January 13, 2020, call (tear everybody apart comment). Rivera's trial began on October 20, 2020, and he was represented by attorneys J. Mark Shelnutt and William Kendrick, Jr. Tr. I 2. The evidence closed on October 21, 2020. Tr. II 37: 6-7. After closing arguments, the Court charged the jury. Id. at 79:21-91:11. Included in the instructions was a charge that in order to convict Rivera, the jury had to find he sent a message in interstate commerce “with the intent to communicate a true threat or with the knowledge that it would be viewed as a true threat.” Id. at 84:14-18. The Court also told the jurors the “government does not have to prove that the defendant intended to carry out the threat.” Id. at 84:19-20. Further, the Court explained that “a true threat is a serious threat-not idle talk, a careless remark, or something said jokingly-that is made under circumstances that would place a reasonable person in fear of being injured.” Id. at 84:23-85:1. The Court also stated to the jurors, “Your verdict, ladies and gentlemen, whether guilty or not guilty, must be unanimous.” Id. at 86:12-13. A copy of the instructions was sent out with the jury. Tr. II 79:15-16, 91:8-9; Jury Instructions, ECF No. 72. The defense raised no objections to the charge. Tr. II 91:2592:6.
After the jury started deliberating, it sent out four questions. Id. at 95:12-96:2; Court's Ex. 3, ECF No. 69-4. Relevant to Rivera's motion to vacate is the third question. There, the jury asked: “The government failed to prove the Facebook posts were made interstate. Are we able to disregard these portions of the indictment and consider the other elements of the indictment, or must we stop and determine not guilty?” Tr. II 95:19-22. In response, the Court charged the jury:
As you know, the government has brought a one-count indictment, and you've had that available to you in the jury room. That indictment, which is just the government's accusation-it's not proof or evidence, but it's their accusation-is that between December 1, 2017, and January 13, 2020, the defendant knowingly and willfully transmitted in interstate and foreign commerce from the state of Georgia to the state of Nevada a series of communications containing threats to injure the person of another. And then
the indictment continues “to wit,” and it describes those communications. And it describes four specific alleged communications. That the defendant threatened to shoot numerous individuals connected with Soleil Management and the Polk County, Florida Sheriff's Office, and it describes those as follows: One, the defendant advocated for “kill-a-cop day.” That's one of the communications that the indictment alleges constitutes a threat. And that he welcomed others to “join the killing machine.” That's another communication that they allege as a threat. Third, that the defendant stated he had weapons and someone would pay-pay “with their head.” That's the third communication that the government alleges was a threat. And, fourth, the defendant stated he was “going to tear everybody apart.”Id. at 110:9-111:7. The Court further charged the jury:
Now, in deciding whether the defendant has been proven guilty or not of this one-count indictment-although they allege four separate threats specifically, they've only charged him in a one-count indictment. In order for you to determine whether the government has carried its burden, you would consider each of those threats, alleged threats, separately and determine whether or not the government has proven the elements of the offense with regard to each threat separately. And if you were to find that they have proven the elements of the offense for one or more, then you would have the authority to find him guilty of the one-count indictment. If you found a particular communication did not satisfy all of the elements but another one of the specifically alleged threats did, then you would be authorized-if you find that beyond a reasonable doubt, you would be authorized to find him guilty of this one-count indictment. So you do not have to find that all of the essential elements have been met with regard to all four threats. You should consider the threats separately in making your determination.Id. at 111:16-112:9. The Court then went through the elements of the offense for threats in interstate commerce and the relevant definitions. Id. at 112:10-114:20. Next, the Court told the jurors:
If you find that they have not proven those elements with regard to any of the four threats, they have failed to prove those elements with regard to those four specific threats, then you must find the defendant not guilty. If you find that the government has proven those elements with regard to one or more of the four threats, then you would be authorized to find the defendant guilty of the one-count indictment.Id. at 114:21-115:3. The Court then stated that while it had focused on the substantive charges because that was what their questions related to, it wanted to “reiterate that all of the other charges I gave you previously, which you have a written copy of, they continue to apply, just as they applied from the very beginning of your deliberations.” Id. at 115:49. On October 22, 2020, the jury returned a guilty verdict. Tr. III 5:17-23, ECF No. 93; Jury Verdict, ECF No. 71.
Before sentencing, the United States Probation Office (“USPO” or “Probation”) prepared a PSR (ECF No. 75) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). Based on a total offense level of 12 and a criminal history category of II, Probation calculated a guideline sentencing range of 12 to 18 months. PSR ¶ 53. At the time of sentencing on December 22, 2020, however, Rivera had already been incarcerated for 342 days following his arrest, which was approximately eleven months. Sent'g Hr'g Tr. 9:7-12, ECF No. 94. Therefore, the Court made a slight downward variance and sentenced Rivera to time served followed by three years of supervised release. Id. at 11:7-10, 12:11-12; Judgment 2-3, ECF No. 78; Statement of Reasons 4, ECF No. 79. Represented by his current counsel, Rivera appealed his conviction, which the Eleventh Circuit affirmed. Notice of Appeal, ECF No 81; United States v. Rivera-Rodriguez, No. 21-10082, 2022 WL 1234675, at *3 (11th Cir. Apr. 27, 2022) (per curiam).
Rivera filed his motion to vacate on April 26, 2023 (ECF No. 102). In his motion, Rivera alleged six grounds of ineffective assistance of trial counsel by Shelnutt and Kendrick.Pet'r's Mot. to Vacate 4-10, 13, ECF No. 102. The Court conducted an evidentiary hearing on Rivera's motion on October 25, 2023, during which both Shelnutt and Kendrick testified. See generally, Mot. Hr'g Tr., ECF No. 116. The Court allowed supplemental briefing by the parties, which was completed on March 20, 2024. Rivera's motion is ripe for review.
Rivera later withdrew one ground. Pet'r's Reply 4 n.1, ECF No. 107.
DISCUSSION
As noted, Rivera's sole contention in his motion to vacate is that he received ineffective assistance of trial counsel. Specifically, he argues trial counsel was ineffective for 1) not requesting a more specific unanimity instruction; 2) failing to object to the Government's reference to Rivera's gun ownership; 3) failing to challenge the sufficiency of the indictment; 4) failing to file a motion for judgment of acquittal; and 5) failing to object to the Government's improper closing argument. Pet'r's Mot. to Vacate 4-10, 13.
I. Ineffective Assistance of Counsel Standard
To prevail on a claim of ineffective assistance of counsel, a petitioner must establish, by a preponderance of the evidence, that his attorney's performance was deficient and that he was prejudiced by the inadequate performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); Chandler v. United States, 218 F.3d 1305, 1312-13 (11th Cir. 2000). However, “[a] court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689).
To establish deficient performance, a petitioner must prove their counsel's performance “was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). There is a strong presumption that the challenged action constituted sound trial strategy. Chateloin v. Singletary, 89 F.3d 749, 752 (11th Cir. 1996). To show that counsel's performance was unreasonable, a petitioner must establish that no competent counsel would have taken the action in question. Van Poyck v. Fla. Dep't of Corr., 290 F.3d 1318, 1322 (11th Cir. 2002) (per curiam). To satisfy the prejudice prong, a petitioner must show there is a reasonable probability that, but for counsel's inadequate representation, “the result of the proceeding would have been different.” Meeks v. Moore, 216 F.3d 951, 960 (11th Cir. 2000) (quotation marks omitted). A petitioner's burden when bringing an ineffective assistance claim “is not insurmountable” but “is a heavy one.” Chandler, 218 F.3d at 1314. If a petitioner fails to establish he was prejudiced by the alleged ineffective assistance, a court need not address the performance prong of the Strickland test. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
II. Unanimity Instruction
Rivera argues trial counsel was ineffective for not requesting a “more” specific unanimity instruction in response to the jury's third question about whether it could convict Rivera based on the “other elements of the indictment” despite concluding the Government had failed to prove the Facebook posts were made in interstate commerce. Pet'r's Mot. to Vacate 4; Pet'r's Suppl. Br. 2, ECF No. 117. Rivera argues because the jury was not given a specific unanimity instruction, some jurors could have found the Government had proven all of the elements of one threat but not the others, while other jurors could have concluded all of the elements of a different threat had been proven to the exclusion of the others. Pet'r's Br. in Supp. of Mot. to Vacate 7, ECF No. 102-1. Rivera contends the jury should have been specifically instructed that they had to unanimously agree that all of the elements were met with regards to the “same specific alleged threat” in order to convict. Id. at 5. The Court disagrees with Rivera's contention for a couple of reasons.
Initially, it appears the Eleventh Circuit effectively rejected Rivera's argument on direct appeal. Rivera argued to the Eleventh Circuit that the trial court erred in not giving a specific unanimity instruction. Rivera-Rodriguez, 2022 WL 1234675, at *1. Because trial counsel did not object to the Court's jury instruction, the claim was reviewed for plain error. Id. at 2. The Eleventh Circuit explained:
To show plain error, the defendant must show that: (1) an error occurred; (2) the error was plain; and (3) the error affected his substantial rights. United States v. Smith, 459 F.3d 1276, 1283 (11th Cir. 2006). An error is not plain unless it is contrary to explicit statutory provisions or controlling precedent from either the Supreme Court or our Court. United States v. Schultz, 565 F.3d 1353, 1357 (11th Cir. 2009). “Jury instructions will not be reversed for plain error unless the charge, considered as a whole, is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice, or the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” [United States v. Starke, 62 F.3d 1374, 1381 (11th Cir. 1995) (quotation marks omitted)]. Finally, juries are presumed to follow their instructions. United States v. Roy, 855 F.3d 1133, 1187 (11th Cir. 2017) (en banc).Id. Applying the plain error standard, the Eleventh Circuit concluded this Court did not “plainly err” in not giving a more specific unanimity instruction “because the instruction that was given resulted in an instruction that the jurors unanimously agree which of the alleged threats satisfied the elements of the crime.” Id. Additionally, the Eleventh Circuit noted that even if the Court did err in not giving a specific unanimity instruction, Rivera had failed “to identify any precedent from our Court or the Supreme Court that dictates a specific unanimity instruction is necessary where multiple acts are charged in a single-count indictment.” Id.
Because Rivera did not satisfy the plain error standard-whose third prong requires showing error that affected his substantial rights-circuit precedent appears to foreclose a finding of prejudice under the Strickland standard. See Gordon v. United States, 518 F.3d 1291, 1298 (11th Cir. 2008) (“When a claim of ineffective assistance is based on a failure to object to an error committed by the district court, that underlying error must at least satisfy the standard for prejudice that we employ in our review for plain error.”); United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (holding that to show an error “affected substantial rights” under plain error review, a defendant “almost always” needs to show that the error “must have affected the outcome of the district court proceedings,” which itself means showing “the familiar reasonable probability of a different result” under the Strickland standard)); see also Becht v. United States, 403 F.3d 541, 549 (8th Cir. 2005) (“The standard for prejudice under Strickland is virtually identical to the showing required to establish that a defendant's substantial rights were affected under plain error analysis.”) (citing Rodriguez, 398 F.3d at 1299)); Cadet v. United States, No. 17-81325-CIV-MARRA/MATTHEWMAN, 2020 WL 6994478, at *2 (S.D. Fla. Feb. 26, 2020) (noting that since the Eleventh Circuit concluded the trial court's constructive amendment of the indictment on direct appeal did not constitute plain error, the petitioner could not show trial counsel's failure to object to the jury instructions that resulted in the constructive amendment satisfied the Strickland prejudice standard).
Rivera distinguishes Gordon, however, by emphasizing his argument is not that trial counsel was ineffective for failing to object to a trial court error but for failing to request a charge the Court “would have been compelled to give if requested.” Pet'r's Suppl. Reply 1-2, ECF No. 121. Therefore, he claims the Eleventh Circuit's plain error analysis in his direct appeal is not dispositive. Id. at 1. Certainly, Gordon explicitly referred to ineffective assistance of counsel claims premised on “a failure to object to an error committed by the district court.” Gordon, 518 F.3d at 1298. However, it does not appear-at least in this circuit-that equating the Strickland prejudice prong to the error affecting substantial rights prong of the plain error standard is dependent on an underlying allegation of trial court error. See Almly v. United States, 485 Fed.Appx. 384, 386 (11th Cir. 2012) (per curiam) (affirming the denial of a motion to vacate based on trial counsel's failure to object to the government's breach of a plea agreement to make sentencing recommendation where the Eleventh Court had already found no plain error on direct appeal (citing Rodriguez, 398 F.3d at 1299)). Moreover, whether viewed through the lens of failure to object to trial court error in not giving a more specific unanimity instruction or the failure of trial counsel to request one, the prejudice prong analysis is still the same, which is whether Rivera was prejudiced by the absence of a specific unanimity instruction or by the charge that was actually given.
Rivera also distinguishes his case by noting that the Eleventh Circuit never addressed the third prong of the plain error standard-i.e. whether error affected his substantial rights-because it found no plain error. Pet'r's Suppl. Reply 2; Rivera-Rodriguez, 2022 WL 1234675, at *2. This is a more compelling argument because if a circuit court on direct appeal never reaches the third prong of the plain error standard, then perhaps in such cases a district court could still find prejudice arising from deficient representation. But even if such cases arise, this is not one of them. Here, Rivera alleges prejudice from the omission of a more specific unanimity instruction where the Eleventh Circuit has already concluded the instruction given by the Court sufficiently informed the jury of the need for unanimity such that consideration of whether Rivera's rights were substantially affected was not even necessary.
It is true that the Eleventh Circuit also added that even if the Court did err, Rivera had failed “to identify any precedent from our Court or the Supreme Court that dictates a specific unanimity instruction is necessary where multiple acts are charged in a single-count indictment.” Rivera-Rodriguez, 2022 WL 1234675, at *2. But that additional finding does not alter the fact the Eleventh Circuit found no plain error.
In addition, even if Rivera's claim is not resolved by the Eleventh Circuit's plain error analysis, the Court concludes he has not shown trial counsel was ineffective in not requesting a different unanimity instruction than the one given by the Court or that he was prejudiced by the absence of such request. The Court notes that by phrasing his argument as a failure to request a “more” specific unanimity instruction, Rivera at least acknowledges it was not feast or famine insofar as the Court's instructions to the jury about how to address the separate threats alleged in the single-count indictment. In response to the jury's third question, the Court did not simply re-charge its general charge and leave the jurors to fend for themselves. The Court instructed them to consider each threat separately and determine-as to each-whether the Government had proven each one beyond a reasonable doubt. Tr. II 111:16-112:9. Further, the Court reminded the jurors that they were to continue to apply the previous instructions it had given them, noting they had been provided a written copy. Tr. 115:6-9. These charges included the requirement of a unanimous verdict. Tr. II 86:12-14; Jury Instructions 8, Charge No. 10. Viewed as a whole, these charges instructed the jury that they must unanimously agree that all of the elements had been proven as to the same threat in order to convict. At the motion hearing, Shelnutt testified he believed the Court's instruction adequately covered the requirement of unanimity, and he saw no reason to object or request additional instructions. Hr'g Mot. Tr. 20:14-21:7.
Nowhere in his briefing does Rivera specify exactly what charge he believes should have been given. The Court assumes he believes that somewhere in its recharge, the Court should have added a sentence stating, “In order to convict the defendant, you must unanimously agree that all of the elements have been satisfied beyond a reasonable doubt on the same specific alleged threat.” Pet'r's Br. in Supp. of Mot. to Vacate 4-5, 7. This would have been more explicit than the charge given, but that does not mean the charge given was unclear or failed to sufficiently communicate the same instruction. If the Court had refused to give the additional charge Rivera now urges, it would not have been reversible error because it was substantially covered by the Court's instructions. See United States v. King, 751 F.3d 1268, 1275 (11th Cir. 2014) (noting a trial court's refusal to give a requested charge is not error where the instruction given “substantially covered the proposed instruction,” which in itself is determined by “ascertain[ing] whether the charge, when viewed as a whole, fairly and correctly states the issues and the law” (internal quotation marks omitted)). Unlike cases where a specific unanimity instruction was deemed necessary, the allegations against Rivera were not complex, and the Court's instruction that they were to consider each threat separately answered the specific question the jury had, and it made a rather straightforward case even more so. Therefore, the Court concludes trial counsel was not ineffective for not requesting an additional unanimity instruction and that Rivera was not prejudiced by the absence of such additional instruction.
The Court notes the Eleventh Circuit's finding that “the instruction that was given resulted in an instruction that the jurors unanimously agree which of the alleged threats satisfied the elements of the crime.” Rivera-Rodriguez, 2022 WL 1234675, at *2. Although decided using the plain error standard, the Eleventh Circuit did not qualify its statement by indicating the instruction might have been deemed deficient under a de novo standard or otherwise direct any criticism toward the charge.
III. Reference to Gun Ownership
During cross-examination of Rivera's wife, the Government asked her whether her husband owned firearms, how many he owned, and whether his collection included an AR-15. Tr. II 33:17-34:20. She responded that he owned four or five guns, including one “big” one and the rest “small ones.” Id. Trial counsel did not object to the questions. Then, in the closing argument, the Government played recordings of Rivera's threats about taking his AR-15 to Florida and referenced Ms. Rivera's testimony that he owned a long gun. Id. at 45:8-23. Again, trial counsel did not object. However, in his closing, Kendrick pointed out that if Rivera's threats were “true threats,” the Government would have obtained a warrant, seized the weapons, and brought them into court. Id. at 59:6-12. Rivera claims the failure to object to the Government's reference to his gun ownership was deficient because it was irrelevant and prejudiced Rivera by making his “words seem more threatening.” Pet'r's Br. in Supp. of Mot. to Vacate 11.
During the evidentiary hearing on Rivera's motion to vacate, Kendrick and Shelnutt testified they agreed Rivera's gun ownership was irrelevant but did not believe the cross examination about the guns or reference to them in closing argument warranted an objection because Rivera was a veteran in a military community-near Fort Benning (now Fort Moore)-where gun ownership was common. Mot. Hr'g Tr. 8:17-9:4, 9:22, 12:5-13, 13:2-14, 16:22-17:1, 21:8-22:1. Kendrick testified that he felt because of the area, the “Government jumping up and down about” the guns was “way off the ball.” Id. at 16:2517:3. Kendrick and Shelnutt also noted that their defense was that Rivera had no intent of acting on his threats. Id. at 9:4-6, 13:4-8, 22:1-10. Shelnutt stated that objecting to the Government's reference to the guns “didn't seem to go with” their defense. Id. at 21:2024.
Trial counsels' decision not to object was clearly a matter of sound trial strategy and not deficient performance. As trial counsel noted, the Columbus Division is an area heavily populated by gun-owning veterans, and as alluded to by Kendrick, the Government's attempt to make an issue of such ownership was not likely to gain much traction. Moreover, Rivera's defense was that he did not intend to act on the alleged threats, not that he lacked the ability. Objecting to the Government's cross examination or closing argument would have been inconsistent with this approach because it would have suggested to the jurors that defense counsel was concerned with them knowing about Rivera's ability to act. Instead, as recounted above, Kendrick used the Government's failure to seize the guns and bring them to court to suggest Rivera's comments were not deemed “true threats” even by law enforcement. Tr. II 59:6-12.
Rivera cites United States v. Philibert, 947 F.2d 1467 (1991), but that case did not involve an ineffective assistance claim. There, the defendant was charged with calling a former boss's residence in Atlanta and threatening to kill him. Philibert, 947 F.2d at 146869. Prior to trial, the government moved to introduce evidence that approximately two months before the call, the defendant had purchased a large amount of guns and ammunition, including a Thompson submachine gun. Id. at 1468. While the defendant took possession of the other purchases, he did not actually obtain possession of the submachine gun. Id. The trial court allowed the evidence, and after the defendant was convicted, the Eleventh Circuit reversed. Id. at 1472. The Eleventh Circuit concluded the evidence was irrelevant to whether the defendant had made a threatening phone call, noting it was undisputed that when he came to Georgia twelve days after making the call, he did not bring a weapon. Id. at 1470-71. The Eleventh Circuit also noted the trial court's error was exacerbated by the government's display of the submachine gun to the jury, which was the only weapon the defendant never actually possessed. Id. at 1471.
Here, the relevance of Rivera's gun ownership is not the issue. Defense counsel testified at the motion hearing they agreed it was irrelevant.The issue here is whether trial counsel was ineffective for not objecting in the presence of the jury to the allegedly irrelevant evidence when they 1) did not feel it harmful in light of the demographics of the Columbus Division, and 2) felt objecting would be inconsistent with their defense. As noted above, their decision not to object was sound trial strategy.
The Court does not decide whether Rivera's gun ownership was in fact irrelevant.
IV. Sufficiency of the Indictment
Rivera alleges trial counsel was ineffective for not challenging the sufficiency of the indictment. Pet'r's Mot. to Vacate 8. He states the indictment was deficient because it did not allege he intended to communicate a true threat. Pet'r's Br. in Supp. of Mot. to Vacate 12. He argues a violation of 18 U.S.C. § 875(c) is a specific intent crime, and an indictment must allege the defendant acted with specific subjective intent to communicate a true threat. Id. (citing, inter alia, Elonis v. United States, 575 U.S. 723 (2015)); Pet'r's Reply 6. He contends if trial counsel had moved to dismiss the indictment, the Court would have been required to grant the motion. Pet'r's Br. in Supp. of Mot. to Vacate 12 (citing United States v. Martinez, 800 F.3d 1293, 1295 (11th Cir. 2015). The Government, however, argues § 875(c) is not a specific intent crime, that recklessness is sufficient, and that an indictment is sufficient as long as it alleges facts from which the defendant's intent can be inferred. Gov't Resp. 13-14, ECF No. 106. The Government contends the indictment here alleged sufficient facts from which Rivera's intent could be inferred. Id. at 14-15.
Both parties' arguments, however, overlook the procedural posture of this case. The Court is not addressing a motion to dismiss an indictment but a post-conviction motion alleging ineffective assistance of counsel. The omission of specific intent from the indictment was not a jurisdictional defect. See United States v. Brown, 752 F.3d 1344, 1347 (11th Cir. 2014) (holding that omission of mens rea element from indictment was a non-jurisdictional defect); United States v. Twitty, 641 Fed.Appx. 801, 802 n.1, 808 (10th Cir. 2016) (noting that failure to allege mens rea in an indictment alleging a violation of 18 U.S.C. § 876(c)-which it deemed similar to the mens rea requirement under § 875(c) discussed in Elonis-was a non-jurisdictional defect). As such, any motion to dismiss had to be filed prior to trial. Fed. R. Crim. P. 12(b)(3)(B). But if trial counsel had done so, the Government could simply have obtained a superseding indictment to add the subjective-intent element. As discussed below, because the evidence at trial was sufficient to show such mens rea beyond a reasonable doubt, there is no reasonable probability such indictment could not be obtained under the lesser standard of probable cause. Therefore, Rivera cannot show prejudice from trial counsel's failure to seek a dismissal of the indictment. See Morlett v. Lynaugh, 851 F.2d 1521, 1525 (5th Cir. 1988) (rejecting a claim of ineffective assistance of counsel for failing to move to quash an indictment because the evidence produced at trial showed the state could have reindicted the petitioner in face of a motion to dismiss); United States v. Royal, 972 F.2d 643, 650-51 (5th Cir. 1992) (“[H]ad Royal's counsel made the motions he now suggests, the Government would simply have made the indictment more specific.”); Peterson v. United States, No. 13-00117-WS-N, 2018 WL 4677915, at *9 (S.D. Ala. May 16, 2018) (“Additionally, since any deficiency could have been easily cured by obtaining a superseding indictment after a motion to dismiss was filed, there can no prejudice from counsel's failure to challenge the sufficiency of the indictment.”), recommendation adopted by 2018 WL 2981169 (S.D. Ala. June 14, 2018); United Staes v. Oloyede, No. DLB-15-277-3, 2023 WL 2712771, at *4-5 (D. Md. Mar. 30, 2023) (finding there was no reasonable probability that a motion to dismiss the indictment would have led to a different outcome at trial, noting the government could have obtained a superseding indictment “correctly identifying the specified unlawful activities that ultimately were proven at trial”).
V. Motion for Judgment of Acquittal
Rivera asserts trial counsel was ineffective by failing to move for a judgment of acquittal. Pet'r's Br. in Supp. of Mot. to Vacate 13. Because trial counsel did not move for a judgment of acquittal, the Eleventh Circuit reviewed the sufficiency of the evidence under the manifest miscarriage of justice standard. Rivera, 2022 WL 1234675, at *1. Under this standard, the Eleventh Circuit “may reverse the conviction only to prevent a manifest miscarriage of justice. [It] requires the appellate court to find that the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” United States v. Tagg, 572 F.3d 1320, 1323 (11th Cir. 2009). Rivera contends because the evidence was insufficient to show he “intended to communicate a true threat or had knowledge that his words would be perceived as such,” the Eleventh Circuit would have reversed his conviction if it had reviewed the evidence under the less deferential standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979), which would have applied if a motion for judgment of acquittal had been made. Pet'r's Br. in Supp. of Mot. to Vacate 13-18. Under this standard, “[t]he test for reviewing the sufficiency of the evidence is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'” United States v. Young, 906 F.2d 615, 618 (1990) (quoting Jackson, 443 U.S. at 319).
Trial counsel was not able to explain why they did not move for a judgment of acquittal, so the Court will assume Rivera has satisfied the deficiency prong of Strickland. Mot. Hr'g Tr. 10:18-11:2, 23:25-24:4. Nevertheless, Rivera's contention that a different outcome would have resulted under the Jackson v. Virginia standard is unconvincing. Rivera argues his statements were “broad and sweeping.” Pet'r's Br. in Supp. of Mot. to Vacate 16. The Court disagrees. Rivera was actually quite specific as to what he was going to do, where he was going to do it, and the category of victims that would be targeted. Rivera argues the evidence demonstrates that as opposed to communicating a true threat, his “intent was to convince the management company to help him secure a refund[.]” Id. Sure, by having the person on the other end of the telephone believe if Rivera did not get a refund, he was going to kill Regal Palm employees and PCSO deputies. That is pretty much the poster child of a true threat. See United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) (“Most threats are conditional; they are designed to accomplish something; the threatener hopes that they will accomplish it, so that he won't have to carry out the threats. They are threats nonetheless.” (internal citation omitted)); United States v. Morales, 272 F.3d 284, 288 (5th Cir. 2001) (“The language of § 875(c) does not require that the threat be made directly to the intended target; it simply prohibits ‘any threat to injure the person of another” made in interstate commerce.'”).
There are other facts showing Rivera's statements were true threats. There is the fact he called Soleil Management three days after Agent Coulter told him to stop calling and making threats, putting Rivera on explicit notice-in the absurd unlikelihood he did not already know-his statements were being perceived as threats. Then there is the fact Rivera himself acknowledged during his conversation with Lakeisha LeBlue on January 13, 2020, that his previous statements constituted a “threat.” Gov't Ex. 3, 10:05-8.
Moreover, when LeBlue instructed Rivera to stop “making threats” to their employees- demonstrating how Soleil Management employees perceived Rivera's comments-Rivera responded, “Absolutely not. That's not gonna happen,” thus indicating his intent all along had been to make threats. Id. at 15:13-25. Rivera makes much of the fact that laughing was heard on a couple of occasions during the calls, but ignores the fact Soleil Management was sufficiently concerned about the safety of the Regal Palms employees in Florida that the security department was notified and law enforcement contacted. Tr. I 57:13-24, 130:8-23, 132:25-33:9. The evidence here is overwhelming that Rivera's comments were not idle talk, careless remarks, or jokes, or perceived as such. See Pattern Crim. Jury Instr. 11th Cir. OI O30.3 (Feb. 5, 2016 Revisions) (“This instruction is based on Elonis v. United States[.]”). He was angry, vengeful, and set on menacing Soleil Management employees until they succumbed to his demands. Rivera's contention otherwise is meritless.
There were two occasions when some form of laughter was heard on the calls. The first was during Rivera's January 9, 2020, call with Laidler, where laughing was heard in the background. Gov't Ex. 2, 8:41-47. Laidler testified that this laughter was just noise from the call center because everyone was close to each other in cubicles. Tr. I 120:17-22. She testified neither she, nor anyone else, was laughing at Rivera. Id. at 120:23-121:4. The second occasion was during the January 13, 2020, call when Maskevich briefly placed Rivera on hold to ask LeBlue to talk to Rivera. LeBlue and Maskevich can be heard slightly chuckling during their brief one-on-one discussion. Gov't Ex. 3, 7:02-8:15. At the same time though, LeBlue specifically refers to Rivera making “threats,” and they agree Maskevich should remain on the call so that it could be recorded because LeBlue's calls were not recorded. Id. at 7:44-8:03. It was within the province of the jury to decide whether this chuckling between LeBlue and Maskevich was evidence they considered Rivera's threats a joke or jest as opposed to a normal human reaction to the stress of dealing with a clearly hostile individual. And again, their actions otherwise show they took Rivera's conduct as anything but a joke. Maskevich and LeBlue testified that following the calls, they were concerned for their co-workers in Florida. Tr. I 114:16-7; 133:5-9.
VI. Failure to Object to the Government's Closing Argument
Rivera selectively quotes a portion of the Government's closing argument, wherein the prosecutor stated, “[T]he government does not have to prove that the defendant intended to do anything, only that he made the threats and that a reasonable person could be concerned about them.” Pet'r's Br. in Supp. of Mot. to Vacate 18; see Tr. II 73:24-74:2. Trial counsel did not object to the statement, and Rivera claims this was ineffective because it allowed the Government to lower its burden of proof by misleading the jury into believing the Government did not have to prove subjective intent to communicate a threat. Pet'r's Br. in Supp. of Mot. to Vacate 18-20. Asked why they did not object to the argument, trial counsel could not remember. Mot. Hr'g Tr. 17:25-18:3, 24:13-25:17.
Initially, the Court notes Rivera's selective quotation of the Government's argument ignores context. The full quote from the prosecutor is:
Now, did Mr. Rivera act out on any of these threats? No. As far as I know, he didn't. Guess what. This particular offense does not require actions. And in fact, the judge is going to tell you in his jury charge, “The Government does not have to prove that the defendant intended to carry out the threat,” direct quote. I'm not going to put it on the screen. You're going to have a copy of this. You can read it for yourself. But the government does not have to prove that the defendant intended to do anything, only that he made the threats and that a reasonable person could be concerned about them.Tr. II 73:17-74:2. Later, the prosecutor stated, “But this particular offense does not require any action. All it requires is the threat.” Id. at 74:12-13. Thus, in context, the Government's statement about only needing to prove the threat and how a reasonable person would perceive it was simply to explain that action to carry out the threat was not an element of the offense.
Nevertheless, even if the statement was somewhat misleading, and even if trial counsel should have objected, Rivera cannot show prejudice. “[B]ecause a jury is presumed to follow instructions, any prejudice from an attorney's improper remarks may be cured by proper jury instructions.” Aranguren-Suarez v. United States, 570 Fed.Appx. 908, 911 (11th Cir. 2014) (per curiam) (citing Johnson v. Alabama, 256 F.3d 1156, 1184 (11th Cir. 2001)). Here, any prejudice arising from the prosecutor's argument was cured by the Court's instructions given both during its initial charge and in its recharge. In its initial charge, the Court instructed the jury that in order to convict Rivera under § 875(c), the Government had to prove beyond a reasonable doubt:
One, that the defendant knowingly and willfully sent a message in interstate commerce containing a true threat to injure the person of another; and, two, that the defendant sent the message with the intent to communicate a true threat or with the knowledge that it would be viewed as a true threat. The government does not have to prove that the defendant intended to carry out the threat.Tr. II 84:14-20. In its recharge, the Court set out even more explicitly the two facts the Government had to prove. It charged:
The defendant can be found guilty of this crime only if the following facts are proved beyond a reasonable doubt: One, the defendant knowingly and willfully sent a message in interstate commerce containing a true threat to injure the person of another. That's the first thing that the government has to prove, that the defendant knowingly and willfully sent a message in interstate commerce containing a true threat to injure the person of another. And, two, that the defendant sent the message with the intent to communicate a true threat or with the knowledge that it would be viewed as a true threat. The government does not have to prove the defendant intended to carry out the threat.Id. at 112:13-25. Later, in explaining that the jurors should consider each threat separately, the Court instructed them that “in order to find him guilty, you'd have to find in addition that the defendant sent the message with the intention, the intent, to communicate a true threat or with the knowledge that it would be viewed as a true threat.” Id. at 114:14-17. Thus, contrary to Rivera's assertion, the Court made it clear to the jury that the Government had to prove Rivera's subjective intent.
Nevertheless, Rivera argues the Court's instructions were insufficient because it also instructed them that “[a] true threat is a serious threat-not idle talk, a careless remark, or something said jokingly-that is made under circumstances that would place a reasonable person in fear of being injured.” Pet'r's Br. in Supp. of Mot. to Vacate 19-20 (quoting Tr. II 84:23-85:1). Rivera argues that because this instruction refers to a reasonable person, the Court was required to specifically instruct the jurors that the Government's argument was “incorrect and it must prove more than that Petitioner made the threats and that a reasonable person could be concerned about them,” but must also prove “Petitioner intended to communicate a true threat or knew his statements would be viewed as such.” Id. at 20.
But Rivera's argument misses the mark. The statement referring to what a reasonable person would perceive was not part of the charge on the elements of the offense but in the definitions portion of the charge. Tr. II 84:23-85:1, 113:4-8. The Court's definition of a true threat was accurate. Moreover, as discussed above, the Court did tell the jurors-three times separate times-that the Government must prove Rivera's intent to communicate a true threat or knowledge it would be viewed as such. It also provided the jurors a written copy of the jury instructions which said the same thing. Jury Instructions 6.
Rivera seems to suggest that on top of this, the Court was required to specifically point out to the jury that the Government had misstated the law, citing United States v. Williams, 836 F.3d 1 (D.C. Cir. 2016). In that case, the D.C. Circuit noted statements by the government carried “particular weight,” and thus increased the risk for prejudice. Williams, 836 F.3d at 15. But as Williams itself noted, context matters. Id. at 14-15; see also Aranguren-Suarez, 570 Fed.Appx. at 911 (citing Johnson, 256 F.3d at 1184). Here, as discussed above, the point of the Government's argument was to explain that it did not have to prove Rivera intended to carry out any threat. The Court's full instructions to the jury were sufficient to place the Government's argument into context and prevent any possibility that the jurors were misled, especially since-as noted by the prosecutor himself-the jury had a copy of the instructions with them during deliberations. Tr. II 73:23-24; Jury Instructions 6. Moreover, unlike the situation in Williams, the Court corrected the specific point of law on which there was a possibility of confusion, namely the requirement of proving subjective intent. Williams, 836 F.3d at 16. Therefore this ground is also meritless.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of Rules Governing Section 2255 Cases in the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability may issue only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a court denies a collateral motion on the merits, this standard requires a petitioner to demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 478. Rivera cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the foregoing reasons, it is recommended that Petitioner's motion to vacate (ECF No. 102) under 28 U.S.C. § 2255 be denied. Additionally, a certificate of appealability should be denied. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED