United States District Court, District of Columbia
JOHN D. BATES, District Judge.
Before the Court is petitioner Manuel Rivera-Niebla's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court will deny the motion.
In 1994, Rivera-Niebla was convicted in the Southern District of Florida for three drug-related offenses, and sentenced to a total of 135 months of imprisonment and eight years of supervised release. See United States v. Rivera-Niebla, No. 89-309 (S.D. Fl. 1994). An alien, he was released from custody and deported in 2000. Def.'s Mot. to Vacate [ECF No. 59] ("Def.'s Mot.") 3b. Six years later, a grand jury handed down an indictment in Washington, D.C., charging him with two drug-related offenses. Indictment [ECF No. 2] ("Indictment"). He was then arrested in Colombia, and in 2008, he was extradited to the United States. Docket Entry of Jan. 7, 2008, Arrest of Manuel Rivera-Niebla. Following Rivera-Niebla's plea of guilty to one of the counts in the indictment-conspiring to import and distribute cocaine-this Court sentenced him in 2012 to 132 months of imprisonment, with credit for time served since his arrest. See July 31, 2012 Judgment [ECF No. 53].
Both the indictment and the statement of facts accompanying Rivera-Niebla's guilty plea indicated that the conduct to which he was pleading guilty occurred in 2002 and 2003. See Indictment at 2, 4; Statement of Facts [ECF No. 14] 2-4. Because he was under supervised release for his Florida sentence when that conduct occurred, the Court added two points to his criminal history, which bumped his criminal history category from II to III. See U.S.S.G. § 4A1.1(d). Rivera-Niebla, proceeding pro se, has now moved to vacate, set aside, or correct his sentence under section 2255, arguing that his counsel was constitutionally deficient for not objecting to the Court's sentencing calculations and for not moving to dismiss the indictment for improper venue.
STANDARD OF REVIEW
Under section 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Such a motion will be granted only in limited circumstances because of the premium placed on the finality of judgments and because of the opportunities prisoners have to raise most of their objections during trial or on direct appeal. See United States v. Frady , 456 U.S. 152, 164 (1982) ("Once the defendant's chance to appeal has been waived or exhausted, ... we are entitled to presume he stands fairly and finally convicted, especially when... he already has had a fair opportunity to present his federal claims to a federal forum."). "[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." Id. at 166. The defendant bears the burden of proving his claims by a preponderance of the evidence. United States v. Simpson , 475 F.2d 934, 935 (D.C. Cir. 1973).
Even so, "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall... grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto." § 2255(b). But a district court need not conduct an evidentiary hearing before denying a section 2255 motion when "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." Id .; accord United States v. Morrison , 98 F.3d 619, 625 (D.C. Cir. 1996). "If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal...." Rules Governing § 2255 Proceedings, Rule 4(b).
Rivera-Niebla argues only that his counsel was constitutionally ineffective. The Sixth Amendment to the United States Constitution guarantees "the right to the effective assistance of counsel, " Strickland v. Washington , 466 U.S. 668, 686 (1984) (internal quotation marks omitted), and a habeas petitioner may raise an ineffective assistance of counsel claim for the first time in a section 2255 proceeding "whether or not [he] could have raised the claim on direct appeal, " Massaro v. United States , 538 U.S. 500, 504 (2003). To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must show both that his lawyer performed deficiently, see Strickland , 466 U.S. at 687 (requiring showing that "counsel made errors so serious that counsel was not functioning as the counsel' guaranteed to the defendant by the Sixth Amendment"), and that the petitioner was prejudiced by the lawyer's mistakes, see id. at 694 (requiring "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. at 700.
I. RIVERA-NIEBLA'S COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE COURT'S SENTENCING CALCULATION
Rivera-Niebla first argues that his counsel was ineffective because his counsel failed to object when the Court increased his criminal history category for committing his offense while he was under supervised release for another conviction. Rivera-Niebla advances three arguments why this was a mistake, and thus why his counsel was constitutionally deficient for failing to object. He argues that (1) his arrest did not occur until after the completion of his supervised release, (2) his deportation ended his term of supervised release, and (3) case law suggests that section 4A1.1(d) of the Sentencing Guidelines should not have applied to his case. Each argument is meritless, and so even if his counsel had objected to the Court's criminal history calculation, it would have made no difference.
Rivera-Niebla first argues that he was arrested after his supervised release ended. But section 4A1.1(d) calls for a two-point increase when a defendant "committed the instant offense while under any criminal justice sentence, including... supervised release." § 4A1.1(d) (emphasis added); see also id. app. n.4 (increase applicable "if the defendant committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence, including... supervised release") (emphasis added). When he was arrested is thus irrelevant to this analysis; what matters is when he committed the offense. Both the indictment and the statement of facts accompanying Rivera-Niebla's guilty plea indicated that the conduct to which he was pleading guilty occurred in 2002 and 2003. See Indictment at 2, 4; Statement of Facts [ECF No. 14] 2-4. His eight-year term of supervised release began in 2000. Rivera-Niebla effectively concedes this point: he contends (erroneously) that his term of supervised release ended in 2005. Def.'s Mot. at 3a-3c. Even if that were true, the adjustment would still apply because he engaged in the conspiracy in 2002-03. Hence, he committed the offense while under a criminal justice sentence: the supervised release imposed for his 1994 conviction.
Rivera-Niebla next contends that his deportation in 2000 ended his term of supervised release, meaning that when he committed the offense in 2002-03, he was not under any criminal justice sentence for the purposes of section 4A1.1(d). Although the D.C. Circuit has not addressed the issue, at least four circuits have held that a term of supervised release does not terminate upon deportation for purposes of applying section 4A1.1(d). See United States v. DaCruz, No. 13-2581, 2014 WL 486241, at *2 (3d Cir. Feb. 7, 2014); United States v. Roccisano , 673 F.3d 153, 157 (2d Cir. 2012); United States v. Akinyemi , 108 F.3d 777, 779 (7th Cir. 1997); United States v. Brown , 54 F.3d 234, 238 (5th Cir. 1995); see also United States v. Garcia-Castaneda, 255 F.Appx. 316, 318 (10th Cir. 2007) (noting in dicta that if defendant were to reenter United States during term of supervised release, he would be subject to enhanced penalties under 4A1.1(d)). At least four other circuits have noted in dicta that supervised release does not terminate upon deportation while holding that, for section 4A1.1(d) purposes, parole or probation is not extinguished by deportation. See United States v. Barrera , 562 F.3d 899, 902 (8th Cir. 2009) (involving state probation and noting as persuasive cases holding that deportation does not extinguish supervised release); United States v. Carrasco-Mateo , 389 F.3d 239, 247 (1st Cir. 2004) (holding that state parole is not terminated by deportation and noting that the "same holds true for supervised release"); United States v. Ramirez-Sanchez , 338 F.3d 977, 980 (9th Cir. 2003) (involving probation and noting that "deportation does not extinguish supervised release"); United States v. Stewart, 208 F.3d 216 (Table) (6th Cir. 2000) (involving state parole and noting "Congress's intention that... supervised release continues to run despite an alien's deportation"). In so holding, most of these courts relied on the commentary to section 4A1.1(d), which notes that "active supervision is not required for [section 4A1.1(d)] to apply." § 4A1.1(d) app. n.4. In United States v. Akinyemi , the Seventh Circuit also reasoned that because "no statute, court order, or sentencing guideline provides for the termination of the supervised release period, " if the sentencing court has not exercised its authority under 18 U.S.C. § 3583 to terminate the supervised release sentence, ...