Appeal from the United States District Court for the Southern District of Florida. D.C. Docket Nos. 0:10-cv-61835-KAM, 0:05-cr-60160-KAM-10.
For Marcus Rivers, Petitioner - Appellant: Arthur Louis Wallace III, Wallace Associates, Lighthouse Point, FL.
For United States of America, Respondent - Appellee: Carol Herman, Kathleen Mary Salyer, Anne Ruth Schultz, Wifredo A. Ferrer, Robin W. Waugh, U.S. Attorney's Office, Miami, FL.
For Service: Ana Maria Jhones, Haley & Jhones, PA, Miami, FL.
Before ED CARNES, Chief Judge, RESTANI,[*] Judge, and ROBRENO,[**] District Judge.
ROBRENO, District Judge:
This appeal arises out of a claim of ineffective assistance of counsel. After his 2007 conviction for conspiring to possess with intent to distribute, Marcus Rivers filed a motion to vacate his sentence under 28 U.S.C. § 2255, alleging that his trial attorney -- who died before Rivers filed his § 2255 petition -- was constitutionally ineffective in several ways. At an evidentiary hearing on Rivers's claims, counsel for Rivers's codefendant testified, in relevant part, about conversations he had with Rivers's lawyer before the trial. Over Rivers's objection, the district court permitted that testimony under Federal Rule of Evidence 807, the residual exception to the hearsay rules. After the district court denied Rivers's § 2255 motion, Rivers was granted a certificate of appealability on the question of whether that hearsay testimony
was properly admitted under Rule 807, and now brings this appeal.
We hold that the statements admitted under Rule 807 lacked the " circumstantial guarantees of trustworthiness" required by the rule, and so it was error for the district court to admit them. However, we will not reverse the district court's denial of Rivers's § 2255 motion because, even after excising the improperly admitted testimony of his codefendant's counsel, Rivers has failed to meet his burden to prove the claims in his petition. Therefore, the Rule 807 error was harmless and we affirm the district court's denial of Rivers's § 2255 motion.
In 2006, Marcus Rivers and ten other defendants were charged by superseding indictment with (1) conspiring to import into the United States at least five kilograms of a substance containing a detectable amount of cocaine and a substance containing a detectable amount of marijuana, in violation of 18 U.S.C. § 2 and 21 U.S.C. § § 952(a), 960(b)(1)(B) and (b)(4), and 963 (Count 1); and (2) conspiring to possess with intent to distribute at least five kilograms of a substance containing a detectable amount of cocaine and a substance containing a detectable amount of marijuana, in violation of 18 U.S.C. § 2 and 21 U.S.C. § § 841(a)(1), (b)(1)(A), and (b)(1)(D), and 846 (Count 2).
Ana Maria Jhones was appointed as Rivers's attorney. In a motion for continuance of trial, Jhones indicated that she had been unable to review Rivers's case with him due to his financial inability to travel to her office, and that he had not participated " in ANY communication" with her regarding his defense. Jhones later filed a motion to withdraw as Rivers's counsel due to irreconcilable differences; the magistrate judge granted the motion and ordered the clerk to appoint new counsel. On April 10, 2007, the court appointed Brian R. McComb to represent Rivers.
The court held a May 23, 2007, hearing to determine the admissibility of wiretap evidence against Rivers and several other codefendants, including Thomas Jones. Neither Rivers nor Jones was present at the hearing.
Trial began two weeks later. At the close of the government's case, the court granted Rivers a judgment of acquittal as to Count 1, and at the conclusion of trial, the jury convicted Rivers of Count 2. The court sentenced Rivers to 180 months' imprisonment and 5 years' supervised release. Meanwhile, as Rivers's case was proceeding through direct appeal under newly appointed counsel, McComb died. McComb's widow has indicated that she is unable to locate any of his case files.
After the rejection of his direct appeal, Rivers filed a timely motion to vacate his sentence under 28 U.S.C. § 2255. This motion alleged in relevant part that his trial counsel, McComb, had provided ineffective assistance of counsel in two ways. First, he had failed to review the government's evidence with Rivers prior to trial (" Ground 3" ). According to his motion, had Rivers understood the weight of the government's evidence against him, he would have entered a guilty plea rather than proceeding to trial and thus would have been eligible for an acceptance-of-responsibility
reduction and the safety valve. Therefore, Rivers claimed, he had been prejudiced by McComb's performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, McComb had failed to advise Rivers about whether he should plead guilty or proceed to trial (" Ground 4" ). Here, Rivers alleged that McComb had in fact told him that the government had no evidence against him, and that McComb failed both to develop an opinion about whether Rivers should plead guilty and to express that opinion to him. Had McComb advised him to plead, Rivers alleged, he would have pled guilty and received the benefit of a three-level reduction for acceptance of responsibility, and therefore the failure to so advise him rendered his representation constitutionally ineffective.
The magistrate judge held an evidentiary hearing on August 25, 2011, on Rivers's ineffective assistance claims. Rivers testified that, after a brief introduction when McComb became his lawyer, he only ever spoke with McComb again the day before trial, when McComb instructed him on the phone to come to court the following day. Rivers and McComb met for the first time at the courthouse the day they began jury selection. Rivers testified that he and McComb had never discussed any of the following: evidence, discovery materials, motions, witnesses, exhibits, defense witnesses, defense exhibits, expert witnesses, the Sentencing Guidelines, his criminal record, the indictment, the jury instructions, the elements of the charges against him, or the wiretap recordings. He also testified that he never spoke with McComb about the possibility of pleading guilty or whether he should have done so. At the same hearing, the government admitted that it had nothing with which to refute Rivers's testimony about his alleged lack of communication with McComb.
The magistrate judge issued a report and recommendation concluding that, assuming Rivers could prove deficiency, he had not established that he had been prejudiced by counsel's alleged deficiencies. Rivers objected, arguing that he had shown that with proper advice, he would have pled guilty, accepted responsibility, and sought a more lenient sentence from the court. The district court agreed with Rivers, finding that there was a reasonable probability that but for counsel's alleged deficiency, the sentence would have been reduced. Therefore, the court indicated that Rivers was entitled to § 2255 relief if he could satisfy the deficiency prong of Strickland, and remanded the matter back to the magistrate judge for consideration of deficient performance.
On remand, the magistrate judge entered an order requiring the government to respond to the district court's concerns and address both prongs of Strickland. In response, the government submitted a series of emails between the government, McComb, and Valentin Rodriguez, counsel for codefendant Jones, in which the government had requested the defendants to enter into several evidentiary stipulations prior to trial. In response, Rodriguez had stated that he was meeting with McComb to discuss the stipulation issues, and McComb had stated that he was " trying to
get [Rivers] to accept a plea in this matter."
In the resulting report and recommendation, the magistrate judge determined that Rivers's testimony at the evidentiary hearing was credible. Accordingly, the magistrate judge concluded that McComb had not conveyed a plea offer to Rivers or discussed with him the relative advantages of one, and therefore that McComb had provided deficient performance. The government objected, requesting that the district court reopen the ...