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___________________________
Daniel F. Lopez-Romo, United States Attorney, and Charles
_____________________
________
Fitzwilliam, Executive Assistant United States Attorney, on brief
___________
appellee.
____________________
____________________
Per Curiam.
Per Curiam.
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(Rivera)
In
1987, petitioner
Lopez
in Puerto Rico.
28 U.S.C.
ceived ineffective
assistance of
was involuntary
and
In 1991,
appealed.
re-
guilty plea
evidence
without
We affirm.
he had
newly discovered
he moved to vacate
unknowing, that
denied
Jose Rivera
an evidentiary
Rivera
I.
I.
On
Background
Background
__________
the DuPont
Plaza Hotel
people.
in San
management was engaged in difficult collective bargaining negotiations with the Teamsters Union.
government had
Hector Escudero
fire,
provided
Escudero with
the sterno
suggested
starting
the fire.
in to union
demands.
Rivera
made statements
had
Other witnesses
before
the
told investigators
fire
set the
used in
fire, the
broke out
that
which
shield
Escudero from
as he
lit
were indicted
the sterno.
and intentionally
procure[d]
destruction, by means
resulted
view
the . . .
of fire,
Escudero,
in the
fire.
of a building
. . . which
and
fire
2 and 844(i)]."
Eventually, all
admitted that
statements to the
agreed to
At the
recommend
plea
sentences of
hearing, the
recommendations, but
the court
(1st Cir.),
Judge Fust
he lit
his sentence.
25 and
24 years,
government
made the
(Fust , J.)
sentenced
Jimenez to 75 years.
We upheld
cert. denied,
_____ ______
reduced Rivera's
Jimenez's to 25 years.
vacate
respectively.
promised
Rivera
487 U.S.
1223 (1988).
sentence to
40 years,
In
and
he
claims that
his
motion
claims; he also alleges that the district court erred in dismissing his sentence disparity claim.
II.
II.
A.
A.
Discussion
Discussion
__________
assistance.1
failed to
inef-
interview favorable
witnesses and to
investigate his
defenses adequately.
To state
Rivera must
tive
standard of
performance
bility" that,
reasonableness and
prejudiced him
inadequate
not have
Hill v.
____
Lockhart, 474
but for
that Inserni's
Inserni's errors,
________
____________________
1The allegations in Rivera's brief are
than those made under oath in his affidavit.
tions made in briefs are insufficient to raise
of fact.
Because of Rivera's pro se status,
considered the allegations in his brief as
such
defenses
or
evidence
likely would
have
changed
either
Id. at 59.
___
must
As
Moreover,
these sworn
give a
statements are
credible reason
for
at
Inserni's repre-
presumptively true,
his retraction.
See
___
_____________
____
appointed.
the testimony
the
Rivera
of government witnesses
so-called
"curtain"
arriving at the
episode,
as to his
his
involvement in
actual statements
meeting at a
upon
local restau-
the fire.
witnesses
Rivera also
who
might have
determine
of the fire,
not
whether
He suggests that
restaurant on
who travelled
and a
with Escudero and Rivera to the meeting, could have shed light on
that issue.
Rivera
Lanzo
Santiago
allegedly
states that
would
have
Francisco Velez
"controverted"
Muniz
the
and Emilio
statements
he
meeting.
petition, says that Velez saw Rivera at the hotel, the day of the
fire, pounding his fist
"[t]oday there
together shortly
to other documents
in the record,
Accord-
says only
testimony of
nor
He neither
that they
witnesses
government witnesses
"curtain" episode
hotel.
that those
and Rivera's
would have
on certain issues,
would
be willing
to
"witnesses."
testify; he
have been,
presented
no
See Lincecum v.
___ ________
at the
e.g., the
____
which
refuted the
hearing
describe
where none
of
or
1989) (similar).
government's chief
recommend
a 25-year
speculate
that
been
witness.
As
sentence instead
either
decision to plead
Inserni's
the government
of life,2
____
we decline
recommendation
agreed to
or
to
Rivera's
pre-plea admissions.
Finally, no
claim
that Inserni
attended
evidentiary hearing
should
could have
the
union members
who
The record
have interviewed
required on
to start
was
suggests that
Muniz may
have
in the
However,
the discovery
that Muniz
or others
had in-
this fire,
would not
abettor liability
Escudero
for
to start
have relieved
having himself
the fire
Rivera of
affirmatively
several hours
before.
aider and
encouraged
See, e.g.,
___ ____
____________________
218 U.S.C.
844(i) authorizes a maximum penalty of death or
life imprisonment. However, before plea negotiations began, the
government announced that it would not seek the death penalty.
Thus, at the time the government agreed to recommend a 25-year
sentence, its maximum alternative recommendation
under the
statute would have been life imprisonment.
7
knowledge of
execution may
the
commission of
dominating
States, 394
______
the
or
Thus, Inserni's
crime assists
controlling
actor"); see
___
failure to
Asher
_____
in
its
another is
v.
United
______
(similar); United
______
1962) (similar).
would not
and abet-
or interview
witnesses deprived
defendant of
"viable defense")
(direct appeal).
Nor does Rivera suggest
his sworn statement
at his
satisfied
hearing.
Thus,
Compare United
_______ ______
with
counsel's performance
preceded
peti-
____________________
present this information to the sentencing judge.
9
B.
B.
knowing.
claims
that his
plea
not voluntary
and
allegations are
Moreover,
assuming their
provide
was
no basis
required.
to
conclusively
refuted by
for relief,
See Lema v.
___ ____
record.
allegations would
hence no evidentiary
the
F.2d 48,
hearing was
51-52 (1st
Cir. 1993).
1.
1.
"technicalities" of the
thermore, when
January 30,
that
he
charge.
"fire count" to
Rivera
him.
Fur-
a magistrate on
knowingly
and
intentionally
destruction
of property by fire.
acknowledged
his understanding
of
to set
procured
In his
of the
the
malicious
charges; that
among the
the fire;
and that
Inserni had
of
explained the
10
language in the
the Rule 11
ample
offense.
At
he had
had
with "procur-
Escudero
that a
fire
had to
be set
to
pressure
management.4
Thus,
the record
conclusively shows
that Rivera
charges that
his protestations
of innocence.
Inserni
that, if
murder
told him
Rivera's
he rejected the
in relation to
the plea
government's offer,
a federal officer
threatened to seek
plea despite
Inserni reminded
the
did not
____________________
4At the Rule 11 hearing, Judge Fust read the charge and
paraphrased or read the language of both 18 U.S.C.
2 and
844(i); he also verified that, in light of the charge of procuring and the harsh sentence which could be imposed under the
statute, Rivera still wanted to plead guilty.
After Rivera
responded affirmatively, Judge Fust asked: "So, I gather, then,
that you understand the charge; do you have any doubts?"
To
this, Rivera responded: "Yes, sir.
No, sir." This clearly was
meant to convey that Rivera understood the charge and had no
doubts about pleading guilty.
11
plead guilty.
Consequently, he alleges,
for filing a
Rivera
pled guilty
court.
In the
to second
against him.
degree murder
in a
Indeed,
Commonwealth
murder charge
See
___
Bordenkircher v.
_____________
Hayes,
_____
434 U.S.
357,
362-65
not
charges).
plead
guilty,
provided the
would
support
time he
evidence
initialed
In
each
apparently prepared
would not
page
of
by Inserni,
change-of-plea
plea,
petition,
in a
been
crossed out, however, and the only legible letters ("de") suggest
that
imprisonment."5
At the plea
____________________
5Since the court had the plea petition before it when the
hearing began, we assume that it had been filled out and signed
previously. (We note, however, that the hearing began at 9 a.m.,
whereas the petition was stamped as filed at 1:10 p.m.).
The
record contains no evidence that the court had informed the
parties
before the
plea hearing
that it
would not
impose the
12
moreover, Rivera
acknowledged that he knew that the government was not seeking the
death penalty, and also told the court that no one had threatened
him or coerced him into pleading guilty.6
Although Rivera now claims that he was too
nervous and
answers to give,
doubt that
he still
believed
brought
from the
himself guilty
as stated
the court
of
in his later
35(b)
efforts to
Rather,
Inserni
to reduce
sentence in
1989,
and his
motion for
____________________
do not
until late
coercion
or lies by Inserni.
As Rivera suggests
disbelieving
evidentiary hearing
misrepresentation caused
defendant
to plead,
guilty
where, despite
alleged misrepresentations
motion almost
two and
not try to do so
one-half years
until his
after sentencing;
he had not
(except as stated
plea agreement,
signed before
14
in the
that the
In
that it
by law.7
Likewise,
had not
now claims
"confession"
accepting
that
Inserni told
guilt."
In
him that
Judge
Rivera submitted a
his
brief,
Rivera
appears to argue that the judge actually was involved in the plea
bargaining process,
situation
slip of
to him.8
this
on a
which
Judge Fust
immediately
stated that what he had before him was Rivera's plea petition.
We confess confusion
Rule
concerning Rivera's
allegations.
____________________
15
nature of
dant's understanding
factual basis for
Thus,
and voluntariness,
the plea.
we attribute
the government's
Rivera's
proof, the
allegations
to
misunderstanding.
Cir.
exploration
bench
of a
defen-
of factual
840, 841
basis for
(8th
plea in
agreement,
He
pressure,
he say he
was told
to admit guilt
untoward
consequences,
or
that he
believed
the
court was
he pled guilty.
threatening
Thus, his
allega-
plea in
Rivera's
behind
later
exchange for
conduct.
the government's
a 25-year
Had he
urged his
sentence is
refuted by
believed
25-year recommendation,
that the
Yet neither on
court was
he would
have
to 99 years, that
later
did Rivera raise the judicial intervention claim, nor does he now
claim
that he wanted
circumstances.
to do so
by counsel or
C.
C.
at a preliminary
credit
Escudero's testimony.
During
the
course of
the
fire; that he
had
the hotel
____________________
I made a statement which you took and the U.S. Attorney didn't
accept, and it was when I asked you what you had to say. And you
answered me you must accept the facts for him to accept it and in
this way reach a plea agreement." Subsequent letters by Rivera
refer to Judge Fust rather than U.S. Attorney Lopez Romo as the
one who would not accept Rivera's first "confession."
In 1989,
Rivera wrote:
"I would like you to obtain a copy of my first
guilty plea, which I [gave] to you and which Judge Fust supposedly didn't want to accept as guilty and that was when we had to
do another so that he would arrive at the 25-year sentence, which
later was not fulfilled . . . ."
17
the intention of
while
travelling
the fire
members
that
so that
he
would not
be seen;
and other
union
Rivera argues
had he inter-
First, in
testimony.
consist
of
selected
snippets
of
to
of pages in
Escudero's
a full understanding
of the testimony
in context.
Second,
purport
a
the proffer
does not
fire,
without Rivera's
of Escudero's testimony
Rivera made
participation,
property damage.
statements at
other times
encouraged Escudero
with
the purpose
of
Nor does it
gainsay
that day,
or took
to set the
fire.
The
fire would
later
evidence, such
as
it
Rivera's
district
court's
valid
is,
that Escudero
is immaterial in
determination
that
view of the
Rivera's plea
supported by
the government's
evidence.
Kearney, 682
_______
based
minimized
was
2255 motion,
D.
D.
Sentencing Disparity
Sentencing Disparity
____________________
Finally,
we reject
less
term
of imprisonment.
resurrect
the claim
that Rivera,
allegedly
should not
have received
a longer
This claim
issues previously
addressed
Affirmed.
Affirmed.
________
unsuccessfully attempts
on direct
appeal.
to
See
___
20