Marcus Rivers v. United States, 777 F.3d 1306

Background

Marcus Rivers was convicted in 2007 of conspiring to possess with intent to distribute (Count 2) and sentenced to 180 months; his trial counsel, Brian McComb, died after trial and before Rivers filed a § 2255 petition.
Rivers filed a timely 28 U.S.C. § 2255 motion alleging ineffective assistance: (1) McComb failed to review the government’s evidence with him (Ground 3); (2) McComb failed to advise him about pleading guilty (Ground 4). Rivers testified he had little-to-no consultation with McComb before trial.
At an evidentiary hearing, the government called codefendant counsel Valentin Rodriguez, who testified about pretrial meetings with McComb and Rivers and recounted statements McComb allegedly made about having reviewed evidence and discussed pleas with Rivers.
Rivers objected to admission of Rodriguez’s recounting of McComb’s out-of-court statements as hearsay; the district court admitted that testimony under Federal Rule of Evidence 807 (residual exception), finding circumstantial guarantees of trustworthiness.
The district court credited Rodriguez and discredited Rivers, denied the § 2255 motion, and Rivers obtained a certificate of appealability on whether admitting Rodriguez’s hearsay under Rule 807 was proper.
The Eleventh Circuit held admission under Rule 807 was erroneous because McComb’s statements lacked equivalent circumstantial guarantees of trustworthiness, but the error was harmless because, excluding the improperly admitted testimony, sufficient non-hearsay and non-excluded testimony (Rodriguez’s other in-court recollections) still supported the district court’s adverse credibility finding and denial of relief.

Issues

Issue	Plaintiff's Argument (Rivers)	Defendant's Argument (Gov't/District Ct.)	Held
Whether Rodriguez’s testimony recounting McComb’s out-of-court statements was admissible under FRE 807 (residual hearsay exception)	Testimony lacks trustworthiness: Rodriguez’s account contradicts the record and is not equivalent to specific hearsay exceptions	Rodriguez’s mistakes about dates don’t negate the substance; district court properly credited him and Rule 807 admission was justified	Admission under Rule 807 was erroneous: McComb’s statements lacked equivalent circumstantial guarantees of trustworthiness
Whether any Rule 807 error requires reversal of denial of § 2255 relief	Erroneous admission affected Rivers’ substantial rights; reversal required	Error was harmless because other admissible testimony supported district court’s credibility finding against Rivers	Error was harmless: excluding the improper testimony, Rivers still failed to meet his burden because district court reasonably discredited his lone testimony
Whether statements to co‑counsel are inherently trustworthy for Rule 807 purposes	Such statements are not inherently trustworthy given possible incentives to misrepresent	District court argued frank communications among co‑counsel imply trustworthiness	Court rejected the notion that attorney-to-attorney statements are inherently equivalent to specific hearsay exceptions
Burden of proof on § 2255; impact of credibility determinations	Rivers bears burden and his discredited testimony fails to meet it	District court properly relied on live testimony it observed in making credibility calls	Rivers failed to carry burden; denial of § 2255 affirmed

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing ineffective-assistance standard)
United Techs. Corp. v. Mazer, 556 F.3d 1260 (11th Cir. 2009) (residual hearsay exception is to be used rarely and only in exceptional circumstances)
United States v. Rouco, 765 F.2d 983 (11th Cir. 1985) (focus Rule 807 analysis on trustworthiness of original declarant’s statements)
United States v. Lang, 904 F.2d 618 (11th Cir. 1990) (corroboration must be strong to support residual exception)
United States v. Fernandez, 892 F.2d 976 (11th Cir. 1989) (Rule 807 requires guarantees equivalent to specific hearsay exceptions)