Rivera-Rivera v. United States, 827 F.3d 184

Background

In 2005 José Rivera-Rivera was convicted by a jury of (1) Hobbs Act robbery affecting interstate commerce, (2) using a firearm in relation to the robbery, and (3) being a felon in possession of a firearm; he was sentenced to 415 months.
On direct appeal a divided panel of this court affirmed; the majority applied plain-error review to a sufficiency challenge to the interstate-commerce element but said de novo review likely would reach the same result.
Rivera filed a pro se § 2255 petition asserting multiple ineffective-assistance claims, including that trial counsel unreasonably failed to move for judgment of acquittal on the Hobbs Act count for lack of an interstate-commerce nexus.
The district court denied § 2255 relief, finding the record contained sufficient evidence of an interstate-commerce nexus and that counsel did not perform deficiently by foregoing a futile motion.
This court granted a certificate of appealability solely on whether counsel was ineffective for not moving for acquittal on the Hobbs Act interstate-commerce element; appointment of counsel followed.
The First Circuit majority affirmed denial of § 2255 relief, holding Rivera failed to show the requisite Strickland prejudice because (a) the trial judge (who would have ruled on a Rule 29 motion) found the evidence sufficient and (b) the earlier appellate majority indicated de novo review would not alter the outcome.

Issues

Issue	Rivera's Argument	Government's / Majority's Argument	Held
Was counsel ineffective for failing to move for judgment of acquittal on the Hobbs Act interstate-commerce element?	Counsel should have moved; evidence was insufficient to show the lottery business affected interstate commerce, so failing to move was deficient and prejudicial.	Motion would have failed; trial judge and earlier appellate majority found the evidence sufficient, so Rivera cannot show a substantial likelihood of a different outcome.	Affirmed denial of § 2255 relief: Rivera failed the Strickland prejudice prong — no substantial likelihood the result would have changed.
Would preserved de novo review on appeal likely have changed the outcome on the sufficiency question?	(Rivera/dissent) De novo review should be applied here and would show insufficiency; plain-error dictum in the prior panel is not binding.	(Majority) Prior panel suggested de novo review would reach same result; no realistic chance plenary review changes outcome.	Majority treated prior panel’s de novo remark as persuasive; no likelihood of different result.
Was an evidentiary hearing required on the § 2255 claim?	Rivera implied additional factual development might help show counsel’s deficiency.	The sufficiency question was primarily legal and the record conclusively showed no relief was due.	No evidentiary hearing abused discretion; record dispositive.
Could additional evidence showing the nexus was "remote" have changed the outcome?	Rivera argued counsel also should have developed evidence that contacts were too remote.	Majority: that is a distinct claim and, under the panel majority’s reasoning, even such evidence would not likely change the outcome.	Not addressed further; rejected as unlikely to alter result.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing two‑prong ineffective-assistance test)
United States v. Rivera-Rivera, 555 F.3d 277 (1st Cir. 2009) (prior divided appellate decision on sufficiency/plain-error)
Hensley v. Roden, 755 F.3d 724 (1st Cir. 2014) (prejudice standard under Strickland described)
Harrington v. Richter, 562 U.S. 86 (discussing necessity of substantial, not merely conceivable, likelihood of different result)
United States v. Carrigan, 724 F.3d 39 (1st Cir. 2013) (reciting Strickland framework)
Kimmelman v. Morrison, 477 U.S. 365 (consideration of merits of underlying claim in ineffective-assistance analysis)
United States v. Lopez, 514 U.S. 549 (limits on Commerce Clause and caution against expansive jurisdictional reach)
United States v. Morrison, 529 U.S. 598 (same)