United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ST. EVE UNITED STATES CIRCUIT COURT JUDGE.
Petitioner Joel Rivas filed the present motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. For the following reasons, the Court
denies Rivas's § 2255 motion and declines to certify
any issues for appeal under 28 U.S.C. § 2253(c)(2).
February 1, 2011, a grand jury returned a superseding
indictment charging Rivas with: (1) conspiracy to possess
with intent to distribute 5 kilograms or more of cocaine and
quantities of marijuana in violation of 21 U.S.C. § 846
(Count One); (2) possession with intent to distribute
quantities of cocaine and marijuana in violation of 21 U.S.C.
§ 841(a)(1) (Count Two); (3) possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c) (Count Three); and (4) possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)
(Counts Four and Five).
February 25, 2011, the government filed a notice pursuant to
21 U.S.C. § 851 informing Rivas of the government's
intention to seek increased punishment as a result of
Rivas's three prior Illinois felony controlled substance
violations. See 720 ILCS 570/401. The notice
informed Rivas that because he had at least one prior
conviction for a felony drug offense, he was subject to a
mandatory minimum sentence of 20 years and a maximum sentence
of life pursuant to 21 U.S.C. § 841(b)(1)(A)(ii).
September 20, 2011, Rivas's co-defendant, Ismael Miranda,
pleaded guilty, whereas, in July 2013, Rivas proceeded to
trial. On July 18, 2013, a jury convicted Rivas on all counts
of the superseding indictment. Moreover, the jury found, via
a special verdict form, that Rivas was responsible for more
than 5 kilograms of cocaine in connection with the drug
conspiracy in Count One. In addition, the jury found that
Rivas had possessed two firearms in furtherance of the drug
charge in Count Two. Thereafter, on September 1, 2013, Rivas
filed a motion for judgment of acquittal under Federal Rule
of Criminal Procedure 29 and a motion for a new trial
pursuant to Rule 33. The Court denied both motions on October
18, 2013. On October 23, 2013, the Court sentenced Rivas to a
total term of 360 months in prison. See U.S.S.G.
then filed a timely notice of appeal on November 11, 2013. On
appeal, Rivas argued that the Court violated the
Confrontation Clause of the Sixth Amendment and abused its
discretion by denying him the ability to cross-examine the
fingerprint identification expert at trial. On August 5,
2016, the United States Court of Appeals for the Seventh
Circuit affirmed the Court's ruling. United States v.
Rivas, 831 F.3d 931 (7th Cir. 2016).
24, 2017, Rivas filed this timely § 2255 motion.
Construing his pro se § 2255 motion and filings
liberally, see Terry v. Spencer, 888 F.3d 890, 893
(7th Cir. 2018), Rivas argues that both his trial and
appellate counsel were constitutionally ineffective in
violation of the Sixth Amendment. Also, Rivas asserts that
the Court improperly sentenced him as a career offender
because the Court erred when counting his Illinois drug
convictions as predicate offenses in light of the Supreme
Court's decision in Mathis v. United States, 136
S.Ct. 2243 (2016). See United States v. Montez, 858
F.3d 1085, 1092 n.3 (7th Cir. 2017) (“Although
Mathis was an Armed Career Criminal Act case, courts
have observed that the approaches used to apply the
career-offender enhancement and the Armed Career Criminal Act
are similar and thus that Mathis is controlling in a
Guidelines case.”) (citation omitted).
February 18, 2010, Elgin police officers executed a search
warrant at a storage unit located at 1460 Illinois Parkway in
Elgin, Illinois (“Elgin storage unit”). At trial,
Calvin Stringer, the owner of the storage unit, testified
that he rented the unit to Rivas's co-defendant, Ismael
Miranda, in late 2008 or early 2009. Further, Stringer
testified that Miranda and Rivas worked on cars at the Elgin
storage unit and that they had installed security cameras
outside of the unit. Stringer also stated that Rivas wore a
blue mechanic shirt with the nametag “Tony” on it
when he worked at the storage unit.
the February 18, 2010 search, Elgin police officers recovered
quantities of marijuana and cocaine, as well as two firearms,
namely, a 9mm handgun and a .357 loaded handgun. A trial, one
of Rivas's wholesale customers, Corey Glass, testified
that he gave Rivas the 9mm handgun to pay off a drug debt.
Also at trial, Elgin Police Detective Beth Sterricker
testified about the items recovered, and the government
introduced photographs of the items and the actual items into
evidence. Detective Sterricker also testified that they
recovered a shirt hanging on the wall with the nametag on the
front pocket of the shirt that said “Tony.” The
shirt had a small bag in the pocket containing 2.1 grams of
total, the Elgin police officers recovered approximately 210
grams of cocaine and 490 grams of marijuana during their
search of the storage unit. In addition, the Elgin police
seized drug paraphernalia, including a vacuum sealer, several
boxes of plastic bags, digital scales, bottles of Inositol
Power (a cutting agent), a body-wire detector, and a large
sprayer full of orange peels that emitted a strong citrus
order. In the toolbox where police found the loaded .357
handgun, they also found five boxes of .38 caliber
ammunition, a radio frequency scanner, a body-wire detector,
two bags with cocaine, a large digital scale, and a bottle of
Inositol. Further, the Elgin police recovered paperwork
belonging to Rivas.
co-defendant Miranda was at the storage unit when the Elgin
police executed the search warrant. Police arrested him on
state drug charges that same day. While detained at the Kane
County Jail, Miranda called Rivas on March 3, 2010. The jail
recorded the call and the government introduced it as
evidence at trial. In doing so, the government called a
Spanish interpreter to testify regarding the English
translation of the call. During the call, the following
exchange took place:
MIRANDA: Hey, what's happening, bro? The … the law
come down on us!
RIVAS: Yeah …. right?
MIRANDA: I just … got … got …got hold of
a phone card; it was hard to get a hold of your number.
Um… RIVAS: I see.
MIRANDA: Um … put a stop … put a stop to
MIRANDA: … the shit, dude, because it's goddamn
RIVAS: Oh, yeah?
MIRANDA: Yeah, it's not the feds. I thought it was the
… the … the … the big one but no,
it's just the D.A.
(R. 226, Trial Tr., at 760-61.) Also, during the call,
Miranda told Rivas that the police were looking for him and
that Miranda would not talk to the police about Rivas:
MIRANDA: And truth is they're looking for ...