United States District Court, E.D. Wisconsin
RAMON E. RIVERA, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Stadtmueller, U.S. District Judge
Ramon E. Rivera (“Rivera”) pleaded guilty to two
counts of brandishing a firearm in connection with a crime of
violence, in violation of 18 U.S.C. §§
924(c)(1)(A)(ii) & 2. United States v. Ramon E.
Rivera, 15-CR-51-1-JPS (E.D. Wis.) (Rivera's
“Criminal Case”), (Docket #187). On February 4,
2016, the Court sentenced him to thirty-two years'
imprisonment, the mandatory minimum sentence for such crimes.
Id. Rivera appealed his conviction, but it was
upheld by the Seventh Circuit on February 3, 2017. United
States v. Rivera, 847 F.3d 847 (7th Cir. 2017). The
Supreme Court denied Rivera's petition for a writ of
certiorari on June 5, 2017. Rivera v. United States,
137 S.Ct. 2228. Rivera filed a motion pursuant to 28 U.S.C.
§ 2255 to vacate his convictions on March 22, 2018.
(Docket #1). That motion is now before the Court for
If it plainly appears from the motion, any attached exhibits,
and the record of the prior proceedings that the moving party
is not entitled to relief, the judge must dismiss the motion
and direct the clerk to notify the moving party. If the
motion is not dismissed, the judge must order the United
States Attorney to file an answer, motion, or other response
within a fixed time, or to take other action the judge may
4(b), Rules Governing Section 2255 Proceedings.
Court begins by addressing the timeliness of Rivera's
motion. Section 2255(f) provides that there is a one-year
limitations period in which to file a motion seeking Section
2255 relief. That limitations period runs from the date on
which the judgment of conviction becomes final. “[T]he
Supreme Court has held that in the context of postconviction
relief, finality attaches when the Supreme Court
‘affirms a conviction on the merits on direct review or
denies a petition for a writ of certiorari, or when the time
for filing a certiorari petition expires.'”
Robinson v. United States, 416 F.3d 645, 647 (7th
Cir. 2005) (internal citations omitted). According to the
face of Rivera's petition, he filed the instant motion
about ten months after the Supreme Court denied his petition
for a writ of certiorari. Accordingly, Rivera's motion
Court turns next to procedural default. Section 2255 relief
is appropriate if the Court determines that “the
sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). However, this form of action is not a
substitute for a direct appeal. Varela v. United
States, 481 F.3d 932, 935 (7th Cir. 2007). Therefore,
any claims that Rivera did not raise at trial or on direct
appeal are procedurally defaulted and he cannot raise them.
See Torzala v. United States, 545 F.3d 517, 522 (7th
are two exceptions to this rule. First, claims of ineffective
assistance of counsel may be raised for the first time in a
Section 2255 motion. Massaro v. United States, 538
U.S. 500, 504 (2003). Second, Rivera may raise claims which
he otherwise procedurally defaulted if he demonstrates that
there was cause for his failure to raise a claim earlier and
that the failure has actually prejudiced him.
Torzala, 545 F.3d at 522 (citing Bousley v.
United States, 523 U.S. 614, 621 (1998)).
raises two grounds for relief. First, he asserts that the
Court lacked jurisdiction to convict or sentence him to Hobbs
Act robbery under 18 U.S.C. § 1951(a) & 2. (Docket
#1 at 4; Docket #2 at 2-8) (“Ground One”).
Second, Rivera argues that Hobbs Act robbery does not qualify
as a “crime of violence, ” which is a necessary
predicate for his Section 924(c) convictions. (Docket #1 at
5; Docket #2 at 8-15) (“Ground Two”). Also
subsumed within Ground Two is an assertion that the residual
clause of Section 924(c) is unconstitutionally vague. (Docket
#2 at 12-15).
did not raise either Ground One or the second portion of
Ground Two on appeal. The Court might treat these claims as
procedurally defaulted, but because both grounds are plainly
meritless, the Court need not reach that issue. As to Ground
One, Rivera says that the robberies underlying his Section
924(c) convictions were of local businesses. He notes that to
prove Hobbs Act robbery, the government must establish two
elements: “a robbery and an effect on interstate
commerce.” United States v. Carr, 652 F.3d
811, 812 (7th Cir. 2011). He asserts that his robberies of
local businesses did not affect interstate commerce, and
requests that the Court “dismiss this robbery [sic] for
lack of subject matter jurisdiction.” (Docket #2 at 8).
explained in Carr, “the law of this circuit
requires the government to show only that the charged crime
had a ‘de minimis' or slight effect on
interstate commerce.” Carr, 652 F.3d at 813;
see Taylor v. United States, 136 S.Ct. 2074, 2079
(2016) (“The language of the Hobbs Act is unmistakably
broad. It reaches any obstruction, delay, or other effect on
commerce, even if small.”). Rivera says that the
Supreme Court raised the burden of proof to require a
“substantial effect” on interstate commerce in
United States v. Lopez, 514 U.S. 549 (1995)
(invalidating the Gun-Free School Zones Act), and United
States v. Morrison, 529 U.S. 598 (2000) (invalidating
part of the Violence Against Women Act). Carr
rejected that contention, and this Court is not at liberty to
disagree. Carr, 652 F.3d at 813.
crime was to rob a local convenience store, taking a mere
$54. Id. at 812. The court nonetheless held that his
crime had the requisite effect on interstate commerce:
Although robbery itself is not necessarily economic activity,
Carr's crime targeted a business engaged in interstate
commerce. . . . An act of violence against even one business,
like the convenience store in this case, could conceivably
deter economic activity and thus harm national commerce. The
economic harm would not necessarily depend upon the amount of
money with which any particular defendant absconds. If retail
stores, in the aggregate, have a substantial effect on
commerce (which they undoubtedly do), then the federal
government has a legitimate interest in preventing any crime
like the one in this case.
Id. at 814 (citation omitted).
the de minimis standard to Rivera's case, there
is no question that the government properly asserted, and the
Court properly exercised, jurisdiction. As detailed in his
plea agreement, Rivera admits that he committed the robberies
underlying his Section 924(c) charges. Criminal Case, (Docket
#117 at 12). Specifically, Rivera attests that he
participated in the robberies, that he knew a gun would be
displayed during the robberies, and that the victim