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Rivas-Lopez v. Rivera

United States District Court, E.D. Arkansas, Eastern Division

April 30, 2015

RAFAEL E. RIVAS-LOPEZ, Reg #XXXXX-XXX, Petitioner,
v.
C.V. RIVERA, Warden, Federal Correctional Complex, Forrest City, Arkansas, Respondent.

RECOMMENDED DISPOSITION

BETH DEERE, Magistrate Judge.

I. Procedure for Filing Objections

This Recommended Disposition ("Recommendation") has been sent to United States District Judge James M. Moody Jr. You may file written objections to this Recommendation. If you file objections, they must be specific and must include the factual or legal basis for your objection.

Your objections must be received in the office of the United States District Court Clerk within fourteen (14) days of this Recommendation.

If no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing the record. By not objecting, you may also waive any right to appeal questions of fact.

II. Background

A jury convicted petitioner Rafael Rivas-Lopez of one count of conspiracy to commit hostage taking, four counts of hostage taking, four counts of aiding and abetting the harboring of illegal aliens for the purpose of commercial advantage and private financial gain, and four counts of aiding and abetting the transportation of illegal aliens for the purpose of commercial advantage and private financial gain. United States v. Rivas-Lopez, 678 F.3d 353, 355 (5th Cir. 2012). The United States District Court for the Southern District of Texas sentenced Rivas-Lopez to a total of 188 months' imprisonment. The Fifth Circuit Court of Appeals affirmed Rivas-Lopez's conviction and sentence, and the Supreme Court denied certiorari. United States v. Calderon-Lopez, 268 Fed.Appx. 279 (5th Cir.) (unpublished), cert. denied, 555 U.S. 860, 129 S.Ct. 134 (2008).

Mr. Rivas-Lopez then filed a § 2255 motion raising several claims of ineffective assistance of counsel. Rivas-Lopez, 678 F.3d at 355. The district court denied the motion without holding an evidentiary hearing. Id. at 355-56. Mr. Rivas-Lopez appealed, contending that he received ineffective assistance of counsel when his attorney overestimated his sentencing exposure under a proffered plea deal, leading him to reject the deal and stand trial. Id. at 354. The Fifth Circuit found there were conflicting accounts of the facts, vacated the district court's order, and remanded the case for further proceedings, including an evidentiary hearing. Id. at 359.

On remand, the district court held an evidentiary hearing at which Mr. Rivas-Lopez and his former attorney testified. U.S. v. Rivas-Lopez, 4:04-cr-145-2, docket entry no. 533 (November 5, 2012). The court entered an order making findings of fact, including a finding that trial counsel's advice concerning the Guideline range calculation was a correct estimate based on the evidence. Id. The court ordered that the findings of fact be filed and forwarded to the Fifth Circuit Court of Appeals. Id. The court, however, did not grant or deny Mr. Rivas-Lopez's § 2255 motion.

On July 24, 2014, Mr. Rivas-Lopez filed a petition for writ of mandamus with the Fifth Circuit asking the Court to direct the district court to rule on his pending § 2255 motion. In re Rafael Rivas-Lopez, No. 14-20479, document XXXXXXXXXXX (5th Cir. filed July 24, 2014). The matter is still pending before the Fifth Circuit.

Mr. Rivas-Lopez has now filed a petition for writ of habeas corpus claiming that the district court's delay in ruling on his § 2255 motion violates his due process rights. (Docket entry #1 at pp. 6, 8) Mr. Rivas-Lopez asks this Court to find his conviction and sentence unconstitutional. (Docket entry #1 at pp. 6, 8) Because Arkansas federal courts lack jurisdiction, Judge Moody should summarily dismiss the petition without prejudice.

III. Jurisdiction

Summary dismissal of a habeas corpus petition - prior to any response or other pleading being filed - is appropriate "[i]f it plainly appears from the petition [and any attached exhibits]... that the petitioner is not entitled to relief in the district court.'" Mayle v. Felix, 545 U.S. 644, 656, 125 S.Ct. 2562, 2570 (2005)(quoting Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts). Rules 2 and 4 of the Rules Governing Section 2254 Cases are applicable to § 2241 petitions through Rule 1(b). Antonelli v. Sanders, No. 2:05cv00314, 2006 WL 897665, *2 (E.D.Ark. 2006) (citations omitted). From the face of the instant petition, read together with the court records, it is obvious that this Court lacks jurisdiction to consider Mr. Rivas-Lopez's petition.

Generally, a federal inmate may raise an ineffective assistance of counsel claim with the sentencing court through a motion brought under 28 U.S.C. § 2255. Massaro v. U.S., 538 U.S. 500, 504, 123 S.Ct. 1690 (2003). A court cannot entertain a petition for habeas corpus under § 2241, "if it appears that the applicant has failed to apply for relief, by [§ 2255] motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e) (emphasis added). The last clause is a ...


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