United States v. Rivera

1

UNITED STATES OF AMERICA, Plaintiff, v. OSCAR M. COLLADO-RIVERA., Defendants.

Nos. 2:16-cr-017, 2:22-cv-0151

United States District Court, S.D. Ohio, Eastern Division, Columbus

May 17, 2022

MICHAEL H. WATSON, DISTRICT JUDGE.

REPORT AND RECOMMENDATION

MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE.

This is a proceeding under 28 U.S.C. § 2255, brought pro se by Defendant Oscar M. Collado-Rivera, to obtain relief from his conviction in this Court on one count of conspiracy to possess with intent to distribute cocaine.

Defendant filed the § 2255 Motion on January 13, 2022 (ECF No 488). A week later Magistrate Judge Chelsey M. Vascura, to whom this case was initially referred, ordered the United States to answer the Motion within twenty-one days (ECF No 489). Before an answer was filed, however, Defendant sought and received leave to amend the Motion to Vacate (ECF Nos. 490 & 493). He then filed the Amended Motion on February 24, 2022 (ECF No. 494). Judge Vascura re-set the Government's response date to April 23, 2022 (ECF No. 493).

Although Defendant did file an Amended Motion, it appears from examination that the Government responded instead to the original Motion or some other filing by Defendant. At the outset of the Argument section of its Response, it states: “The Petitioner's Ineffective Assistance of Counsel and Prosecutorial Misconduct Claims A, B, C, D, E, F, G, H, I, and J, Should Be Rejected.” (ECF No. 500, PageID 2999). The Response then purports to quote as Claim A: “A. Petitioner's Claim That Agents Were “Lying” On All Arrest, Search, and Tracker Warrants is Wholly Based on Speculation.” The Response references this claim as being made at page 7 of Defendant's Memorandum in Support. The Court cannot find any such language at the referenced page, which is PageID 2701.

Nevertheless, Defendant has responded in his Reply to each of the Government's arguments as they are stated in its Response as if they accurately reflected his own claims in the case. This Report will analyze the claims as they are thus presented since the parties seem to agree at this point on what Defendant is claiming.

Claim A: Falsified Affidavits in Support of Search Warrants

In his first claim for relief, Collado-Rivera asserts that his trial attorney provided ineffective assistance of trial counsel when he failed to move for a hearing under Franks v. Delaware, 438 U.S. 154 (1978)(ECF No. 494, PageID 2696, et seq.). The Government responds that Collado-Rivera's claim that search warrant affiants were pervasively lying is based entirely on speculation and therefore he was not prejudiced by lack of a Franks hearing (Response, ECF No. 500, PageID 2999).

Collado-Rivera replies that there is ample proof that DEA Task Force Officers Shane Mauger and Tye Downard were engaged for a substantial period of time in a conspiracy to deprive citizens of their civil rights by, inter alia, falsifying reports of arrests and seizures and stealing drugs and money seized pursuant to search and arrest warrants (Reply, ECF No. 506, PageID 3095). These allegations are allegedly supported by documents obtained by an entity named the Federal Research Group Document Retrieval Team. Id. Those documents are as follows:

Exhibit A purports to be an email containing a transcription of information from the file in United States v. Tye Downard, Case No. 2:16-mj-97, on the docket of this Court.

Exhibit A-1 is a copy of the opinion of the United States Court of Appeals in Collado-Rivera's first appeal in this case, United States v. Collado-Rivera, Case No. 17-3784 (6^th Cir. Jan.7, 2019).

Exhibit B purports to be an email from the Federal Research Group transcribing the content of the Sentencing Memorandum of the Plaintiff in United States v. Mauger, Case No. 2:16-cr-91.

Exhibit B-2 is a copy of the opinion of the United States Court of Appeals in Collado-Rivera's second appeal in this case, United States v. Collado-Rivera, Case No. 19-3638 (6^th Cir. Oct. 8, 2020).

Exhibit C purports to be an email from the Federal Research Group transcribing the docket entries in United States v. Downard, Case No. 2:16-mj-97 and a number of news articles about Downard.

Exhibit D purports to be an email from Federal Research Group transcribing the Information in United States v. Mauger, Case No. 2:16-cr-91.

Exhibit E purports to be an email transcribing the docket sheet in the same case.

Exhibit F purports to be a transcription of several pre-trial motions filed in this case.

Notably, these documents do not include any search warrants from this case, much less any proof that the affiant(s) falsified any information.

The governing standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly deferential A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held: “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to overcome confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).

In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. See Wong v. Belmontes, 558 U.S. 15, 27, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009) (per curiam); Strickland, 466 U.S., at 693, 104 S.Ct. 2052, 80 L.Ed.2d 674. Instead, Strickland asks whether it is “reasonably likely” the result would have been different. Id., at 696, 104 S.Ct. 2052, 80 L.Ed.2d 674. This does not require a showing that counsel's actions “more likely than not altered the outcome, ” but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters “only in the rarest case.” Id., at 693, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674. The likelihood of a different result must be substantial, not just conceivable. Id., at 693, 104 S.Ct. 2052, 80 L.Ed.2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).

Collado-Rivera has not shown he suffered ineffective assistance of trial counsel from counsel's failure to obtain a Franks hearing because he has not provided prima facie proof that any search warrant affidavit in this case was falsified.

Claim B: Ineffective Assistance of Trial Counsel: Failure to Investigate

In his second claim for relief, Defendant asserts he received ineffective assistance of trial counsel when his attorney failed to investigate the case. The United States responds that this claim is entirely conclusory: Collado-Rivera fails to allege what it was that his attorney would or could have uncovered by additional investigation and how that would have made a difference in this case (Response, ECF No. 500, PageID 3000-001). Defendant replies that further investigation would have revealed the incriminatory material about Officers Downard and Mauger which is outlined above. However, Collado-Rivera has failed to show how that information would have had any impact on the outcome of his case.

Claims C, E, G, and I: Prosecutorial Misconduct: Failure to Disclose Exculpatory or Impeachment Evidence

In Claims C, E, G, and I, Petitioner alleges the government withheld evidence, in violation of its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). The Government argues that Collado-Rivera provides no detail on these claims, that they are completely conclusory. Collado-Rivera replies...