Rivera v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOSHUA A. RIVERA,

Petitioner,

v. Case No.: 8:21-cv-3001-CEH-UAM

Case No.: 8:15-cr-337-CEH-UAM

UNITED STATES OF AMERICA,

Respondent.

/

ORDER

Joshua A. Rivera1 moves under 28 U.S.C. § 2255 to vacate her convictions for

Hobbs Act robbery, using a firearm during a crime of violence, and possession of a

firearm by a convicted felon, for which she serves a 560-month sentence. She

challenges her sentence and claims she received ineffective assistance of counsel. And,

she proposes an additional challenge to the Court’s jury instructions. Rivera is entitled

to no relief because her claims are procedurally barred, lack merit, and untimely.

I. Background

Rivera was charged with committing a series of armed robberies at convenience

stores in June 2015 in the Tampa, Florida area. In a Superseding Indictment, she was

charged with: five counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a)

(Counts One, Three, Four, Five, and Seven); two counts of using and carrying a

1 Since her trial and appeal, Rivera has come out as transgender and now identifies as a

woman. The Court uses her preferred feminine pronouns where possible to avoid confusion

with the record.

firearm during and in relation to a crime of violence, specifically the Hobbs Act

robberies charged in Counts One and Five, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)

and (1)(B)(i) (Counts Two and Six); and possession of a firearm by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1) (Count Eight). (Crim. Doc. 31) After a four-day

jury trial, Rivera was convicted on all counts except for the Hobbs Act robbery charged

in Count Four. (Crim. Doc. 99)

Rivera was sentenced to 560 months, which consisted of: 140 months for the

Hobbs Act robberies charged in Counts One, Three, Five, and Seven, to be served

concurrently; 120 months for the felon-in-possession offense charged in Count Eight,

to be served concurrently with the sentences for the robberies; 120 months for the first

§ 924(c) offense charged in Count Two, to be served consecutively to the sentences

imposed for the robberies and felon-in-possession offense; and 300 months for the

second § 924(c) offense charged in Count Six, to be served consecutively to all other

sentences. (Crim. Doc. 133)

Rivera appealed, and the circuit court affirmed her convictions and sentence.

United States v. Rivera, 824 F. App’x 930, 931 (11th Cir. 2020).

II. Discussion

Rivera now seeks to vacate her convictions and claims that: (1) Hobbs Act

robbery is not a crime of violence (Grounds One and Four); (2) trial counsel rendered

ineffective assistance by not requesting a pretrial mental health evaluation or

competency hearing (Ground Two); and (3) the district court erred by not applying §

403 of the First Step Act retroactively (Ground Three). (Civ. Docs. 16, 17, and 25)

Also, Rivera moves to amend her § 2255 motion to add a claim that the Court

improperly instructed the jury on the elements of Hobbs Act robbery. (Civ. Doc. 22)

The United States responds that Rivera’s claims are procedurally barred and lack merit

and that the proposed additional claim is untimely and procedurally defaulted. (Civ.

Docs. 23 and 29)

A. Grounds One and Three are procedurally barred and meritless.

Rivera’s claims that Hobbs Act robbery is not a crime of violence under § 924(c)

(Ground One) and that the Court erred by not applying § 403 of the First Step Act

retroactively (Ground Three) are procedurally barred.2 “A procedural bar prevents a

defendant from raising arguments in a § 2255 proceeding that [she] raised and [the

circuit court] rejected on direct appeal.” Seabrooks v. United States, 32 F.4th 1375, 1383

(11th Cir. 2022) (citing Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014)).

On direct appeal, Rivera challenged her § 924(c) convictions and argued—as

she does here—that Hobbs Act robbery is not a predicate crime of violence. Rivera v.

United States, No. 16-15729, 2019 WL 2615659, at *1–2 (11th Cir. June 24, 2019)

2 In Ground Four, Rivera claims that Hobbs Act robbery is not a crime of violence under

U.S.S.G. § 2K2.1. (Civ. Doc. 16 at 8; Civ. Doc. 25 at 13–14) However, she neglects to argue

that the advisory sentencing guidelines were improperly applied to calculate her sentence, and

therefore, this cursory claim is not properly before the Court. See Walker v. Dugger, 860 F.2d

1010, 1011 (11th Cir. 1988) (claims raised only superficially will not be treated as properly

raised). Nevertheless, construing Rivera’s filings generously, see Haines v. Kerner, 404 U.S. 519,

520 (1972), the argument she purports to present in Ground Four appears to be a repetition

of the claim in Ground One, which is procedurally barred and meritless. Alternatively, to the

extent she claims an error in the sentencing guidelines calculation, such claim is not

cognizable. See Spencer v. United States, 773 F.3d 1132, 1138–40 (11th Cir. 2014) (en banc)

(allegations about sentencing guidelines calculations are not cognizable on collateral review).

(initial brief of appellant). The Eleventh Circuit explicitly rejected that challenge,

ruling that it was “foreclosed by circuit precedent.” Rivera, 824 F. App’x at 935 (citing

United States v. St. Hubert, 909 F.3d 335, 346 (11th Cir. 2018) (“Hobbs Act robbery is

categorically a crime of violence under the use-of-force clause in § 924(c)(3)(A).”),

abrogated in part on other grounds by United States v. Davis, 139 S. Ct. 2319 (2019)).

Additionally, Rivera argued on direct appeal that the Court erred by not applying §

403 of the First Step Act retroactively. Rivera, 2019 WL 2615659, at *42 (initial brief

of appellant). The Eleventh Circuit rejected that argument, again ruling that “circuit

precedent forecloses her argument.” Rivera, 824 F. App’x at 936.

“Once a matter has been decided adversely to a defendant on direct appeal it

cannot be re-litigated in a collateral attack under section 2255.” United States v. Nyhuis,

211 F.3d 1340, 1343 (11th Cir. 2000). Because the claims presented in Grounds One

and Three were resolved against Rivera on direct appeal, the claims are procedurally

barred. Mills v. United States, 36 F.3d 1052, 1056 (11th Cir. 1994) (concluding that the

“district court properly refused to substantively address the [§ 2255 petitioner’s]

remaining contentions” that the appellate court “already rejected”); United States v.

Rowan, 663 F.2d 1034, 1035 (11th Cir. 1981) (“This Court is not required on § 2255

motions to reconsider claims of error raised and disposed of on direct appeal.”).

And, even if these claims were not procedurally barred, they lack merit. See

United States v. Brinson, No. 23-10674, 2024 WL 3548883, at *1 (11th Cir. July 26,

2024) (reaffirming St. Hubert and In re Fleur, 824 F.3d 1337, 1339–40 (11th Cir. 2016),

that Hobbs Act robbery qualifies as a predicate crime of violence under § 924(c));

United States v. Wiley, 78 F.4th 1355, 1365 (11th Cir. 2023) (“Taylor did not disturb our

holding that completed Hobbs Act robbery qualifies as a crime of violence under §

924(c)(3)(A).”); United States v. Pearson, No. 22-12447, 2023 WL 2565096, at *2 (11th

Cir. Mar. 20, 2023) (“[Section] 403 [of the First Step Act] does not apply

retroactively.”).

B. Ground Two lacks merit.

Rivera claims that trial counsel rendered ineffective assistance by not requesting

a pretrial mental health evaluation or competency hearing.3 (Civ. Doc. 16 at 5; Civ.

Doc. 17 at 4–15)

1. Ineffective Assistance of Counsel Standard

The Sixth Amendment right to counsel is the right to effective assistance of

counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). “When a convicted

defendant complains of the ineffectiveness of counsel’s assistance, the defendant must

show that counsel’s representation fell below an objective standard of reasonableness.”

Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Because a lawyer is presumed

to be competent to assist a defendant, the burden is on the petitioner to demonstrate

that he was denied the effective assistance of counsel. United States v. Cronic, 466 U.S.

648, 658 (1984).

3 Rivera raised this claim on direct appeal. However, the Eleventh Circuit declined to consider

it, concluding “this is not a rare case where the record is sufficiently developed to decide

claims of ineffective assistance on direct appeal.” Rivera, 824 F. App’x at 937.

To prevail on a claim of ineffective assistance of counsel, the petitioner must

show that (1) counsel’s representation fell below an objective standard of reasonable

professional assistance; and (2) the petitioner was prejudiced by that deficient

performance. Strickland, 466 U.S. at 693-94. To establish deficient performance, a

petitioner must show that “no competent counsel would have taken the action that his

counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en

banc). When evaluating performance, the district court must apply a strong

presumption that counsel has “rendered adequate assistance and [has] made all

significant decisions in the exercise of reasonable professional judgment.” Strickland,

466 U.S. at 690. A petitioner demonstrates prejudice only when he establishes “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. Courts “are free to dispose of

ineffectiveness claims on either of its two grounds.” Oats v. Singletary, 141 F.3d 1018,

1023 (11th Cir. 2004).

2. Failure to Request Mental Health Evaluation or Competency

Hearing

“The Due Process Clause of the Fifth Amendment prohibits the government

from trying a defendant who is incompetent[,]” and “[t]his right extends to

sentencing.” Perkins v. United States, 73 F.4th 866, 876 (11th Cir. 2023) (citations

omitted). A petitioner “is entitled to no presumption of incompetency and must

demonstrate his [or her] incompetency by a preponderance of the evidence.” Lawrence

v. Sec’y Fla. Dep’t of Corr., 700 F.3d 464, 481 (11th Cir. 2012). “[T]he standard of proof

is high,” and the facts must “positively, unequivocally and clearly generate [a]

legitimate doubt [regarding the defendant’s competency].” Card v. Singletary, 981 F.2d

481, 484 (11th Cir. 1992) (quotation omitted). To determine a defendant’s

competency, the Court asks “whether [a defendant] has sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding—and

whether he has a rational as well as factual understanding of the proceedings against

him.” Medina v. Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995) (quotation omitted).

“Not every manifestation of mental illness demonstrates” that the defendant is

incompetent; “rather, the evidence must indicate a present inability to assist counsel

or understand the charges” at the time of the relevant proceeding, such as trial or

sentencing. Battle v. United States, 419 F.3d 1292, 1299–1300 (11th Cir. 2005)

(concluding that the defendant’s “courtroom outbursts, odd behavior, and history of

mental illness [did not] mandate a finding of incompetency”). “Likewise, neither low

intelligence nor mental deficiency can be equated with mental incompetence.” Perkins,

73 F.4th at 876. “The fact that a petitioner was prescribed psychiatric drugs, standing

alone, does not raise a bona fide doubt as to his [or her] competence to stand trial.”

Id. (citation omitted)

To determine whether counsel rendered ineffective assistance by not obtaining

a mental health evaluation or competency hearing, the Court considers whether “a

reasonable attorney should have been on notice that a psychological examination of

[the defendant] was needed to assess his competency to stand trial[.]” See Devier v.

Zant, 3 F.3d 1445, 1451 (11th Cir. 1993). Counsel’s “decision not to pursue a claim

of incompetency does not amount to prejudice unless a petitioner can raise a real,

substantial, and legitimate doubt as to his [or her] mental competency at the time of

trial.” Dickerson v. United States, No. 21-14226, 2022 WL 17660314, at *2 (11th Cir.

Dec. 14, 2022) (citing Adams v. Wainwright, 764 F.2d 1356, 1367 (11th Cir. 1985)).

Evidence of incompetence “must indicate a present inability to assist counsel or

understand the charges.” Medina, 59 F.3d at 1107. “Absent evidence of such an

inability [to assist counsel or understand the charges], evidence of low intelligence,

mental deficiency, bizarre, volatile, or irrational behavior, or the use of anti-psychotic

drugs is not sufficient to show incompetence to stand trial.” Pardo v. Sec’y, Fla. Dep’t of

Corr., 587 F.3d 1093, 1101 (11th Cir. 2009).

“[U]nder certain circumstances, trial counsel’s failure to apprise the court of a

client’s changing mental state—thereby depriving the court of critical information

regarding its own potential duty to hold a [competency] hearing—can constitute

ineffective assistance.” Johnston v. Singletary, 162 F.3d 630, 635 (11th Cir. 1998). “To

establish deficient performance in this context, a defendant must show that his counsel

failed to bring ‘information raising a bona fide doubt regarding his competency’ to the

trial court’s attention when every reasonable attorney would have done so.” Perkins,

73 F.4th at 880 (emphasis in original). “Further, to establish prejudice, [the petitioner]

must show that ‘there was a reasonable probability that he would have received a

competency hearing and been found incompetent had counsel requested the hearing.”

Id. (quoting Lawrence, 700 F.3d at 479) (emphasis in original).

Rivera faults counsel for not requesting a mental health evaluation or

competency hearing despite “strong evidence” that she “may be incompetent to stand

trial.” (Civ. Doc. 17 at 9) She claims that, despite being “keenly aware that [she]

suffered from serious mental health issues,” counsel neglected to raise the competency

issue until sentencing. (Id. at 11) She argues that counsel should have sought a mental

health evaluation given “the apparent mental health concerns [she] exhibited.” (Id. at

13) Rivera points to counsel’s sentencing memorandum and the presentence report,

both of which document her history of mental health issues.

In her responsive affidavit, counsel acknowledges that Rivera informed her at

their first meeting of her history of mental health issues. However, according to

counsel, Rivera appeared competent throughout the prosecution and actively assisted

in her defense (Civ. Doc. 23-4 at 3–6) 4:

6. On or about August 18, 2015, I met with Mr. Rivera at the

Pinellas County jail. During that meeting, he stated he suffers

from ADD/ADHD, Bipolar and Schizophrenia. He also stated

he is receiving medications at the jail, so he is stable. . . .

8. Throughout my representation of Mr. Rivera, I met with him

in person at the jail and spoke with him on the telephone.

Additionally, I requested records from numerous sources

regarding Mr. Rivera’s mental health and medical background.

9. At no time during any contact with Mr. Rivera did it appear

to me that he did not understand the nature of the charges. Mr.

Rivera and I discussed his case and the facts in detail and the

possible penalties associated with the charges. He appeared

competent and readily assisted me in preparing his defense.

4 Counsel uses masculine pronouns to refer to Rivera. To avoid confusion, the Court quotes

counsel’s affidavit.

10. Early in the case, Mr. Rivera requested that I file a Motion

to Suppress. In fact, when meeting with him on September 2,

2015, Mr. Rivera supplied me with case law he believed would

assist in a Motion to Suppress. . . .

11. When additional discovery was disclosed by the government,

my investigator and I both reviewed it with Mr. Rivera. Again,

he appeared to understand the evidence against him and offered

various theories of defense.

12. Prior to trial, I reviewed Mr. Rivera’s school and social

security records. . . . Although Mr. Rivera had documented

mental health issues, it did not appear to me he was suffering

from a mental health defect during the time of my representation.

13. I also listened to jail calls Mr. Rivera had with his girlfriend.

Those conversations did not lead me to believe he was suffering

from a mental health issue before or during the time of my

representation. . . .

17. In preparing for sentencing, I reviewed Mr. Rivera’s mental

health records and the presentence report. I filed a Motion for

Downward Variance and Sentencing Memorandum on August

15, 2016. Attached to the memo was a mental health evaluation

that was prepared approximately six (6) months prior to the

date(s) of offense(s) in this matter. There was no information in

the report that indicated he was incompetent. . . .

18. At sentencing, I also presented to the Court a video of Mr.

Rivera “rapping” about his life and hardships. Mr. Rivera wrote

the lyrics to the rap song. . . .

20. On August 20, 2017, Mr. Rivera wrote me a letter requesting

copies of his sentencing transcripts where he noted, “[n]o real

hard feelings towards you loosing [sic] my suppression hearing

and trial.”

Here, the record shows conclusively that Rivera is entitled to no relief on this

claim because she fails to allege facts, accepted as true and liberally construed, that

would entitle her to relief. See 28 U.S.C. § 2255(b). Rivera neglects to point to any

portion of the record during the pretrial or trial proceedings that indicates her mental

illness, incompetency, or dissatisfaction with counsel’s performance. In fact, during a

status conference on the eve of trial, Rivera demonstrated her understanding of the

proceedings when she explained to the magistrate judge her decision to reject a plea

offer and proceed to trial (Crim. Doc. 141 at 6–7):

COURT: . . . [Y]ou’re aware Judge Honeywell denied the

motion to suppress, so what evidence that was challenged there

is now going to come in under her ruling. If you go to trial and

lose, you’re looking at a significantly higher sentence. A lot of

mandatories built into the punishment based on the way they

have got it charged, so it could be a significantly higher hit. You

understand that?

RIVERA: Yes, sir.

COURT: Do you have any questions about this? . . . I think

that you can be assured that if you were going to plea, the agreed

upon sentence for 25 years would be a part of that. But in any

event do you have any questions about going forward here as to

what you should do?

RIVERA: The only thing that I was concerned—well, the

reason why we’re here today is because I’ve asked for anywhere

between a range from 15 to 20 years and then I would sign today

and be out of your hair. But 25 years is—I was just like I’m

already looking at—already looking at basically the rest of it, 25

years is a lot. As to 15 to 20 and I’ll be out of your hair today, I’ll

sign tonight. But 25 years, we’re going to run into trial.

. . .

COURT: So what I’m hearing you say is if they want 25

years, they have got to earn it at a trial, right?

RIVERA: Yes, sir.

When the magistrate judge explained she would return for trial the following Monday

morning, Rivera responded, “I’m ready for trial.” (Id. at 9) Furthermore, on the third

day of trial, when explaining her decision not to testify, Rivera expressed to the Court

her satisfaction with counsel’s representation: “[Counsel’s] done a very good job. I’m

not disappointed with anything she’s done. She’s done a tremendous job in my case.

So, I’m not doubting her and her judgment going forward[;]”, and “As far as

defending, [counsel] has done a tremendous job.” (Crim. Doc. 168 at 209–10)

The first reference to Rivera’s mental health appears at the sentencing phase. In

Rivera’s sentencing memorandum and motion for downward variance, counsel urged

the Court to vary downward from the guidelines range due to Rivera’s history of

childhood abuse, drug use, and mental illness. (Crim. Doc. 124) Counsel detailed the

childhood abuse Rivera experienced and reported that Rivera suffered from ADHD,

bi-polar disorder, and schizophrenia, had attempted suicide, and was once Baker

Acted. (Id. at 3–5) Counsel cited a mental health evaluation, that was conducted in

2015, six months before the offense conduct, for the purpose of determining Rivera’s

eligibility for social security benefits. (Id.) Attached to the sentencing memorandum,

the evaluation states that Rivera “presented with severe psychomotor agitation” and

was experiencing auditory hallucinations. (Id. at 12) The psychologist conducting

that evaluation diagnosed Rivera with bipolar disorder and ADHD. (Id. at 13)

At the sentencing hearing, counsel repeated this argument to the Court.

Counsel summarized Rivera’s history of mental illness in this manner (Crim. Doc. 150

at 13–17):

In his early years his mother, his teachers, family members

observed violent rages by Mr. Rivera at the age of seven. He

started getting into a lot of trouble in school and he was started

on psychiatric medication at an early age. He ran away from

home not once, not twice, but many, many times, not only

because of the abuse that occurred in the home but because of

the mental health issues he was facing. He started smoking

marijuana at early age of nine and he was fully addicted by age

fourteen. . . .

In his teenage years his drug use escalated, his mental health

worsened. He was not medication compliant and his anger and

rage increased and that was a time that he dropped out of the

school and because of his drug use and his mental health he

started having hallucinations. . . .

And I just wanted to just describe the various mental health

conditions he suffers . . . the attention deficit hyperactivity

disorder. He has problems paying attention, difficulty controlling

his behavior, bipolar disorder. He has periods of depression and

periods of elevated moods. He’s been diagnosed as

schizophrenic. He has false beliefs, confused thinking. He hears

voices and a complete lack of motivation. Finally, your Honor,

his post-traumatic stress disorder from his many years of abuse

is very, very significant. . . .

Counsel commented that Rivera “was not medicated during that trial and it was just

very difficult for him to sit through that.” (Id. at 12) Furthermore, counsel explained

that Rivera was unable to get necessary medications while incarcerated (Id. at 17–18):

[Rivera] has serious mental health conditions. But, your Honor,

he has expressed to me that he wants to get better. We have

actually been kind of going through it with Citrus to get him back

on the medications that he has been taking that he knows helps

him.

When he was in prison in Georgia, he was taking quite a few

medications and I had faxed over those documents but he never

got the medications that he needs, and he knows that he must

stay diligent with those medications and, you know, again back

to when he was imprisoned in Georgia, he was getting, you

know, specific regimen of medicines and he felt good and he was

motivated to be released and do better.

The presentence report similarly documented Rivera’s prior diagnoses of ADHD,

bipolar disorder, schizophrenia, and post-traumatic stress disorder. (Crim. Doc. 122

at ¶¶ 90 and 104–108) Citing Rivera’s abusive childhood, mental health issues, and

lack of treatment for the mental health issues, the Court imposed a sentence at the low

end of the guidelines range. (Crim. Doc. 150 at 30–31)

Rivera fails to show that no competent counsel would have failed to request a

pretrial mental health evaluation or competency hearing, and instead, raised the issue

of mental illness at sentencing. Counsel acknowledges having knowledge of Rivera’s

history of mental illness before trial; however, the fact that she suffered from mental

illness does not raise a bona fide doubt that she lacked the ability to assist counsel or

understand the proceedings. In fact, at a pretrial status conference Rivera herself

explained to the magistrate judge her decision to proceed to trial and expressed her

readiness for trial. And during trial, Rivera expressed to the Court her satisfaction

with counsel’s performance.

At sentencing, counsel reported that Rivera was not medicated and had

difficulty sitting through the trial. However, the fact that Rivera was unmedicated and

had trouble enduring the trial does not raise a bona fide doubt that she was able to

assist counsel and understand the proceedings against her. Rivera simply argues that

counsel should have raised the competency issue because counsel knew she had a

history of mental illness, was unmedicated, and had trouble enduring the trial. But,

she fails to point to any record evidence indicating her inability to assist counsel or

understand the proceedings. See Fallada v. Dugger, 819 F.2d 1564, 1569 (11th Cir.

1987) (“The standard for determining whether a competency hearing is necessary

remains the same regardless of whether the defendant is receiving medication.”);

Lawrence v. Sec’y, Fla. Dep’t of Corr., 700 F.3d 464, 478 (11th Cir. 2012) (concluding that

counsel’s decision not to request a competency hearing was not deficient when

“neither counsel testified . . . that [the defendant] was ever unable to communicate

with [counsel] or assist [counsel] in his defense”).

Rivera also fails to show she was prejudiced by counsel’s decision not to raise

the competency issue pretrial and instead to raise the issue of mental illness at

sentencing. Again, the record contains no indication that she lacked a present ability

to assist counsel or understand the proceedings, despite her history of mental illness.

“While a diagnosis of depressive type psychosis might suggest that [a defendant] was

suffering from a mental illness that could have impaired [her] competency, [the

defendant] has pointed to no evidence that this illness did, in fact, render [her]

incompetent[.]” Perkins, 73 F.4th at 882. Rivera fails to demonstrate a reasonable

probability that she would have both received a competency hearing and been found

incompetent if counsel raised the competency issue.

D. Rivera’s Motion to Amend

On July 12, 2023, Rivera filed a “Pro Se Request to Amend Argument Relating

Back to Pending Claim Pursuant to Federal Rule of Civil Procedure Rule 15(c).” (Civ.

Doc. 22) She argues that the Court gave an overly broad jury instruction about the

elements of Hobbs Act robbery, which led to the jury to convict her of a nonexistent

offense. The United States responds that the proposed supplemental claim is untimely

because it does not relate back to a claim in her original § 2255 motion. (Civ. Doc. 23

at 6–8; Civ. Doc. 29) Alternatively, the United States argues that Rivera procedurally

defaulted her proposed supplemental claim.

Rivera’s judgment of conviction became final on February 1, 2021, when the

time for seeking certiorari review expired. See Kaufmann v. United States, 282 F.3d

1336, 1338 (11th Cir. 2002) (if prisoner does not petition for certiorari, conviction

becomes final upon expiration of period for seeking certiorari). Under 28 U.S.C. §

2255(f)(1), Rivera had until February 1, 2022, to file her § 2255 motion. She timely

filed her initial motion on December 13, 2021.5 (Civ. Doc. 1)

“When a prisoner amends [her] section 2255 motion after the expiration of

AEDPA’s one-year limitation period, claims in the amended motion are time-barred,

unless the claim ‘relates back’ to a claim in the original, timely-filed motion.” Chin v.

United States, 853 F. App’x 640, 644 (11th Cir. 2021) (citing Davenport, 217 F.3d at

1344). “Under Rule 15(c), an amended pleading ‘relates back’ to the original pleading

if the amended claim ‘arose out of the conduct, transaction, or occurrence set out—or

attempted to be set out—in the original pleading.’” Id. (quoting Fed. R. Civ. P.

15(c)(1)(B)).

“Congress intended Rule 15(c) to be used for a relatively narrow purpose.”

Pruitt v. United States, 274 F.3d 1315, 1318 (11th Cir. 2001). To determine whether a

claim relates back in the context of a petition for post-conviction relief, the Court

considers whether, Chin, 853 F. App’x at 644:

5 Rivera proceeds in this action on her Second Amended § 2255 motion. (Civ. Doc. 16) The

Court dismissed as moot her original and first amended § 2255 motions. (Civ. Doc. 18) The

Second Amended § 2255 motion was filed January 12, 2023, beyond the one-year statute of

limitations. However, because the claims contained in the Second Amended § 2255 motion

restate the claims contained in the timely-filed original § 2255 motion, those claims are timely.

See Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000).

“the existence of a common ‘core of operative facts’ united

the original and newly asserted claims.” Mayle [v. Felix, 545

U.S. 644, 659 (2005))]. Habeas petitions are subject to a

more demanding pleading standard than ordinary civil

complaints; the Supreme Court has cautioned against

applying Rule 15(c)’s “conduct, transaction, or occurrence”

language at too high a level of generality. See id. at 661, 125

S.Ct. 2562; 655–56 (noting that petitioners seeking post-

conviction relief must “specify all the grounds for relief

available” and “state the facts supporting each ground”;

“each separate congeries of facts supporting the grounds for

relief . . . would delineate an “occurrence.”

An amended habeas petition . . . does not relate back (and

thereby escape AEDPA’s one-year limit) when it asserts a

new ground for relief supported by facts that differ in both

time and type from those the original pleading set forth.”

Id. at 650, 125 S.Ct. 2562. That an amended claim arises

from the same trial and conviction is not enough to satisfy

the “relate back” standard. Id.; Davenport, 217 F.3d at 1344.

Rivera’s operative § 2255 motion asserts three claims: that Hobbs Act robbery

is not a predicate crime of violence, that the Court erred in applying § 403 of the First

Step Act retroactively, and that counsel was ineffective for not requesting a mental

health evaluation or competency hearing. In her motion to amend, Rivera now

proposes one claim that the Court erred in instructing the jury on the Hobbs Act

robbery offenses.

Rivera’s proposed claim “[is] too far removed from [her] original claims to

‘relate back.’” See Pruitt, 274 F.3d at 1319. Her operative motion claims that Hobbs

Act robbery is not a predicate crime of violence and raises sentencing errors and

ineffective assistance of counsel, while her proposed claim challenges the Court’s jury

instructions. Rivera’s operative motion contains no allegations about the Court’s jury

instructions. The proposed claim asserts a “new ground for relief supported by facts

that differ in both time and type from those the original pleading set forth.” Mayle,

545 U.S. at 650; see also Dean v. United States, 278 F.3d 1218, 1221 (11th Cir. 2002)

(“While Rule 15(c) contemplates that parties may correct technical deficiencies or

expand facts alleged in the original pleading, it does not permit an entirely different

transaction to be alleged by amendment.”). Her proposed claim does not relate back

to her operative § 2255 motion and is therefore untimely. See Pruitt, 274 F. 3d at 1319

(concluding that the petitioner’s proposed claims of ineffective assistance and

prosecutorial misconduct were “so far removed from his original claims [of sentencing

errors] that allowing them would effectively require the government to prepare its case

a second time”).

Finally, even if Rivera’s proposed claim was timely, the claim lacks merit.6 At

trial, both the United States and Rivera proposed that the Court instruct the jury with

the Eleventh Circuit Pattern Jury Instruction 70.3 for Hobbs Act robbery. (Crim. Doc.

63 at 50–52; Crim. Doc. 69 at 46–48) The Court instructed the jury with the pattern

instruction without alteration. (Crim. Doc. 100 at 15–16; Crim. Doc. 168 at 49–50)

6 The United States argues, and the Court agrees, that Rivera procedurally defaulted her

proposed claim challenging the Hobbs Act robbery jury instruction when she failed to raise

the issue at trial or direct appeal. (Civ. Doc. 23 at 9–12; Civ. Doc. 29) Additionally, the

Court rejects the claim as untimely and meritless. See Dallas v. Warden, 964 F.3d 1285, 1307

(11th Cir. 2020) (“[A] federal court may skip over the procedural default analysis if a claim

would fail on the merits in any event.”); Garrison v. United States, 73 F.4th 1354,1359 n.9 (11th

Cir. 2023) (same).

To convict Rivera of Hobbs Act robbery, the United States had to prove that she “took

the property against the victim’s will, by using actual or threatened force, or violence,

or causing the victim to fear harm, either immediately or in the future[.]” (Crim. Doc.

100 at 15, Court’s Instructions to the Jury) “’Fear’ means a state of anxious concern,

alarm, or anticipation of harm. It includes the fear of financial loss as well as fear of

physical violence.” (Id.)

Relying on an unpublished decision issued by a district court in the Southern

District of Florida, Rivera now argues that pattern jury instruction is overbroad

because the “fear of financial loss” language improperly expands the elements of §

924(c)’s crime of violence to include both fear of financial loss and fear of physical

violence. (Civ. Doc. 22 at 3, citing See United States v. Louis, No. 21-cr-20252-KMW,

2023 WL 2240544 (S.D. Fla. Feb. 27, 2023) (granting a post-trial motion to arrest

judgment and dismissing § 924(c) counts for lack of jurisdiction)) However, in United

States v. Natson, No. 23-12680, 2024 WL 1829096, at *4 (11th Cir. Apr. 26, 2024)

(unpublished), a panel of the Eleventh Circuit rejected the argument that Rivera

pursues here: that “the pattern jury instruction for Hobbs Act robbery is categorically

overbroad as it allows the jury to convict . . . based on mere fear of financial loss, which

would remove the Hobbs Act robbery predicate from § 924(c)’s ‘crime of violence’

definition.” The panel specifically rejected Natson’s reliance on Louis, reasoning “the

Louis court’s determination is entirely conclusory and finds no support in the law.” Id.

at n.5.

Rivera presents no binding authority to support her proposed claim that the

Eleventh Circuit Pattern Jury Instruction 70.3 for Hobbs Act robbery is overbroad.

And, the Louis deciston on which Rivera relies has been discredited by a panel of the

Eleventh Circuit. Consequently, her proposed claim lacks merit.

II. Conclusion

Rivera’s motion under 28 U.S.C. § 2255 (Civ. Doc. 16) 1s DENIED. And, her

motion to amend (Civ. Doc. 22) is DENIED. The Clerk is directed to enter judgment

against Rivera, terminate any pending motions, close this case, and enter a copy of

this order in the criminal action.

Rivera is not entitled to a certificate of appealability. To obtain a certificate of

appealability, the petitioner must show that reasonable jurists would find debatable

both (1) the merits of the underlying claims and (2) the procedural issues she seeks to

raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v.

Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because Rivera fails to show that

reasonable jurists would debate either the merits of the claims or the procedural issues,

she is not entitled to a certificate of appealability or to appeal in forma pauperis.

DONE AND ORDERED in Tampa, Florida, this 16th day of September, 2024.

Chaene Cdhwardsa Mo TDA pl yell

Charlene Edwards Honeywell

United States District Judge

Copies to:

Pro Se Petitioner

Counsel of Record

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