United States Court of Appeals 

For the First Circuit 

No. 11-2132 

JOSÉ A. RIVERA-RIVERA, 

Petitioner, Appellant, 

v. 

UNITED STATES OF AMERICA, 

Respondent, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. José Antonio Fusté, U.S. District Judge] 

Before 

Torruella, Lipez, Thompson, 

Circuit Judges. 

Lydia Lizarríbar-Masini on brief for appellant. 

 Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson 

Pérez-Sosa, Assistant United States Attorney, Chief, Appellate 

Division, and Juan Carlos Reyes-Ramos, Assistant United States 

Attorney, on brief for appellee. 

June 29, 2016 
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LIPEZ, Circuit Judge. Appellant José Rivera-Rivera was 

convicted in 2005 on three charges stemming from the armed robbery 

of a lottery ticket business at a mall in Caguas, Puerto Rico. On 

direct appeal, a divided panel of this court affirmed his 

conviction and sentence. See United States v. Rivera-Rivera, 555 

F.3d 277 (1st Cir. 2009). Rivera subsequently petitioned for postconviction relief under 28 U.S.C. § 2255, claiming ineffective 

assistance of counsel based on multiple instances of alleged 

inadequate representation. The district court concluded that none 

of the asserted flaws warranted relief. We granted a certificate 

of appealability on the one question linked to the issue that split 

the prior panel: "whether petitioner's trial attorney had provided 

ineffective assistance of counsel in failing to move for a judgment 

of acquittal on the Hobbs Act charge." After carefully considering 

Rivera's claim, we affirm. 

I. Background

 Rivera and co-defendant Ramón Sánchez-Rosado were convicted 

for taking approximately $9000 and other items from a lottery 

ticket business at the Muñiz Gallery shopping mall after forcing 

the mall manager, at gunpoint, to open the business's safe. See 

Rivera-Rivera, 555 F.3d at 280-81. A jury found the defendants 

guilty on all three counts charged: (1) aiding and abetting an 

armed robbery affecting interstate commerce, in violation of the 

Hobbs Act, (2) using a firearm in connection with the robbery, and 
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(3) being a felon in possession of a firearm. Id. at 281-82. 

Rivera was sentenced to 415 months' imprisonment.

Among other issues raised in their direct appeal, the 

defendants claimed that the government had failed to offer 

sufficient evidence of the robbery's effect on interstate 

commerce, as required to support a Hobbs Act violation.1 In 

rejecting this claim, the panel majority applied plain error review 

because the claim had not been raised below.2 The majority noted, 

however, that "[e]ven if we were reviewing the appellants' 

sufficiency claim de novo, . . . we would be hard pressed to find 

the evidence regarding the interstate commerce nexus insufficient 

to support the verdict." Id. at 287. The dissenting judge found 

the evidence inadequate because "the record lacks proof of future 

interstate purchasing by [the] business on which the robbery could 

have had an impact." Id. at 295 (Lipez, J., dissenting). 

 1 The Hobbs Act provides that "[w]hoever in any way or degree 

obstructs, delays, or affects commerce or the movement of any 

article or commodity in commerce, by robbery or 

extortion . . . shall be fined . . . or imprisoned." 18 U.S.C. 

§ 1951(a). 

2 The panel majority observed that the defendants had moved 

for judgment of acquittal on the robbery and related firearm 

charges, but had not done so "on the basis that the government 

failed to present sufficient evidence that the lottery business 

was engaged in interstate commerce." Rivera-Rivera, 555 F.3d at 

285 n.7. The dissenting panel member nonetheless considered the 

issue preserved because the district court had cut off counsel's 

motion in mid-sentence, thus denying defendants the opportunity to 

"specifically refer to the interstate commerce element." Id. at 

294 n.17. 
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Following disposition of his direct appeal, Rivera filed a 

pro se petition under 28 U.S.C. § 2255 seeking relief from his 

sentence and a new trial based on ineffective assistance of counsel 

in violation of his Sixth Amendment rights. He argued, inter alia, 

that counsel was ineffective in failing to move for acquittal on 

the Hobbs Act charge based on the insufficiency of the evidence 

linking the lottery business to interstate commerce.3 The district 

court denied the motion. With respect to the Hobbs Act claim, the 

court held that, "because there was sufficient evidence to prove 

a nexus to interstate commerce, [it could not] find counsel 

deficient in his choice not to raise a futile sufficiency 

argument." The court declined to issue a certificate of 

appealability on any issue. See Rule 11(a), Rules Governing § 2255 

Proceedings (directing the district court to "issue or deny a 

certificate of appealability when it enters a final order adverse 

to the applicant"). 

Rivera then applied to this court for a certificate of 

appealability on four claims. See Fed. R. App. P. 22(b)(1) ("[I]n 

a 28 U.S.C. § 2255 proceeding, the applicant cannot take an appeal 

unless a circuit justice or a circuit or district judge issues a 

 3 Rivera also alleged ineffective assistance based on his 

attorney's failure to move to suppress evidence, object to certain 

jury instructions, request other instructions, and make an opening 

statement, and he also cited counsel's acquiescence to certain 

factual stipulations. 
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certificate of appealability under 28 U.S.C. § 2253(c)."); Rule 

11(a), Rules Governing § 2255 Proceedings ("If the [district] court 

denies a certificate, a party may not appeal the denial but may 

seek a certificate from the court of appeals under Federal Rule of 

Appellate Procedure 22."). We granted the certificate only on the 

issue of counsel's failure to move for acquittal on the Hobbs Act 

charge.4 We also granted Rivera's motion for appointment of 

counsel. This appeal followed. 

II. Discussion

 To succeed with a claim of ineffective assistance of counsel, 

a criminal defendant must establish both that "his attorney's 

performance was deficient under an objective standard of 

reasonableness; and [that] his defense suffered prejudice as a 

result." United States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 

2013); see also Strickland v. Washington, 466 U.S. 668, 687-88 

(1984). Here, we begin and end with the prejudice inquiry. See 

Carrigan, 724 F.3d at 44 ("Failure to satisfy one of the Strickland 

prongs is fatal and, therefore, we are free to tackle either prong 

first."). 

 Under Strickland, "[i]t must be 'reasonably likely' that the 

result of the criminal proceeding would have been different" if 

 4 On the other claims, we concluded that Rivera had "failed 

to make 'a substantial showing of the denial of a constitutional 

right.'" Rivera-Rivera v. United States, No. 11-2132, Order (Nov. 

5, 2013) (quoting 28 U.S.C. § 2253(c)(2)). 
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counsel had performed as the defendant asserts he should have. 

Hensley v. Roden, 755 F.3d 724, 736 (1st Cir. 2014) (quoting 

Strickland, 466 U.S. at 696). Moreover, "that likelihood 'must be 

substantial, not just conceivable.'" Id. (quoting Harrington v. 

Richter, 562 U.S. 86, 112 (2011)). Hence, Rivera's Sixth Amendment 

claim will fall short unless he can show a substantial likelihood 

that he would have obtained a different outcome on the Hobbs Act 

count if his attorney had moved for judgment of acquittal based on 

inadequate evidence of the robbery's impact on interstate 

commerce.5 Rivera is unable to satisfy that standard. 

 Rivera's post-conviction claim that his attorney unreasonably 

failed to challenge the evidence on interstate commerce was 

presented to the same judge who presided over his trial. In 

evaluating that claim, the trial judge expressly agreed with the 

view of the First Circuit panel majority, holding that "there was 

sufficient evidence to prove a nexus to interstate commerce." This 

determination means it is unlikely that a motion for judgment of 

acquittal filed during trial would have succeeded. In effect, the 

judge to whom such a motion would have been submitted has stated 

that the motion would have been denied. 

 5 Both the robbery conviction and related firearms conviction 

would be unsupportable if there were insufficient evidence of the 

robbery's impact on interstate commerce. See Rivera-Rivera, 555 

F.3d at 285 n.5, 282. 
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Nor has Rivera shown the requisite likelihood of a different 

result in the direct appeal if this particular sufficiency claim 

had been preserved at trial. To the contrary, the majority 

strongly indicated that its conclusion would have been the same 

under a de novo review of the record. Indeed, the issue turned 

primarily on the interpretation and application of precedent, 

which both the majority and dissent discussed at some length. See 

Rivera-Rivera, 555 F.3d at 285-89, 293-98. We thus see no chance 

that plenary review would have changed the majority's analysis.6

Finally, we note that Rivera also criticizes his attorney for 

failing to develop evidence showing that "the business contacts 

with interstate commerce were remote and did not amount to the 

required nexus."7 However, this contention is materially different 

from the issue on which we granted the certificate of 

appealability, i.e., counsel's failure to challenge the adequacy 

of the evidence presented by the government on that element. 

Moreover, under the panel majority's reasoning, we see no 

likelihood that additional evidence would have changed the result. 

 6 Because the sufficiency claim necessarily involved 

application of legal precedent to the evidence adduced at trial, 

we also discern no abuse of discretion in the district court's 

decision not to hold an evidentiary hearing on this claim. See 28 

U.S.C. § 2255(b) (stating that an evidentiary hearing must be held 

"[u]nless the motion and the files and records of the case 

conclusively show that the prisoner is entitled to no relief"). 

7 The defense presented no evidence at trial. 
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Pointing to testimony that some of the lottery business customers 

were from out of state, the majority declared that "[t]his evidence 

alone suffices to establish the requisite interstate commerce 

nexus." Rivera-Rivera, 555 F.3d at 288. We therefore do not 

further address this variation on Rivera's Sixth Amendment claim. 

 Accordingly, even assuming that counsel's failure to move for 

acquittal based on insufficient evidence of the robbery's effect 

on interstate commerce was deficient performance under Strickland, 

Rivera has not satisfied the prejudice prong of the two-part 

inquiry into ineffective assistance of counsel.8 Hence, we affirm 

the denial of his petition for relief under 28 U.S.C. § 2255. 

 So ordered. 

--Dissenting Opinion Follows-- 

 8 Although the dissent presents a compelling case for 

deficient performance by Rivera's counsel, we disagree, as 

explained above, that the record permits us to find that Rivera 

has met the requisite prejudice standard. Specifically, given the 

post-trial rulings of the original panel and the district court, 

we cannot agree that a sufficiency-of-the-evidence objection at 

trial based on the interstate commerce element would have had a 

substantial likelihood of success. Indeed, all indications are to 

the contrary. The original panel majority rejected the view of 

the law advanced by the dissent here (and in the original case), 

and the district court followed the majority's lead in its postconviction review. That legal judgment, based on an analysis of 

the precedent, would not be limited to the plain error context. 

Hence, the original panel's suggestion that the outcome of the 

case would not change on de novo review cannot be dismissed as 

mere dicta. 
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TORRUELLA, Circuit Judge, Dissenting. The sole issue before 

us is whether Appellant José Rivera-Rivera's ("Rivera") trial 

attorney was derelict in his duty to provide Rivera with legal 

representation that complies with the standard established by the 

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). 

Rivera's claim is based on his allegation that his trial counsel 

failed to challenge the sufficiency of the evidence presented by 

the Government to establish the interstate commerce element of the 

Hobbs Act violations for which Rivera was charged and convicted.9 

The majority essentially holds that because a panel of this court 

found under plain error review that the Government presented 

sufficient evidence to support the Hobbs Act charges, United States 

v. Rivera-Rivera, 555 F.3d 277, 285 (1st Cir. 2009) ("Rivera I"), 

Rivera cannot now prevail in his claim that his counsel was 

ineffective for having failed to raise the issue at trial. Because 

I disagree with this reasoning and find under a de novo standard 

of review that the Government did not present sufficient evidence 

to support a Hobbs Act violation, I respectfully dissent. 

Strickland requires both (1) "that counsel's performance 

was deficient," meaning that counsel made errors so serious that 

 9 The charges in this case were brought, and the jury was 

charged, under the interstate commerce requirement of the Hobbs 

Act. 18 U.S.C. § 1951(a) ("Whoever in any way or degree obstructs, 

delays, or affects commerce or the movement of any article or 

commodity in commerce, by robbery or extortion . . . shall be 

fined . . . or imprisoned . . . ."). 
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"counsel was not functioning as the 'counsel' guaranteed the 

defendant by the Sixth Amendment" and (2) "that the deficient 

performance prejudiced the defense." 466 U.S. at 687. The 

majority's opinion focuses on the second prong of this test, under 

which a defendant must show "'a reasonable probability that the 

end result of the criminal process would have been more favorable' 

but for the defense counsel's deficient performance." United 

States v. Carrigan, 724 F.3d 39, 44 (1st Cir. 2013) (quoting 

Missouri v. Frye, ___ U.S. __, 132 S. Ct. 1399, 1409 (2012)). 

To determine whether there was prejudice in the trial 

attorney's failure to challenge the sufficiency of the 

Government's evidence on the Hobbs Act charges, it is necessary to 

evaluate the merits of the underlying claim. See Kimmelman v. 

Morrison, 477 U.S. 365, 375 (1986) (arguing that the merits of the 

underlying claim is "one element of proof of [the defendant's] 

Sixth Amendment claim"). In finding a lack of prejudice, the 

majority appears to rely on Rivera I's statement that "[e]ven if 

we were reviewing the appellants' sufficiency claim de novo, which 

we are not, we would be hard pressed to find the evidence regarding 

the interstate commerce nexus insufficient to support the 

verdict." 555 F.3d at 287. This statement is mere dicta given 

Rivera I's holding that its review would be for plain error. 

Rivera I did not, in fact, apply a de novo standard and its findings 

under the highly deferential plain error standard should not bind 
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this court's analysis under a de novo standard. The differences 

between these two standards of review are significant and 

meaningful. Under plain error review, the error in question has 

to be "plain," "clear," or "obvious." United States v. Olano, 507 

U.S. 725, 734 (1993); see also United States v. Delgado-Marrero, 

744 F.3d 167, 184 (1st Cir. 2014) (stating that the error must be 

"clear or obvious"). De novo review, on the other hand, does not 

give such deference to lower court determinations and permits this 

court to independently evaluate the sufficiency of the evidence 

presented by the Government to support its Hobbs Act charges. 

Under this more rigorous level of examination, defense 

counsel's performance was constitutionally deficient because he 

failed to present arguments that no reasonable trier of fact could 

have found that the business allegedly robbed by Rivera was in 

commerce within the meaning of the Hobbs Act at the time the 

alleged robbery took place. The fact that a business is in 

interstate commerce at some point is not an unchangeable 

designation that is thereafter carried on without limit ad 

infinitum, as if it were a permanent tattoo. Cf. Sucrs. de A. 

Mayol & Co. v. Mitchell, 280 F.2d 477, 480 (1st Cir. 1960) 

(establishing that interstate commerce ceases under the Fair Labor 

Standards Act when the goods come to rest); Guzman v. Irmadan, 322 

F. App'x 644, 645 (11th Cir. 2009) (finding that goods purchased 

at a hardware store, which previously had moved in interstate 
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commerce, were already removed from interstate commerce once they 

arrived at the retail store); United States v. Skoczen, 405 F.3d 

537, 544 (7th Cir. 2005) (holding that an interstate good loses 

its interstate quality when it arrives at its final destination); 

Dunlop v. Indus. Am. Corp., 516 F.2d 498, 499 (5th Cir. 1975) 

(recognizing that a garbage removal service was not engaged in 

interstate commerce merely because it purchased gasoline and other 

products from an entity that had moved them from out of state). 

In this case, the Government's evidence concerning the 

alleged interstate nexus of the business in question was limited 

to: the purchase of machinery and parts for use in the store that 

were manufactured in Rhode Island, but obtained by Rivera from the 

Commonwealth of Puerto Rico's Treasury Department five years prior 

to the alleged robbery; testimony regarding the possible purchase 

of replacement equipment and parts at some undefined time in the 

future; evidence of sporadic purchases of lottery tickets produced 

in Puerto Rico by tourists visiting Caguas, a city in the center 

of Puerto Rico; and the incidental use of the business's gaming 

room by tourists who visited Caguas. Considering the sparsity and 

tenuousness of this alleged interstate commerce connection, 

defense counsel should have at a minimum argued to the trial court 

the caveat given by the Supreme Court in United States v. López, 

514 U.S. 549, 557 (1995), and United States v. Morrison, 529 U.S. 

598, 618 (2000), against expanding the interstate commerce reach 
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into what has been clearly reserved to local police power 

jurisdiction. On these facts, no reasonable trier of fact could 

have found a sufficient nexus between the lottery business and 

interstate commerce, and Rivera was entitled to have those charges 

dismissed rather than submitted to the jury. 

If Rivera's counsel had objected to the Government's 

failure to present sufficient evidence to establish that the 

business allegedly robbed by Rivera was engaged in interstate 

commerce, the court would have had to dismiss the charges against 

Rivera.10 This, however, is what actually transpired during the 

Rule 29 colloquy: 

DEFENSE COUNSEL: [W]e pray the Court to grant a Rule 

29 and enter a not guilty verdict on this particular 

case at this time, because I submit that there is 

insufficient evidence for the robbery, the firearm, 

and the fact -- 

THE COURT: I think there is overwhelming evidence of 

the fact that this robbery took place as testified 

to by the witnesses. Motion denied. 

OTHER DEFENSE COUNSEL: We adopt the motion. 

THE COURT: Anything else? 

 10 The majority opinions points to the district court's 

rejection of this argument in its review of Rivera's § 2255 

petition and argues that it is probative of prejudice because it 

means "it is unlikely that a motion for judgment of acquittal filed 

during trial would have succeeded." Supra at x. This argument is 

rather beside the point. In evaluating a claim for ineffective 

assistance of counsel, we must assume that the trial court would 

have accurately applied the law. 
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Nothing else was said regarding the Rule 29 motion, and the 

proceedings continued in another direction.11

Having established that the failure to object to the 

sufficiency of the evidence under the Hobbs Act did result in 

prejudice to his case, we proceed to analyze the first prong of 

Strickland: did the performance of the trial attorney fall "below 

the constitutional norm"? Scarpa v. Dubois, 38 F.3d 1, 8 (1st 

Cir. 1994). "The proper measure of attorney performance remains 

simple reasonableness under prevailing professional norms." 

Strickland, 466 U.S. at 688. It is not reasonable for a trial 

attorney to fail to challenge the sufficiency of the Government's 

evidence when that evidence has in fact been insufficient. No 

 11 From this interchange it is clear that the court 

interrupted defense counsel's discussion before he had completed 

his Rule 29 objections, in particular, regarding any 

jurisdictional issues counsel may have wished to raise. The judge 

rushed to judgment without hearing the remainder of the attorney's 

contentions. Nevertheless, as can be seen from the text of the 

brief encounter of the Rule 29 colloquy, trial counsel was given 

the opportunity by the court to speak further regarding its ruling, 

but for reasons unknown, counsel chose not to take this 

opportunity, and thus failed to specifically raise what at this 

point we can only surmise was the jurisdictional issue. Given 

these circumstances, the question remains whether we are faced 

with a failure that lays not in counsel's performance but rather 

in the trial judge's erroneous action. I believe that counsel's 

silence, given the substantial jurisdictional question raised by 

the failure of the Government's evidence, overrides the trial 

court's precipitous ruling and is sufficiently serious to 

constitute a Strickland violation. Moreover, as we have seen, 

Rivera I held the issue to have been waived by trial counsel's 

actions and treated the question under plain error review rather 

than de novo review. 
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strategic choice or reasonable tactical decision could account for 

the trial attorney's failure in this regard. See, e.g., id. at 

690 (explaining that a lawyer's "strategic choices . . . are 

virtually unchallengeable" on Sixth Amendment grounds); United 

States v. Jackson, 918 F.2d 236, 243 (1st Cir. 1990) (finding that 

an attorney's representation is not inadequate if the relevant 

conduct could be viewed as "a reasonable tactical decision"). 

Finding both prongs of Strickland's test to have been 

met, I would grant Rivera's request, reverse his conviction and 

grant a new trial.