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Riquene v. United States

United States District Court, M.D. Florida, Jacksonville Division

January 23, 2018




         This case is before the Court on Petitioner Alfredo Martinez Riquene's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, Motion to Vacate).[1] The United States has responded (Civ. Doc. 6, Response), and Riquene has replied (Civ. Doc. 7, Reply).

         Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings[2], the Court has considered the need for an evidentiary hearing and determines that an evidentiary hearing is not necessary to resolve the merits of this action. See Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (an evidentiary hearing on a § 2255 petition is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming the facts that he alleges are true, he still would not be entitled to any relief); Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (a petitioner's ineffective assistance claim can be dismissed without an evidentiary hearing when the petitioner alleges facts that, even if true, would not entitle him to relief); Dickson v. Wainwright, 683 F.2d 348, 351 (11th Cir. 1982) (“On habeas a federal district court need not conduct an evidentiary hearing if it can be conclusively determined from the record that the petitioner was not denied effective assistance of counsel.”); Patel v. United States, 252 F. App'x 970, 975 (11th Cir. 2007).[3]For the reasons set forth below, Riquene's Motion to Vacate is due to be denied.

         I. Background

         On January 13, 2011, a grand jury sitting in the Middle District of Florida indicted Riquene on one count of engaging in a commercial sex act with a minor, in violation of 18 U.S.C. § 1591 (Count One), one count of producing child pornography, in violation of 18 U.S.C. §§ 2251(a) and (e) (Count Two), one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count Three), and one count of making false statements to the Federal Bureau of Investigation (FBI), in violation of 18 U.S.C. § 1001 (Count Four). (Crim. Doc. 36, Superseding Indictment). The charges stemmed from the arrest of Riquene for videotaping himself having sex with A.B., an underage female who was working as a prostitute at the time.

         Riquene moved to suppress incriminating statements he made to law enforcement officers, arguing that the officers obtained the statements in violation of Miranda v. Arizona, 384 U.S. 436 (1966). (Crim. Doc. 52, Motion to Suppress). United States Magistrate Judge Thomas E. Morris conducted an evidentiary hearing (Crim. Doc. 60, Suppression Hearing Transcript) (“Suppression Tr.”), and issued a Report and Recommendation suggesting that the Court deny the Motion to Suppress (Crim. Doc. 68, Report and Recommendation) (“Suppression R&R”). Judge Morris recommended that the Court conclude that Riquene was not in custody when the officers questioned him and that Riquene voluntarily spoke with the officers. After considering objections to the Suppression R&R, the Court adopted Judge Morris's recommendation and denied the Motion to Suppress. (Crim. Doc. 79, Order Adopting Suppression R&R).

         Before trial, Riquene moved to sever Count Three (Crim. Doc. 71) and the United States moved to dismiss Count One (Crim. Doc. 118). The Court granted both motions (Crim. Doc. 77, Crim. Doc. 119), such that Riquene proceeded to trial only on Counts Two and Four of the Superseding Indictment (for production of child pornography and making false statements to the FBI).[4] After a three-day trial, the jury found Riquene guilty of both charges. (Crim. Doc. 140, Jury Verdict).

         At sentencing, the Court calculated Riquene's total offense level under the United States Sentencing Guidelines to be 38, and his Criminal History Category to be I, yielding an advisory sentencing range of 235 to 293 months in prison. (Crim. Doc. 189, Sentencing Transcript at 16-17) (“Sent. Tr.”).[5] The Court ultimately sentenced Riquene to a term of 235 months in prison, followed by concurrent terms of 10 years of supervised release for each conviction. (Crim. Doc. 166, Judgment).

         Riquene filed a timely appeal, in which he argued (1) that the Court erred in denying his Motion to Suppress; (2) the Court violated his right to due process by preventing him from presenting a mistake-of-age defense; (3) the Court erred in admitting videos of him having sex with two adult women; and (4) the Court erred in applying the § 3C1.1 obstruction-of-justice enhancement. United States v. Riquene, 552 F. App'x 940, 941-46 (11th Cir. 2014). The Eleventh Circuit Court of Appeals rejected every argument and affirmed Riquene's conviction and sentence. Id. The United States Supreme Court denied Riquene's petition for certiorari review. Riquene v. United States, 134 S.Ct. 2683 (2014).

         II. Riquene's Motion to Vacate

         On March 2, 2015, Riquene timely filed the instant Motion to Vacate. In it, he raises five claims of ineffective assistance of counsel: (1) that counsel was ineffective for failing to argue that the Court improperly shifted the burden of proof to Riquene to show that he did not consent to officers entering his home without a warrant; (2) counsel failed to cite controlling authority in support of the argument that the officers violated Riquene's Miranda rights; (3) counsel failed to argue that 18 U.S.C. § 2251(a) includes a mens rea requirement with respect to the victim's age; (4) counsel failed to argue that § 2251(a) was unconstitutional as applied to him because Riquene “reasonably attempted to ascertain the prostitute's age, ” and (5) alternatively, counsel failed to appreciate the strict liability nature of the production offense, and was therefore ineffective for not pushing Riquene to enter an open guilty plea to the production charge.

         Shortly after filing the Motion to Vacate, Riquene filed a “Motion to Amend § 2255 Motion to Vacate” (Civ. Doc. 5, Motion to Amend), in which he sought to raise a sixth claim of ineffective assistance. Riquene asserts that trial counsel “was ineffective for not allowing [Riquene] to testify on his own behalf in front of the jury during trial.” Id. at 1.[6]

         III. Discussion

         Pursuant to Title 28, United States Code, Section 2255, a person in federal custody may move to vacate, set aside, or correct his sentence. Section 2255 permits such collateral challenges on four specific grounds: (1) the imposed sentence was in violation of the Constitution or laws of the United States; (2) the court did not have jurisdiction to impose the sentence; (3) the imposed sentence exceeded the maximum authorized by law; or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C §2255(a) (2008). Only jurisdictional claims, constitutional claims, and claims of error that are so fundamentally defective as to cause a complete miscarriage of justice will warrant relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86 (1979). A petitioner's challenge to his sentence based on a Sixth Amendment claim of ineffective assistance of counsel is normally considered in a collateral attack. United States v. Teague, 953 F.2d 1525, 1534 n. 11 (11th Cir. 1992).

         As with any Sixth Amendment ineffective assistance of counsel claim, a § 2255 petitioner must demonstrate both: (1) that his counsel's conduct amounted to constitutionally deficient performance, and (2) that his counsel's deficient performance sufficiently prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994). In determining whether the petitioner has satisfied the first requirement, i.e. that counsel performed deficiently, the Court adheres to the standard of reasonably effective assistance. Weeks, 26 F.3d at 1036. The petitioner must show, in light of all the circumstances, that counsel's performance fell outside the “wide range of professionally competent assistance.” Id. To satisfy the second requirement, that counsel's deficient performance prejudiced the defendant, the petitioner must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Id. at 1036-37 (citing Strickland, 466 U.S. at 694). In determining whether a petitioner has met the two prongs of deficient performance and prejudice, the Court considers the totality of the evidence. Strickland, 466 U.S. at 695. However, because both prongs are necessary, “there is no reason for a court… to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697; see also Wellington v. Moore, 314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We need not discuss the performance deficiency component of [petitioner's] ineffective assistance claim because failure to satisfy the prejudice component is dispositive.”).

         A. Ground One

         Riquene's first claim is that counsel was ineffective for failing to argue that “the District Court Unlawfully Shifted the Burden of Proof from the Government to Riquene Regarding Consent for the Warrantless Search and Seizure of his Home, in Violation of the Fourth Amendment.” Motion to Vacate at 2. Counsel had no occasion to argue that the Court shifted the burden of proof on the matter of Riquene's consent to search, because he never argued that an unreasonable search had occurred in the first place. Rather, counsel moved to suppress Riquene's statements on the ground that his rights under Miranda and the Fifth Amendment were violated. Motion to Suppress at 3-4. The Court therefore construes Ground One as a claim that counsel was ineffective for not moving to suppress Riquene's statements on the ground that they were the product of a nonconsensual warrantless entry into his home, in violation of the Fourth Amendment.

         A prisoner can prove that counsel gave ineffective assistance if his lawyer unreasonably failed to move to suppress evidence. Kimmelman v. Morrison, 477 U.S. 365, 374-75 (1986). To do so, the prisoner must show three things: (1) that a Fourth Amendment violation actually occurred, (2) that it was objectively unreasonable for counsel not to file the motion to suppress, and (3) that there is a reasonable probability the outcome would have been different absent the excludable evidence. See id. at 375, 382. “If a search was constitutional, then counsel is not obligated to move to suppress the evidence . . . and a defendant is not prejudiced by counsel's failure to do so.” Castillo v. United States, 816 F.3d 1300, 1303 (11th Cir. 2016) (citing Kimmelman, 477 U.S. at 375).

         Here, Riquene cannot satisfy Kimmelman's first prong, i.e., that an unreasonable search and seizure occurred in the first instance. The record of the suppression hearing reflects that while the officers entered Riquene's home without a warrant, they did so with Riquene's voluntary consent. “A consensual search is constitutional if it is voluntary; if it is the product of an ‘essentially free and unconstrained choice.'” United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)). Voluntariness is determined on a case-by-case basis according to “the totality of the circumstances.” United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989) (citing Schneckloth, 412 U.S. at 224-25). “Relevant factors include the ‘voluntariness of the defendant's custodial status, the presence of coercive police procedure, the extent and level of the defendant's cooperation with police, the defendant's awareness of his right to refuse to consent to the search, the defendant's education and intelligence, and, significantly, the defendant's belief that no incriminating evidence will be found.'” United States v. Spivey, 861 F.3d 1207, 1213 (11th Cir. 2017) (quoting United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984)).

         On the day of the search, A.B. led law enforcement officers to Riquene's residence, where the officers arrived in an unmarked pickup truck and wearing civilian clothes. Suppression R&R at 3-4 (transcript citations omitted). Two of the four officers who arrived were unarmed, while the other two kept their weapons concealed. Id. at 5. The officers first encountered Riquene's uncle, Jose Mendez, on the front porch. The officers presented their identification badges to Mendez and notified him that they were there to speak with Riquene. Id. Mendez went inside the house to retrieve Riquene while the officers waited outside. Id. When Riquene appeared, one of the officers - Detective Bisplinghoff - showed his credentials to Riquene and identified the others with him as law enforcement officers. Detective Bisplinghoff asked Riquene if he would be willing to speak with them in private, and Riquene agreed, signaling for the officers to come into the living room. Id. at 5-6. Riquene sat on the couch while the other officers sat or stood nearby. Id. at 6. Mendez remained on the porch while the officers spoke to Riquene, during which time “he heard no loud sounds, shouts or threats from inside the residence.” Id. The officers advised Riquene that lying to a federal agent is a crime, and began to question Riquene about A.B. Id. Although Riquene is a native of Cuba, id. at 3, he spoke with the officers in English, id. at 7.[7] At some point during the conversation, Detective Bisplinghoff asked for Riquene's permission to inspect the bedroom, which Riquene granted. Id. at 6. Detective Bisplinghoff examined the bedroom and noticed several features that matched the description A.B. had given: an air freshener above the door, a number of hats hanging on the wall, and Riquene's business card for his landscaping company. Id. at 6-7. At this point, Detective Bisplinghoff began to believe there may be probable cause to arrest Riquene. Id. at 7.

         Not long thereafter, Detective Maria Carney arrived. Id. at 8. Detective Carney advised Riquene of his Miranda rights in Spanish, and Riquene indicated his understanding of each of his rights. Id. Riquene proceeded to re-answer essentially the same questions that the officers had asked before he was Mirandized. Id. Riquene further gave officers permission to search his room “and signed a consent to search form after Detective Carney explained the English written form to [Riquene] in Spanish.” Id. at 9. Riquene also agreed to allow the officers to photograph his bedroom. Id. Throughout this time, the officers did not put Riquene in restraints or restrict his freedom of movement. See id. at 9, 10-11; Suppression Tr. at 24, 87-88, 103. The officers only put Riquene in custody after Detective Carney left the premises. See Suppression R&R at 9, 11.

         The foregoing facts show that no Fourth Amendment violation occurred because Riquene consented to the officers entering and searching his home. Indeed, Riquene invited the officers to come into his living room and permitted Detective Bisplinghoff to inspect his bedroom. For many of the same reasons why this Court and the Eleventh Circuit found no Miranda violation, there was also no unreasonable search and seizure. See Suppression R&R at 9-21; Riquene, 552 F. App'x at 941-43. First, Riquene was not in custody when he consented to the officers entering his home and examining his bedroom. Spivey, 861 F.3d at 1213. Riquene was not handcuffed at the time and he remained free to move around the home. Suppression R&R at 11; Riquene, 552 F. App'x at 942. Second, the officers did not use overbearing or coercive tactics. Spivey, 861 F.3d at 1213. “The officers wore civilian clothes, did not display any weapons, and did not use force against Riquene.” Riquene, 552 F. App'x at 942. Third, Riquene's level of cooperation was high, as he gestured for the officers to enter his living room, answered their questions, and permitted the officers to search and photograph his bedroom. Fourth, even after Detective Carney read Riquene his Miranda rights and the consent-to-search form in Spanish, and he indicated his understanding of each of his rights, he still authorized the officers to search his room. See Spivey, 861 F.3d at 1213 (the defendant's awareness of his rights is a factor in the consent analysis). Moreover, although Riquene's first language is Spanish, he demonstrated fluency in English, as reflected by his conversation with the officers in English (before Detective Carney's arrival) and by the fact that his business card was also in English. Additionally, Riquene is of reasonable intelligence, as reflected by the fact that he worked in Cuba as a police officer and a member of the military, had a driver's license, and incorporated his own lawn company. Suppression R&R at 3. Finally, although Riquene contends that he was on pain medication at the time and that this diminished his ability to give consent, the testimony from the suppression hearing reflected that Riquene was mentally alert at all times. See id. at 20.

         Based on the foregoing, the Court finds that the record establishes that Riquene consented to the officers entering and searching his home, and further, that such consent was knowing and voluntary. Because a consensual search is constitutional, Purcell, 236 F.3d at 1281, Riquene cannot meet Kimmelman's first prong, which requires that he establish the existence of a Fourth Amendment violation, 477 U.S. at 375. As such, relief on Ground One is due to be denied.

         B. ...

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