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United States v. Mirelis Rivas, 99 F.3d 401, 2d Cir. (1995)
United States v. Mirelis Rivas, 99 F.3d 401, 2d Cir. (1995)
3d 401
E.D.N.Y.
AFFIRMED.
This cause came on to be heard on the transcript of record from the United
States District Court for the Eastern District of New York and was submitted.
sentencing, Rivas moved pro se to withdraw his guilty plea and to appoint new
counsel on the ground that his attorney had tricked him into pleading guilty.
The district court deferred decision on the motion to withdraw the plea, but
appointed new counsel. At sentencing, Rivas's new counsel renewed the motion
to withdraw the plea. After reviewing the transcript of the plea colloquy, the
district court denied the motion, and sentenced Rivas to sixty-three months'
imprisonment and four years' supervised release.
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absence of any valid ground for withdrawal of the plea, the court could
properly" deny the motion without considering whether "withdrawal would
prejudice the government").
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2. Rivas's pro se contentions need not detain us. Rivas has not specified which
information relied on at sentencing came from "unidentified" sources, nor are
any such sources apparent from the record. Next, after learning that Rivas was
taking medication, the district court satisfied itself that the medication had not
impaired Rivas's ability to understand the proceedings, thus satisfying its
obligations under United States v. Rossillo, 853 F.2d 1062 (2d Cir.1988).
Finally, Rivas's challenge to his first lawyer's ineffectiveness is not properly
before us, since it concerns matters largely outside the record. See Billy-Eko v.
United States, 8 F.3d 111, 114 (2d Cir.1993). Rivas should therefore pursue his
ineffectiveness claim in a 2255 petition. See id. We note, however, that his
claim is belied by his own statement, under oath, that he was satisfied with his
first lawyer's performance. And, he seems not to have demonstrated any
prejudice from that lawyer's alleged ineffectiveness. See Strickland v.
Washington, 466 U.S. 668, 687 (1984) (to prevail on ineffectiveness claim,
defendant must prove that his attorney's conduct fell below an objective
standard of reasonableness, and that but for the attorney's errors, the result of
the proceeding would have been different).
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Of the United States District Court for the Southern District of New York,
sitting by designation