United States of America v. Roberto Cruz-Rivera

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 11, 2023*
Decided September 13, 2023
Before
FRANK H. EASTERBROOK , Circuit Judge
ILANA D IAMOND R OVNER , Circuit Judge
T HOMAS L. KIRSCH II, Circuit Judge
Nos. 22-2644 & 22-2866
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
R OBERTO CRUZ-R IVERA ,
Defendant-Appellant.
Appeals from the United States
District Court for the Southern
District of Indiana, Indianapolis
Division.
No. 1:21-cr-00160-TWP-KMB-01
Tanya Walton Pratt, Chief Judge.
O R D E R
Roberto Cruz-Rivera was convicted of failing to register as a sex offender, a require-
ment imposed by federal law in light of his conviction in New York for rape. See 18
U.S.C. §2250(a). We affirmed his conviction and sentence. 74 F.4th 503 (7th Cir. 2023).
While that appeal was pending, Cruz-Rivera filed in the district court two motions for
* After examining the briefs and the record, we have concluded that oral argument is unnecessary. See
Fed. R. App. P. 34(a); Cir. R. 34(f).

-- 1 of 3 --

Nos. 22-2644 & 22-2866 Page 2
DNA testing under 18 U.S.C. §3600(a). He contended that such a test could be used to
show his innocence of rape.
The district court denied the first motion on the ground that Cruz-Rivera’s appeal
from the judgment of conviction divested it of jurisdiction. It denied the second motion
for the same reason and added (without explanation) that the motion would fail on the
merits. The first of these decisions is mistaken. A notice of appeal divests a district court
of jurisdiction to alter the judgment on appeal, so the district court could not have de-
clared Cruz-Rivera innocent, but does not subtract from a court’s power to decide col-
lateral matters that are not before the court of appeals. See, e.g., United States v. Brown,
732 F.3d 781, 787 (7th Cir. 2013). The request for DNA testing did not attack the judg-
ment of conviction. True, a particular result of a DNA test might lay the groundwork
for such a challenge (or for one to the sentence, which may have been affected by the
conviction for rape), but a request for the test itself was unrelated to any issue in the
pending appeal. By the time of Cruz-Rivera’s second motion, however, his appeal from
the denial of the first was pending—and as the two motions sought identical relief, that
pending appeal blocked the district court from granting the second motion.
Section 3600(a) provides:
Upon a written motion by an individual sentenced to imprisonment or death
pursuant to a conviction for a Federal offense (referred to in this section as the
“applicant”), the court that entered the judgment of conviction shall order
DNA testing of specific evidence if the court finds that all of the following ap-
ply:
(1) The applicant asserts, under penalty of perjury, that the applicant is ac-
tually innocent of—
(A) the Federal offense for which the applicant is sentenced to impris-
onment or death; or
(B) another Federal or State offense, if—
(i) evidence of such offense was admitted during a Federal sentenc-
ing hearing and exoneration of such offense would entitle the ap-
plicant to a reduced sentence or new sentencing hearing; and
(ii) in the case of a State offense—

-- 2 of 3 --

Nos. 22-2644 & 22-2866 Page 3
(I) the applicant demonstrates that there is no adequate remedy
under State law to permit DNA testing of the specified evidence
relating to the State offense; and
(II) to the extent available, the applicant has exhausted all reme-
dies available under State law for requesting DNA testing of
specified evidence relating to the State offense.
Cruz-Rivera faces an insurmountable hurdle in the language of §3600(a)(1)(B)(ii)(I), be-
cause he does not even contend that New York’s rules for DNA testing are inadequate.
He simply ignores the subject. More than that: we do not see how Cruz-Rivera could es-
tablish innocence of the state crime, as §3600(a)(1)(B) requires. His 2001 conviction in
New York was based on his guilty plea, and a plea of guilty admits all factual elements
of the charge. See, e.g., Class v. United States, 138 S. Ct. 798 (2018) (discussing precedent).
Cruz-Rivera does not contend that New York would allow him to retract his plea, more
than 20 years after entering it, in order to contest the evidence—evidence that the prose-
cution never needed to present, given his guilty plea. It follows that he is not entitled to
relief in federal court under §3600(a).
Cruz-Rivera has asked for the appointment of counsel on appeal. Because neither
the Sixth Amendment nor the Criminal Justice Act, 18 U.S.C. §3006A, entitles a federal
prisoner to appointed counsel in collateral proceedings, see Pennsylvania v. Finley, 481
U.S. 551 (1987), the evident lack of merit to his motions is a sufficient reason to deny his
request for counsel.
A FFIRMED

-- 3 of 3 --