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Rivera v. Thompson

United States Court of Appeals, First Circuit

January 9, 2018

EBER RIVERA, Petitioner, Appellant,
v.
MICHAEL A. THOMPSON, Superintendent, Respondent, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. Indira Talwani, U.S. District Judge

          Benjamin Brooks, with whom Good Schneider Cormier & Fried was on brief, for appellant.

          Todd Michael Bloom, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.

          Before Howard, Chief Judge, Selya and Lipez, Circuit Judges.

          LIPEZ, Circuit Judge.

         Eber Rivera appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Rivera was convicted in Massachusetts state court after a jury trial on charges arising from the stabbing of Robert Williams during an altercation between the two men. Rivera contends that his Sixth Amendment right to the effective assistance of counsel was violated when his trial counsel: (1) did not move to suppress inculpatory statements he made in response to questions from a police officer while in custody; and (2) failed to introduce at trial evidence promised in her opening statement that a third party committed the stabbing. Because we conclude that trial counsel's failure to move to suppress Rivera's statements to the police officer constituted ineffective assistance of counsel under clearly established law, we reverse and remand with instructions to grant the writ. We do not reach the other ground on which Rivera bases his Sixth Amendment claim.

         I. A. Factual Background

         Rivera was indicted by a grand jury in Middlesex County, Massachusetts, for armed assault with intent to murder (count I), assault and battery by means of a dangerous weapon causing serious bodily injury (count II), and assault and battery upon a public employee (count III). See Mass. Gen. Laws ch. 265, §§ 13D, 15, 15A(b). The first two charges stemmed from a fight in the early morning of December 16, 2007, during which Williams was stabbed. The third stemmed from an altercation with a police officer at the police station after Rivera was arrested.

         At the six-day trial, the jury was presented with the following testimony. Rivera, Williams, Ana Reyes, Josue Gonzalez, and Robert Zonghi were gathered at Reyes' apartment drinking, talking, and playing dominos. Gonzalez testified that he left the room where Rivera and Williams were sitting for a few minutes. When he returned, the atmosphere in the room had changed. He speculated that "[a]t some point something happened that kind of triggered [Rivera], " who soon walked outside followed by Williams. Gonzalez then saw through the window that Rivera and Williams were engaged in a fist fight, but he did not see who initiated it. Rivera's attempts to hit Williams were unsuccessful, and Williams, who was bigger, quickly gained the upper hand. Gonzalez saw that Williams had pinned Rivera to the ground and was punching him, with Rivera in a position where he "couldn't do nothing." At that point, "everybody went outside" to attempt to break up the fight. Gonzalez did not see what happened next, but he heard Williams say "I think he stabbed me, " and saw him fall forward onto Rivera. Gonzalez testified that he initially did not believe that Williams had been stabbed because he did not remember Rivera having a knife, and he did not see a knife during the altercation.

          Gonzalez and Zonghi brought Williams inside the apartment. Zonghi testified that, by the time he came outside, Williams was on the ground bleeding. Reyes testified that she did not see what happened during the fight, but that she did see Gonzalez and Zonghi helping Williams, who was bleeding from the stomach and face, into the apartment. It was later determined that Williams had been stabbed in the head, abdomen, and chest, causing damage to his heart and liver and significant internal bleeding and blood loss. Gonzalez and Reyes both testified that they did not see Rivera following the stabbing.

         After bringing Williams inside, Gonzalez called 911, and Framingham Police Officer Arthur Sistrand, who was nearby, responded to the call. Sistrand testified that he turned onto the street where the altercation happened within thirty or forty seconds of receiving the call, and he saw Rivera jogging across the street away from the address where the stabbing had been reported. Sistrand, who was in uniform, got out of his marked police cruiser and ordered Rivera to stop, but Rivera continued jogging on the sidewalk. Sistrand then drew his gun and ordered Rivera to get on the ground. Rivera complied, laying in the street in a prone position. Sistrand testified that he noticed that Rivera's right hand was bleeding and called for backup.

         With Rivera still on the ground and Sistrand's gun still drawn, Sistrand asked Rivera what he was doing. Rivera responded that he "had a beef with a nigger." Sistrand then asked him why, and Rivera responded that he had been "disrespected." Sistrand asked Rivera for his name, but Rivera declined to give it, stating that he was "too out of breath and too cold to respond." About thirty seconds later, Sistrand asked Rivera how he had hurt his hand, and Rivera said that he had cut it on a ring. After that, Rivera "stated that he was cold, and he wasn't answering any more of [Sistrand's] questions." Backup soon arrived and Rivera was handcuffed and taken to the police station.

         During booking at the police station, Sergeant Scott Brown asked Rivera to remove his clothing that had blood on it so that it could be processed as evidence. Rivera refused and became combative, yelling at Brown and using racial slurs toward him. When Brown tried to remove Rivera's sneaker, Rivera slapped his hand away. Brown eventually removed Rivera's clothes, and DNA testing later revealed that blood on Rivera's jeans belonged to Williams.

         At trial, the Commonwealth's theory of the case was straightforward. It contended that Williams said something that offended Rivera, leading Rivera to engage Williams in a fistfight with the intent to stab and murder him. Rivera's counsel conceded that Rivera had a fight with Williams, but argued that none of the witnesses actually saw how the fight started or how the stabbing occurred, and thus the prosecution had not proved beyond a reasonable doubt that Rivera committed the stabbing and that any force used by Rivera was not in self-defense. She promised in her opening statement that the jury would hear testimony that there were two other people involved in an argument with Williams, including "Mr. Ruiz, " and that the jury was "going to hear testimony that a Mr. Ruiz had a bat, and he was also wielding a knife."[1] Despite these promises, however, she did not elicit any testimony that someone named Ruiz was present during the events in question, nor did she elicit testimony that anyone present at the scene of the altercation had a knife or a baseball bat. In her closing argument, however, she again mentioned the presence of "Mr. Ruiz, " stating that "Mr. Rivera was present in the same way that Mr. Gonzalez was, in the same way Mr. Zonghi was, in the same way Mr. Ruiz was, in the same way Ms. Reyes was."

         The jury found Rivera guilty of all three counts. He was sentenced to nine to ten years in state prison for count II (assault with a dangerous weapon), followed by five years of supervised probation for counts I (armed assault with intent to murder) and III (assault on a public employee).[2]

          B. Procedural History

         Rivera appealed from his conviction. While the appeal was pending, he filed a motion for a new trial pursuant to Massachusetts Rule of Criminal Procedure 30, claiming that he had received ineffective assistance of counsel because, among other errors, his attorney had not moved to suppress his statements to Sistrand and had failed to introduce the promised evidence that "Mr. Ruiz" was at the scene of the stabbing wielding a knife. The Massachusetts Superior Court denied the motion without a hearing and without findings of fact or conclusions of law.

         After Rivera appealed that decision, it was consolidated with his direct appeal. The Massachusetts Appeals Court denied the appeals in a summary decision. See Commonwealth v. Rivera, 966 N.E.2d 867 (Table), No. 10-P-1321, 2012 WL 1623373, at *1 (Mass. App. Ct. May 10, 2012). With respect to trial counsel's failure to move to suppress the statements that Rivera made to Sistrand, the court said only that "it was not ineffective assistance for counsel to not move to suppress the defendant's initial statements to the police where the questions did not constitute interrogation for the purposes of Miranda warnings." Id. at *1. Similarly, the court in one sentence disposed of the claim that counsel was ineffective because she failed to introduce promised evidence, finding that it "was a matter of tactics based on how the Commonwealth's evidence unfolded and the lack of corroboration for the third party's involvement." Id. The court then concluded that, "[f]or these reasons, and for the reasons included in the Commonwealth's brief at 13-39, the defendant was not deprived of the effective assistance of counsel." Id. The Massachusetts Supreme Judicial Court denied Rivera's petition for further appellate review. See Commonwealth v. Rivera, 972 N.E.2d 23 (Table) (Mass. 2013).

         In his petition to the district court for a writ of habeas corpus, Rivera again argued that he was deprived of effective assistance of counsel because trial counsel failed to seek the suppression of his statements to Sistrand and because she did not introduce the promised evidence of a third-party culprit at the scene of the stabbing. The district court denied the petition, see Rivera v. Thompson, No. 13-11789-IT, 2016 WL 4273180 (D. Mass. Aug. 12, 2016), but granted a certificate of appealability pursuant to 28 U.S.C. § 2253(c). Rivera timely filed this appeal.

         II.

         A. Ineffective Assistance of Counsel Standard

         To prevail on an ineffective assistance of counsel claim, Rivera must show both that his "counsel's representation fell below an objective standard of reasonableness" (the performance prong), and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been ...


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