United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
William E. Smith Chief Judge.
Firlando Rivera has filed a Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody
(ECF No. 1). The State has filed a motion to dismiss the
Petition (ECF No. 19), to which Rivera filed a response in
opposition (ECF No. 29). The Court has determined that no
hearing is necessary. For the reasons that follow, the Motion
to Dismiss is GRANTED and the Petition is DENIED and
Background and Travel
October 19, 1999, following a six-day trial, Rivera was
convicted by a jury of first degree murder and related
firearms charges and was found to be a habitual offender. He
filed a motion for a new trial, which was denied on October
27, 1999. Rivera was sentenced on February 3, 2000, to life
in prison for the murder conviction, two concurrent ten year
sentences and one suspended ten-year sentence for the
firearms offenses, and a consecutive term of 20 years,
non-parolable, as a habitual offender. Rivera timely appealed
the conviction, as well as the denial of his motion for new
trial, but in a decision issued on November 19, 2003, the
Rhode Island Supreme Court affirmed the lower court's
judgment. Rivera did not seek further review.
Rivera filed both a motion for sentence reduction and an
application for post-conviction review in the Superior Court.
The motion for sentence reduction was denied on July 21,
2004, and the post-conviction petition was denied, after a
two-day hearing, on February 11, 2011. Rivera appealed the
latter denial, and on January 14, 2013, the Rhode Island
Supreme Court again affirmed the lower court's decision.
January 13, 2014, Rivera, through counsel, filed the instant
Petition. The State initially filed a motion to
dismiss (ECF No. 4) (“First Motion to Dismiss”)
based on timeliness grounds on February 21, 2014. Rivera
filed a response in opposition (ECF No. 10) to the First
Motion to Dismiss on August 4, 2014. The State subsequently
filed a reply (ECF No. 14), to which Rivera filed a further
response (ECF No. 17). In an Order (ECF No. 18) dated
September 23, 2015, the Court denied the First Motion to
Dismiss without prejudice and directed the State to respond
to the Petition on the merits.
State filed a second motion to dismiss (ECF No. 19)
(“Second Motion to Dismiss”) on October 30, 2015,
followed by an appendix of exhibits (ECF No. 20)
(“State's Ex.”). On October 8, 2016, Rivera
filed a response in opposition (ECF No. 29)
(“Opposition”) to the Second Motion to Dismiss as
well as a supplemental memorandum (ECF No. 30).
2254 provides that “a district court shall entertain an
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a).
Exhaustion and Procedural Default The exhaustion doctrine,
codified at 28 U.S.C. 2254(b)(1), 
principally designed to protect the state courts' role in
the enforcement of federal law and prevent disruption of
state judicial proceedings. Under our federal system, the
federal and state courts [are] equally bound to guard and
protect rights secured by the Constitution.” Rose
v. Lundy, 455 U.S. 509, 518 (1982)(alteration in
original)(internal citations and quotation marks omitted).
Moreover, “it would be unseemly in our dual system of
government for a federal district court to upset a state
court conviction without an opportunity to the state courts
to correct a constitutional violation[.]” Id.
Thus, the Rose Court cautioned litigants,
“before you bring any claims to federal court, be sure
that you first have taken each one to state court.”
Id. at 520; see also O'Sullivan v.
Boerckel, 526 U.S. 838, 839 (1999)(“Federal habeas
relief is available to state prisoners only after they have
exhausted their claims in state court.”).
O'Sullivan, the Supreme Court stated: “To
... ‘protect the integrity' of the federal
exhaustion rule, we ask not only whether a prisoner has
exhausted his state remedies, but also whether he has
properly exhausted those remedies, i.e.,
whether he has fairly presented his claims to the state
courts[.]” 526 U.S. at 848 (internal citation omitted);
see also id. at 844 (“Section
2254(c) requires only that state prisoners give
state courts a fair opportunity to act on their
claims.”). The question, then, is “[w]hether a
prisoner who fails to present his claims in a petition for
discretionary review to a state court of last resort has
properly presented his claims to the state courts.
Because we answer this question ‘no,' we conclude
that Boerckel has procedurally defaulted his claims.”
Id. at 848. In other words, “state prisoners
must give the state courts one full opportunity to resolve
any constitutional issues by invoking one complete round of
the State's established appellate review process.”
Id. at 845. The Court noted, however, that:
[N]othing in our decision today requires the exhaustion of
any specific remedy when a State has provided that that
remedy is unavailable. Section 2254(c), in fact, directs
federal courts to consider whether a habeas petitioner has
“the right under the law of the State to raise, by any
available procedure, the question presented” (emphasis
added). The exhaustion doctrine, in other words, turns on an
inquiry into what procedures are “available”
under state law. In sum, there is nothing in the exhaustion
doctrine requiring federal courts to ignore a state law or
rule providing that a given procedure is not available.
Id. at 847-48.
Supreme Court has further stated that it “will not
review a question of federal law decided by a state court if
the decision of that court rests on a state law ground that
is independent of the federal question and adequate to
support the judgment.” Coleman v. Thompson,
501 U.S. 722, 729 (1991). The rule applies “whether the
state law ground is substantive or procedural.”
Id. In such cases, “federal habeas review of
the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.” Id. at 750.
generally consists of “some objective factor external
to the defense.” Murray v. Carrier, 477 U.S.
478, 488 (1986); see also Coleman, 501 U.S. at 75.
For example, “a showing that the factual or legal basis
for a claim was not reasonably available to counsel, or that
some interference by officials made compliance impracticable
. . . .” Carrier, 477 U.S. at 488 (internal
citations and quotation marks omitted). In order to
demonstrate “prejudice, ” a petitioner
“must show not merely that the errors at . . . trial
created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions.” Id. at 494 (alteration in
original)(internal quotation marks omitted). Lastly, the
“fundamental miscarriage of justice” exception
applies “in an extraordinary case, where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent . . . .”
Id. at 495-96. “To establish the requisite
probability, “a petitioner must show that it is more
likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.”
Schlup v. Delo, 513 U.S. 298, 327 (1995); see
also Lee v. Corsini, 777 F.3d 46, 62 (1st Cir.
2015)(quoting Schlup, 513 U.S. at 324)(noting that
showing of actual innocence must be supported by “new
reliable evidence - whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence - that was not presented at trial”).
Sixth Amendment guarantees defendants the right to effective
assistance of counsel.” Lema v. United States,
987 F.2d 48, 51 (1st Cir. 1993)(citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). However,
“[t]he Constitution does not guarantee a defendant a
letter-perfect defense or a successful defense; rather, the
performance standard is that of reasonably effective
assistance under the circumstances then obtaining.”
Id. (quoting United States v. Natanel, 938
F.2d 302, 309-10 (1st Cir. 1991)).
defendant who claims that he was deprived of his Sixth
Amendment right to effective assistance of counsel must
(1) that his counsel's performance fell below an
objective standard of reasonableness; and
(2) a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.
Strickland, 466 U.S. at 687-88, 694. In assessing
the adequacy of counsel's performance, a defendant
“‘must identify the acts or omissions of counsel
that are alleged not to have been the result of reasonable
professional judgment,' and the court then determines
whether, in the particular context, the identified conduct or
inaction was ‘outside the wide range of professionally
competent assistance.'” United States v.
Manon, 608 F.3d 126, 131 (1st Cir. 2010)(quoting
Strickland, 466 U.S. at 690). With respect to the
prejudice requirement under Strickland, a
“reasonable probability is one sufficient to undermine
confidence in the outcome.” Id. (quoting
Gonzalez-Soberal v. United States, 244 F.3d 273, 278
(1st Cir. 2001)(internal quotation marks omitted). In making
the prejudice assessment, [the court] focus[es] on the
fundamental fairness of the proceeding.” Id.
at 131-32 (internal citations and quotation marks omitted).
“Unless a defendant makes both showings, it cannot be
said that the conviction . . . resulted from a breakdown in
the adversary process that renders the result
unreliable.” Strickland, 466 U.S. at 687;
see also Reyes-Vejerano v. United States, 117
F.Supp.2d 103, 106 (D.P.R. 2000)(“The petitioner has
the burden of proving both prongs of this test, and the
burden is a heavy one.”). “The benchmark for
judging any claim of ineffectiveness must be whether
counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland,
466 U.S. at 686.
instructs that “[j]udicial scrutiny of counsel's
performance must be highly deferential.” Id.
at 689; see also Id. (“It is all too tempting
for a defendant to second-guess counsel's assistance
after conviction or adverse sentence, and it is all too easy
for a court, examining counsel's defense after it has
proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable.”). The court
“must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial
strategy.'” Id. (citing Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). Moreover,
“[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of
a criminal proceeding if the error had no effect on the
judgment.” Id. at 691. Finally, “[a]
fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.” Id. at
presents sixteen grounds for the Court's review,
including allegations of ineffective assistance of counsel,
due process violations, and failures on the part of both the
Superior Court and the Rhode Island Supreme Court. The State
contends that three of Rivera's claims are unexhausted,
six have been procedurally defaulted, and the remainder fail
on the merits.
State contends that three of Rivera's claims-Grounds
Twelve, Thirteen and Sixteen-have not been raised in any of
Rivera's submissions to the Rhode Island Supreme Court
and, therefore, are unexhausted and cannot be litigated for
the first time in a § 2254 petition. (Second Mot. to
Dismiss 5.) Rivera maintains that it is “manifestly
clear” that he “has exhausted his State Court
remedy . . . .” (Opp. 2.) He further states that
“[c]laims of actual innocence based evidence like that
set forth in Ground Thirteen, Twelve, and Sixteen ought to .
. . survive.”(Id. 26.)
argues in Ground Twelve that his post-conviction counsel
failed “to present evidence and legal argument on all
the named grounds of [his] state post-conviction petition and
fail[ed] to adequately brief and argue [his] appeal from
denial of post-conviction relief” (Pet.'s Att.
111), thereby rendering ineffective assistance of counsel.
(Id.) Rivera additionally argues that:
My post-conviction counsel obtained a statement from Hector
Rodriguez wherein he recanted his trial testimony. My
post-conviction counsel failed to present this new evidence
in my post-conviction relief case. This failure further
constituted constitutionally ineffective assistance of
counsel pursuant to the Sixth Amendment and due process
pursuant to the Fifth Amendment of the U.S. Constitution as
applied to the States.
(Id. at 12.) Rivera further asserts that:
[T]he result of the State PCR proceeding [is] so tainted by
the application of the wrong standard to
counsels[']performance that it is
patently unreliable and as such renders equally unreliable
the Rhode Island Supreme Court's appellate findings. The
Supreme Court went along without comment with the Superior
Court's standards based on . . . their prior case law.
Therefore the Ground 12 should survive but even absent that
analysis in the actual innocence context the claim ought to
be free standing in the federal court.
(Opp. 27-28.) The State contends that to the extent
Ground 12 “allege[s] deficiencies with the Rhode Island
Supreme Court's determination of Petitioner's
post-conviction appeal, such allegations, having not been
previously raised in state court, cannot be litigated for the
first time in a § 2254 action.” (Second Mot. to
most part, the Court reads Ground 12 as alleging deficiencies
with post-conviction counsel's performance with respect
to the hearing and appeal. As to alleged failure to present
evidence and argument on all grounds in Rivera's state
petition, as well as to present new evidence, during the
hearing, the State is correct that Rivera has not given the
state courts an opportunity to address any constitutional
errors. See Rose, 455 U.S. at 518; see also
O'Sullivan, 526 U.S. at 845. The same is true with
respect to Rivera's allegation regarding the inadequacy
of counsel's performance in his appeal from the denial of
post-conviction relief. Rivera admits as much in the
Petition, arguing that “[t]hese issues arose as a
result of counsel's performance in the post-conviction
relief hearing on the merits and the appeal of the denial of
relief.” (Pet.'s Att. 113.) He provides no evidence
that he has made any attempt to redress these issues in the
state courts. Nor does Rivera argue that there is an absence
of available corrective process in the state courts or that
any such process would be ineffective to protect his rights.
See 28 U.S.C. § 2254(b)(1)(B).
the claims regarding post-conviction and post-conviction
appellate counsel are unexhausted and may not be considered
by this Court. See id.
Ground Thirteen, Rivera faults both the Superior Court and
trial counsel, alleging denial of his right to due process
and to effective assistance of counsel. (Pet.'s Att.
113-14.) He states:
Failure of the Superior Court to preclude testimony and grant
a new trial where a witness having previously being informed
of her obligation to appear and testify by the court was
nevertheless asked just prior to her appearance in court by
the prosecutor that “There's no question you're
scared about testifying, correct?” To which she
responded “yes.” The Court's failure to do so
denied the defendant a fair trial under the due process
clause of the United States Constitution.
Defendant[']s counsel similarly
failed to object to the witnesses' [sic] testimony which
constituted unconstitutional ineffective assistance of
(Id. at 13.) The State contends that “Issue 13
does not appear to have been raised in any of the appellate
submissions Petitioner tendered to the Rhode Island Supreme
Court, either upon his direct appeal or upon his
post-conviction relief appeal.” (Second Mot. to Dismiss
5; see also id., Exs. 4, 6, 8.)
brief on direct appeal, Rivera stated that Cournoyer
“reluctantly” testified at trial. (State's Ex.
4 14.) However, the statement was made in Rivera's
summary of the facts of the case (id. at 14), not as
a separate ground for relief (id. at 8), or as part
of his argument that the evidence did not support the
verdicts (id. at 24-30). Rivera made no mention of
Cournoyer's alleged fear or duress (Pet.'s Att. 115),
in his post-conviction filings with the Rhode Island Supreme
Court. (State's Exs. 6, 8.) Therefore, the Court does not
discuss Rivera's allegations in Ground Thirteen.
argues in Ground Sixteen that he was denied due process due
to prosecutorial misconduct and ineffective assistance of
both trial and post-conviction counsel for failing to raise
prosecutorial misconduct as a separate issue. (Pet., Att. 119.)
The Petitioner was denied due process and a fair trial where
the prosecutor wrongly introduced evidence, to wit, the
pre-trial photo pack arrays, where the State prosecutor had
knowledge that there were issues relevant to the legality and
reliability of how the photo arrays were presented to the
witnesses pre-trial, knew that they had not produced the
original array with the numbering on the reverse side in
discovery, and knew the police reports clearly showed that
the Defendant/Petitioner was not identified on the night of
the murder by the witnesses with reference to the packs as
numbered. At trial, Defendant was pictured in photo pack 2,
which was introduced at trial. The police reports clearly
stated that the witnesses, when shown photo pack 2, were
unable to identify the Defendant.
concedes that the “issue of prosecutorial misconduct
was not raised on appeal from the conviction, ” but
states that “the issue of the insufficiency of evidence
presented and, specifically, the disturbing lack of
reliability of the pre-trial identifications in the photo
arrays was raised.” (Id.) Similarly, Rivera
acknowledges that “[t]he issue of prosecutorial
misconduct in presenting the evidence stated above was not
raised, ” in his post-conviction relief action.
Id. Again, however, he argues that the pretrial
identification issue was raised during the post-conviction
relief proceedings, as was trial counsel's failure to
press the motion to suppress. (Id.) Further, Rivera
states that “[i]n the context of actual innocence of
the defendant where he was wrongly identified as the shooter,
justice demands this court allow these claims to be
heard.” (Opp. 28.)
Rivera's prosecutorial misconduct claim is unexhausted,
along with the allegations of ineffective assistance of
counsel based on failing to raise prosecutorial misconduct as
a separate issue in the state court proceedings. Although
related issues were presented to the state courts, the
courts were not given an opportunity to determine in the
first instance whether Rivera's constitutional rights
were violated by the prosecution. See Rose, 455 U.S.
Twelve, Thirteen, and Sixteen have not been “fairly
presented” to the state courts and, therefore, cannot
be raised in this Court. See Picard v. Connor, 404
U.S. 270, 275 (1971); cf. O'Sullivan, 526 U.S.
at 848 (noting, in procedural default context, that federal
habeas court asks “whether [a prisoner] has fairly
presented his claims to the state courts”).
Accordingly, Rivera's unexhausted claims are dismissed.
Procedurally defaulted claims
State also contends that Grounds Four through Seven, Ten, and
Fifteen have been procedurally defaulted because they were
not considered by the Rhode Island Supreme Court based on
independent and adequate state procedural grounds. (Second
Mot. to Dismiss 6.) Rivera counters that the claims are not
procedurally barred, (Opp. 2), and argues that:
The fact is that each of the claims brought in the PCR case
were wrongly adjudicated and this Court should consider the
findings in that action completely unreliable. Each of the
claims brought there and acted upon or disregarded by the
court require adjudication here to assure this
defendant['s] federally recognized Sixth Amendment right
to effective assistance of counsel.
(Id. at 8.) He further states that
“[c]ertainly grounds 3, 4, 5, 15 are all part and
parcel of that cohort of Grounds including the failure to
attack the photo array evidence/pretrial identification
evidence and all that were raised together with 3, 11 and
14.” (Id. at 11.) Rivera also argues that he
sought to preserve the issues passed on by the
post-conviction court for federal habeas review by filing a
supplemental memorandum in support of his appeal of the
denial of post-conviction relief. (Id. at 12;
see also State's Ex. 8).
Grounds Four, Five, and, to an extent, Fifteen, Rivera claims
that trial counsel failed to conduct any investigation or
pretrial preparation. (Pet. 12; Pet'r's Att. 11, 19.)
Grounds Six and Ten focus on his attorneys' failure to
preserve issues for appeal and to challenge evidence.
(Pet'r's Att. 1 2-3, 9.) In Ground Seven, Rivera
alleges that he received ineffective assistance of counsel
based on counsels' failure to argue a motion for speedy
trial. (Id. at 4.) Rivera argues in Ground Fifteen
that trial counsel were ineffective for failing to insist on
production of the original photo arrays from which he was
identified. (Id. at 19.)
originally presented seven grounds for post-conviction review
in state court. Rivera II, 58 A.3d at 174-75.
In a subsequent filing, however, Rivera abandoned several of
these claims. Id. at 175. According to the Rhode
Island Supreme Court, Rivera stated that he “intended
to press only four grounds of alleged ineffective assistance
of counsel: that his attorneys were conflicted in their
representation of him; that they failed to adequately
investigate and prepare for trial; that they failed to pursue
a motion to suppress; and that they failed to mount a
third-party perpetrator defense.” Id. The
court found that only three grounds had been properly
preserved for appellate review: that trial counsel labored
under a conflict of interest; that they failed to pursue a
motion to suppress; and that they failed to mount a
third-party perpetrator defense. Id. at 178. The
appellate court also found that Rivera had waived the
following grounds: the adequacy of his attorneys'
pretrial investigation and preparation; their failure to move
for a speedy trial; and their failure to preserve certain
issues for appeal. Id. (citing Wilkinson v.
State Crime Lab. Comm'n, 788 A.2d 1129, 1131 n.1
(R.I. 2002) (“Simply stating an issue for appellate
review, without a meaningful discussion thereof or legal
briefing of the issues, does not assist the Court in focusing
on the legal questions raised, and therefore constitutes a
waiver of that issue.”)).
the adequacy of pretrial investigation and preparation, the
At the postconviction-relief hearing, Rivera adduced
testimony relevant to the adequacy of his attorneys'
pretrial investigation and preparation. He did not, however,
raise this issue during closing arguments at the hearing, and
he did not object when the hearing justice did not discuss
this issue when he rendered his bench decision. Accordingly,
we deem that issue to be waived.
Id. at 178 n.6.
respect to the alleged failure of trial counsel to preserve
issues for appeal and challenge evidence, Rivera focuses
primarily on ballistics questions. (Pet'r's Att. 1
2-3); (see also id. at 9-10). On direct
appeal, as part of his contention that the evidence was
insufficient to sustain his conviction, Rivera attempted to
raise arguments regarding the position of the victim's
body and the trajectory of the bullets. State v.
Rivera (Rivera I), 839 A.2d 497, 501 (R.I.
2003). The court stated:
We decline to address defendant's argument about the
position of the victim or the location of the entry wounds as
grounds for exoneration. The state correctly contends that
defendant failed to raise this issue as a basis for new trial
in the Superior Court. Therefore, in accordance with our
well-established rule, it cannot be raised for the first time
Id. In his appeal of the denial of post-conviction
relief, Rivera originally alleged that counsel failed to
preserve issues at trial. See Rivera II, 58 A.3d at
175. However, as noted above, in a later filing Rivera
“abandoned” this ground, id., and the
Rhode Island Supreme Court found that he had waived the
issue, id. at 178.
the Rhode Island Supreme Court found that the ground that
counsel were ineffective due to their failure to raise a
speedy trial motion, although originally presented in
Rivera's appeal of the Superior Court's decision
denying post-conviction relief, had also been abandoned,
see id. at 175, and thus deemed it waived,
id. at 178.
Rivera's argument that counsels' “failure to
insist upon obtaining production of the original photo arrays
used for pre-trial identification prior to trial constituted
constitutional ineffective assistance of counsel”
(Pet'r's Att. 119), although the contention is
certainly related to issues respecting the alleged failure to
investigate or conduct pretrial preparation and to the motion
to suppress, the allegation does not appear to have been
raised as a separate issue in the state courts. It was not
argued in Rivera's state filings as such (see
State's Exs. 6, 8), and, to the extent it formed part of
the failure to conduct pretrial investigation and preparation
claim, the Rhode Island Supreme Court found that Rivera had
waived that issue, see Rivera II, 58 A.3d at 179.
Rhode Island Supreme Court's finding that Rivera had
waived the foregoing issues for the reasons stated above
constitutes an independent and adequate state ground; the
waiver finding is independent of Rivera's federal
ineffective assistance claim, and it is adequate to support
the state court's judgment. See Coleman, 501
U.S. at 729. Rivera has presented no evidence or argument
that the state courts do not consistently enforce the waiver
rule. Therefore, the Court does not address Grounds Four