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Rivera v. Wall

United States District Court, D. Rhode Island

August 10, 2018



          William E. Smith Chief Judge.

         Petitioner 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 DISMISSED.

         I. Background and Travel

         On 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.

         Thereafter, 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.

         On January 13, 2014, Rivera, through counsel, filed the instant Petition.[1] 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.

         The 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).

         II. Law

         A. Section 2254

         Section 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).

         B. Exhaustion and Procedural Default The exhaustion doctrine, codified at 28 U.S.C. 2254(b)(1), [2]

         “is 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.”).

         In 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)[3] 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.

         The 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.

         “Cause” 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”).

         C. Strickland

         “The 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)).

         A defendant who claims that he was deprived of his Sixth Amendment right to effective assistance of counsel must demonstrate:

(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.

         Strickland 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 689.

         III. Discussion

         Rivera 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.

         A. Unexhausted claims

         The 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.”[4](Id. 26.)

         Rivera 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.)[5] 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.)[6] 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 Dismiss 5.)

         For the 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).

         Accordingly, the claims regarding post-conviction and post-conviction appellate counsel are unexhausted and may not be considered by this Court. See id.

         In 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 counsel.

(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.)

         In his brief on direct appeal, Rivera stated that Cournoyer “reluctantly” testified at trial.[7] (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.

         Rivera 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.[8] (Pet., Att. 119.) He states:

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.


         Rivera 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.)[9] 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.)[10]

         Clearly 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[11] 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. at 518.

         Grounds 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.

         B. Procedurally defaulted claims

         The 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 tog[]ether 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).

         In 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.)

         Rivera originally presented seven grounds for post-conviction review in state court.[12] 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.”)).

         As to the adequacy of pretrial investigation and preparation, the court found:

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.

         With 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 on appeal.

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.

         Similarly, 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.

         Regarding 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.

         The 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 ...

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