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United States District Court, Southern District of New York

June 10, 2003


The opinion of the court was delivered by: Gabriel W. Gorenstein, Magistrate Judge


To the Honorable Laura T. Swain United States District Judge

Omar Rivera brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Rivera was convicted in New York Supreme Court, New York County, of twelve counts of Robbery in the First Degree (N. Y. Penal Law § 160.15[4]) and two counts of Attempted Robbery in the First Degree (N.Y. Penal Law §§ 110/160. 15[4]). He was sentenced to 12-1/2 to 25 years of imprisonment and is currently serving his sentence.

For the reasons below, the petition should be denied.


Rivera's incarceration stems from his participation in four separate armed robberies, one of which occurred on January 5, 1996, and the others on February 9, 1996.

A. Evidence at Trial

1. The People's Case

a. The January 5, 1996 Robbery of the Noble Parking Garage

In the early morning of January 5, 1996, Arcanvel Chavez was training a new employee, Carlos Lopez, at the Noble Parking Garage in Manhattan. (Chavez: Tr. I. 4-5; Lopez: Tr. I. 74-75).*fn1 At about 12:45 a.m., Rivera, Joseph McGowan and Timothy King approached the gate leading to the garage. (Chavez: Tr. I. 4-5, 8-9; Lopez: Tr. I. 74-76). The garage was brightly lit with fluorescent lighting and the three men stopped about eight feet from Chavez and Lopez. (Chavez: Tr. I. 19-20). Chavez approached the men and one of them — later identified as King — asked to use the pay phone. (Chavez: Tr. I. 9; Lopez: Tr. I. 76). Chavez told him there was a telephone down the ramp of the garage and King then walked to the telephone. (Chavez: Tr. I. 9). Chavez observed King picking up the telephone as if making a call, while Rivera and McGowan stayed behind near the gate. (Chavez: Tr. I. 9, 43-45; Lopez: Tr. I. 76). Chavez and Lopez then went to the office, where Chavez told Lopez to be careful of the three men. (Chavez: Tr. I. 9). Two building tenants then drove into the garage and had a brief exchange with Chavez. (Chavez: Tr. I. 10, 46-47; Lopez: Tr. I. 76).

Once the tenants left the garage, McGowan and Rivera approached the office door, pushed their way inside and started punching and kicking Chavez and Lopez. (Chavez: Tr. I. 10-11, 17, 48-49; Lopez: Tr. I. 76-78). As Chavez lurched backwards, his eyeglasses fell to the floor. (Chavez: Tr. I. 49-50). When he bent down to retrieve them, he was pushed to the ground. (Chavez: Tr. I. 17-19, 21, 49-50; Lopez: Tr. I. 92-93). McGowan punched Lopez in the nose while Rivera opened his jacket and removed a gun. (Chavez: Tr. I. 10-11, 18; Lopez: Tr. I. 76-78, 81-83). McGowan and Rivera then forced Chavez and Lopez to lie on the floor and kicked Lopez repeatedly. (Chavez: Tr. I. 18, 21, 51-52; Lopez: Tr. I. 76-79, 81-83).

Thereafter, King entered the office armed with an eighteen-inch pipe. (Chavez: Tr. I. 35-36, 52-53). The robbers asked where the money was located. (Chavez: Tr. I. 22; Lopez: Tr. I. 94). As Chavez turned his head to tell them, Rivera put the gun to Chavez's face and warned "[d]on't look at me, don't look at me." (Chavez: Tr. I. 22-23). King then opened the cash register and removed $100 (Chavez: Tr. I. 35-36, 54), while another robber took $80 from Chavez. (Chavez: Tr. I. 22-23, 35). The robbers also removed Lopez's wallet from his jacket but left it behind when they realized it did not contain any money. (Lopez: Tr. I. 81-82).

Speaking in Spanish, Rivera asked Chavez and Lopez if they spoke Spanish, after which they said they did. (Chavez: Tr. I. 33-34; Lopez: Tr. I. 79-81, 95). Rivera then said in English: "Okay, you not going to tell anything. You don't remember anything. Don't call the cops. Don't call the police because I will be back for you." (Chavez: Tr. I. 33-34). He also told them to tell the police that "black guys" committed the robbery. (Lopez: Tr. I. 79-81). McGowan bound Chavez's and Lopez's feet and hands with duct tape and laid both men face down. (Chavez: Tr. I. 34-35, 70; Lopez: Tr. I. 83-84). The robbers then searched the office and fled. (Chavez: Tr. I. 35). Chavez was able to free Lopez and himself and — after waiting a couple of minutes to be certain the robbers had gone — called the police. (Chavez: Tr. I. 36).

Police officers William Sander and Evan Klein received the call at about 12:55 a.m. and arrived at the scene within a minute thereafter. (Sander: Tr. I. 104-06; Chavez: Tr. I. 36). At about 2:50 a.m., Detective Dennis Vickery lifted two sets of fingerprints from the public telephone inside the garage. (Stipulation: Tr. I. 112-13). On February 21, 1996, Detective William Goellner examined the fingerprints and identified them as belonging to King and a 3 Thomas Roche (Stipulation: Tr. I. 113), who was a participant in at least one of the other robberies with which Rivera was charged.

At trial, Chavez and Lopez identified Rivera as one of the participants in the robbery of the parking garage. (Chavez: Tr. I. 37, 71-72; Lopez: Tr. I. 77, 85).

b. The February 9, 1996 Robbery of Le Bilboquet Restaurant

In the early morning of February 9, 1996, Nicholas Chabert, Olivier Berger, Laurent Malraux, Rene Avila and a dishwasher named "John" were closing down the Le Bilboquet Restaurant on 63rd Street between Madison and Park Avenue in Manhattan. (Chabert: Tr. I. 181-84; Berger: Tr. II. 4-5; Malraux: Tr. II. 22-23). At about 1:30 a.m., a man — later identified as McGowan — walked into the restaurant and asked to use the restroom to wash his hands. (Chabert: Tr. I. 184; Berger: Tr. II. 5; Malraux: Tr. II. 23). Chabert allowed him to use the sink behind the bar (Chabert: Tr. I. 184), after which McGowan rinsed his hands and left. (Chabert: Tr. I. 184; Berger: Tr. II. 5; Malraux: Tr. II. 23-24). McGowan was in the restaurant for approximately one to two minutes. (Chabert: Tr. I. 184; Malraux: Tr. II. 23).

Shortly after leaving Le Bilboquet, McGowan returned with Rivera and two other men. (Chabert: Tr. I. 185; Berger: Tr. II. 5; Malraux: Tr. II. 23-24). They were armed with four guns: two small guns, one machine gun and one shotgun. (Chabert: Tr. I. 185, 188, 207, 210-12; Berger: Tr. II. 5-10; Malraux: Tr. II. 24-25, 29). McGowan announced that "[t]his is a robbery, nobody move" and threatened to "shoot everyone." (Chabert: Tr. I. 187; see also Chabert: Tr. I. 185, 207-08; Berger: Tr. II. 5; Malraux: Tr. II. 25, 29). The robbers forced Chabert, Malraux and Avila to go downstairs, while one robber remained upstairs with Berger. (Chabert: Tr. I. 188-189, 219; Berger: Tr. II. 7, 11). That robber took money from the register and then asked Berger 4 where the safe was located; Berger told him there was no safe, after which the robber took $10 from Berger's pocket. (Berger: Tr. II. 7, 19-20).

When Chabert, Malraux and Avila went downstairs, one of the robbers started throwing them to the ground. (Chabert: Tr. I. 189). The robbers asked how much money the restaurant had and demanded the location of the safe. (Chabert: Tr. I. 189). When they were told there was no safe, they ordered everyone to empty their pockets. (Chabert: Tr. I. 189). One of the robbers said, "If we find out that you are lying, and we find more money, we are going to put bullets through you." (Chabert: Tr. I. 189-90).

Because Chabert believed the threats and violence meant the robbers were going to shoot the employees, he tried to escape and notify the police. (Chabert: Tr. I. 190-92). He screamed "they're going to kill us" (Berger: Tr. II. 8) and ran up the stairs, as one robber pursued him. (Chabert: Tr. I. 191-92). When he reached the top of the stairs, the robber who had stayed upstairs with Berger blocked his exit. (Chabert: Tr. I. 192). With one man behind him and another above him, Chabert grabbed onto the top of the stairs and refused to go back downstairs, telling the robbers "[n]o, I don't trust you. I want to stay right here." (Chabert: Tr. I. 192). The robbers started hitting his wrists and pushing him so he would let go. (Chabert: Tr. I. 192). When that did not work, the robber on the top of the stairs kicked Chabert above the left eye and then hit him on the head with a gun, at which point he let go and was dragged to the bottom of the stairs. (Chabert: Tr. I. 193). As Chabert was falling down the stairs, he saw Rivera. (Chabert: Tr. I. 200-02, 215-16, 225-26, 228-29). When he reached the bottom, he touched his face and head and noticed blood on his hands. (Chabert: Tr. I. 193).

The robbers then ordered Berger downstairs, where he noticed Chabert on the floor with blood on his face. (Berger: Tr. II. 8, 15-17). The robbers took Chabert's watch (Chabert: Tr. I. 193-94) and forced the employees into a large basement refrigerator and locked the door. (Berger: Tr. II. 8, 16-17; Malraux: Tr. II. 26, 31). After waiting several minutes, the employees pushed and kicked open the door. (Chabert: Tr. I. 194; Berger: Tr. II. 9). Berger ran upstairs and called 911. (Chabert: Tr. I. 194; Berger: Tr. II. 9-10). Chabert and Avila went across the street to a hotel where they also called 911 and an ambulance. (Chabert: Tr. I. 194). Chabert later realized that his leather jacket — which had been on a hanger in the downstairs kitchen — had been stolen. (Chabert: Tr. I. 194-95, 202-03, 228).

At about 1:45 a.m., Officers Jeremiah Halloran and Joseph Turski received a call for a "robbery in progress" and drove immediately to the restaurant. (Halloran: Tr. I. 232-33). The officers noticed that Chabert had a laceration on the top of his head and called for an ambulance. (Halloran: Tr. I. 234). Chabert was taken to New York Hospital, where he received seven stitches. (Chabert: Tr. I. 195-96; Halloran: Tr. I. 234).

At trial, Chabert identified Rivera as being present at the robbery. (Chabert: Tr. I. 200-02, 215-16, 225, 228).

c. The February 9, 1996 Robbery of the Chelsea Grill Restaurant

The same morning as the robbery of Le Bilboquet, Cecily Mihok, a bartender, and Joseph Chesson, the night manager, were working at the Chelsea Grill at 135 Eighth Avenue between 15th and 16th Streets in Manhattan. (Mihok: Tr. I. 116-17; Chesson: Tr. I. 147). At approximately 2:20 a.m., they were closing down the bar. (Mihok: Tr. I. 119-20; Chesson: Tr. I. 147). Other than Mihok and Chesson, only Robert Avedisian, a patron, was in the restaurant at the time. (Mihok: Tr. I. 119; Chesson: Tr. I. 147-48).

As Mihok locked the door, Rivera and another man approached and asked to use the restroom. (Mihok: Tr. I. 120, 164-65). Chesson got a "very good look" at Rivera's face. (Chesson: Tr. I. 164-65). Mihok told them to "go ahead," after which Rivera entered to use the restroom while the other man waited outside and paced "back and forth along the front area right before the bar, just kind of aimlessly looking around. Then he left." (Mihok: Tr. I. 120; Chesson: Tr. I. 148, 158-59, 161, 164-66). Rivera came out of the restroom about five minutes later and left the restaurant. (Mihok: Tr. I. 120; Chesson: Tr. I. 148, 161-62). Chesson then locked the restaurant door and prepared to close for the evening. (Mihok: Tr. I. 120; Chesson: Tr. I. 148-49, 162).

Two to fifteen minutes later (Mikoh: Tr. I. 120-21; Chesson: Tr. I. 149, 162-63), Rivera returned and knocked on the door, claiming that he left his ring or watch in the restroom. (Mihok: Tr. I. 120-21; Chesson: Tr. I. 149, 164-65). After Chesson opened the door, Rivera entered (along with McGowan and Roche) and pointed a gun in Chesson's face. (Chesson: Tr. I. 149, 166-67). Two or three of the robbers carried guns. (Mihok: Tr. I. 121, 125).

One robber grabbed Chesson and pushed Mihok, while the other two robbers approached Mihok and Avedisian. (Mikoh: Tr. I. 121). Mihok tried to run behind the bar but the men grabbed her, ordered everyone to get into the kitchen, and threatened to shoot them. (Mihok: Tr. I. 121, 125; Chesson: Tr. I. 149-50). When Mihok refused, one of the robbers hit her in the head and ordered her to "get moving." (Mihok: Tr. I. 125-26). Mihok then walked into the kitchen with Chesson, Avedisian and the robbers. (Mihok: Tr. I. 126-27; Chesson: Tr. I. 150-51, 171-72).

Once in the kitchen, the robbers had everyone get down on the floor and ordered them "not to look up." (Mihok: Tr. I. 126-27; Chesson: Tr. I. 151). They took $5 from Mihok's pocket and the beeper from her belt. (Mihok: Tr. I. 127, 131). They also asked how to open the cash registers and who knew how to get into the safe. (Mihok: Tr. I. 127). When Mihok told them she could open the registers and safe, McGowan and another robber took her to the registers at the bar and demanded that she open them. (Mihok: Tr. I. 127). After she complied, they took about $600 from the registers and had her take them to the safe, which was located in the basement office. (Mihok: Tr. I. 127). Because Mihok did not have keys to the office, the robbers opened the door by pounding on the lock with a hammer and screwdriver. (Mihok: Tr. I. 128). While this was happening, another robber was going up and down the stairs listening to a police scanner. (Mihok: Tr. I. 128-29). Eventually, the robbers managed to open the office door and dragged one of the safes into the middle of the room in the basement. (Mihok: Tr. I. 129).

Meanwhile, one robber remained with Chesson and Avedisian in the kitchen and taped their hands and feet. (Chesson: Tr. I. 151, 172). He held a gun to the back of Chesson's head and threatened to shoot him if he did not tell him the location of and combination to the safe. (Chesson: Tr. I. 154-55). The robbers took $20 from Chesson's wallet (Chesson: Tr. I. 157, 177) and about $50 from Avedisian. (See Mihok: Tr. I. 131).

Thereafter, the robber with the police scanner came downstairs to the basement and told McGowan and the other robber something that made them nervous. (Mihok: Tr. I. 129). The 8 robbers then taped Mihok's wrists and ankles, threw some dirty linen on the ground, and told her to lie on it face down. (Mihok: Tr. I. 129-30).

The robbers returned two minutes later, re-taped Mihok with duct tape, and carried her upstairs where Chesson and Avedisian were still lying on the floor. (Mihok: Tr. I. 130). Mihok heard the police scanner reporting "something about 16th Street" and noticed one of the robbers become panicky. (Mihok: Tr. I. 130; Chesson: Tr. I. 156). The robbers then put a gun to Chesson's ear and threatened to kill him if he did not open the locked freezer. (Chesson: Tr. I. 156). Chesson and Mihok convinced the robbers that they did not have the keys to the freezer and the robbers left about five minutes later. (Chesson: Tr. I. 156-57).

Avedisian freed his hands with a pocket knife and untied Chesson and Mihok. (Mihok: Tr. I. 131; Chesson: Tr. I. 157). Mihok discovered the phone lines had been cut and called 911 from a pay phone. (Mihok: Tr. I. 131). Officers Erik Golembeski and Bill Ficken received the radio call and arrived at the Chelsea Grill within minutes. (Golembeski: Tr. I. 140-41). Mihok described what happened and described the robbers. (Mihok: Tr. I. 131; Golembeski: Tr. I. 141-42).

Chesson identified Rivera in court as the robber who asked to use the restroom and who first put a gun to his face. (Chesson: Tr. I. 152-54, 158, 164-66).

d. The February 9, 1996 Robbery of Iggy's Bar

On February 9, 1996, the robbers struck a third time at Iggy's Bar on Second Avenue in Manhattan. At about 3:50 a.m., Derrick Lee, the bartender, and Bernardo Lara, a co-employee, and three customers, Darren Saunders, Marco Colantonio, and Laurent Vasseur, were at the bar. (Lara: Tr. II. 36-37; Saunders: Tr. II. 50-51; Lee: Tr. II. 69-71; Colantonio: Tr. II. 101-02; Vasseur: Tr. II. 113-14). Colantonio and Saunders were in the back playing pool (Colantonio: Tr. II. 102, 104, 106-07) and Vasseur was in the restroom (Vasseur: Tr. II. 114) when Rivera and another man entered the bar asking to use the restroom. (Lara: Tr. II. 37, 41-42; Lee: Tr. II. 72; Vasseur: Tr. II. 114). Lee told them they could do so (Lee: Tr. II. 72), after which the two men walked to the restroom. (Lara: Tr. II. 37). At some point thereafter, Saunders went to the restroom, opened the door and saw Rivera or the other man sitting inside. (Saunders: Tr. II. 52). The man cursed him and told him to "get the hell out of here." (Saunders: Tr. II. 52).

Rivera and the other man spent about ten minutes in the restroom. (Saunders: Tr. II. 52). On their way out, one of the men bumped into Saunders as if he was going to start a fight. (Saunders: Tr. II. 52-53).

About five to fifteen minutes later, Rivera, his companion and three other men returned to the bar and announced a robbery. (Lara: Tr. II. 37, 39-40, 44; Saunders: Tr. II. 53-54; Lee: Tr. II. 71, 73; Vasseur: Tr. II. 115, 117, 124). Each of the robbers had a weapon, one of which was a machine gun. (Lara: Tr. II. 39, 45; Saunders: Tr. II. 53; Lee: Tr. II. 71, 74; Vasseur: Tr. II. 120, 124-25). At first, Vasseur thought the robbers were playing a prank but realized the men were serious when they ordered everyone to put their hands up and remain still. (Vasseur: Tr. II. 115, 117-18). Saunders also believed the robbers were joking until one of the men approached, asked what he was looking at and hit him over the head with a gun. (Saunders: Tr. II. 54). The robbers threw Saunders on the floor and tied him up, all the while pointing the machine gun to his head and threatening that he was "gone" if he looked at them. (Saunders: Tr. II. 54).

One robber ordered the victims to turn around and took them to the back of the bar. (Lee: Tr. II. 74, 82). Another ordered Lee to give them money and asked if the bar had a safe. (Lee: Tr. II. 74). After Lee told them the bar did not have a safe, the robbers accused him of lying. (Lee: Tr. II. 74-75). Lee opened the cash register and gave them approximately $1000 along with $200 of his own money. (Lee: Tr. II. 74). He was unable to open a second register, however, and the robber put a gun to Lee's head and told him to open the register or he would "blow [his] head off." (Lee: Tr. II. 74-75). Lee explained that he was unable to open the second register and that it did not contain money anyway. (Lee: Tr. II. 74-75, 82; Saunders: Tr. II. 54-55).

Meanwhile Colantonio — who had been playing pool in the back of the bar — felt "[s]omething blunt" stuck in the back of his neck; after turning around, he realized it was a gun barrel. (Colantonio: Tr. II. 102-03, 106-07). The robber ordered Colantonio to walk around the side of the pool table, after which he kicked him to the floor and ordered him to lie face down. (Colantonio: Tr. II. 103). One of the robbers took Vasseur, Saunders and Lee to the back room near the pool table and threw them to the floor near Colantonio. (Lara: Tr. II. 37, 45; Saunders: Tr. II. 54; Lee: Tr. II. 83; Colantonio: Tr. II. 103; Vasseur: Tr. II. 118, 125). After taping the victims' hands and feet with duct tape, the robbers proceeded to drink and play pool. (Lara: Tr. II. 37-38; Saunders: Tr. II. 57; Lee: Tr. II. 75-76; Colantonio: Tr. II. 103, 105; Vasseur: Tr. II. 118-119). At some point, Lee was released and was ordered to serve them drinks. (Vasseur: Tr. II. 119). Vasseur could hear the robbers listening to a police scanner. (Vasseur: Tr. II. 119).

Over a fifteen to thirty minute period, the robbers kicked, pointed their guns at and threatened the victims. (Lara: Tr. II. 38; Saunders: Tr. II. 54-57; Lee: Tr. II. 75, 79; Colantonio: Tr. II. 104-05; Vasseur: Tr. II. 119). They searched the victims' pockets and took about $140 and a blank check from Saunders (Saunders: Tr. II. 59); about $200 from Lee (Lee: Tr. II. 74, 83); a 11 wristwatch and a wallet containing $200 from Vasseur (Vasseur: Tr. II. 118); and a diamond ring, a gold wristwatch and about $300 from Colantonio. (Colantonio: Tr. II. 104-05).

The robbers eventually left, after which Saunders untied himself, partially untied the others and then called the police. (Saunders: Tr. II. 58-59; Lee: Tr. II. 80; Colantonio: Tr. II. 106; Vasseur: Tr. II. 120-21). Officers Anthony Maggio and William McCusker arrived at the scene within three to six minutes, where they saw several of the victims standing up with their hands still bound with duct tape. (Maggio: Tr. II. 63-66; Lara: Tr. II. 40; Lee: Tr. II. 80; Colantonio: Tr. II. 106; Vasseur: Tr. II. 121).

Vasseur identified Rivera at trial as the man who used the bathroom and who returned later with the other robbers. (Vasseur: Tr. II. 115-117, 122).

e. The Investigation

Detectives Thomas Delaney and Thomas Mullin of the Manhattan Robbery Squad were responsible for investigating the robberies of the Noble Parking Garage, Le Bilboquet, the Chelsea Grill, and Iggy's Bar. (Delaney: Tr. II. 84-87; Mullin: Tr. II. 149-57). Their investigation led to Rivera, King, McGowan, Roche and Raul Thomas, Rivera's half-brother. (Mullin: Tr. II. 151-157). At about noon on February 15, 1996, Mullin and two other officers "canvass[ed]" the area near Rivera's home in the hope of taking him into custody. (Mullin: Tr. II. 157). However, when the officers located him walking alone on the street, Rivera turned and fled and they were unable to catch him. (Mullin: Tr. II. 158-61).

At about 6:00 p.m. that evening, Detective John Scianimanico and three other detectives went to Rivera's apartment. (Scianimanico: Tr. II. 129-31, 146). Rivera's father, Thomas Rivera, answered the door and invited the officers inside. (Scianimanico: Tr. II. 131-32). Rivera 12 was not home and Thomas Rivera accompanied the detectives to a location where he believed they might find Rivera. (Scianimanico: Tr. II. 132-33). When they returned to the apartment about twenty minutes later, Rivera was there watching television. (Scianimanico: Tr. II. 133-34, 138-39). After Rivera agreed to accompany the detectives to the precinct, the detectives handcuffed him and took him away. (Scianimanico: Tr. II. 134-36, 139-40, 145).

During the subsequent interrogation, Rivera admitted that he was involved in the three restaurant robberies but denied involvement in the robbery of the parking garage. (Mullin: Tr. II. 182-83, 187-92; Tr. III. 26, 76). Rivera described the three restaurant robberies in detail and signed a written statement confessing to his involvement. (Mullin: Tr. II. 188-92). He also stated that Chabert's leather jacket was in his apartment. (Mullin: Tr. II. 191-92). Shortly thereafter, Detective Mullin asked Rivera to call his father and ask that he bring the jacket to the police. (Mullin: Tr. II. 192). A day or two later, on February 16 or 17, 1996, Thomas Rivera gave the police the leather jacket. (Stipulation: Tr. II. 32-33). Thomas Rivera's testimony was that Rivera's half-brother, Raul Thomas, had brought the jacket to Rivera's apartment several days before the arrest of Rivera and Thomas. (Stipulation: Tr. II. 32-33). Chabert confirmed that this jacket was the one that had been stolen from him during the robbery at Le Bilboquet. (Chabert: Tr. I. 202-04).

Each of the five suspects was placed in a lineup on February 21, 1996, but not all the lineups were viewed by all the witnesses. (Mullin: Tr. II. 193-94, 206). Mullin testified that because the police had statements from certain "individuals saying they did the robberies," he decided it unnecessary to put the victims through the additional "trauma[]" of viewing a lineup. (Mullin: Tr. II. 206-07; Tr. III. 92-93). Chavez, the attendant at the Noble Parking Garage, was 13 the only witness who viewed Rivera's lineup. (Chavez: Tr. I. 12-13; Mullin: Tr. II. 203, 207). He identified Rivera as the man who followed McGowan into the office. (Chavez: Tr. I. 16-17).

2. The Defense's Case and the Verdict

Rivera testified in his own defense. He testified that he was not with King, Roche, McGowan and Thomas on January 5, 1996 — the night the Noble Parking Garage was robbed — and that he "might" have been at a candy store that he frequented on East 204th Street. (Rivera: Tr. III. 100, 149-50). He claimed that he heard about the garage robbery from his brother, who was one of the robbers. (Rivera: Tr. III. 100, 123, 130). Although Rivera had no specific recollection of where he was February 9, 1996 — the night of the restaurant robberies — he testified that he was not with King, Roche, McGowan and Thomas, and that he "might" have been at the candy store on that night as well. (Rivera: Tr. III. 101-02, 152-53). He denied involvement in the robberies and testified that he learned of the crimes only through his brother. (Rivera: Tr. III. 102-05, 122-23, 130, 133, 159-62). Moreover, Rivera testified that Thomas had shown him the leather jacket Thomas took during the robbery at Le Bilboquet and that he left it at Rivera's apartment. (Rivera: Tr. III. 103-04, 134-35).

Rivera further testified that during the police interrogation Detective Mullin asked him if he "knew anything about some robberies," to which Rivera replied "I know some stuff that my brother had told me." (Rivera: Tr. III. 113-14). Rivera proceeded to tell Detective Mullin what he had learned from his brother. (Rivera: Tr. III. 114-16). Thereafter, Detective Mullin wrote down Rivera's statement, Rivera "skimmed" it without reading it and signed the statement. (Rivera: Tr. III. 116-19). Rivera denied making the statements that he was present at some of the robbery scenes. (Rivera: Tr. III. 118). When asked about the leather jacket, Rivera testified that he knew of its location only because Thomas had brought it to the apartment a few days prior to his arrest. (Rivera: Tr. III. 119).

When pressed on cross-examination as to where he was the early morning of Febuary 9, 1996, Rivera reiterated that he "might have been" at the candy store. (Rivera: Tr. III. 151). He conceded the store closed at midnight but testified that he was nonetheless inside the store with someone who works there named Dave. (Rivera: Tr. III. 151-53). He also admitted that on the date of his arrest, February 15, 1996, he had been informed at his arraignment that he was being charged with the robberies of February 9. (Rivera: Tr. III. 156-58). He admitted that nonetheless he had never told anyone that he was in the candy store that night until the prosecutor asked about his whereabouts during cross-examination. (Rivera: Tr. III. 159).

At the conclusion of the trial, Rivera was found guilty of twelve counts of first degree robbery and two counts of attempted first degree robbery. He was sentenced on March 28, 1997 to concurrent prison terms of from 12-1/2 to 25 years on each robbery count and from 7-1/2 to 15 years on each attempted robbery count. (S. 15).

B. Rivera's State Court Appeal

Rivera appealed his conviction to the Appellate Division on four grounds. First, he argued that he was denied the right to testify on his own behalf when the trial judge sustained the State's objections to certain defense questions concerning his confession. See Brief for Defendant-Appellant, dated May 12, 2000 ("App. Brief") (reproduced in Declaration in Opposition to Petition for a Writ of Habeas Corpus, dated January 15, 2003 ("Resp. Decl."), Ex. A), at 31-34. Second, Rivera argued the prosecution "improperly bolstered" its case and deprived him of his right to confront witnesses when the prosecutor asked Detective Mullin 15 certain questions regarding the prosecutor's own involvement in the lineup procedures. Id. at 35-38. Third, he argued the trial court used as a factor in his sentence that his testimony was perjurious and that this usage in effect "punished" him for exercising his right to testify. Id. at 38-42. Finally, Rivera argued that two of the robbery counts — charging robbery of Avila at Le Bilboquet and Avedisian at the Chelsea Grill — should have been dismissed for insufficient evidence because no property was actually taken from the victims. Id. at 42-43.

On March 1, 2001, the Appellate Division issued its decision. See People v. Rivera, 281 A.D.2d 155 (1st Dep't 2001). As to the first claim, the court held it was unpreserved because of defense counsel's failure to make an offer of proof once the prosecutor's objections to counsel's questions were sustained. Id. at 155. The court held in the alternative that the questions did not in fact seek an explanation of Rivera's confession and thus were properly excluded. Id. As to his second claim, the court found "[t]here was no violation of the unsworn witness rule when the trial prosecutor elicited minimal evidence of his personal involvement with a lineup." Id. With respect to the claim regarding sentencing, the Appellate Division held that Rivera failed to preserve the claim and declined to review it in the interest of justice. Id. at 155-56. The court noted that were it to reach the claim, however, it would find the trial court "properly considered defendant's patently perjurious testimony in sentencing." Id. at 156. As for the final claim, the court held that the evidence was "legally insufficient to establish beyond a reasonable doubt that defendant stole property from the victims involved in counts six and eight of the indictment, but was legally sufficient to establish attempted robbery in the first degree as to those two incidents." Id. at 155. The court thus reduced the convictions to attempted robbery. Id.

On April 5, 2001, Rivera's counsel sent a letter addressed to Chief Judge Judith S. Kaye seeking leave to appeal and requesting that the judge who would be hearing the application be identified. See Letter from Eugene B. Nathanson to the Honorable Judith S. Kaye, dated April 5, 2001 ("First Appeal Letter") (reproduced in Resp. Decl., Ex. D). The letter enclosed the First Department briefs without making reference to any specific issue being raised on appeal. Id. Rivera's counsel submitted a second letter, dated April 20, 2001, to Judge George Bundy Smith in which he raised the first three grounds argued in the Appellate Division brief as grounds for the Court of Appeals to grant him leave to appeal. See Letter from Eugene B. Nathanson to the Honorable George Bundy Smith, dated April 20, 2001 ("Second Appeal Letter") (reproduced in Resp. Decl., Ex. D), at 1-2. The letter did not seek leave to appeal on the fourth ground, however: that is, the claim concerning the sufficiency of the evidence for two of the robbery counts. See id.

The Court of Appeals denied the application on May 8, 2001. See People v. Rivera, 96 N.Y.2d 833 (2001).

C. The Instant Petition

Rivera submitted his federal petition for writ of habeas corpus on August 5, 2002. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed August 26, 2002 ("Petition"). In his petition, Rivera asserts as grounds for relief the four grounds raised in the brief to the Appellate Division on his direct appeal. Compare Petition at 5 with App. Brief at 31, 35, 38, 42.


A. Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254 28 U.S.C. § 2254(a) provides:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in 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.
Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). Rather, to obtain habeas relief the petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See, e.g., id., at 68.

In addition, under 28 U.S.C. § 2254(d) federal courts must defer to the state court's determination of a habeas petitioner's federal claims on the merits. A state court ruling is "on the merits" even where the ruling does not discuss the federal claim or any federal law in its opinion adjudicating the state law conviction. Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) ("Nothing in the phrase `adjudicated on the merits' requires the state court to have explained its reasoning process."). All that is required to trigger the statutory standard of review is the issuance of "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Id. (citations omitted).

Where there has been a ruling on the merits, habeas relief may not be granted unless the state court decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent if it unreasonably applies a governing legal rule to the particular facts of a case. Id. at 409. Thus, the federal court must decide "whether the state court's application of clearly established federal law was objectively unreasonable" — not whether the application was simply incorrect. Id. at 409-10.

B. The Exhaustion Requirement

Before a federal court may determine the merits of a habeas corpus claim a petitioner must first exhaust available state court remedies unless there is either an absence of available state corrective process or circumstances rendering such process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b)(1); see Daye v. Attorney General of New York, 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). In order for a claim to be deemed exhausted, a petitioner is required to have presented the same claim raised in his habeas petition to each level of the state courts to which the right to appeal lies. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Daye, 696 F.2d at 191. Further, habeas petitioners must also have fairly presented the constitutional nature of the claim to the state courts. Daye, 696 F.2d at 191. A petitioner may "fairly present" a federal claim in state court by, inter alia, presenting explicit federal constitutional arguments, relying on federal and state cases that employ a constitutional analysis, asserting claims in such a way as to bring to mind a specific right protected by the federal Constitution or alleging facts that fall within the mainstream of constitutional analysis. See Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995); Daye, 696 F.2d at 192-94. Even "a minimal reference to the Fourteenth Amendment satisfies the exhaustion requirement." Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (per curiam) (citation to the Fourteenth Amendment in a point heading of petitioner's brief satisfied the exhaustion requirement for habeas review purposes) (citations omitted); accord Daye, 696 F.2d at 192.

C. Procedural Default

If a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default constitutes an adequate and independent ground for the state court decision that will "bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989) (citations and internal quotations omitted); accord Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). A fundamental miscarriage of justice occurs "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986).

While procedurally defaulted claims are deemed "exhausted" for habeas corpus purposes, they are not subject to review by the federal court. See, e.g., Bossett, 41 F.3d at 828-29. "[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris, 489 U.S. at 264 n. 10. The doctrine applies even if the State court issues an alternative holding that addresses the procedurally defaulted claim on the merits. See, e.g., Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (citing Harris, 489 U.S. at 264 n. 10). As with the exhaustion doctrine, the rule barring federal court review of procedurally defaulted claims rests on the principle of comity and respect for state court judgments. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 81 (1977); see also Jones v. Stinson, 229 F.3d 112, 117 (2d Cir. 2000) ("For reasons of comity and federalism, the [adequate and independent] doctrine `bar[s] federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.'") (quoting Coleman, 501 U.S. at 729-30); Epps v. Comm'r of Corr. Servs., 13 F.3d 615, 617 (2d Cir.) ("comity and federalism concerns and the requirement that States have the first opportunity to correct their own mistakes" preclude federal habeas review of decisions based on adequate and independent state grounds), cert. denied, 511 U.S. 1023 (1994).


Rivera raises in this petition the four grounds he raised in the Appellate Division. The first three claims, discussed in Sections III.A-C below, were raised both in Rivera's direct appeal to the Appellate Division and in his letter application for leave to appeal to the Court of Appeals and thus have been exhausted. See App. Brief at 31-42; Second Appeal Letter at 1-2. As is described further below, however, the fourth claim was not exhausted in the New York courts. See Section III.D. Each ground is discussed in turn.

A. Ground One

For this claim, Rivera maintains that he was deprived of his due process rights when the trial court did not permit him to answer questions as to what he expected to happen after he gave his statement to Detective Mullin. Petition at 5; see App. Brief at 31-34.

Rivera's claim at trial was that everything he told Detective Mullin during his interrogation was not information he knew from personal knowledge but was instead information that he had learned from his brother. (Rivera: Tr. III. 100, 113-116, 123, 130). He also testified that he had not thoroughly read the confessions before signing them. (Rivera: Tr. III. 116-19). After giving this testimony, the following exchange took place during Rivera's direct examination:

Q. Did Detective Mullin when he was speaking to you, in any way suggest to you what you should say?
A. No.

Q. Did you tell Detective Mullin everything that your brother had told you?
A. Yes.

Q. Did you believe if you told him everything that your brother told you you wouldn't be arrested?
[State]: Objection.

The Court: Objection sustained.

Q. After your conversation with Detective Mullin did you think that you were going to be arrested?
[State]: Objection.

The Court: Objection sustained.

(Rivera: Tr. III. 122).

Rivera argues that the identifications and other evidence against him were weak but that the confession "clinched" the case against him. See App. Brief at 31-34. Against this backdrop he argues that because he made no claim that the confession was coerced, "the first question on anybody's mind — including the members of the jury — had to be why did he make the statement." Id. at 33. He thus argues that the trial court's failure to allow him to offer the reason for making the statement — the reason presumably being to forestall being arrested himself — amounted to a denial of due process. See id. at 31-34.

In rejecting this claim, the Appellate Division stated:

Defendant's claim that the court improperly precluded him from giving testimony explaining why he had confessed is unpreserved since defendant failed to make an offer of proof after the prosecutor's objections were sustained. . . . Were we to review this claim, we would find that the objections were properly sustained because the questions, as framed by defense counsel, did not seek to elicit an explanation for defendant's confession. Instead, the inquiry essentially sought an expression by defendant of his expectations as to what another person intended to do. The court's preclusion of this testimony was a proper exercise of discretion and did not violate defendant's right to testify on his behalf.
Rivera, 281 A.D.2d at 155 (internal citation omitted).

1. Procedural Bar

Respondent argues that this claim is procedurally barred. See Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus, dated January 15, 2003, at 13-20. As noted, "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez, 898 F.2d at 9. Here, the Appellate Division held that this claim was "unpreserved since defendant failed to make an offer of proof after the prosecutor's objections were sustained." Rivera, 281 A.D.2d at 155 (citing People v. George, 67 N.Y.2d 817 (1986)). There can be no question that this "explicit invocation of the procedural bar constitutes an `independent' state ground." Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999) (citing Harris, 489 U.S. at 263). The question then becomes "whether the state ground relied upon is `adequate' to preclude federal habeas review." Id. In making this determination "the principles of comity that drive the doctrine counsel that a federal court that deems a state procedural rule inadequate should not reach that conclusion `lightly or without clear support in state law.'" Id. at 77 (citation omitted); accord Lee v. Kemna, 534 U.S. 362, 376, 381 (2002); Cotto v. Herbert, ___ F.3d ___, 2003 WL 1989700, at *15 (2d Cir. May 1, 2003).

A procedural bar will be deemed "adequate" if it is based on a rule that is "`firmly established and regularly followed' by the state in question." Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). Whether the application of the procedural rule is "firmly established and regularly followed" must be judged in the context of "the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Cotto, 2003 WL 1989700, at *16. In making this determination, the following "guideposts" are considered:

(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.
Id. at *15 (citing Lee, 534 U.S. at 362).

Application of the guideposts in Rivera's case leads to the conclusion that the procedural bar is one that is firmly established and regularly followed. As for the first consideration, Rivera's failure to make an offer of proof or otherwise protest the ruling was "actually relied on" by the trial court in the sense that the trial court never was given occasion to reconsider its decision to sustain the prosecutor's objection. It is at least possible that a proffer as to the testimony Rivera would give, and the reasons for its relevance, might have caused the trial court to reverse its ruling. Cf. Cotto, 2003 WL 1978700, at *18 (while "the likely impact of a timely objection involves a certain degree of speculation," it is possible that "the trial court may well have come to a different conclusion" had the reasons for the objection been given).

As for the second consideration, it is well settled under New York law that the failure to specifically alert a trial court to the basis for an objection — including making an offer of proof where required — bars appellate review. This rule derives from New York Criminal Procedure Law ("CPL") § 470.05, which "preserves for review only those questions of law as to which a `protest . . . was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.'" Garcia, 188 F.3d at 78 (quoting CPL § 470.05). The requirement of an offer of proof has been consistently applied by New York courts. For example, the defendant in People v. George argued on appeal that his cross examination of the People's expert witness was improperly curtailed. See 67 N.Y.2d at 818. In rejecting this argument the Court of Appeals noted

When during cross-examination the court sustained the People's objection to the question . . . defense counsel simply proceeded to another subject, never calling to the trial court's attention the purpose of the question, or disputing the People's claim that it was irrelevant, or in any way attempting to call the court's attention to the nature of the alleged error. Defense counsel having failed to make known his position with respect to the ruling at a time when it could have been corrected, if indeed there was error, no question of law is presented.
Id. at 818-19 (citing CPL §§ 470.05, 470.55). People v. Brown, 298 A.D.2d 176 (1st Dep't 2002) is likewise instructive. The appellant there, as here, argued that he was "unduly restricted" in his efforts to provide certain evidence during his testimony. Id. at 176. The appellate court rejected the argument because "defendant made no offer of proof and never `in any way attempt[ed] to call the court's attention to the nature of the alleged error.'" Id. (citation omitted) (brackets in original); see also People v. Neptune, 264 A.D.2d 678 (1st Dep't 1999) ("Defendant's claim that the court improperly precluded [certain testimony by his witness] . . . is unpreserved due to the absence of an offer of proof") (citing George, 67 N.Y.2d at 817); People v. Zambrano, 114 A.D.2d 872 (2d Dep't 1985) ("defense counsel failed to discharge his burden of making a specific offer of proof as to the admissibility of testimony after the People's objection [was sustained]"). Thus, state case law indicates that "compliance with the rule was demanded in the specific circumstances presented." See Cotto, 2003 WL 1989700, at *15.

The final consideration likewise fails to help Rivera for there is no argument that he "substantially complied" with CPL § 470.05. Indeed, rather than alert the trial court to the error — assuming the ruling to have been in error — Rivera abandoned the subject of his purported reason for making the statement to the police (Rivera: Tr. III. 122) and thus "never call[ed] to the trial court's attention the purpose of the question." See George, 67 N.Y.2d at 819.

Accordingly, the failure to make an appropriate offer of proof here operates as an adequate state procedural bar to federal habeas review of this claim. Rivera has shown no cause for the default or demonstrated that failure to consider the federal claim will result in a fundamental miscarriage of justice, see Harris, 489 U.S. at 262, and thus the Court is barred from considering this claim.

2. The Merits of the Claim

Even if the Court were to consider the merits of this claim, habeas relief would not be warranted. The Appellate Division held in the alternative that "the objections were properly sustained because the questions, as framed by defense counsel, did not seek to elicit an explanation for defendant's confession" but rather "sought an expression by defendant of his expectations as to what another person intended to do." Rivera, 281 A.D.2d at 155. To obtain reversal of the conviction on this ground, Rivera must show that the Appellate Division's conclusion was contrary to or involved an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d).

Unquestionably, a defendant has a right to testify in his or her own defense. See, e.g., Rock v. Arkansas, 483 U.S. 44, 49-53 (1987). This right is rooted in several provisions of the Constitution, including the Sixth and Fourteenth Amendments. Id. The right, however, is circumscribed by a trial court's ability to exclude irrelevant evidence. See generally United States v. Sun Myung Moon, 718 F.2d 1210, 1231 (2d Cir. 1983) (defendant may be required to comply with "evidentiary and procedural restrictions"), cert. denied, 466 U.S. 971 (1984). Even a defendant's right to present relevant evidence "is not unlimited, but rather is subject to reasonable restrictions." United States v. Scheffer, 523 U.S. 303, 308 (1998) (citations omitted).

Based on his defense at trial and arguments to the Appellate Division, Rivera presumably contends that he would have testified that he thought Detective Mullin would not arrest him following his interview. This testimony, however, was of no apparent relevance to any issue necessary to Rivera's defense: specifically, that the statement was misunderstood as being a confession rather than a description of what his brother had told him. Rivera's belief that the detective would not arrest him would not have any material bearing on the question of whether the statement was a recounting of his own acts or those of his brother. Rivera has not shown that the Appellate Division's determination that this evidence was properly excluded was contrary to or constituted an unreasonable application of Supreme Court law.

B. Ground Two

Rivera argues that the prosecution "improperly bolstered their case and denied [him] his right to confront witnesses against him by using the trial assistant's participation in the lineup procedure to support the fairness of that procedure." Petition at 5; see App. Brief at 35-38.

On cross examination, defense counsel questioned Detective Mullin regarding which victims had viewed which lineups, which individuals had been identified during those lineups, and about the propriety of the lineup procedure in general. (See Mullin: Tr. III. 45-53). On redirect examination, Assistant District Attorney Matthew Bogdanos referenced this area of the cross examination and the following exchange took place:

Q. Now, Mr. Karliner asked you about your decision to place certain people or have certain people view lineups?
A. Yes.

Q. By the way, as of the time of the lineups was there anyone or even before and before the arrest, was there anyone from the District Attorney's office who was assigned this particular investigation?
A. Yes, there was.

Q. And that would be?

A. You.

Q. During the course of the arrests and the lineups were there, in fact, conversations?
[Defense Counsel]: Objection.

[State]: Without going into the contents.

The Court: Overruled.

Q. There were conversations between you and me?

A. Yes, there was.

Q. On the conduct of the investigation?

A. Yes.

Q. And on the conduct of the lineups?

[Defense Counsel]: Objection.

The Court: Objection sustained.

Q. That particular night were there conversations about the lineups?
A. Yes, there were.

Q. Between you and me?

A. Yes.

Q. Did you make any decision with regard to any of those lineups?
The Court: Objection sustained. Come up counsel, please. (At the sidebar)
The Court: I'm not going to have you becoming an unsworn witness here, which is exactly what I think is going to happen.
If the jury is led to believe that it was your decision not his to have lineups viewed only by the January 5th people, I'm not going to allow you to do it. I think it's entirely prejudicial. I think it's improper to have you being involved as far as the decision.
(Mullin: Tr. III. 89-91).

Immediately after this exchange, the prosecutor elicited from Detective Mullin that three of his supervisors were present the evening the lineups were conducted (Mullin: Tr. III. 91), and asked the following:

Q. Now, Mr. Karliner asked you whether you made the decision to save some of the witnesses from having to view particular lineups?
A. That's correct.

Q. Did you make that decision in a vacuum or did you make it after speaking with your supervisors?
A. I made it after consulting with a lot of people.

(Mullin: Tr. III. 92). Rivera did not object to this questioning.

The Appellate Division's ruling on this argument concluded that nothing elicited from the witness "went beyond an innocuous reference to the prosecutor's participation, and there was no testimony carrying any suggestion that the prosecutor's judgment influenced the investigating detective's decisions concerning the lineups or any other aspect of the investigation." Rivera, 281 A.D.2d at 155. Because the Appellate Division adjudicated this claim on the merits, this Court must decide whether that decision was either contrary to or involved an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d).

Rivera claims that he was denied a fair trial because the prosecutor improperly "bolstered" the State's case by acting as an "unsworn witness." See App. Brief at 35-38. With 29 respect to a prosecutor's remarks generally, "constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair." Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986) (citations omitted); accord Holmes v. Keane, 1992 WL 27123, at *5 (S.D.N.Y. Feb. 4, 1992); see also Greer v. Miller, 483 U.S. 756, 765 (1987) (prosecutorial misconduct violates due process only when it is of "sufficient significance to result in the denial of the defendant's right to a fair trial") (citation and quotation marks omitted).

Here, the questions posed by the prosecutor concerning the lineups — assuming they were inappropriate — were not so prejudicial that they rendered Rivera's trial fundamentally unfair. First, the trial court sustained objections to some of the questions and thus no answer was elicited. The only testimony elicited — that the detective consulted with the prosecutor in conducting the lineups — was, as the Appellate Division put it, so "innocuous" as to have no effect on the fairness of the trial. Moreover, the single lineup identification of Rivera was hardly of great moment in the case given the other evidence presented at trial: namely, the in-court identifications by five separate witnesses who placed Rivera at the scene of each robbery, the confession and signed statement Rivera gave to the police, and the stolen leather jacket recovered from his home. Because the challenged questions and answers did not result in Rivera receiving an unfair trial, habeas relief is not warranted on this ground.

C. Ground Three

Rivera further maintains "[t]he court should not have enhanced defendant's sentence based on his trial testimony, when although the jury disbelieved defendant it was hardly clear that his testimony was perjurious." Petition at 5; see App. Brief at 38-42. Specifically, the trial judge noted at the sentencing hearing that

there was another crime committed here that hasn't been mentioned and that is the crime of perjury and I have to take that into consideration. The defendant on the stand told an obvious lie about what happened when he was interviewed by the detectives and that to me is wrong and I just can't ignore that.
(S. 12-13). This comment came in the context of a much longer explanation of Rivera's sentence. Ultimately, the judge ordered Rivera's convictions on the robberies to run concurrently although he could have given consecutive sentences. See Penal Law § 70.25.

1. Procedural Default

Rivera argues that consideration of his perjury should not have occurred "without a precise finding as to the perjury" and without "strong evidence that the defendant in fact did commit perjury." App. Brief at 42. Rivera asserts that the "enhancement" of his sentence "punished him for exercising his right . . . to testify in his own defense." Id. at 38. The Appellate Division in deciding this claim held that Rivera "failed to preserve" it and declined to review the claim "in the interest of justice." Rivera, 281 A.D.2d at 155-56.

Rivera failed to make any objection at sentencing to the judge's reliance on his perjury as required by CPL § 470. 05. Applying the Cotto guideposts, 2003 WL 1989700, at *15, this ground is not only independent but also "adequate" for essentially the same reasons as were true for Ground One. See section III.A above. New York courts have routinely held that the failure to make a contemporaneous objection at sentencing waives appellate review. See, e.g., People v. Ruz, 70 N.Y.2d 942 (1988); see generally Peterson v. Scully, 896 F.2d 661, 663 (2d Cir.), cert. denied, 497 U.S. 1038 (1990). Rivera has not shown any cause for the default. He also has not demonstrated that failure to consider this claim will result in a fundamental miscarriage of justice. Harris, 489 U.S. at 262. Thus, the Court is barred from considering it.

2. The Merits

Even were the merits of this claim to be reached, habeas relief would be denied. The Second Circuit has held that, apart from a due process right not to be sentenced on the basis of information that is materially false, a judge's discretion in sentencing is "largely unlimited either as to the kind of information he may consider, or the source from which it may come." Hili v. Sciarrotta, 140 F.3d 210, 215 (2d Cir. 1998) (citing United States v. Tucker, 404 U.S. 443, 446 (1972)). The Supreme Court has noted that

[i]t is rational for a sentencing authority to conclude that a defendant who commits a crime and then perjures [him]self in an unlawful attempt to avoid responsibility is more threatening to society and less deserving of leniency than a defendant who does not so defy the trial process. The perjuring defendant's willingness to frustrate judicial proceedings to avoid criminal liability suggests that the need for incapacitation and retribution is heightened as compared with the defendant charged with the same crime who allows judicial proceedings to progress without resorting to perjury.
United States v. Dunnigan, 507 U.S. 87, 97-98 (1993) (sentence enhancement for perjury under federal sentencing guidelines was proper); see also United States v. Grayson, 438 U.S. 41, 54-55 (1978) (rejecting argument that sentence enhancement for perjury "chills" a defendant's right to testify because "[t]here is no protected right to commit perjury"). The trial judge thus could properly take into account the fact that the jury's verdict necessarily meant that Rivera's testimony as to "what happened when he was interviewed by the detectives" (S. 13) was false. Accordingly, habeas relief is not available on this ground either. See Harris v. New York, 202 F. Supp.2d 3, 7-8 (S.D.N.Y. 2001) (where trial judge considers petitioner's perjury in imposing sentence, habeas relief not available as long as sentence falls within the range prescribed by state law).

D. Ground Four

Finally, Rivera argues that "[t]here was no admissible evidence that property was taken from Avila and Avedisian, and the robbery counts as to them should be dismissed." Petition at 5; see App. Brief at 42-43. Rivera was actually granted partial relief on this ground in the Appellate Division when that court reduced the robbery convictions relating to these individuals to attempted robbery. See Rivera, 281 A.D.2d at 155. Thus, construing the pro se petition liberally, Rivera could only be arguing that there was insufficient evidence to sustain even the remaining attempted robbery counts.

As noted in section II.B. above, a habeas petitioner must fully exhaust any claim presented to the federal habeas court in order to obtain relief. This requires the petitioner to have presented the same claim he presents in his habeas petition to each level of the state courts to which the right to appeal lies. See, e.g., Duncan, 513 U.S. at 365-66. Rivera, however, failed to present this sufficiency of the evidence claim in his letters seeking leave to appeal to the Court of Appeals. See Second Appeal Letter at 1-2. Although Rivera attached his First Department brief — which contained this argument — to the first letter he submitted to the Court of Appeals, see First Appeal Letter, this was insufficient for exhaustion purposes. As this Court has noted:

[T]he Court of Appeals requires that all applications seeking leave to appeal include a copy of the briefs filed in the Appellate Division. See N.Y. Court Rules § 500.10(a). Thus, the act of enclosing briefs is not an unusual event that might put the Court of Appeals on notice that the act had any significance with respect to the issues sought to be raised.
Alston v. Senkowski, 210 F. Supp.2d 413, 418 (S.D.N.Y. 2002) (emphasis in original); see also Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000) ("Petitioner's counsel has the obligation to set out . . . arguments [for which review is sought]. Counsel may not transfer to the state courts the duty to comb through an applicant's appellate brief to seek and find arguments not expressly pointed out in the application for leave."); Grey v. Hoke, 933 F.2d 117, 119-20 (2d Cir. 1991) (submission of brief insufficient to inform Court of Appeals that leave was being sought with respect to claims other than the claim mentioned in the letter application). The failure to alert is all the more obvious here because Rivera in a separate letter expressly raised before the Court of Appeals three of the four grounds presented in the Appellate Division, leaving the Court of Appeals with the reasonable impression that the fourth ground was not being pressed. See Grey, 933 F.2d at 120 ("The fair import of petitioner's submission to the Court of Appeals, consisting of his brief to the Appellate Division that raised three claims and a letter to the Court of Appeals arguing only one of them, was that the other two had been abandoned.").

Because Rivera failed to raise his fourth ground before the Court of Appeals, he no longer has the right to raise this claim under New York law either on direct appeal, see N.Y. Court Rules § 500.10(a), or on collateral review, see CPL § 440.10(2)(c). With no further recourse in state court, see Jones v. Keane, ___ F.3d ___, 2003 WL 21060837, at *5 (2d Cir. May 13, 2003), Rivera has procedurally defaulted on this claim and he cannot obtain a writ of habeas corpus unless he can demonstrate cause for his default, prejudice or a fundamental miscarriage of justice. See Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993) (citing Wainwright, 433 U.S. at 72), cert. denied, 510 U.S. 1078 (1994). Rivera has made no such showing in this case. Accordingly, federal habeas relief may not be granted.


For the foregoing reasons, Rivera's petition should be denied.

Notice of Procedure for Filing of Objections to this Report and Recommendation

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Laura T. Swain, 40 Centre Street, New York, New York 10007, and to the chambers of the undersigned at the same address. Any requests for an extension of time to file objections must be directed to Judge Swain. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155 (1985).

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