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RIVERA v. MILLER

June 10, 2003

OMAR RIVERA, PETITIONER,
v.
DAVID MILLER, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, RESPONDENT.



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

REPORT AND RECOMMENDATION

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.

I. BACKGROUND

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. ...


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