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RIVERA v. BURGE

June 10, 2004.

RAUL RIVERA, Petitioner, -v.- JOHN W. BURGE, Superintendent, Auburn Correctional Facility, Respondent


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Raul Rivera, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in the Bronx County Supreme Court, Rivera was convicted of Assault in the Second Degree, Attempted Robbery in the Third Degree, and Escape in the Second Degree and was sentenced as a persistent violent felony offender to twelve years to life in state prison. Rivera is currently incarcerated at the Auburn Correctional Facility in Auburn, New York pursuant to that judgment. For the reasons stated below, Rivera's petition should be denied.

I. BACKGROUND

  A. Evidence at Trial

  At about 6:30 a.m. on August 27, 1996, Carlos Tavares got off the subway at 183rd Street and Grand Concourse in the Bronx. (Tavares: Tr. 62-64, 99). As he was walking on Grand Concourse towards 183rd Street, he saw a black man and a white man on some steps ahead of him. (Tavares: Tr. 64-66, 107). The black man, subsequently identified as Rivera, was sitting on the steps drinking beer and also vomiting. (Tavares: Tr. 66-68, 107). As Tavares passed by the men, Rivera hit Tavares on his head by his ear and Tavares fell to the ground. (Tavares: Tr. 65, 74-76, 108-09). As Tavares fell, his watch fell off. (Tavares: Tr. 75-80, 110). Rivera demanded a cigarette from Tavares and Tavares held out a cigarette and a lighter, which "they" snatched from him. (Tavares: Tr. 80-82, 109, 111-12, 125-26).

  Tavares then started running down the street. (Tavares: Tr. 78, 81-83). Tavares looked back as he ran, saw Rivera pick up his watch from the ground, and then saw both men following him. (Tavares: Tr. 83-84, 113-14, 124-25). Tavares flagged down the police and got into the patrol car to canvass the area looking for the perpetrators. (Tavares: Tr. 85; Farnan: Tr. 195-97, 206-07; Toro: Tr. 391, 402). About 20 minutes later, Tavares saw the two men near Union Hospital and identified them for the police. (Tavares: Tr. 85-91; Farnan: Tr. 196-97, 216; Toro: Tr. 404-05). An officer showed Tavares his watch. (Tavares: Tr. 99; Hibbert: Tr. 230-31). As a result of the incident, Tavares had scratches on his arm and hand which bled and took over a month to heal. (Tavares: Tr. 100-01).

  Around 7:00 a.m. that same morning, Sergio Torres left his house and walked towards his car to begin his day working as a cab driver. (Torres: Tr. 143-44, 161-62). He was carrying two radios in his hands. (Torres: Tr. 145). As he was crossing Valentine Avenue between 187th and 188th Streets, Torres noticed Rivera sitting on a step with another person. (Torres: Tr. 145-46, 162). After Torres passed the two men, Rivera grabbed Torres's neck "very hard" from behind and said to release the radios or else he was going to break Torres's neck. (Torres: Tr. 146, 164). Torres pretended to be "half fainted" and Rivera loosened his grip, allowing Torres to breathe. (Torres: Tr. 147). Torres hit Rivera three times in the stomach with his elbow and Rivera released him. (Torres: Tr. 147). Torres then used his hands to hit Rivera in the face. (Torres: Tr. 148). Rivera fell to the ground and Torres picked up his radio and said that he was going to contact the police. (Torres: Tr. 148-49).

  Torres ran towards 187th Street and Valentine and told officers in a police car there what had happened. (Torres: Tr. 149-50; Farnan: Tr. 197-98, 217; Toro: Tr. 392). He saw the two individuals near the emergency room entrance of Union Hospital and identified them for the police. (Torres: Tr. 151; Toro: Tr. 392). Because Torres had hit Rivera "too hard," Torres's left hand "opened" and "got swollen." (Torres: Tr. 148). Torres testified that as a result, the bone in his thumb hurt for over six months, although he never sought medical attention. (Torres: Tr. 148, 160, 171-72).

  Rivera was arrested inside Union Hospital. (Farnan: Tr. 198-99, 221-23). Police Officer Kenton Hibbert searched the second suspect and recovered Tavares's watch from the suspect's front right pocket. (Hibbert: Tr. 229-30, 239-40).

  At around noon that day, Police Officer Karl Toone escorted Rivera from the central booking area in criminal court to Lincoln Hospital because Rivera was complaining of nausea and vomiting. (Toone: Tr. 271-73, 291-92, 297). At one point, Rivera was handcuffed to a chair in the emergency room and he vomited. (Toone: Tr. 274, 301). Officer Toone went to another part of the emergency room to get something to wipe Rivera's mouth. (Toone: Tr. 274-75, 305-07, 330-31). When he returned, Rivera was not there. (Toone: Tr. 275).

  At approximately 3:30 p.m., Police Officer Nigma Sulaimen was on routine patrol on her bicycle when she saw a crowd running westbound on 183rd Street. (Sulaimen: Tr. 332, 334). There was one individual running in front of the crowd. (Sulaimen: Tr. 334-35). Officer Sulaimen stopped the person in the front at the corner and pulled his hands out of his pockets. (Sulaimen: Tr. 335, 379-84). The person had a pair of handcuffs hanging off of his left wrist. (Sulaimen: Tr. 335). Officer Sulaimen placed the individual, who was later identified as Rivera, under arrest. (Sulaimen: Tr. 333-34).

  The defense presented no witnesses.

  B. Juror Five

  After Tavares testified, a court officer advised the court that a member of the jury may have a relationship to Rivera. (Tr. 130). The juror in question was Juror 5 — Hector Camacho. (Tr. 131). Camacho explained that he had received a voicemail message from his son saying that Rivera is the brother of Camacho's ex-wife's boyfriend. (Tr. 131-34, 181). Camacho expressed surprise that his son had left him a message with this information because he had not told his son that he was on jury duty. (Tr. 132-33). Camacho stated that he did not recognize Rivera and did not know if the information was true. (Tr. 132-33). He said that he did not speak to his ex-wife too often and did not feel that the information would have any bearing on his judging the case. (Tr. 132-33). Defense counsel pointed out that there could be many people named Raul Rivera. (Tr. 133). The court instructed Camacho to call his son, who lived with Camacho's ex-wife, and "find out [how] he knows what he believes he knows about the defendant in this case and his relationship to your ex-wife" and the name of the ex-wife's boyfriend. (Tr. 132, 134).

  Camacho returned after speaking with his son and reported that the name of the person in question, who was supposedly Rivera's brother, was "Percente," which the court reporter noted was a phonetic spelling. (Tr. 135). Defense counsel asserted that Rivera did not have a brother named Percente and that Rivera's brothers were named Alberto, Alfredo, and Eliso. (Tr. 135-36). Camacho's son did not know the last name of his mother's boyfriend. (Tr. 136). Defense counsel again expressed concern that there was only a speculative connection between the juror and Rivera and stated, "I don't want to disqualify a juror on speculation." (Tr. 135-36). The court responded that it was "a potentially very dangerous situation because this juror apparently believes it to be so, that is the concern I have." (Tr. 136). The prosecutor indicated that he felt Camacho was not qualified to serve on the jury. (Tr. 137). Defense counsel's position was that Camacho should remain on the jury. (Tr. 140). The judge determined that a hearing needed to be held but that the trial should continue in the meantime. (Tr. 140-41). The judge instructed Camacho not to discuss the matter with any of his fellow jurors and testimony resumed. (Tr. 140-42).

  Later that afternoon, the judge remarked that "at this point I'm satisfied that the issue is sufficiently noted as not to present a problem" because "[t]his juror is sufficiently conscious of his obligations to have brought this to our attention." (Tr. 176). The attorneys indicated a desire to ask Camacho a few additional questions, which the court allowed. (Tr. 176-77). Camacho confirmed that he did not know whether or not Rivera was in fact the brother of his ex-wife's current boyfriend. (Tr. 178). The court instructed him again not to speak to any other jurors or his son about this issue. (Tr. 178-79). Camacho said that the only person he had told about the message was the officer who had immediately alerted the court. (Tr. 180). He stated that the last time he saw his ex-wife's boyfriend was ten or twelve years ago (Tr. 180) and verified that he had never seen Rivera before (Tr. 183). Camacho also maintained that his judgment would not be affected and that he felt comfortable continuing to serve as a juror. (Tr. 182-84). Camacho was directed to inform the court if his son contacted him again. (Tr. 184-85). Defense counsel asserted no objection to Camacho's remaining on the jury and Camacho was not discharged. C. Request for Second Interpreter

  Prior to any witnesses being called, defense counsel made an application for a second interpreter to be provided during the testimony of the two complaining witnesses, Tavares and Torres. (Tr. 45-46). The basis for the application was that Tavares and Torres would both testify in Spanish and therefore Rivera, a Spanish speaker, would understand their testimony. (Tr. 45). The jury, however, would be instructed to rely on the interpreter's English translation of the witnesses' testimony rather than on what the witnesses were actually saying in Spanish. Thus, Rivera would not have the benefit of understanding the testimony as it was being conveyed to the jury. (Tr. 45-46). In other ...


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