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Rivera v. Miller


November 30, 2005


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge



Eddie Rivera brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for second degree burglary following a jury trial in New York State Supreme Court, Bronx County. Mr. Rivera argues that he was deprived of effective assistance of appellate counsel by virtue of counsel's failure to argue that: (a) Mr. Rivera's conviction was repugnant to his co-defendant's acquittal on the same charge, and (b) the admission in evidence of a tape-recorded 911 call violated Mr. Rivera's Sixth Amendment right to confront and cross-examine witnesses against him. Mr. Rivera contends that, due to a conflict of interest, the appellate attorney also failed to argue that trial counsel was ineffective for failing to raise both of these claims in a timely manner. For the reasons that follow, I recommend that the petition be denied.


At approximately 4:30 p.m. on November 16, 1999, police responded to a report by an anonymous 911 caller that she had just seen two men, who the caller assumed were robbers, using toilet paper to cover peepholes in apartment doors on the third floor of her apartment building at 2339 Arthur Avenue in the Bronx. (H. 273, 281).*fn1 The caller described the men as Hispanic, one darker-skinned than the other, wearing hats and jackets, and carrying one or more bags. (H. 286). The radio transmission received by the arresting officers was of a "burglary in progress" at 2339 Arthur Avenue, where "two males with black jackets, one light skin, one dark skin, [were] carrying bags and covering peepholes." (Tr. 76, 131, 175).*fn2

When police arrived within approximately one minute of receiving this transmission, they observed the petitioner, a dark-skinned Hispanic man, and Luis Ortiz, a light-skinned Hispanic man, exiting the apartment building. (Tr. 38, 76-77, 133). Both men wore black jackets, but neither wore a hat. (Tr. 49, 77). Mr. Ortiz carried a white plastic shopping bag. (Tr. 58, 77). Mr. Rivera and Mr. Ortiz fled from the police officers and were apprehended after a short chase, after which they gave evasive responses to the officers' questions. (Tr. 78-79, 85, 103-04, 106, 134-35). The plastic bag carried by Mr. Ortiz contained an unopened package of toilet paper and a lockbox. (Tr. 80, 117, 162). A police search of Mr. Rivera's pockets revealed one black glove, a watch, approximately $32.00 in coins, and a change purse. (Tr. 127-28, 186, 190-91). A "lock picking device" was later found in his jacket pocket. (Tr. 44).

The lockbox was identified by the complaining witness, Luz Vega, as having been stolen from her apartment at 2339 Arthur Avenue. (Tr. 180, 207). Police observed white toilet tissue covering the peepholes in at least four apartment doors on the third floor of the building, and Ms. Vega's door appeared to have been pried open. (Tr. 40, 176-78, 221-24). A glove found in Ms. Vega's apartment matched the one in Mr. Rivera's pocket. (Tr. 224, 330). Procedural History

Mr. Rivera and Mr. Ortiz were tried jointly before a jury on October 4, 2000. The two-count indictment charged each defendant with burglary in the second degree, a class C felony, and criminal possession of stolen property in the fifth degree, a misdemeanor. Mr. Rivera was represented by Edmund Byrnes, an attorney employed by the Legal Aid Society. (Petition for a Writ of Habeas Corpus ("Petition"), ¶ 15; Affidavit of Dimitri Maisonet in Opposition to Petition for Habeas Corpus dated Aug. 15, 2005 ("Maisonet Aff."), ¶ 6). At trial, the prosecution was permitted to introduce into evidence a redacted recording of the 911 call. The court overruled defense counsel's hearsay objection, finding that the 911 tape fit within New York's "present sense impression" exception to the rule against hearsay. (Tr. 356-57).

The jury found Mr. Rivera guilty of second degree burglary in violation of New York Penal Law § 140.25(2). Mr. Ortiz was acquitted of the burglary charge and convicted of the lesser charge of criminal possession of stolen property. On December 1, 2000, Mr. Rivera was sentenced as a persistent violent felony offender to an indeterminate term of 16 years to life in prison.

Mr. Rivera challenged his conviction on direct appeal to the Appellate Division, First Department, in October 2002. On appeal, he was represented by Lorraine Maddalo, who, like trial counsel, was an attorney with the Legal Aid Society. (Petition, ¶ 15). Appellate counsel raised a single claim: that the glove and other evidence found on Mr. Rivera should have been suppressed as the fruit of an illegal search because the police lacked reasonable suspicion to stop and search him. (Petitioner's Appellate Brief ("Pet. App. Br."), attached as Exh. 1 to Maisonet Aff., at 12). Finding that the police had probable cause for the search and that Mr. Rivera's suppression motion had been properly denied, the Appellate Division affirmed his conviction on January 28, 2003. People v. Rivera, 756 N.Y.S.2d 1, 301 A.D.2d 463 (1st Dep't 2003). Mr. Rivera's application for leave to appeal to the Court of Appeals was denied on April 21, 2003. People v. Rivera, 99 N.Y.2d 657, 760 N.Y.S.2d 122 (2003).

On May 20, 2004, Mr. Rivera applied to the Appellate Division pro se for a writ of error coram nobis, claiming that he was denied the effective assistance of appellate counsel guaranteed to him by the Sixth Amendment. (Petitioner's Memorandum of Law in Support of a Writ of Error Coram Nobis ("Pet. Memo.") at 3, attached as Exh. 5 to Maisonet Aff.). Mr. Rivera's application raised the same claims that are the basis for his present habeas petition. The Appellate Division denied his application without opinion on December 16, 2005. (Order of the Appellate Division dated Dec. 16, 2004, attached as Exh. 7 to Maisonet Aff.).

Mr. Rivera filed this petition on April 15, 2005. The prosecution concedes that the petition is timely and opposes the petition on the merits. (Maisonet Aff., ¶ 17; Respondent's Memorandum of Law in Opposition to Petition for Habeas Corpus ("Resp. Memo"), attached to Maisonet Aff., at 4).


To obtain habeas corpus relief on grounds of ineffective assistance of appellate counsel, Mr. Rivera must demonstrate that

(1) counsel's performance fell below an objective standard of reasonableness, and (2) he suffered actual prejudice as a result. Smith v. Robbins, 528 U.S. 259, 285 (2000) (applying standard articulated in Strickland v. Washington, 466 U.S. 668 (1984), to evaluate claim of ineffective assistance of appellate counsel); see also Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998)(applying Strickland standard to evaluate appellate counsel's effectiveness); Mayo v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994). Demonstrating prejudice requires the petitioner to show "a reasonable probability that, but for his counsel's unreasonable failure . . . he would have prevailed on his appeal." Robbins, 528 U.S. at 285.

In assessing whether counsel's performance was deficient, a habeas court must be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. An appellate attorney need not raise every possible argument on appeal and should be given wide latitude to select among possible claims in order to maximize the likelihood of success. Robbins, 528 U.S. at 288; see also Smith v. Murray, 477 U.S. 527, 536 (1986) (winnowing out the weaker claims and focusing on the stronger ones "is the hallmark of effective appellate advocacy"). For an appellate attorney to be found ineffective for failing to raise a particular claim, the court must determine that counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533. "Generally, only when ignored issues are obviously stronger than those presented, will the presumption of effective assistance of counsel be overcome." Robbins, 528 U.S. at 288 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).

The claims that Mr. Rivera argues should have been raised are that the trial court erred in admitting the 911 tape and that the verdicts were repugnant. In addition, Mr. Rivera contends that his appellate counsel was ineffective for failing to argue that his trial counsel was incompetent for not raising these issues at trial. (Pet. Memo. at 5, 10, 12-13). However, because both claims were doomed to fail on the merits, neither appellate counsel nor trial counsel was ineffective.

A. The 911 Tape

The recording of the 911 call was admitted at Mr. Rivera's trial under a New York State rule of evidence that allows some categories of hearsay statements to be admitted if they meet certain circumstantial guarantees of reliability. The trial court found that the 911 tape qualified under the "present sense impression" exception approved by the New York Court of Appeals in People v. Brown, 80 N.Y.2d 729, 594 N.Y.S.2d 696 (1993). See also People v. Buie, 86 N.Y.2d 501, 634 N.Y.S.2d 415 (1995); People v. Vasquez, 88 N.Y.2d 561, 647 N.Y.S.2d 697 (1996). Under this rule, "spontaneous descriptions of events made substantially contemporaneously with the observations are admissible if the descriptions are sufficiently corroborated by other evidence." Brown, 80 N.Y.2d at 734, 594 N.Y.S.2d at 700. Like Rule 803(1) of the Federal Rules of Evidence, the New York rule "does not require a showing of the declarant's unavailability." Buie, 86 N.Y.2d at 506, 624 N.Y.S.2d at 418.

The admission of a hearsay statement by a declarant who is not available for cross-examination at trial may run afoul of a criminal defendant's Sixth Amendment right to confront witnesses against him. In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court directly addressed the relationship between hearsay and the right of confrontation. Reasoning that "hearsay rules and the Confrontation Clause are generally designed to protect similar values, and stem from the same roots," the Court held that the Sixth Amendment is not violated by the admission of a hearsay statement that is sufficiently reliable; the statement must "bear[] adequate indicia of reliability," either by falling within a "firmly rooted hearsay exception" or possessing "particularized guarantees of trustworthiness." 448 U.S. at 65-66 (internal quotation marks and citations omitted). In 2002 and 2003, Roberts was the prevailing constitutional rule. The New York rule of evidence under which the 911 tape was admitted satisfies the Roberts standard because the requirements of spontaneity, contemporaneity, and corroboration function as indicia of reliability. See Brown, 80 N.Y.2d at 734, 594 N.Y.S.2d at 699-700 (holding that present sense impression contains elements of spontaneity and contemporaneity, and corroboration provides additional indicia of reliability).

Mr. Rivera's claim that the admission of the 911 tape violated his Sixth Amendment confrontation right is based entirely on Crawford v. Washington, 541 U.S. 36 (2004), in which the Supreme Court partially overruled Roberts. (Pet. Memo. at 12-13). In Crawford, the Court found that the Roberts decision erred in allowing the admission of ex parte testimony --- which the Sixth Amendment was intended to prohibit ---"based on a mere judicial determination of reliability." 541 U.S. at 61-62. Crawford held that in-court cross-examination is the only adequate means of testing the reliability of testimonial evidence. 541 U.S. at 68-69. However, Crawford does not apply to Mr. Rivera's claim that appellate counsel was ineffective, because his attorney's performance must be evaluated in light of the law as it existed at the time of his appeal.*fn4 See Mungo v. Duncan, 393 F.3d 327, 336 (2d Cir. 2004) (Crawford rule cannot be applied retroactively on collateral review); Mayo, 13 F.3d at 533 (counsel's competence viewed in relation to governing law at time of counsel's conduct). Mr. Rivera's attorney cannot be faulted for failing to raise an argument that at the time would have been against the weight of clearly established precedent and, as such, was doomed to fail.*fn5

B. The Repugnancy Claim

Repugnancy is a legal term of art referring to inconsistent or contradictory verdicts. Mr. Rivera contends that his conviction was repugnant to his co-defendant's acquittal on the same charge because the jury instruction on accessory liability required the jury to reach the same verdict as to both defendants. Mr. Rivera also argues that the wording of the indictment charging the defendants with "acting in concert" with one another to commit the specified offenses required the jury to reach the same verdict for both defendants.

Under the theory of accessory liability, where one defendant (the "principal") commits an offense, the other defendant (the "accomplice") may be held accountable as if he himself had committed the crime. See, e.g., N.Y. Penal Law § 20.00. The liability of the accomplice is dependant on that of the principal, which means that a jury could not convict the accomplice but acquit the principal. However, it is not inconsistent for the jury to convict the principal and acquit the accomplice.

In this case, both defendants were charged with committing the specified offenses "either individually or by acting in concert with one another." (Tr. 435-40) (emphasis added). The jury was instructed to "consider the evidence as to each defendant, Mr. Rivera and Mr. Ortiz, separately and individually." (Tr. 411-12). The court instructed that the verdict with respect to one defendant "should not control your verdict with respect to the other defendant." (Tr. 412). Mr. Rivera's conviction was independent of Mr. Ortiz's. The jury had sufficient evidence to find that Mr. Rivera was the principal who physically committed the burglary. The jury could have relied upon accessory liability to find that Mr. Ortiz was also guilty, notwithstanding the lack of proof that he ever entered Ms. Vega's apartment, but whether or not the jury reached this conclusion would not affect Mr. Rivera's conviction.

Moreover, even if Mr. Ortiz's acquittal "rest[ed] on an improper ground, that error would not create a constitutional defect" in Mr. Rivera's conviction. Harris v. Rivera, 454 U.S. 339, 344 (1981). Even where a co-defendant's acquittal is illogical, a defendant "found guilty beyond a reasonable doubt after a fair trial has no constitutional ground to complain." 454 U.S. at 348. Jury "verdicts that treat co-defendants in a joint trial inconsistantly" are not constitutionally flawed as long as the trial was fair and any guilty verdict is supported by sufficient evidence. Id. at 345 (citing United States v. Dotterweich, 320 U.S. 277, 279 (1943)).

In this case, Mr. Rivera's repugnancy claim fails on the merits. His appellate attorney was not ineffective for failing to raise this argument on appeal. Likewise, Mr. Rivera's trial counsel was not incompetent for his failure to raise a repugnancy claim at trial. Since there was no deficiency in the performance of either attorney, this Court need not reach the question of prejudice. Whether or not the appellate attorney's employment at the same agency as the trial attorney created a conflict of interest is irrelevant, because Mr. Rivera has not shown any adverse effect on his appellate counsel's performance.*fn6


For the reasons set forth above, I recommend that Mr. Rivera's petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 62, 6(a), and 6(e)of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Richard J. Holwell, Room 1950, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.

Respectfully submitted,

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