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Rivette v. Smith

April 23, 2008

JACQUES L. RIVETTE, PETITIONER,
v.
JOSEPH P. SMITH, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Petitioner Jacques L. Rivette, a state prisoner appearing through counsel, has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is currently in the custody of the New York State Department of Corrections incarcerated at the Shawangunk Correctional Facility. Following a jury trial in Rensselaer County Court, Petitioner was convicted of two counts of Murder in the Second Degree (N.Y. Pen. Law § 125.25(1), (3)) (intentional and felony murder) and one count of Robbery in the First Degree (N.Y. Pen. Law § 160.15(2)). Petitioner is currently serving concurrent indeterminate prison terms of 25 years to life on each of the murder charges and an indeterminate term of 121/2 to 25 years on the robbery count, to be served concurrently with the felony murder count and consecutively to the intentional murder count.

Petitioner timely appealed his conviction to the Appellate Division, Third Department, which affirmed his conviction on July 7, 2005, and the New York Court of Appeals denied leave to appeal on August 31, 2005. People v. Rivette, 798 N.Y.S.2d 188 (N.Y.A.D.), lv. denied, 836 N.E.2d 38 (Table) (N.Y. 2005). While his direct appeal from the conviction was pending, Petitioner filed three motions in the Rensselaer County Court under New York Criminal Practice Law ("CPL") § 440.10, which motions were denied on May 15, 2000, January 31, 2001, and May 5, 2004, respectively. The Appellate Division granted leave to appeal, consolidated the appeals from the three orders denying his CPL § 440.10 motions with the direct appeal from the conviction, and affirmed the conviction and denial of the CPL § 440.10 motions. Id. On August 17, 2006, Petitioner filed a fourth CPL § 440.10 motion in the Rensselaer County Court, which motion was still pending when he filed the petition in this Court. On August 18, 2006, Petitioner filed a petition for a writ of error coram nobis in the Appellate Division, which was also pending at the time he filed his petition for relief in this Court. On August 28, 2006, Petitioner timely filed his application for relief in this Court. The Appellate Division denied the error coram nobis petition September 27, 2006, and leave to appeal was denied by the New York Court of Appeals on November 17, 2006. People v. Rivette, 860 N.E.2d 75 (N.Y. 2006). The Rensselaer County Court denied Petitioner's fourth CPL § 440.10 motion on October 19, 2006, and leave to appeal was denied by the Appellate Division on December 15, 2006.

Because Petitioner filed his petition after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d). Consequently, this Court cannot grant relief unless the decision of the state courts was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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); Williams v. Taylor, 529 U.S. 362, 405--406 (2000); see Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003) (explaining this standard). In applying this standard, this Court reviews the last reasoned decision by the state court, Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000), which in this case was that of the Appellate Division, Third Department, affirming his conviction and denial of Petitioner's first three CPL § 440.10 motions, and the Rensselaer County Court in denying his fourth CPL § 440.10 motions.*fn1 In addition, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

If a federal claim has not been adjudicated on the merits, AEDPA deference is not required. Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003). In that situation, conclusions of law and mixed questions of fact and conclusions of law are reviewed de novo. DeBerry v. Portuondo, 403 F.3d 57, 67 (2d Cir. 2005). Where there is no reasoned decision of the state court addressing the ground or grounds raised by the Petitioner on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it. See Spears v. Greiner, 459 F.3d 200, 203-04 (2d Cir. 2006) (applying the Strickland standards).

To the extent that Petitioner alleges errors of state law, they are beyond the purview of this Court in deciding a petition for federal habeas corpus relief. This Court may only address violations of federal law. 28 U.S.C. § 2254(d); Estelle v. McGuire, 502 U.S. 62, 67--68 (1991) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law. Today, we reemphasize that it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions.") (citations and internal quotation marks omitted). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982). It is also presumed that the state court knew and correctly applied state law. See Walton v. Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).

Finally, in a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the jury's verdict. Fry v. Piler, 551 U.S. ___, ___, 127 S.Ct. 2321, 2328 (2007) (adopting the standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637--38 (1993)).

In his petition to this Court, Petitioner has raised 14 grounds: (1) the evidence before the grand jury was tainted (witnesses allegedly testified that petitioner possessed stolen cigarettes, an APB bulletin purportedly indicated otherwise, the witnesses were drug addicts who could not corroborate each other, and an unsigned statement was admitted in the grand jury); (2) the verdict was against the weight of the credible evidence, and the People failed to prove petitioner's guilt beyond a reasonable doubt; (3) petitioner's trial was marred by due process violations; (4) the prosecutor committed Rosario violations (the prosecution failed to preserve fingernail scraping evidence and to timely produce witness statements or to produce them at all, and the Troy Police Department table of contents for the case file was never disclosed); (5) prosecutorial misconduct for presenting to the grand jury allegedly false evidence that petitioner possessed stolen cigarettes; (6) the prosecutor violated Rosario dictates by not disclosing Clemor McKnight's statement and plea colloquy; (7) the prosecutor violated Brady dictates by failing to safeguard the murder weapon and failing to preserve the fingernail scrapings; (8) ineffective assistance of trial counsel (failure to pursue a "wrong man" defense, failure to fully exploit the loss of the murder weapon, failure to pursue the "phantom cigarette testimony" issue, and failure to demand DNA testing of the fingernail scrapings); (9) the special prosecutor had a conflict of interest; (10) the consecutive sentences for first-degree robbery and intentional murder were illegal; (11) the court erred in denying the first CPL § 440.10 motion; (12) the court erred in denying the second CPL § 440.10 motion; (13) the court erred in denying the third CPL. § 440.10 motion; and (14) the court erred in denying the fourth CPL § 440.10 motion. Respondent concedes that, except for the ninth ground in part, Petitioner has exhausted his state court remedies.

Ground 1: (Evidence Before the Grand Jury).

Petitioner contends that the evidence presented to the grand jury was tainted by reference to stolen cigarettes, which Petitioner claims were not in fact stolen. In rejecting Petitioner's arguments, the Appellate Division held (798 N.Y.S.2d at 191 (citations omitted)):

Moreover, inasmuch as his convictions were based upon legally sufficient trial evidence, defendant's challenge to the denial of his motions to dismiss the indictment for insufficiency of the evidence presented to the grand jury is foreclosed . . . . To the extent that defendant asserts in addition that the grand jury process was tainted because the People introduced testimony from two witnesses suggesting that cigarettes may have been stolen in the course of the robbery when an all points police bulletin indicated that no cigarettes were stolen, we conclude that any alleged error in this regard did not impair the integrity of the proceeding or cause prejudice to defendant . . . .

Analysis starts with the basic proposition that the Fifth Amendment right to a grand jury indictment has not been incorporated against the states through the Fourteenth Amendment. Brazenburg v. Hayes, 408 U.S. 665, 688 n. 25 (1972), citing Hurtado v. California, 110 U.S. 516, 534--35 (1884). Consequently, an infirmity in state grand jury procedures in criminal prosecutions does not, itself, raise any Constitutional issue. Any infirmity in state criminal grand jury proceedings, standing alone without some other Constitutional infirmity, is a product of state law, which, as noted above, is beyond the purview of this Court in a federal habeas proceeding. Petitioner is not entitled to relief on his first ground.

Ground 2: (Weight and Sufficiency of the Evidence).

Petitioner contends that the verdict was against the weight of the credible evidence and, therefore, the People failed to prove each element of the crimes charged beyond a reasonable doubt. In rejecting this argument, the Appellate Division held (798 N.Y.S.2d at 190--91 (citations omitted)):

Initially, we reject defendant's assertions that the verdict was against the weight of the evidence and that there was insufficient proof to support his convictions. The crime of murder in the second degree under Penal Law § 125.25(1) requires a showing that the defendant intended to cause the death of another person and caused the death of that person or a third person. Under Penal Law § 125.25(3), a person is guilty of murder when, as relevant here, he or she "commits or attempts to commit robbery [or] burglary . . . and, in the course of and in furtherance of such crime or of immediate flight therefrom, [the defendant] or another participant . . . causes the death of a person other than one of the participants." In order to prove the crime of robbery in the first degree, the People must demonstrate that the defendant forcibly stole property while he or she was armed with a deadly weapon during the commission of the crime or during the immediate flight therefrom (see Penal Law § 160.15[2] ).

Here, the People produced testimony from various employees of Stewart's indicating that approximately $5,000 and possibly some cigarettes were missing from the store following the murder. Friends and acquaintances of defendant testified that on the morning of the murder, defendant sought to purchase drugs and was refused because he lacked money and was in debt to the sellers. Later that day, defendant and Thorsen had both money and guns and defendant subsequently bragged to several friends about robbing the Stewart's shop, taking the victim into the back room to open the safe, making him lie down and shooting him in the back of the head. While he was in jail, defendant repeated these admissions to another inmate, claiming that he had killed the victim, then took the money from the safe, as well as cigarettes and lighters, and ran out of the store. Further, the People also introduced evidence that a .22 caliber bullet was removed from the victim's skull and testimony regarding a .22 caliber revolver that was once owned by Thorsen but inadvertently destroyed by police.

Viewing this evidence in the light most favorable to the People, as we must, we conclude that there is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial." Considering the evidence in a neutral light and giving deference to the jury's opportunity to view the witnesses, hear their testimony and observe their demeanor, we conclude that defendant's convictions were not against the weight of the evidence.

The constitutional standard for sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original). This court must, therefore, determine whether the decision of the Appellate Division on the merits unreasonably applied Jackson.

Petitioner's argument focuses on what evidence was not introduced. Petitioner misperceives the role of a federal court in a habeas proceeding challenging a state-court conviction. It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, supra. Consequently, although the sufficiency of the evidence review by this Court is grounded in the Fourteenth Amendment, it must undertake its inquiry by reference to the elements of the crime as set forth in state law. Jackson, 443 U.S. at 324 n.16. This Court is precluded from either re-weighing the evidence or assessing the credibility of witnesses. Under Jackson, the role of this Court is to simply determine whether there is any evidence, if accepted as credible by the jury, sufficient to sustain conviction of the crime as prescribed by state law. That such evidence exists is clearly established by the record in this case. Petitioner bears the burden of establishing by clear and convincing evidence that the factual findings of the jury were erroneous; a burden Petitioner has failed to carry. Here, the Appellate Division, a state court, found that there was sufficient evidence to support conviction of the crimes under state law. Review of that decision is beyond the purview of this Court in a federal habeas proceeding.

The Court cannot say that in this case that the decision of the Appellate Division was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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). Nor can this Court find that the state court unreasonably applied the correct legal principle to the facts of the Petitioner's case within the scope of Lockyer--Williams; i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable. Petitioner is not entitled to relief on his second ground.

Ground 3: (Due Process Violations).

Petitioner presents a smorgasbord of "errors" he alleged occurred in the investigation, indictment and trial, most of which appear to be raised in other grounds, although some are not. Except to recite this litany of alleged errors, of which those that are raised as separate grounds and are discussed elsewhere in this decision are meritless, and his disagreement with the determination of the Appellate Division as to the weight and sufficiency of the evidence, Petitioner's argument, which is terse, undeveloped and unsupported by citation to relevant controlling authority, is neither cogent nor persuasive. Petitioner is not entitled to relief on his third ground.

Ground 4: (Rosario Violations -- Preservation of Evidence/Production of Witness Statements).

Petitioner contends that in failing to preserve evidence (the alleged murder weapon that was destroyed) and complete normal testing (on the fingernail scrapings), turn over statements, case file inventory, and physical evidence constituted a Rosario violation.*fn2 Respondent contends that Rosario claims are state law claims, not founded on either the federal constitution or federal laws, are not cognizable in a federal habeas proceeding. The Court agrees. See Young v. McGinnis, 411 F.Supp.2d 278, 329 (E.D.N.Y. 2006); Jackson v. Lacy, 74 F.Supp.2d 173, 180 (N.D.N.Y. 1999); Stephens v. Costello, 55 F.Supp.2d 163, 167 (W.D.N.Y. 1999); Green v. Artuz, 990 F.Supp. 267, 274--75 (S.D.N.Y. 1998); United States ex rel. Butler v. Schubin, 376 F.Supp. 1241, 1247, (S.D.N.Y. 1974), aff'd, 508 F.2d 837 (Table) (2d ...


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