The opinion of the court was delivered by: McLAUGHLIN, Circuit Judge:
Before: McLAUGHLIN, POOLER, B. D. PARKER, Circuit Judges.
Petitioner-Appellant John Rivera ("Rivera") was convicted of 27 one count of depraved indifference murder in violation of New 28 York Penal Law § 125.25(2). He now appeals from a judgment 29 entered in the United States District Court for the Eastern 30 District of New York (Townes, J.) denying his petition for a writ 31 of habeas corpus pursuant to 28 U.S.C. § 2254. On appeal, Rivera 32 argues that the district court erred in holding that the 33 applicable law of depraved indifference murder was the law in 1 effect when Rivera was convicted on September 19, 1997.
We 2 agree, and hold that the district court should have applied the 3 law as it existed at the time Rivera's conviction became final, 4 i.e., once the period in which Rivera's time to file a writ of 5 certiorari to the United States Supreme Court expired. Rivera 6 also argues that, in July 2004, the evidence adduced at trial was 7 legally insufficient to support a conviction for depraved 8 indifference murder. Again, we agree, and hold that, at the time 9 Rivera's conviction became final in July 2004, no reasonable jury 10 could have found Rivera guilty of depraved indifference murder. 11 Accordingly, the judgment of the district court is REVERSED and 12 REMANDED with instructions to grant Rivera's petition for a writ 13 of habeas corpus.
25 Petitioner-Appellant John Rivera ("Rivera") was convicted on 26 September 19, 1997, of one count of depraved indifference murder 27 in violation of New York Penal Law § 125.25(2) after his 28 estranged wife died from a single gunshot wound to the head at 29 point-blank range. In December 2003, the Appellate Division rejected Rivera's direct appeal, People v. Rivera, 2 A.D.3d 884 2 (2d Dep't 2003), and, on April 14, 2004, Judge Rosenblatt of the 3 New York Court of Appeals denied Rivera leave to appeal to that 4 court, People v. Rivera, 2 N.Y.3d 764 (2004).
5 Rivera subsequently filed a petition for a writ of habeas 6 corpus in the United States District Court for the Eastern 7 District of New York (Townes, J.), arguing that the evidence was 8 insufficient to support a conviction for depraved indifference 9 murder. Applying the New York law of depraved indifference in 10 existence at the time Rivera was convicted at trial in September 11 1997, the district court denied relief. See Rivera v. Cuomo, No. 12 05-CV-1699, 2009 WL 4929264, at *22-23, 25 (E.D.N.Y. Dec. 21, 13 2009). Rivera now appeals. In June 2010, this Court granted a 14 certificate of appealability on the specific issue of "whether, 15 under the law as it existed when appellant's conviction became 16 final, the evidence was legally sufficient to support a 17 conviction for depraved indifference murder."
18 On appeal, Rivera raises two arguments. First, Rivera 19 argues that the district court erred in applying the law in 20 effect when he was convicted at trial on September 19, 1997 21 rather than the law in effect at the time his conviction became 22 final on July 13, 2004. Second, Rivera argues that, under the 23 law in effect at the time his conviction became final, the evidence was legally insufficient to support a conviction for 2 depraved indifference murder.
For the reasons that follow, we agree with both of Rivera's 4 contentions. Accordingly, Rivera's petition for a writ of habeas 5 corpus must be granted.
In its Memorandum and Order of December 21, 2009, the 8 district court provided a detailed account of the factual 9 background of the instant petition. See Rivera, 2009 WL 4929264, 10 at *1-15. We assume familiarity with the district court's order 11 and repeat the facts herein only to the extent necessary to 12 explain our ruling.
13 On the night of January 13, 1997, Kimberly Cassas Rivera 14 ("Cassas"), Rivera's estranged wife, suffered a single, fatal 15 gunshot wound to the head from a nine-millimeter Beretta handgun 16 fired at point-blank range. Rivera was ultimately indicted in 17 New York state court on two counts of murder in the second 18 degree--intentional murder in violation of New York Penal Law § 19 125.25(1) and depraved indifference murder in violation of § 20 125.25(2)--as well as lesser charges not relevant to this appeal. 21 In the summer of 1997, Rivera was tried on these charges in 22 the Supreme Court for the State of New York, Kings County.
23 Despite the dual indictment, at trial, the prosecution pursued a 24 single theory of intentional murder. Specifically, the prosecution argued that, after a short and tumultuous marriage, 2 and angry that Cassas was filing for divorce and seeking primary 3 custody of their infant son, Rivera, who had a history of violent 4 outbursts and domestic abuse, lured Cassas to his apartment with 5 the intention of killing her and then, while the two were 6 standing on the sidewalk outside the apartment, "put a 9mm 7 handgun to [her] head . . . and pulled the trigger." J.A. 28.
All of the State's evidence at trial was calculated to support 9 this theory of intentional murder, including evidence that Rivera 10 was in possession of the nine-millimeter Beretta handgun used to 11 kill Cassas immediately before the murder, testimony from 12 Cassas's divorce lawyer that Rivera called her twice in the days 13 and hours before the murder threatening to kill Cassas with her 14 gun, and testimony from Rivera's former employer that the day 15 before the shooting Rivera told his co-workers that he "couldn't 16 take [Cassas], couldn't stand her," and wished her dead. J.A. 17 1020.
Indeed, in summation, the prosecutor told the jury: 19 The people maintain it was an intentional act . 20 . . [E]veryone agrees that when you take this gun, 21 which they call a deadly weapon for a good reason, 22 and when it is pressed . . . against the head and 23 the trigger is pulled and the gun is discharged, 24 there can be no question in any reasonable person's 25 mind that whoever pulled that trigger intended to 26 cause the death of the individual against whose 27 head it was pressed. So I submit that is not an 28 issue. This is an intent. An intent to kill. 29 J.A. 1463 (emphasis added).
Throughout trial, Rivera's sole defense was that Cassas 2 committed suicide. According to Rivera's version, Cassas, who 3 had been depressed ever since their son's birth eight months 4 earlier, showed up on the night of her death distraught and, 5 threatening to kill herself, pulled the Beretta handgun from her 6 car and put it to her head. Although Rivera attempted to take 7 the gun away from her, while the gun was pressed near her temple, 8 a distraught Cassas pulled the trigger, inflicting upon herself a 9 single gunshot wound to the head. In support of this theory, 10 Rivera presented, inter alia, both expert and eyewitness 11 testimony suggesting that, at some point immediately before the 12 gun went off, there had been a struggle between Rivera and Cassas 13 for possession of the gun.
14 During the trial, defense counsel moved to dismiss the 15 depraved indifference murder charge for lack of evidence. The 16 court denied the motion and charged the jury on both intentional 17 and depraved indifference murder, as well as on manslaughter in 18 the first degree as a lesser included offense to intentional 19 murder. Manslaughter as a lesser included offense to depraved 20 indifference murder (i.e., "reckless manslaughter") was not 21 submitted to the jury.
22 The jury eventually found Rivera not guilty of intentional 23 murder, but guilty of depraved indifference murder--and found 24 Rivera guilty of the remaining misdemeanor charges not relevant to this appeal. The court then sentenced Rivera to 23 years to 2 life in prison on the depraved indifference murder charge.
3 On direct appeal, Rivera challenged his conviction for 4 depraved indifference murder on the ground that the evidence was 5 insufficient to support a finding of recklessness since all of 6 the evidence adduced at trial went to a theory of intentional 7 conduct. The Appellate Division rejected ...