The opinion of the court was delivered by: John F. Keenan, United States District Judge
Before the Court is Juan Rivera's ("Rivera" or "Petitioner") petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on the basis of ineffective assistance of counsel and prosecutorial misconduct. For the reasons that follow, the petition is denied.
Rivera was charged with Murder in the Second Degree, Manslaughter in the First Degree, and Criminal Possession of a Weapon in the Second Degree stemming from the October 1, 2002 fatal shooting of Leonardo Rivera (no relation to Petitioner) on Longwood Avenue in the Bronx, New York. (Tr. 27:15-18, 36:3- 11).*fn1 Following a month-long trial, Rivera was convicted of Second Degree Murder in New York Supreme Court, Bronx County, on June 30, 2005. People v. Rivera, 838 N.Y.S.2d 564 (N.Y. App. Div. 2007).
In its case-in-chief, the government called several police witnesses, a medical examiner, and two eye-witnesses: Leslie Bonilla, a lifelong friend of the victim, and Armando Vega, the victim's brother. Both Ms. Bonilla and Mr. Vega testified that they were present at the scene of the crime and witnessed Rivera shoot the victim multiple times while engaged in a dispute over six hundred dollars. (Tr. 319-25, 555-76).
Ms. Bonilla's testimony was problematic. When asked on direct examination by ADA Christine Scaccia how often she saw Rivera, she replied, "Not too much. When he came out of jail." (Tr. 288:22-23). After defense counsel objected, the court struck the statement from the record and instructed the jury to disregard it. (Tr. 289:1-2). A few minutes later, Ms. Bonilla indicated that Rivera and the victim had been involved in a dispute "about six hundred dollars Manny [Juan Rivera] owes Lenny for drugs."*fn2 (Tr. 295:14-15). Following Ms. Bonilla's reference to Rivera's involvement with narcotics, defense counsel moved for a mistrial. (Tr. 298:14-17). Defense counsel did not suggest that the prosecutor "has done anything improper with respect to not meeting her responsibility in instructing the witness[,]" but noted that "[t]he witness . . . seems to have an agenda all her own." (Tr. 297:16-20). Opposing the motion for a mistrial, ADA Scaccia stated:
Your Honor, first of all, counsel is right. I did instruct the witness that, not because of anything she said here so far this morning wasn't true, but I told her there were certain rulings and certain things that could not be said in the courtroom. We broke after the first two officers and I said, can I have ten minutes. You told me to go down, while the jury is here, go down, get her and bring her up. I didn't have a chance to speak with her this morning to remind her of my instructions. That doesn't excuse what she did. Obviously she doesn't understand. She's not a professional witness. (Tr. 299:2-14). The court further inquired of ADA Scaccia: "So you had mentioned that, or things of that nature, to her not to say," to which ADA Scaccia responded, "Yes." (Tr. 300:10-12).
The trial judge then indicated that he was considering either declaring a mistrial or striking Ms. Bonilla's testimony. (Tr. 301:16-23). After pondering the issue over a lunch break, the trial judge noted that "really, there is no evidence at this point that the prosecution had anything to do with what the witness did or did not do intentionally or otherwise." (Tr. 306:22-24). During additional argument, ADA Scaccia explained:
I instructed the witness that we were not going to talk about it. Over the break I asked her, I said, you know, remember I told you we are not going to talk about drugs. She said yes, but I got confused because you asked what the fight was about . . . (Tr. 308:11-17). The court ultimately denied Rivera's motion for a mistrial and struck Ms. Bonilla's testimony regarding drugs from the record. (Tr. 318:7-13).
On cross-examination, defense counsel probed Ms. Bonilla to confirm ADA Scaccia's representations to the trial judge.
Defense: So in preparing you to testify as a witness, you sat down with Ms. Scaccia. You sat down in her office and had a general discussion about testifying, correct?
Witness: She didn't tell me nothing. She told me to come in; that's it.
Defense: You got a call from Ms. Scaccia and she said come on in. That's it. And without a word, without a general explanation of what testifying entailed, without exploring with you your account, she just called you up and planted you right on the stand? Witness: Correct.
Defense: Okay. So the first time Ms. Scaccia had asked you a series of questions about this event was three years later?
Witness: I didn't even speak to her until -- Defense: It's almost three years later?
Defense: The first time Ms. Scaccia said to you, "Tell us Ms. Bonilla, tell us what ...