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Rivas v. Fischer

United States District Court, Second Circuit

August 6, 2013

HECTOR RIVAS, Petitioner,
v.
BRIAN FISCHER, Respondent.

Zimmer Law Office PLLC, KIMBERLY M. ZIMMER, ESQ., Syracuse, NY for the Petitioner.

Office of Sally Wasserman, SALLY WASSERMAN, ESQ., New York, NY, ERIC T. SCHNEIDERMAN, Assistant Attorneys General, PRISCILLA I. STEWART, ALYSON J. GILL, New York State Attorney General, New York, NY, for the Respondent.

MEMORANDUM-DECISION AND ORDER

GARY L. SHARPE, Chief District Judge.

I. Introduction

Petitioner Hector Rivas seeks habeas corpus relief pursuant to 28 U.S.C. § 2254, alleging that the following five grounds, singularly and cumulatively, demonstrate his entitlement to a writ: (1) newly discovered evidence has been uncovered since his conviction that shows misdeeds by Dr. Erik Mitchell, the medical examiner who testified at his trial; (2) the prosecution failed to disclose a myriad of Brady material; (3) he was denied his right to a fair trial by the trial court's assumption of the role of prosecutor; (4) he was denied a fair trial by the trial judge's failure to recuse himself; and (5) his trial counsel was ineffective. ( See Am. Pet., Dkt. No. 14, Attach. 3 at 1-7.) Following extensive supplemental briefing, in which Rivas focused his efforts on the Brady and ineffective assistance of counsel claims, and argument before the court on May 29, 2013, ( See Dkt. Nos. 92, 93, 96, 97, 103), the court dismisses the Amended Petition and denies Rivas' application for a writ of habeas corpus.[1] As explained in detail below, habeas relief is unwarranted because the state court judgments at issue here did not result in decisions evincing an unreasonable application of clearly established federal law, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

II. Background

A. Facts

On Monday, March 30, 1987, Randall Hill (hereinafter "Hill") discovered the lifeless body of his daughter, Valerie Hill, in her apartment at 248 Hickok Avenue in the City of Syracuse. (T: 100, 103, 136.[2]) Valerie was strangled with the sash from her bathrobe, and then likely anally penetrated with an unknown object. (T: 868-69, 880-82, 891.) In the ensuing criminal investigation, Hill and Valerie's brother, David Hill, told police officers that Rivas was Valerie's former paramour, and that the two had recently broken up. (T: 235, 257.) Given this information, investigator John Brennan of the City of Syracuse Police Department and another investigator were assigned to locate Rivas and bring him to the station for an interview. (T: 227, 235.) The investigators found Rivas at his home in the Town of Cazenovia, [3] and asked him to accompany them back to Syracuse for an interview pertaining to Valerie. (T: 236-37.) Rivas agreed to go with the investigators, but, as Brennan explained at trial, he asked no questions about Valerie when they arrived at his home, and said nothing at all during the twenty-five-minute ride to the police station in Syracuse. (T: 237-38.) According to Brennan, when Rivas was eventually informed that Valerie was dead, "he showed absolutely no reaction at all." (T: 247.)

The interview lasted from shortly after 3:00 P.M. until approximately 1:30 A.M. the following morning. (T: 239, 257.) During that time, Rivas explained to the investigators that he last saw Valerie on Thursday, March 26, around 7:00 P.M. (T: 240.) He proceeded to recount his whereabouts on Friday, Saturday, and Sunday.[4] (T: 240.) Rivas claimed that, on Friday, he stopped by Valerie's apartment around 2:00 P.M., but left when he found that she was not home. (T: 240-41.) Rivas stopped at Valerie's apartment once more around 6:00 P.M., and, again finding that she was not home, left a note under her door. (T: 241.) According to Rivas, he continued on to Coleman's Pub in Syracuse, where he met with friends and remained until 11:00 P.M. (T: 242.) Afterward, Rivas told police, he returned to Cazenovia and went to Albert's, a tavern, where he remained until 2:00 A.M., at which time he went with friends back to Syracuse for breakfast. (T: 242). Rivas explained that he returned home at approximately 4:00 A.M. and slept until 11:30 A.M. Saturday morning. (T: 242.)

On Saturday, Rivas told police that, after he woke, he went to Albert's to do some plumbing work; once there, he decided to, instead, have lunch. (T: 243.) He claimed that he then went home, returned to Albert's around 3:30 P.M., and stayed there until 8:00 P.M. (T: 243.) Rivas said that he left Albert's to attend a party hosted by Robert Giordano, where he remained until 4:00 A.M. on Sunday. (T: 243.) Sunday, according to Rivas, consisted of his waking at 11:00 A.M., traveling into town, getting a newspaper, driving around, going home to wash his car, and returning to Albert's "later in the afternoon" until 11:00 P.M., at which time he went home. (T: 243.)

During the interview, Rivas also provided the police with information regarding his relationship with Valerie. (T: 244-46.) He explained that he and Valerie met in May 1986 and dated up until about two months prior to her death. (T: 244-45.) He also told the investigators that he did not want the relationship to end and could not understand why Valerie felt differently. (T: 246.) Rivas also mentioned that he once had a key to Valerie's apartment, but had returned it to her after their breakup. (T: 245.) Rivas admitted to police that, since the breakup, he traveled to Valerie's apartment "nearly every day... in an attempt to see her. He would drive by, sometimes wait for her in the hallway. And if she was not home, [he would] leave notes for her under her door, or on her door." (T: 245-46.) Despite giving the history of his intensive efforts to see Valerie almost every day, Brennan testified that Rivas could not explain why he made no effort to see her on Saturday or Sunday. (T: 247.)

Rivas was not arrested until November 24, 1992, more than five years after Valerie's death. ( See Dkt. No. 55, Attach. 2 at 55.) A two-count indictment followed, but the second count was eventually dismissed on the prosecution's motion, leaving for trial a single count of murder in the second degree. ( See Dkt. No. 55, Attach. 2 at 21, 349); N.Y. Penal Law § 125.25(1). Rivas retained attorney Richard Calle to represent him. ( See Dkt. No. 56, Attach. 2 at 13-14; 440: 12.[5]) In advance of trial, Calle, among other things, filed an omnibus motion and notice of alibi on behalf of Rivas. ( See Dkt. No. 55, Attach. 2 at 28-41, 42.)

In his opening statement at trial, the District Attorney, William Fitzpatrick, explained to the jury that he would prove that Rivas killed Valerie on Friday, and that the crime was not committed on Saturday or Sunday. (T: 43-55.) Calle made clear in his opening statement that he intended to both show that Rivas had a good alibi for the days in question and discredit Dr. Mitchell for purportedly changing his opinion about Valerie's time of death. (T: 77-78, 81-82, 84.) The ensuing trial lasted seven days. (T: 1, 1027.)

The first prosecution witness, Hill, explained that he and Valerie met for dinner around 7:00 P.M. on Friday despite their plans to meet at 6:30 P.M. (T: 96.) Valerie left the restaurant after an "hour and fifteen minutes"; she had one cocktail and "sampled" some of Hill's entree. (T: 98.) Hill also told the jury that Valerie had plans to visit a friend in Schenectady, New York, from Saturday to Sunday, and that he did not attempt to contact her until Sunday evening when he expected her to return from her trip. (T: 99.) Valerie did not answer the telephone on Sunday, nor did she answer Monday morning when he called again. (T: 99.) After calling Valerie Monday morning, and receiving no response, Hill went to St. Joseph's Hospital-where Valerie worked as a nurse-to visit his ailing wife and check on Valerie. (T: 89, 100.) One of Valerie's co-workers informed Hill that Valerie was not at the hospital. (T: 100.) Hill, growing concerned, went to Valerie's apartment. (T: 101.)

Hill parked his vehicle behind Valerie's car, which was in the driveway. (T: 101.) The exterior door used by both Valerie and her upstairs neighbors, the Stoneciphers, was unlocked, as was the interior door to Valerie's apartment. (T: 102-03, 348-49, 390.) Once inside, Hill saw Valerie's body on the living room floor. (T: 103.) Upon finding his deceased daughter, Hill "[b]ecame unglued" and called the police. (T: 104.) Hill smoked Carelton menthol cigarettes that day and used whatever ashtray was available in Valerie's apartment. (T: 105.) In addition to the foregoing, Hill provided background information about Valerie and her relationship with Rivas. In particular, he gave testimony that, on March 17, 1987, while he and Valerie sat in his vehicle in her driveway and talked, Rivas emerged from the side door of her apartment. (T: 108-10.) Seeing Rivas prompted Valerie to say: "That bastard. He's in my house again." (T: 117.) According to Hill, prior to Valerie's relationship with Rivas, she dated Robert Lucas for approximately three years. (T: 91.) Hill also commented that Valerie was very neat and tidy in her home. (T: 91.)

David Hill echoed his father's testimony that Valerie was "[v]ery, very neat" in her housekeeping habits, and he added that she was very quick to clean up after meals. (T: 150.) David explained that Valerie smoked Newport cigarettes occasionally, and, typically, when she drank alcohol socially. (T: 150-51.) According to David, Rivas smoked Barclay cigarettes and also drank alcohol. (T: 151-52.) The next prosecution witness, Elizabeth Michael, director at the Cazenovia Public Library, knew Valerie as a regular library patron. (T: 172, 175.) She explained that Valerie borrowed Stephen King's The Dark Tower: The Gunslinger, a book with a dark, black cover, in January 1987. (T: 175, 178; Dkt. No. 55, Attach. 6 at 10.) Because the book was not in the Cazenovia collection, it was on loan from the Mid York Library System in Utica, and had on its spine a gold label indicating that it so belonged. (T: 175, 179.) In fact, nothing about the book's appearance indicated that it had been borrowed from the Cazenovia Library. (T: 183.) On March 24, 1987, one of Michael's employees called Valerie seeking the book's return. (T: 176.) During that conversation, Valerie claimed that she returned the book weeks earlier, which caused the library staff to search for the book to no avail. (T: 176-77.) Sometime between 3:30 P.M. on Saturday and 10:00 A.M. Sunday, the book appeared in the Cazenovia Library drop box. (T: 177-78.) Michael reported the book's return to authorities after reading in the newspaper that Valerie had been killed "and what was assumed the time of her death, " which led her to think that the book was returned after the time that police suspected she was killed. (T: 179.)

The prosecution next called Anita Balducci, who was employed by Nye Ford in Oneida, New York at the time of Valerie's murder. (T: 185.) Balducci explained that, on Friday, Valerie came to the dealership just before 1:00 P.M. to have her vehicle serviced. (T: 186.) Valerie waited a little over two hours for the work to be completed. (T: 186-87.) The repair order indicated that, when Valerie's vehicle arrived, the odometer reading was 14, 507 miles, although after the repairs were made, a technician likely tested the vehicle over the road for some very short distance. (T: 188-90.) A police investigator later testified that the odometer reading of Valerie's car as it sat in her driveway on March 31, after her death, was 14, 539 miles, indicating that the car had been driven approximately thirty two miles since the odometer was read at Nye Ford. (T: 209-10.) Another officer explained that a trip from Nye Ford to Valerie's apartment at 248 Hickok Avenue, then to Candy's Restaurant, and, finally back to Valerie's apartment consisted of thirty-three miles, and that the distance between Coleman's and Albert's was approximately 23.5 miles and took thirty minutes to cover by vehicle. (T:318-19.) Balducci also recalled seeing two books lying on the back seat of Valerie's car, one appeared to be a novel on loan from a library with a dark black cover. (T: 191.)

Travel agent Cynthia Reiser testified next. (T: 196.) She met with Valerie on Friday around 4:30 P.M. regarding a trip to the Bahamas that Valerie first contacted her about on March 15 or 16. (T: 197-98, 205.) According to Reiser, Valerie "wanted to go away by herself." (T: 199.) Valerie was supposed to travel on April 27, and return on May 3. (T: 201-02.) On Friday, Valerie made her final payment, and picked up two airline tickets and related trip documents. (T: 204-06.)

Next to testify was Laura Adams, a friend of Valerie's that lived near Saratoga Springs, New York. (T: 213, 224.) According to Adams, she and Valerie made plans for Valerie to visit her the weekend of March 27 through March 29; it was unclear whether Valerie would depart from Syracuse on Friday evening or Saturday morning. (T: 216.) Around 4:30 P.M. on Friday, and at least twenty other times up until midnight, Adams placed telephone calls to Valerie to solidify their plans, but all of them went unanswered. (T: 217-18, 221.) At one point when Adams called on Friday, Valerie's telephone line was busy. (T: 221.) Beginning the next morning around 8:00 A.M., and continuing until early Saturday afternoon, Adams continued unsuccessfully to call Valerie. (T: 218-19.) Adams tried to contact Valerie again on Sunday, without any response, and heard of her death on Monday, March 30. (T: 219.) Finally, Adams explained that Valerie visited her "many, many times and never once had she never, ever, not shown up or not called when she was coming to visit." (T: 219-20.)

Police officer David Phinney told the jury that he was the first officer to arrive at Valerie's apartment on Monday, March 30. (T: 268.) He saw no indication of forced entry. (T: 269.) Later that day, Phinney and fellow officer Thomas Stassi executed a search warrant, which permitted them to search Rivas' home for a key to Valerie's apartment, gray sweater, gray pants, and "any other blood stained, semen stained or contaminated clothing." (T: 270, 272, 309; Dkt. No. 56, Attach. 2 at 47.) While searching Rivas' kitchen garbage, Stassi found pieces of a torn letter; one of those pieces had the words "Hi, Bob" written on it, which was of interest to Stassi who knew that Bob Lucas was Valerie's former boyfriend. (T: 311-12.) In Rivas' basement, Phinney found a damp, gray Member's Only jacket hanging on a clothesline, and, in the garbage, he discovered discarded Barclay cigarette packages and butts. (T: 274-75.) Phinney also found, on a shelf in Rivas' bedroom closet, "a rather large statue of the Virgin Mary, " along with two burning candles, a plate with some coins in it, and a photograph of Valerie leaning against the base of the statue. (T: 272-73; 315-16.) Although the officers brought cameras with them, one malfunctioned, and the other, a Polaroid, only had enough film for four or five photographs. (T: 274.) On cross-examination, Phinney admitted that the display in the closet was "odd, " but that he had failed to take any photographs of it in light of the difficulties the officers had with their cameras. (T: 287-88.) Stassi conceded that the police clearly erred by failing to have functioning cameras with adequate film on hand when the warrant was executed. (T: 334-35.)

Valerie's upstairs neighbors, Donald and Karen Stonecipher were called as the next witnesses. (T: 346-48, 395.) Donald told the jury that he left work for his home at 3:30 P.M. on Friday. (T: 350-51.) When he arrived home, he saw Rivas' red Chevrolet van, with Rivas inside, parked in front of the house. (T: 351.) Later that evening, Donald and Karen went out to dinner. (T: 355.) During their dinner, Donald left Karen at the restaurant to give one of their sons a ride home from work. (T: 355.) The Stonecipher's son got off work between 9:20 and 9:30 P.M., at which time Donald picked him up and drove him home. (T: 355.) When he dropped his son off, Donald noticed that the lights in Valerie's apartment were on, which he considered unusual. (T: 356.) Later that evening, when Donald and Karen returned from dinner, at approximately 10:30 or 11:00 P.M., only the living room light remained on. (T: 356, 403.) Karen explained that she had witnessed Rivas enter Valerie's apartment with a key prior to January 1987. (T: 398.) On Tuesday, March 24, she overheard Rivas "banging at the back door" attempting to enter Valerie's apartment while Valerie was home. (T: 398-400.) The knocking stopped at some point, and Karen assumed that Valerie let Rivas into the apartment. (T: 400, 416.) Karen too saw Rivas' red van parked on her street on Friday afternoon, although she noticed the vehicle around 2:00 or 3:00 P.M. (T: 400-01.) Lastly, Karen recalled seeing Valerie's cat in the common back hall of the building on Saturday morning, which was unusual because Valerie's "cats were never out." (T: 404.)

On Friday around 4:30 P.M., paperboy Christopher Reynolds came to collect payment from the Stoneciphers and saw Rivas in a gray Member's Only jacket in front of 250 Hickok Avenue. (T: 428-30, 432.) Peter Cooney, an acquaintance of Rivas, passed by him twice on the road while driving on Friday. (T: 434-37.) At around 2:00 P.M. on Friday, Cooney saw Rivas driving his red van near Syracuse. (T: 436-37.) At around 5:00 or 5:30 P.M. that afternoon, Cooney was returning to Cazenovia on Route 92 when he saw Rivas heading the opposite direction, into Syracuse, driving his car. (T: 437-38.) Later that evening, Cooney testified, he went to Albert's at 10:30 P.M. (T: 439.) Cooney stayed at Albert's for about forty-five minutes and did not see Rivas there, although he did not check the back area of the bar. (T: 439, 449.) From Albert's, Cooney went to another nearby bar, but eventually returned to Albert's around 12:00 or 12:30 A.M. (T: 439-40.) Upon his return to Albert's, Cooney observed Rivas at the bar. (T: 440.)

Rivas' friend Mark Brosh also provided testimony about Rivas' whereabouts on Friday. (T: 457-58.) Brosh claims that Rivas, whom he said smoked Barclay cigarettes, called him earlier in the day to make plans that evening even though the two had not spent time together socially in about six months. (T: 460-61, 463.) Brosh told Rivas that he was going to Coleman's around 6:00 P.M., and encouraged Rivas to meet him there. (T: 460-61.) Rivas arrived at Coleman's between 6:00 and 6:45 P.M. and left between 9:00 and 9:30, according to Brosh. (T: 461, 463, 469.) Brosh's wife, Lori, [6] testified similarly about the timing of Rivas' departure from Coleman's. (T: 486, 490.) After testifying on cross-examination that Rivas "was a gentleman and polite" around women, Brosh admitted on re-direct examination that he was aware that Rivas had previously been arrested for "beat[ing] up" Sarah Hamlin, a former girlfriend, and that Hamlin had since moved away from Central New York "to get away from... Rivas." (T: 465-66, 481-82.)

The next prosecution witness, John Cassano, was working at Liquor Square on Friday evening. (T: 493, 495-96.) He recalled Rivas, who drove a light gray or silver car, coming into the store between 9:30 and 10:00 P.M. and buying a bottle each of Almaden wine, rum, and an unknown third liquor. (T: 497-99, 501-02.) A sales receipt from 9:40 P.M. confirmed a sale of Bacardi rum and Almaden wine at that time. (T: 500.) Cassano explained that bottles sold by Liquor Square did not bear any identifying marks that would indicate that they were purchased from that store, and he could not verify whether a bottle of rum recovered from Valerie's apartment was purchased from Liquor Square. (T: 518-20.)

James Crimi was called as a prosecution witness after Cassano. (T: 525.) At the time in question, Crimi was dating Susan Stonecipher, the daughter of Donald and Karen. (T: 528, 926.) After Crimi picked Susan up from work around 8:00 P.M. on Friday, the pair "cruised around" for a while before Crimi dropped Susan off at her home on Hickok Avenue around 11:00 P.M. or 12:00 A.M. (T: 531-32.) Crimi saw Rivas, who was smoking a cigarette, sitting in his car on the street when they arrived at the building where Valerie and the Stoneciphers all lived. (T: 533.)

In connection with the investigation of Valerie's murder, James Kimak, another police officer witness, recorded video footage of Valerie's apartment on March 30. (T: 542-43.) On cross-examination, Kimak testified that he observed no packed suitcase and that only $22 was found in the apartment. (T: 560, 565-66.) Officer Thomas Bland obtained fingerprints from, among other things, a bottle of Blue Nun wine, a Bacardi rum bottle, and an ashtray found in Valerie's apartment. (T: 576, 579-80.) Another officer, William Donohue, attempted to identify the fingerprints secured by Bland. (T: 583.) The bottle of Blue Nun and ashtray had Rivas' prints on them, and the Bacardi bottle had Valerie's prints on it. (T: 589-90, 592-93.) Donohue admitted that he could not determine when the prints were left behind on those items. (T: 599.) Fingerprints which Donohue was unable to identify were also recovered from the telephone in Valerie's apartment, and from the Stephen King book returned to the Cazenovia Public Library. (T: 588, 601.) Officer Drew Buske recovered from a drawer in Valerie's spare bedroom "a stack of greeting cards and personal notes" she apparently received from Rivas and saved. (T: 617; see Dkt. No. 55, Attach. 6 at 35-96.) Gary Pratt, another police officer, explained that a host of other greeting cards and notes from Rivas were found in the apartment. (T: 648-50; see Dkt. No. 55, Attach. 6 at 99-104, 106-11.) Officer Pratt also identified both Barclay and Carlton cigarette butts in a photograph of the ashtray found in Valerie's home on March 30. (T: 632, 655-56; see Dkt. No. 55, Attach. 6 at 113.)

Lucas testified for the prosecution that he received a letter from Valerie in February 1987. (T: 670.) The first two lines of the letter he received were identical to those of the torn letter that police recovered from Rivas' kitchen garbage can. (T: 675; compare Dkt. No. 55, Attach. 5 at 196, 198, with Dkt. No. 55, Attach. 6 at 119-20.) Prosecution witness Margaret Burke Frio worked with Valerie and the two were friends. (T: 733-34.) Frio recounted that on February 18 or 19, 1987, she and Valerie bought a bottle of Blue Nun wine after their hospital shift ended, and went back to Valerie's apartment to have a glass of the wine. (T: 737-39.) While the women sat on the porch having a drink, Rivas arrived with flowers for Valerie, a situation about which Valerie was not pleased. (T: 739-40.) While Frio and Rivas were alone for a moment, he asked her to speak to Valerie on his behalf to help patch up their relationship. (T: 742.) On March 4, 1987, Frio and Valerie were at a bar with several friends from work when Rivas arrived and attempted to buy them drinks. (T: 743-44.) After rejecting Rivas' offer, Valerie and Rivas had a disagreement. (T: 744-45.) Frio and Valerie spoke briefly Friday morning, and, at that time, Valerie mentioned her plans for the weekend. (T: 746-47.) Finally, Frio explained that Valerie was in the habit of cleaning out her ashtray often. (T: 751.)

Elizabeth Lewis was called as the next witness. (T: 758.) Lewis met Valerie through Lucas, and, with Lewis' husband, the four lived together from 1982 to late 1983. (T: 760.) According to Lewis, Valerie was very neat and tidy when they lived in the same home. (T: 762.) On March 20, Lewis called Valerie's apartment at a time that she later learned Valerie could not have been at home; the telephone was answered, however, by Rivas. (T: 769-70.) This prompted Lewis and her husband to suggest to Valerie that she change her locks, call the police, and stay with them. (T: 771.) On March 26 at around 1:30 A.M., Rivas called Lewis crying and saying Valerie's name in a mostly incoherent conversation where he spoke in both English and Spanish. (T: 771-72.) Lewis believed Rivas to be intoxicated when he called. (T: 773.) Lewis testified that Valerie had plans to travel on the weekend in question, and intended to leave Saturday morning. (T: 774-75.) Lewis also explained that she saw Rivas on Saturday night at Albert's. (T: 777.) According to her, she arrived at Albert's before 9:00 P.M. and saw Rivas when she walked in. (T: 777-78.) Lewis left Albert's for a party at Giordano's house where she did not see Rivas until around 12:00 A.M. (T: 779-80.) There, Rivas commented that it was "too bad" that Valerie did not feel well and did not come to the party, which Lewis found curious because Valerie was supposed to be out of town. (T: 780.) During the conversation, Rivas acknowledged that he went into Valerie's apartment when she was not home, took back a gift he had given her for her birthday, and was forced to follow her around because she would not speak to him on the telephone and he "had to see her." (T: 796.) Rivas also spoke about Valerie in the past tense during the exchange with Lewis. (T: 796.)

Next, Joseph Fields, an acquaintance of Rivas, testified that a week or two after Valerie was killed, he and Rivas spoke at Albert's. (T: 813-14.) While they were talking about Valerie, Rivas, who was "quite drunk, " began to cry and said: "Valerie, Valerie, I didn't mean to do it." (T: 816-17.) Fields' girlfriend at the time, Kelly Williams Grey, did not overhear the conversation, but saw Fields react to something that Rivas said to him. (T: 826-27.) As drawn out during cross-examination, Grey did not come forward with the information she testified about until 1993 when contacted by "the authorities." (T: 828-29.)

Beverly Dorland lived near Rivas and was friendly with him in the weeks leading up to Valerie's death. (T: 846-48.) She went to Albert's on Friday at some time after 10:30 P.M., and testified that Rivas arrived there after midnight, "probably" between 12:30 A.M. and 1:30 A.M. on Saturday. (T: 848-49, 855.) To Dorland, Rivas appeared to be out of character when she first saw him, but, afterward, he "was totally normal." (T: 850.) A group of people including Dorland and Rivas decided to go out for breakfast together, but beforehand Rivas was asked by one of them to drive a woman home. (T: 851.) Rivas left Albert's around 1:50 or 2:00 A.M. to take the woman home; he met up with Dorland and the others for breakfast in Syracuse approximately one hour later. (T: 851.) Following breakfast, Rivas drove Dorland back to Cazenovia and dropped her off at Albert's, where her vehicle was parked. (T: 851-52.) Dorland also testified that a few weeks prior to Valerie's death, Rivas cared for Valerie's cats at his home. (T: 853-54.)

Dr. Mitchell was the final prosecution witness. (T: 865.) He examined Valerie's body the afternoon of March 30, and found it in rigor, meaning that the musculature had stiffened, and beginning the process of livor. (T: 868-69.) The examination revealed a bruise on Valerie's forehead, inflicted within a twenty-four-hour period prior to her death. (T: 875, 908.) He opined that the cause of Valerie's death was strangulation, and elaborated that, given the nature of the injuries, she likely would not have been able to speak during the strangulation. (T: 879-80, 891.) According to Dr. Mitchell, Valerie's stomach contained about one cup of fluid and congealed grease, and her blood alcohol content (BAC) was.03 percent. (T: 884-86.) Assuming that Valerie died on any given day between 10:00 P.M. and midnight, her BAC was inconsistent with consuming two alcoholic drinks at 7:00 P.M., but was consistent with one or two drinks at 7:00 P.M. and another shortly before her death. (T: 886.) Saliently, Dr. Mitchell admitted that he could not "pinpoint with certainty the time of a person's death, " but opined that, in this case, it was "more likely" that Valerie "died Friday night to possibly very early Saturday morning." (T: 886, 890.) On cross-examination, Dr. Mitchell acknowledged that Valerie could have died on Saturday or Sunday, and that, despite his testimony on direct examination, it would "[p]robably" be "fair to say" that Valerie dying on Friday was "on the outside edge of a possibility." (T: 895-98, 906-07.) Dr. Mitchell also explained that, despite the fact that rigor typically leaves the body within twenty-four to forty-eight hours, and on March 30 at 3:30 P.M. Valerie's body was in full rigor, his opinion that Valerie's death more likely occurred late on Friday or in the wee hours of Saturday was buttressed by decomposition of the brain and cool temperatures in the apartment, which retarded the onset and relaxation of rigor. (T: 903-05, 914-17.) During redirect examination, the District Attorney asked Dr. Mitchell whether, since testifying before the grand jury, he had reviewed "notes and slides in connection with this case, " to which Dr. Mitchell responded in the affirmative. (T: 915.) In reviewing those materials, Dr. Mitchell noted decomposition in Valerie's brain, which "tend[ed] to push the limits further out." (T: 915.)

After unsuccessfully moving for dismissal of the indictment, Rivas called several witnesses in support of his defense. (T: 923.) First, Susan Stonecipher explained that she saw Valerie on Friday morning. (T: 931.) She admitted that she originally told police that she saw Valerie on Saturday, but claimed that she later realized that she was mistaken, and provided the police with an updated affidavit two days after Valerie's body was found. (T: 932, 934-35.) Albert's employee Susan Volz acknowledged that she told police that she saw Rivas at Albert's on Friday around 7:30 or 8:00 P.M., although she had no recollection of that fact at the time of trial. (T: 961, 966-67.) John Marion also provided testimony relevant to Rivas' alibi defense. (T: 973.) In particular, Marion told the jury that he saw Rivas on Saturday night at Giordano's party. (T: 973-74.)

Three police officers also testified at the behest of Rivas. (T: 993, 1002, 1007.) Officer Michael Ostuni revealed that Joseph Morgan, described on cross-examination as a con artist, career criminal, and drunk, told him that a man by the name of Patsy Baricella admitted to him that he killed a girl on Hickok Avenue because God told him to do it. (T: 993-99.) Ostuni testified during cross-examination that Baricella was known by him to be mildly mentally retarded. (T: 1001.) Officer Leonard Stephens gave further information about Baricella. (T: 1003.) While posted outside of Valerie's apartment on March 31 around 11:20 P.M., Stephens observed a vehicle pass by his location two or three times, prompting him to radio officer Bernice Barnette for the purpose of having her stop the vehicle. (T: 1003-04.) Barnette, who was on patrol nearby, saw the vehicle Stephens told her about and pulled it over after observing a traffic violation. (T: 1007.) The vehicle was registered to Baricella, and the occupant admitted to being Baricella, although he was without identification. (T: 1008-09.) Following Barnette's testimony, the defense rested. (T: 1011.) After summations and little more than seven hours of deliberation, the jury returned a guilty verdict. (T: 1030-1132, 1178, 1197.)

With new counsel, Rivas filed an unsuccessful motion to set aside the verdict pursuant to N.Y. Crim. Proc. Law § 330.30. (DEPH: 239.[7]) He was ultimately sentenced to a term of imprisonment of twenty-five years to life by County Court (Mulroy, J.) (hereinafter the "trial court" or "trial judge"). ( See Dkt. No. 55, Attach. 2 at 20.) Rivas thereafter appealed his judgment of conviction. ( See id. at 18.) His conviction was affirmed on appeal by the Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department, see People v. Rivas, 214 A.D.2d 996 (4th Dep't 1995), his application for leave to appeal to the Court of Appeals of New York, ( see Dkt. No. 55, Attach. 11), was subsequently denied, see People v. Rivas, 86 N.Y.2d 801 (1995), and his motion for a writ of error coram nobis was denied by the Fourth Department, see People v. Rivas, 231 A.D.2d 971 (4th Dep't 1996). In July 1999, Rivas moved, pursuant to N.Y. Crim. Proc. Law § 440.10, to vacate the judgment of conviction. ( See Dkt. No. 56, Attachs. 2, 3.) Rivas asserted that his conviction should be vacated based upon: newly discovered evidence-specifically, the opinion of Dr. Cyril Wecht that Valerie died less than forty-eight hours, and more likely less than thirty-six hours, prior to when her body was found; the late disclosure or non-disclosure of exculpatory Brady and Rosario material; and because his rights to due process and the assistance of counsel were violated. ( See Dkt. No. 56, Attach. 3 at 1-2.) Following an evidentiary hearing before County Court (Brunetti, J.) wherein Rivas, Calle and the District Attorney all testified, the motion was denied in its entirety. (440: 10, 81-82, 105, 135-41; see Dkt. No. 56, Attach. 5.) The Fourth Department thereafter denied Rivas leave to appeal the denial of his § 440.10 motion. ( See Dkt. No. 14, Attach. 3 at 19.)

B. Procedural History

Following the foregoing, Rivas filed a petition for a writ of habeas corpus on December 12, 2001. ( See Pet., Dkt. No. 1.) In the face of respondent Brian Fischer's motion to dismiss the petition, ( see Dkt. No. 7), Rivas sought leave to amend, which was granted, ( see Dkt. Nos. 10, 12). Rivas thereafter filed the operative Amended Petition and appended the affidavit of former counsel H. Mitchell Schuman, a memorandum of law-both of which elaborated upon the claims asserted in the Amended Petition-and various exhibits. ( See Am. Pet.; Dkt. No. 14, Attach. 3 at 8-48) The court, finding that the Amended Petition was filed outside of the one-year statute of limitations, dismissed it and entered judgment in favor of Fischer. ( See Dkt. No. 21.) The Second Circuit vacated that judgment on appeal and remanded with specific instructions that this court make factual findings regarding whether a diligent person in Rivas' circumstances would have discovered, before May 8, 1999, the evidence he put forth, and whether the evidence provided a factual predicate for any of his habeas claims. See Rivas v. Fischer, 294 F.Appx. 677, 678-80 (2d Cir. 2008). If Rivas failed to satisfy the diligence requirement of 28 U.S.C. § 2244(d)(1)(D), the Second Circuit further instructed, this court was to consider whether Rivas "established a credible claim of actual innocence." Id. at 679.

In light of the Second Circuit's decision, Magistrate Judge David E. Peebles held a two-day evidentiary hearing in September 2009. ( See Dkt. Nos. 60-61.) Following the hearing, Judge Peebles recommended dismissal of the Amended Petition, which recommendation was adopted by this court. ( See Dkt. Nos. 65, 68.) The Second Circuit again reversed, finding that Rivas made a credible and compelling showing of actual innocence, which serves as an equitable exception to the limitations period set forth in § 2244(d). See Rivas v. Fischer, 687 F.3d 514 (2012). This court has been instructed to pass upon the merits of the constitutional claims alleged in the Amended Petition, see id. at 518, a task that it now undertakes. Since the latest remand, the parties have filed supplemental briefing and appeared for argument.[8] ( See Dkt. Nos. 92-93, 96-97, 103.)

III. Standard of Review[9]

The Antiterorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a petition for a writ of habeas corpus

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that 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). With respect to whether the state court adjudicated the merits of a petitioner's claims, § 2254(d) "does not require a state court to give reasons before its decision can be deemed to have been adjudicated on the merits." Johnson v. Williams, 133 S.Ct. 1088, 1094 (2013) (internal quotation marks omitted). So long as a federal claim was presented to the state court and relief was denied, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id.

Turning specifically to § 2254(d)(1), the Supreme Court has explained time and again that, "a federal habeas court may overturn a state court's application of federal law only if it is so erroneous that there is no possibility fairminded jurists could disagree that the state court's decision conflicts with th[e Supreme] Court's precedents.'" Nevada v. Jackson, 133 S.Ct. 1990, 1992 (2013) (quoting Harrington v. Richter, 131 S.Ct. 770, 786 (2011)); see Metrish v. Lancaster, 133 S.Ct. 1781 (2013) (explaining that success in a habeas case premised on § 2254(d)(1) requires the petitioner to "show that the challenged state-court ruling rested on an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement'" (quoting Richter, 131 S.Ct. at 786-87)); Johnson, 133 S.Ct. at 1091 ("[T]he requirements of § 2254(d) are difficult to meet."). AEDPA foreclosed "using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.'" Parker v. Matthews, 132 S.Ct. 2148, 2149 (2012) (quoting Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1866 (2010)).

With respect to § 2254(d)(2), the Supreme Court has instructed that, while the meaning of "unreasonable" is "difficult to define, '" "a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010) (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)).[10] Even where reasonable jurists might disagree about the propriety of a factual finding, "on habeas review that does not suffice to supersede the trial court's... determination.'" Id. at 301 (quoting Rice v. Collins, 546 U.S. 333, 342 (2006)).

IV. Discussion

A. Brady

The court addresses first Rivas' claim that his constitutional rights "were violated by the prosecution's failure to disclose a myriad of Brady material to the defense." (Am. Pet. ¶ 12(B).) As that claim is elaborated upon in the supplemental briefing, Rivas contends that County Court's denial of his § 440.10 motion was "unreasonably wrong." (Dkt. No. 92, Attach. 1 at 38-42.) Specifically, Rivas argues that the late disclosure of evidence related to Baricella's alleged admission to killing a girl on Hickok Avenue, as related to police by Morgan, ( see Dkt. No. 56, Attach. 2 at 64), inhibited Calle's ability to investigate and effectively use that information. (Dkt. No. 92, Attach. 1 at 40.) The following materials favorable to the defense were, according to Rivas, not disclosed at all: (1) the voluntary affidavits of Peter and Mary Lazarski, who lived at 227 Hickok Avenue, reflecting that Mary heard a scream at about 12:30 or 1:00 A.M. on Sunday, ( see Dkt. No. 56, Attach. 2 at 52, 54-55); (2) police reports suggesting that Valerie was intimately involved with a man other than Rivas at the time of her death, ( see id. at 102, 104); (3) police reports noting that the Stonecipher's son was "arrested in 1985 for a burglary at 248 Hickok Ave., " which was prior to the time Valerie lived there, ( id. at 86-88, 90-91, 95; T: 347-49); (4) a police report detailing that a man employed by the hospital where Valerie worked made her uncomfortable, she made some sort of complaint about him, the man was transferred as a result, and he expressed that Valerie did not like him, ( see Dkt. No. 56, Attach. 2 at 84); (5) a police report which recounted information about a neighborhood man who was "said to have taken youth(s) into a cellarway and performed unknown acts" on them, ( id. at 100); and (6) information that Crimi was previously convicted of assault in the third degree, ( see id. at 70). ( See Dkt. 92, Attach. 1 at 40-41.) In particular, Rivas contends that County Court "failed to recognize the exculpatory nature of [these] materials and ignored the value of [them] in supporting [Rivas'] alibi and as a means to create a reasonable doubt." ( Id. at 42.) Even more significant, Rivas argues, is that County Court failed to consider the evidence that suggested that Valerie died on Saturday or Sunday in conjunction with Dr. Wecht's affidavit. ( See id. )

In the memorandum of law filed along with his Amended Petition, Rivas offers additional arguments regarding the claimed Brady violation. ( See Dkt. No. 14, Attach. 3 at 30-40.) There, Rivas places the supposed Brady material into three categories: reports that undercut (1) Dr. Mitchell's conclusion regarding Valerie's time of death; (2) the evidence suggesting that the only possible suspect was Rivas, "and that he alone was possessed of an alleged motive to harm [Valerie];" and (3) the appearance that all of the prosecution's witnesses were in agreement with each other. ( Id. at 31.) In addition to the allegedly undisclosed evidence identified above, Rivas contends that the prosecution failed to hand over: a report that Valerie's neighbor heard a barking dog and car speeding away around 11:00 P.M. on Saturday, ( see Dkt. No. 56, Attach. 2 at 82), which goes to the first category; a report indicating that "a local man with a burglary record[-other than the Stonecipher's son-]left the area immediately after [Valerie's] death on a spur of the moment trip, " ( see Dkt. No. 56, Attach. 2 at 98), going to the second category; and, going to the third category, evidence that undermined the testimony of Crimi and Reynolds, ( see id. at 109-12, 114, 116; T: 428-32), a report showing an unsuccessful attempt by police to match the lot number on a bottle of rum recovered from Valerie's apartment with lots sold by wholesalers to Liquor Square, ( see id. at 118-19), and, finally, evidence that Rivas was a suspect from the inception of the investigation despite testimony to the contrary, ( see Dkt. No. 56, Attach. 2 at 121; T: 239). (Dkt. No. 14, Attach. 3 at 32-38.) For the reasons discussed below, none of these assertions compel relief.

To set the backdrop for this argument, it is necessary to outline the holdings of the state courts, namely the Fourth Department and County Court, on these issues. On direct appeal of his conviction, Rivas argued, among other things, that the untimely disclosure of the Morgan affidavit and "two police reports which placed Baricella at the scene of the crime shortly after its discovery" deprived him of a fair trial.[11] ( See Dkt. No. 102, Attach. 1 at 47-52.) In light of the trial court's offer to adjourn trial so that Rivas could "obtain witnesses concerning the exculpatory material or... introduc[e]... the material itself through the testimony of a police witness on [his] direct case, " the Fourth Department found that Rivas, who selected the latter alternative, was provided a "meaningful opportunity' to use" the untimely disclosed Morgan affidavit and Memos pertaining to Baricella's proximity to the crime scene on March 31. Rivas, 214 A.D.2d at 997 (quoting People v. Cortijo, 70 N.Y.2d 868, 870 (1987)).

With respect to the host of evidence that Rivas contends was not disclosed, he argued in his § 440.10 motion that the prosecution failed to disclose a myriad of evidence that would have been favorable to his defense; that evidence has been set forth in detail above. ( See Dkt. No. 56, Attach. 3 at 13-24.) At the conclusion of the evidentiary hearing on the motion, but prior to entry of its written decision, County Court made a factual determination that resulted in denial of that branch of Rivas' motion. (440: 138; see Dkt. No. 56, Attach. 5 at 30-31.) In particular, the court found that, given Calle's shoddy memory of whether or not he received the purported Brady material in advance of trial, Rivas failed "to discharge his burden of persuasion... relative to [the] provision of documents, " (440: 138). The only legal authority cited by the court on the issue was People v. Ulrich, 265 A.D.2d 884 (4th Dep't 1999), a case which, as relevant here, pertains to a § 440.10 movant's burden to establish by a preponderance every fact essential to support the motion. See N.Y. Crim. Proc. Law § 440.30(6).[12]

Turning to the present inquiry- i.e., whether the state courts' adjudication of Rivas' claims that he was denied a fair trial through a multitude of Brady violations, ( see Am. Pet. ¶ 12(B)), involved an unreasonable application of clearly established federal law, or an unreasonable determination of the facts-the state courts were not unreasonable in their treatment of Rivas' Brady claim. "To establish a Brady violation, a petitioner must show that: (1) the undisclosed evidence was favorable to him; (2) the evidence was in the state's possession and was suppressed, even if inadvertently; and (3) the defendant was prejudiced as a result of the failure to disclose." Mack v. Conway, 476 F.Appx. 873, 876 (2d Cir. 2012) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). While there is no bright-line rule regarding the timing of disclosure, " Brady material must be disclosed in time for its effective use at trial." United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001); see Leka v. Portuondo, 257 F.3d 89, 100-01 (2d Cir. 2001). Thus, belated disclosure is not a per se violation. As is pertinent here, where the trial court makes an accommodation so that the defense can make effective use of the favorable information, such as grant an adjournment, no Brady violation occurs at all. See United States v. Paredes-Cordova, 504 F.Appx. 48, 53 (2d Cir. 2012). On the issue of suppression, it is the defendant's burden to show by a preponderance of the evidence that the prosecution failed to furnish the favorable documents. See Walker v. Kelly, 589 F.3d 127, 141-42 (4th Cir. 2009); United States v. Pethick, 361 F.Appx. 910, 914 (10th Cir. 2010); United States v. Gould, 563 F.Supp.2d 1224, 1243 n.3 (D. N.M. 2008); Tipton v. Carlton, No. 3:03-CV-434, 2006 WL 587595, at *10 (E.D. Tenn. Mar. 10, 2006); Mathis v. Berghuis, 202 F.Supp.2d 715, 718 (E.D. Mich. 2002) ("Petitioner must establish each of the [ Brady ] elements by a preponderance of the evidence."); cf. Kyles v. Whitley, 514 U.S. 419, 434 (1995) (indicating that all aspects of a Brady claim must be established by a preponderance with the exception of materiality, which "does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal"). New York courts apply the same standards as federal courts to questions involving the disclosure of defense-favorable Brady material. See People v. Geaslen, 54 N.Y.2d 510, 516 (1981).

Here, neither the Fourth Department nor County Court unreasonably applied federal law, nor did they unreasonably determine the facts. See 28 U.S.C. § 2254(d). As the Fourth Department explained, Rivas was given options by the trial court for making effective use of the information contained in the Morgan affidavit and related documents, which, as relevant here, implicated Baricella as Valerie's killer. See Rivas, 214 A.D.2d at 997; (T: 947-59, 977-91.) The record reflects that Calle and Rivas conferred about which course to take, and, as a tactical matter, chose to introduce the information through police officers instead of accepting the court's offer to adjourn for the production of Morgan. (T: 985-87, 991.) Thus, found the Fourth Department, Rivas was "afforded a meaningful opportunity' to use the allegedly exculpatory material." Rivas, 214 A.D.2d at 997 (quoting Cortijo, 70 N.Y.2d at 870). That legal finding reflects a reasoned application of federal law as to Rivas' Brady claim on direct appeal. See McKee v. Greiner, 36 F.Appx. 7, 7-8 (2d Cir. 2002). Indeed, "even though th[e] disclosure was belated, it was not suppressed' by the government within the meaning of Brady because the government's disclosure during trial was a sufficient disclosure in sufficient time to afford the defense an opportunity to use, '" particularly in light of the trial court's offer to adjourn the trial for the production of witnesses, or to permit Rivas to question several police officers with relaxed evidentiary rules. Paredes-Cordova, 504 F.Appx. at 53 (quoting Leka, 257 F.3d at 103); (T: 987.)

Moving on to County Court's handling of the balance of evidence Rivas claims was favorable and discovered by him only after trial, it similarly cannot be said that the court adjudicated Rivas' claim as it relates to that evidence in an unreasonable way. At the evidentiary hearing on Rivas' § 440.10 motion, Rivas, Calle, and the District Attorney testified regarding the disclosure of the documents underpinning this claim. (440: 10, 81, 105.) Rivas alleged that he did not see many of the documents identified as supporting this branch of his Brady claim until they were obtained through a Freedom of Information Law (FOIL) request, or through other means, although he asserted that he reviewed documents that the District Attorney disclosed to Calle prior to trial. (440: 20, 22-27.)[13] Calle was unable to recall whether he had seen the evidence claimed to be favorable to Rivas or not. (440: 89-90; see Dkt. No. 56, Attach. 2 at 44-45.) Finally, the District Attorney testified that he routinely disclosed police reports, and that, while he specifically recalled disclosing some of the evidence that was identified in the § 440.10 motion, he had no recollection as to the remaining evidence. (440: 105-06, 112.) Acknowledging the presumption of regularity that it could rely upon to find that the District Attorney had disclosed the evidence Rivas claimed he did not, the court decided the issue, instead, on the question of whether Rivas met his burden of proving that the defense did not receive the evidence. (440: 136-38.) As to that issue, County Court explained that it could not rely on the testimony of Rivas to meet his burden ...


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