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Rivas v. Griffin

United States District Court, E.D. New York

December 3, 2014

RUDI RIVAS, Petitioner,
v.
THOMAS GRIFFIN, Respondent

Rudi Rivas, Petitioner, Pro se, Napanoch, NY.

For Thomas Griffin, Superintendent of Eastern New York Correctional Facility, Respondent: NEW YORK STATE ATTORNEY GENERALS OFFICE - GENERIC, LEAD ATTORNEY, New York State Attorney Generals Office; SUFFOLK COUNTY DISTRICT ATTORNEYS OFFICE - GENERIC, LEAD ATTORNEY.

ORDER

Sandra J. Feuerstein, United States District Judge.

Rudi Rivas (" petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the application is denied.

I. Background

A. State Convictions

On September 23, 1994, a judgment of conviction was entered in the County Court, Suffolk County (Vaughn, J.) against petitioner, under Indictment No. 217-94, upon a plea of guilty, convicting him of criminal sale of a controlled substance in the second degree, and sentencing him to eight (8) years to life. On June 22, 1995, a judgment of conviction was entered in the same court against petitioner, under Indictment No. 2506/94, upon a jury verdict, convicting him of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree, and sentencing him to twenty-five (25) years to life on each count, to run concurrently to each other and consecutive to his earlier eight (8) year sentence.

Petitioner filed a notice of appeal to the New York State Supreme Court, Appellate Division, Second Department (" Appellate Division"), challenging his convictions under both indictments. While his appeal to the Appellate Division was pending, petitioner filed a motion in the County Court pursuant to New York Criminal Procedure Law § 440.10, challenging his plea conviction under Indictment No. 217-94 (the " 440.10 Motion"). On October 3, 1996, the County Court denied petitioner's 440.10 Motion and petitioner's subsequent motion for leave to appeal.

On April 19, 1999, the Appellate Division affirmed petitioner's convictions. See People v. Rivas, 260 A.D.2d 583, 688 N.Y.S.2d 604 (2d Dep't 1999). On August 18, 1999, petitioner's application for leave to appeal to the New York State Court of Appeals was denied. See People v. Rivas, 93 N.Y.2d 1025, 719 N.E.2d 945, 697 N.Y.S.2d 584 (1999) (Table). On February 28, 2000, the Appellate Division denied petitioner's application for writ of error coram nobis. See People v. Rivas, 269 A.D.2d 612, 704 N.Y.S.2d 825, 2000 N.Y, Slip Op. 01889 (2d Dep't Feb. 28, 2000).

Petitioner also filed several applications for writ of habeas corpus in New York state, all of which were denied. See e.g., People ex rel, Rivas v. Walsh, 40 A.D.3d 1327, 837 N.Y.S.2d 749, 2007 N.Y. Slip Op. 04381 (3d Dep't May 24, 2007), lv. denied, 9 N.Y.3d 814, 878 N.E.2d 609, 848 N.Y.S.2d 25 (2007); People ex rel. Rivas v. Walsh, 69 A.D.3d 1236, 893 N.Y.S.2d 388, 2010 N.Y. Slip Op. 00596 (3d Dep't Jan. 28, 2010), lv. denied, 14 N.Y.3d 712, 929 N.E.2d 1006, 903 N.Y.S.2d 771 (2010) (Table).

B. Federal Habeas Applications

On May 24, 2000, petitioner filed his first application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the " First Petition"). In an opinion July 17, 2002, Judge Arthur D. Spatt of the United States District Court for the Eastern District of New York (" Eastern District") dismissed four (4) of petitioner's claims on non-exhaustion grounds, and denied the remaining claims on the merits. Order Dismissing 2254 Petition, Rivas v. Walsh, No. 00 Civ. 2985 (ADS) (E.D.N.Y. July 17, 2002), ECF No. 42, [Docket Entry No. 2-3]. On July 29, 2002, plaintiff moved for reconsideration of the denial of the First Petition. Mot. for Recons., Rivas v. Walsh, No. 00 Civ. 2985 (ADS) (E.D.N.Y. July 29, 2002), ECF No. 46. On February 6, 2003, Judge Spatt denied petitioner's motion for reconsideration. Order Den. Mot. for Recons., Rivas v. Walsh, No. 00 Civ. 2985 (ADS) (E.D.N.Y. Feb. 6, 2003), ECF No. 67, On April 17, 2006, petitioner filed a second motion for reconsideration of the denial of the First Petition. Second Mot. for Recons., Rivas v. Walsh, No. 00 Civ. 2985 (ADS) (E.D.N.Y. Apr. 17, 2006), ECF No. 94. On December 6, 2006, Judge Spatt denied petitioner's second motion for reconsideration. Order Den. Second Mot. for Recons., Rivas v. Walsh, No. 00 Civ. 2985 (ADS) (E.D.N.Y. Dec. 6, 2006), ECF No. 97.

Petitioner has filed numerous applications with the United States Court of Appeals for the Second Circuit (" Second Circuit") seeking permission to file a second or successive petition for a writ of habeas corpus, all of which have been denied.[1] Most recently, on January 27, 2014, petitioner filed a petition for writ of habeas corpus, which this Court transferred to the Second Circuit as a successive petition. [No. 14 Civ. 00632, ECF Nos. 1, 10]. On November 13, 2014, the Second Circuit issued a mandate denying petitioner leave to file a successive 28 U.S.C. § 2254 petition in the U.S. District Court for the Eastern District of New York. [No. 14 Civ. 00632, ECF No. 11].

On November 18, 2014, petitioner filed another petition under 28 U.S.C. ยง 2254 for a writ of habeas corpus in this Court ...


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