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Rivera v. Smith

United States District Court, E.D. New York

February 12, 2015

FRANK RIVERA, Petitioner,

Frank Rivera, Pro Se, Napanoch, New York for Petitioner.

Margaret E. Mainusch., Nassau County District Attorney's Office, Mineola, New York, for Respondent.


DENIS R. HURLEY, District Judge.

Frankie Rivera ("Rivera" or "petitioner"), proceeding pro se, petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, vacating his conviction entered on January 6, 1999 in the County Court in the State of New York, County of Nassau (the "trial court") for depraved indifference murder in the second degree in violation of New York Penal Law § 125.25(2), and for two counts of tampering with physical evidence under New York Penal Law § 215.40(2).

Petitioner was sentence to an indeterminate term of twenty-five years to life imprisonment on the murder conviction and concurrent indeterminate terms of one and one third to four years imprisonment on the two evidence tampering convictions. His conviction and sentence were affirmed on appeal by the Appellate Division, Second Department ( People v. Rivera, 288 A.D.2d 402 (2d Dep't 2001)), and his application for leave to appeal to the New York Court of Appeals was denied on March 22, 2002. People v. Rivera, 97 N.Y.2d 760 (2002).

Petitioner seeks habeas relief on four listed grounds, to wit: (1) the prosecution committed Brady violations by (a) deliberately delaying disclosure of the grand jury of testimony of Eric Outlaw, and (b) failing to disclose that Peter Gonzalez purportedly provided false information to the grand jury which he later recanted prior to trial concerning petitioner sodomizing the murder victim; (2) petitioner was denied his constitutional right to the effective assistance of counsel; (3) the jury's verdict was against the weight of the evidence, and (4) the sentence imposed was excessive.[1]


During the evening hours of November 26, 1997, petitioner, who was with his girlfriend Thomassina McKenna ("McKenna") at the Jolt Bar in Freeport, Nassau County became aggravated when Michael Demetres ("Demetres or "Eggy") continually stared at them.[2] Trial Transcript ("Tr.") at 505-06. Petitioner eventually paid another bar patron $10.00 to take Demetres outside and "smack him up." Id. at 506, 514; see also id. at 919-20. When that exercise failed to stop the staring, petitioner offered to pay Bryan Medina ("Medina") $250.00 or an "eight-ball" of cocaine[3] to stab Demetres towards the same end. Id. at 508, 517-18, 934-35. Medina accepted the offer, whereupon Medina and petitioner confronted Demetres immediately outside the bar. Petitioner hit Demetres "at least twice" with a large branch while Demetres was restrained by Medina, and then watched as Medina proceeded, pursuant to his agreement with the petitioner, to stab Demetres multiple times.[4] Id. at 509. Afterwards, petitioner discarded the post-assault pieces of the branch in a nearby dumpster. Id. at 533-34. The knife used to stab Demetres was thrown into a sewer. Id. at 535. Medina was paid $120 of the agreed-upon $250 that night with Rivera promising to pay the remainder the next day. Id. at 889-90; see also id. at 523-24. Later petitioner told his girlfriend and Peter Gonzalez ("Gonzalez") that he and Medina had each "fucked" Demetres. Id. at 859.

When Demetres's body was found outside the bar, "his pants were down below his knees." Id. at 159. Swabs were taken during the autopsy which, when analyzed, disclosed the presence of sperm on or about his anal cavity. Id. at 418-427.[5]

Petitioner and Medina were thereafter arrested and charged alternatively with intentional murder and depraved indifference murder under subdivisions (1) and (2) of N.Y. P. L. § 125.25, together with two counts of tampering with physical evidence - viz. the stick used by petitioner to beat Demetres and the knife used by Medina to stab him - in violation of N.Y. P. L. § 215.40(2). In addition, petitioner "was further charged alone with one additional count of murder in the second degree (N.Y. P. L. § 125.25(3))(felony murder) and sodomy in the first degree (N.Y. P. L. § 130.50(1))(the underlying felony."). Resp't Aff. & Mem. of Law (DE 14) at iii, ¶ 8.

A joint suppression hearing was held in September 1998. Among other things, the hearing court determined that certain inculpatory statements made by the petitioner and Medina to Nassau County homicide detectives were knowingly, intelligently, and voluntarily made following their receipt of their Miranda rights and, accordingly, were admissible. The case against Medina and petitioner was then severed for trial purposes.

On December 7, 1998 Medina pled guilty to depraved indifference murder in satisfaction of the charges against him and received a sentence of twenty years to life imprisonment.


Rivera's petition seeking habeas relief was filed on August 20, 2003. By order filed on August 3, 2004, the petition was administratively closed due to the petitioner's failure to exhaust available state remedies. That closure was vacated on February 5, 2013 based on petitioner notifying the Court on October 10, 2012 that he had pursued, albeit unsuccessfully, the prior unexhausted claims. As a result, it is agreed that petitioner's application is both timely and ripe for review.


The four grounds advanced by petitioner, as previously identified, will now be addressed seriatim.


In Brady v. Maryland, the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused... violates due process when the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). To state a viable Brady claim, a petitioner must establish that the information was favorable to the accused, was suppressed by the prosecution, and that prejudice ensued. Strickler v. Greene, 527 U.S. 263, 281 (1999). "Evidence is not suppressed' if the defendant either knew, ... or should have known, ... of the essential facts permitting him to take advantage of [the] exculpatory evidence.'" United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982)(citations omitted).

Petitioner claims two Brady violations, viz. that the "Prosecutor violated [his] constitutional rights when he failed to [timely] disclose Eric Outlaw's grand jury testimony" (Pet'r's Reply & Mem. of Law (DE 10) at i, ) and by "fail[ing] to reveal" that Gonzalez informed the prosecutor prior to trial that the written statement he had given to the police, as well as his corresponding grand jury testimony, was inaccurate to the extent he had reported that Rivera told him that he had "fucked Eggy in the ass" rather than that "[h]e and Medina had fucked Eggy up." Id. at 3-4.

1. Eric Outlaw ("Outlaw")

(a) Petitioner's Position

Outlaw was a bouncer at the Jolt Bar. Petitioner proffers that immediately after the stabbing, he ran back into the bar and "only spoke to Eric Outlaw" who "was the only person who could properly relate to the jury petitioner's state of being at that moment...." Id. at 11.

Although the Court has not been provided with Outlaw's grand jury testimony, petitioner states, and I accept for present purposes, that Outlaw told the grand jury that petitioner "upon entering the bar, expressed shock and disbelief that Brian Medina had stabbed Demetres." Pet. (DE 1) at 17. Citing People v. Brown, 80 N.Y.2d 729 (1993) for the proposition that such testimony would have been admissible as a "present sense impression, " petitioner maintains Outlaw's observations were pivotal to the defense as tending to dispel the harm done by the prosecutor's statement during his opening to the effect that petitioner sodomized a dying man, as well as to demonstrate that he "did not share the same mind-set as the killer." Pet'r's Reply & Mem. Law (DE 10) at 11-12. The delayed disclosure, it is argued, precluded its effective use by the defense thereby running afoul of Brady.

(b) Respondent's Position That Claim is Procedurally Defaulted as not Adequately Raised by Petitioner in State Courts

Respondent attacks this Brady claim or several fronts, including that it is procedurally barred. Section 2254(b)(1) provides in pertinent part that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that... the applicant has exhausted the remedies available in the courts of the State...." 28 U.S.C. § 2254(b)(1)(A). Here, that means that Rivera's complaints should have been broached not only at the trial level, but also in all available state appellate tribunals as well. Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981). Although petitioner's Outlaw-based Brady claim was raised as part of his unsuccessful appeal to the Appellate Division (see Def.'s A.D. Br. at 12, 23-25), it was not presented to the state's highest court.[6] See Jan. 15, 2002 Letter of Pet'r's then Attorney, Virginia Boccio, Esq., to the Chief of the Court of Appeals seeking leave to appeal. Under the circumstances, the Court will deem the claim to be exhausted in that there are no further state remedies available. See Coleman v. Thompson, 501 U.S. 722, 732 (1991)("A habeas petitioner who has defaulted on his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer available' to him."); Spence v. Superintendent, 219 F.3d 162, 170 (2d Cir. 2000) (claim deemed exhausted where petitioner did not raise it on direct appeal in state courts and could not obtain collateral review pursuant to N.Y.C.P.L. § 440.10); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (claim not raised in leave application to Court of Appeals was procedurally barred because petitioner had already made the one leave request to which he was entitled).

(c) Petitioner has not Demonstrated Cause for the Default and Resulting Prejudice, or That the Failure to Address Claim on the Merits Will Bring About a Fundamental Miscarriage of Justice

In cases, such as here, in which the claim is deemed exhausted, "federal habeas review is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750. Petitioner has not advanced any reason for his failure to request the Court of Appeals to consider the Brady claim under discussion, nor has he been able to convincingly articulate "actual prejudice as a result of the alleged violation of federal law" because, as explained infra, the claim is devoid of merit.

Similarly, petitioner is not in a position to demonstrate that this Court's refusal to review this procedurally barred claim would result in a "fundamental miscarriage of justice" in the sense that the charged "constitutional violation has probably caused the conviction of an innocent person." Murray v. Carrier, 477 U.S. 478, 495-96 (1986); see also Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994). Abundant evidence was before the jury, including petitioner's statements to law enforcement, that he hired Medina to stab Demetres. Indeed, as respondent correctly underscores: "Petitioner has never denied that he asked Bryan Medina to stab Michael Demetres or that he offered to pay Medina for his services.... Petitioner simply insists that he never intended for Medina to kill Demetres and, therefore, he is not guilty of causing that death." Resp't's Aff. & Mem. of Law (DE 14) at 28. But intent to kill is not an element of deprived indifference murder. Mannix v. Phillips, 619 F.3d 187, 193 (2d Cir. 2010)("Although this charge [under N.Y. Penal Law § 125.25(2)] is called murder, it does not require proof of defendant's intent to kill....") and People v. Craft, 36 A.D.3d 1145, 1147 (3d Dep't 2007)("Depraved indifference murder involves an unintentional killing where the defendant's conduct is so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another")(quotation marks and citation omitted). Clearly, petitioner has failed to meet the actual innocense standard.

In sum, petitioner's Outlaw-based Brady claim is procedurally barred. But even if, arguendo, such was not the case, a denial of the relief sought on the merits would be required as next discussed.

(d) Not Only is the Outlaw-based Brady Claim Procedurally Barred, but it Also Fails if Addressed on the Merits

By way of background, the prosecutor provided defense counsel with Outlaw's grand jury testimony at the conclusion of jury selection pursuant to New York C.P.L. § 240.45 based on his then intention to call Outlaw as a witness for the People. Although Outlaw never did testify, the essence of his grand jury testimony, as proffered by Rivera, was elicited by defense counsel during his cross-examination of another witness and underscored for the jury during the defense's summation. Thus Jolt bartender Heidi Howes ("Howes") testified at trial that petitioner looked "stunned, " "like he had seen a ghost" and was "speechless" upon re-entering the bar immediately after the stabbing. Tr. at 453-54; see also defense counsel's summation, id. at 1017.[7]

Not only was the cited gap in the proof supposedly caused by Outlaw's absence at the trial basically cured by Howes's testimony, but, to step-back for a moment, Rivera has not even established that his use of the term "Brady" in the present context is appropriate. As explained by the Appellate Division, Second Department in affirming his conviction:

We reject the defendant's contention that he is entitled to a new trial because the People failed to timely produce Brady material. The purported Brady evidence was not material to the issue of the defendant's guilt. In any event, there is no reasonable probability that the result would have been different had the evidence been disclosed. People v. Rivera, 288 A.D.2d 402 (2d Dep't 2001)(citations omitted).

That determination by the Appellate Division may not be disturbed via the granting of the requested writ unless the State's 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).

Proceeding in reverse order, i.e. considering subdivision (d)(2) of § 2254 initially, petitioner does not argue that the State's rejection of his Outlaw-based Brady claim is traceable to "an unreasonable determination of the facts in light of the evidence presented." And, as to subdivision (d)(1), nothing has been proffered by petitioner to suggest, no less establish, that the Appellate Division's decision on this point is at odds with "clearly established Federal law... as determined by the Supreme Court of the United States." 28 U.S.C. § 2254)d)(1).

Additionally, the Appellate Division's conclusion that the "purported Brady evidence was not material to the issue of defendant's guilt" is sound in that under the depraved indifference murder count the People were not, as noted earlier, required to prove that the petitioner intended for his hired assailant to kill the victim. Instead, the prosecution was required to demonstrate that Rivera "under circumstances evincing a depraved indifference to human life... recklessly engage[d] in conduct which created a grave risk of death to another person, and thereby cause[d] the death of another person." N.Y. Penal Law § 125.25(2). The focus in such prosecutions is "on an objective assessment of the degree of risk presented by [the] defendant's reckless conduct, not upon his subjective intent...." People v. Fink, 251 A.D.2d 751, 752 (3d Dep't 1998)(citation omitted). As a result, Outlaw's proffered testimony, had he been called to the stand, would have been not only cumulative of Howes's, but also of questionable relevance to the depraved indifference count of the indictment.

By way of conclusion, petitioner's Outlaw-based Brady claim falls short of the mark for several reasons including (1) the claim is procedurally barred, and (2) even if evaluated on its merits, the targeted information is not "material" for Brady purposes as correctly concluded by the Appellate Division consistent with clearly established federal law.

2. Peter Gonzalez ("Gonzalez")

Petitioner maintains that Gonzalez told the prosecution before the trial started that a portion of his grand testimony was incorrect.

By way of background, Gonzalez told members of law enforcement that after he had beaten Demetres with a tree branch and Medina had stabbed the victim, "they pulled down his pants and [that].. Bryan fucked him... in the ass.... and when Bryan was done, he [also] fucked him in the ass" and signed a written statement so indicating. See second document included within Ex. C to Pet'r's May 21, 2012 Supplemental Submission (DE 27 at p. 14).

On October 15, 1998, Private Investigator Richard J. Mercy conducted a tape-recorded interview of Gonzalez while acting on defense counsel DeLuzio's behalf. See first document included within Ex. C, id. The primary focus of that interview concerned what petitioner said to Gonzalez about sodomizing Demetres. Although Gonzalez's comments are less than a seamless web of consistency, he does disavow during the interview the portion of his earlier written statement reporting that petitioner told him specifically that he "fucked (the victim) in the ass." The following excerpts from the interview are germane:

Peter:[8]... I said, he had fucked him, and I never said he had fucked him in the ass.
That's what the statement says, that he had fucked him in the ass. He said he fucked him, now fuck could be you beat him up or..
Mercy: This is what, ah, this is what Frankie, Cheeze told you, that he said I fucked ["him"]?
Peter: Yeah, but he didn't. I never, that's why I told the D.A. that, that I never said, No, I didn't say that he fucked him in the ass. I know he said ...

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