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Rivas v. Fischer

United States Court of Appeals, Second Circuit

March 11, 2015

HECTOR RIVAS, Petitioner-Appellant,
v.
BRIAN FISCHER, Superintendent, Sing Sing Correctional Facility, Respondent-Appellee

Argued December 9, 2014

Page 530

On Appeal from the United States District Court for the Northern District of New York.

Petitioner Hector Rivas appeals from the judgment of the United States District Court for the Northern District of New York (Gary L. Sharpe, Chief Judge) denying his amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). On March 25, 1993, a jury in Onondaga County Court in Syracuse, New York, found Rivas guilty of second-degree murder for killing his former girlfriend, Valerie Hill. At trial, the prosecution argued that Rivas killed Hill on the night of Friday, March 27, 1987. Rivas was sentenced to an indeterminate term of imprisonment of 25 years to life, which he has been serving for the last 22 years. In 1999, Rivas filed a motion for post-conviction relief pursuant to New York Criminal Procedure Law § 440.10, raising, inter alia, a claim of ineffective assistance of counsel and presenting essentially unchallenged expert testimony persuasively demonstrating that Hill could not have died on Friday, March 27, 1987. The Supreme Court of the State of New York, Onondaga County, denied Rivas's § 440.10 motion in its entirety.

In 2002, Rivas filed an amended petition for a writ of habeas corpus in the District Court. The District Court dismissed the petition as time-barred, and we vacated and remanded, holding that additional fact-finding on the issue of timeliness was required. After an evidentiary hearing, the District Court again dismissed the petition as time-barred. We reversed, holding that a " credible" and " compelling" showing of actual innocence warrants an equitable exception to the limitation period set forth by the Antiterrorism and Effective Death Penalty Act of 1996, allowing a petitioner to have his otherwise time-barred claims heard by a federal court. We concluded that Rivas had made such a showing, having produced essentially unchallenged expert testimony " which call[ed] into serious doubt the central forensic evidence linking him to the crime," and, as a result, " a reasonable juror, apprised of all the evidence in the record, would more likely than not vote to acquit." We remanded the cause for Rivas's petition to be heard on the merits. On remand, the District Court nonetheless denied Rivas's petition in its entirety.

Because we conclude that the state court's denial of Rivas's ineffective-assistance claim involved an " unreasonable application" of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we REVERSE the judgment of the District Court denying habeas relief and REMAND the cause. On remand, the District Court shall issue a writ of habeas corpus to Rivas by the sixtieth calendar day after the issuance of our mandate unless the state has, by that time, taken concrete and substantial steps expeditiously to retry Rivas.

RICHARD M. LANGONE, Langone & Associates, PLLC, Levittown, NY, for Petitioner-Appellant.

PRISCILLA STEWARD, Assistant Attorney General (Barbara D. Underwood, Solicitor General, Nikki Kowalski, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General for the State of New York, New York, NY, for Respondent-Appellee.

Before: CABRANES, POOLER, and SACK, Circuit Judges.

OPINION

Page 531

José A. Cabranes, Circuit Judge.

The question presented is whether we are required to grant a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d) because the state court in this case unreasonably applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in rejecting petitioner Hector Rivas's claim of ineffective assistance of counsel.

Rivas was convicted in Onondaga County Court of seconddegree murder for the death of his former girlfriend, Valerie Hill. At trial, the prosecution argued that Rivas killed Hill on the night of Friday, March 27, 1987, at her apartment in Syracuse, New York. In formulating a defense strategy, Rivas's defense counsel relied principally on Rivas's professed alibi, which placed him elsewhere for most of that weekend. Crucially, however, Rivas did not have an alibi during a key three-and-a-half hour window--between approximately 9:00 p.m. on Friday, March 27, 1987, and 12:30 a.m. on Saturday, March 28, 1987. The prosecution argued that Rivas killed Hill during this exact time frame. The prosecution's case was almost entirely circumstantial and turned on the testimony of the Chief Medical Examiner, Dr. Erik K. Mitchell.

At the time of Hill's murder, Dr. Mitchell had estimated the time of Hill's death as sometime after the close of that window--between Saturday, March 28 and Sunday, March 29, 1987. At trial nearly six years later, however, Dr. Mitchell expressed a very different opinion, testifying instead that Hill died one night earlier --on the evening of Friday, March 27, 1987--during which time Rivas had no alibi. Despite its critical importance to his client's case, defense counsel failed to investigate the basis for Dr. Mitchell's apparently revised findings regarding the time of death and instead relied principally on Rivas's effectively irrelevant alibi for the remainder of the weekend. After deliberating for approximately eight hours, the jury in Onondaga County Court found Rivas guilty of second-degree murder. He was subsequently sentenced to an indeterminate term of imprisonment of 25 years to life.

Page 532

On July 12, 1999, Rivas, with new counsel, filed a motion for post-conviction relief pursuant to New York Criminal Procedure Law § 440.10, raising, inter alia, a claim of ineffective assistance of counsel. In his motion, Rivas presented essentially unchallenged expert testimony persuasively showing that Hill in fact died sometime after 3:30 p.m. on Saturday, March 28, 1987, casting grave doubt on the prosecution's theory that Hill was murdered on Friday night. In his § 440.10 filing, Rivas also presented compelling evidence further discrediting Dr. Mitchell. Rivas's filing alleged that Dr. Mitchell had perjuriously purported to base his time-of-death opinion in part on " brain slides" that, Rivas later learned, were nonexistent. Rivas also introduced evidence that, at the time of Rivas's trial, Dr. Mitchell was under investigation by state and local agencies (including possibly the office of the prosecutor who charged Rivas) for various forms of misconduct. At trial, Rivas's counsel failed to challenge Dr. Mitchell's reliance on the non-existent " brain slides," or to cross-examine him regarding the investigations into his alleged misconduct that were pending at the very time of the prosecution of Rivas.

On September 8, 2000, the Supreme Court of the State of New York, Onondaga County, denied Rivas's § 440.10 motion, holding, inter alia, that " [d]efense counsel employed a trial strategy based upon a defense that defendant was sufficiently alibied for the entire weekend, . . . and that the People would not be able to prove defendant's guilt beyond a reasonable doubt [as to] whether the jury found that the crime occurred on Friday night or on Saturday night." People v. Rivas, No. 92-2794, slip. op. at 34--35 (N.Y. S.Ct. Sept. 8, 2000). On June 19, 2002, Rivas filed an amended petition for a writ of habeas corpus in the United States District Court for the Northern District of New York, raising substantially the same claims that he advanced in his § 440.10 motion. The District Court (Gary L. Sharpe, Judge ) dismissed Rivas's petition as time-barred under 28 U.S.C. § 2254(d). See Rivas v. Fischer, No. 01-cv-1891, ECF No. 21, (N.D.N.Y. Jan. 28, 2005). We vacated and remanded, holding that additional fact-finding on the issue of timeliness and actual innocence was required. See Rivas v. Fischer, 294 F.App'x 677, 678--79 (2d Cir. 2008).

After a hearing, the District Court again dismissed the petition as untimely. See Rivas v. Fischer, No. 01-cv-1891 (GLS/DEP), 2010 WL 1257935 (N.D.N.Y. Mar. 26, 2010). We reversed, holding as a matter of first impression in this Circuit that a " credible" and " compelling" showing of actual innocence warrants an equitable exception to AEDPA's limitation period, allowing a petitioner to have his otherwise time-barred claims heard by a federal court. Rivas v. Fischer, 687 F.3d 514, 517--18 (2d Cir. 2012). We concluded that Rivas had made such a showing, having produced essentially unchallenged expert testimony " which call[ed] into serious doubt the central forensic evidence linking him to the crime," and, as a result, " a reasonable juror, apprised of all the evidence in the record, would more likely than not vote to acquit." Id. at 552. We remanded the cause for Rivas's petition to be heard on the merits. After hearing oral argument, the District Court nonetheless denied Rivas's petition in its entirety. See Rivas v. Fischer, No. 01-cv-1891 (GLS), 2013 WL 4026844 (N.D.N.Y. Aug. 6, 2013).

We now reverse. We hold that, in viewing all the circumstances at the time, no reasonable argument can be made that Rivas's defense counsel satisfied his " duty to make reasonable investigations or to make a reasonable decision that makes

Page 533

particular investigations unnecessary." Strickland, 466 U.S. at 691. We further hold that no reasonable argument can be made that defense counsel's deficient performance did not prejudice the defense. See Strickland, 466 U.S. at 687. As a result, the state court's conclusion to the contrary involved an " unreasonable application" of Strickland. 28 U.S.C. § 2254(d)(1).

Accordingly, we REVERSE the judgment of the District Court denying habeas relief and REMAND the cause. On remand, the District Court shall issue a writ of habeas corpus to Rivas by the sixtieth calendar day after the issuance of our mandate unless the state has, by that ...


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