Rivera v. Cuomo

Filing

OPINION, Reversed and Remanded, by JMcL RSP BDP, FILED.[359760] [10-224]

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10-224-pr
Rivera v. Cuomo

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UNITED STATES COURT OF APPEALS

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FOR THE SECOND CIRCUIT

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August Term, 2010

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(Argued: May 13, 2011

Decided: August 9, 2011)
Docket No. 10-224-pr

----------------------------------------------------------------X
JOHN RIVERA,
Petitioner/Appellant,
- v. ANDREW CUOMO, NEW YORK STATE ATTORNEY
GENERAL and JOSEPH SMITH, SUPERINTENDENT,
SHAWANGUNK CORRECTIONAL FACILITY,
Respondents/Appellees.
----------------------------------------------------------------X
Before:

McLAUGHLIN, POOLER, B. D. PARKER, Circuit Judges.

Petitioner-Appellant John Rivera (“Rivera”) was convicted of

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one count of depraved indifference murder in violation of New

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York Penal Law § 125.25(2).

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entered in the United States District Court for the Eastern

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District of New York (Townes, J.) denying his petition for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254.

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argues that the district court erred in holding that the

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applicable law of depraved indifference murder was the law in

He now appeals from a judgment

On appeal, Rivera

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effect when Rivera was convicted on September 19, 1997.

We

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agree, and hold that the district court should have applied the

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law as it existed at the time Rivera’s conviction became final,

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i.e., once the period in which Rivera’s time to file a writ of

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certiorari to the United States Supreme Court expired.

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also argues that, in July 2004, the evidence adduced at trial was

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legally insufficient to support a conviction for depraved

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indifference murder.

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Rivera’s conviction became final in July 2004, no reasonable jury

Rivera

Again, we agree, and hold that, at the time

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could have found Rivera guilty of depraved indifference murder.

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Accordingly, the judgment of the district court is REVERSED and

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REMANDED with instructions to grant Rivera’s petition for a writ

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of habeas corpus.

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WILLIAM CARNEY, The Legal Aid Society,
Criminal Appeals Bureau, New York, New
York, for Appellant.
CHARLES J. HYNES (Leonard Joblove and
Seth M. Lieberman, Assistant District
Attorneys), District Attorney, Kings
County, Brooklyn, New York, for
Respondents-Appellees.
McLAUGHLIN, Circuit Judge:
Petitioner-Appellant John Rivera (“Rivera”) was convicted on

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September 19, 1997, of one count of depraved indifference murder

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in violation of New York Penal Law § 125.25(2) after his

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estranged wife died from a single gunshot wound to the head at

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point-blank range.

In December 2003, the Appellate Division
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rejected Rivera’s direct appeal, People v. Rivera, 2 A.D.3d 884

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(2d Dep’t 2003), and, on April 14, 2004, Judge Rosenblatt of the

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New York Court of Appeals denied Rivera leave to appeal to that

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court, People v. Rivera, 2 N.Y.3d 764 (2004).

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Rivera subsequently filed a petition for a writ of habeas

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corpus in the United States District Court for the Eastern

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District of New York (Townes, J.), arguing that the evidence was

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insufficient to support a conviction for depraved indifference

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murder.

Applying the New York law of depraved indifference in

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existence at the time Rivera was convicted at trial in September

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1997, the district court denied relief.

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05-CV-1699, 2009 WL 4929264, at *22-23, 25 (E.D.N.Y. Dec. 21,

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2009).

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certificate of appealability on the specific issue of “whether,

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under the law as it existed when appellant’s conviction became

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final, the evidence was legally sufficient to support a

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conviction for depraved indifference murder.”

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Rivera now appeals.

See Rivera v. Cuomo, No.

In June 2010, this Court granted a

On appeal, Rivera raises two arguments.

First, Rivera

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argues that the district court erred in applying the law in

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effect when he was convicted at trial on September 19, 1997

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rather than the law in effect at the time his conviction became

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final on July 13, 2004.

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law in effect at the time his conviction became final, the

Second, Rivera argues that, under the

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evidence was legally insufficient to support a conviction for

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depraved indifference murder.

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For the reasons that follow, we agree with both of Rivera’s

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contentions.

Accordingly, Rivera’s petition for a writ of habeas

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corpus must be granted.

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BACKGROUND
In its Memorandum and Order of December 21, 2009, the

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district court provided a detailed account of the factual

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background of the instant petition.

See Rivera, 2009 WL 4929264,

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at *1-15.

We assume familiarity with the district court’s order

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and repeat the facts herein only to the extent necessary to

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explain our ruling.

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On the night of January 13, 1997, Kimberly Cassas Rivera

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(“Cassas”), Rivera’s estranged wife, suffered a single, fatal

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gunshot wound to the head from a nine-millimeter Beretta handgun

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fired at point-blank range.

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New York state court on two counts of murder in the second

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degree––intentional murder in violation of New York Penal Law §

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125.25(1) and depraved indifference murder in violation of §

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125.25(2)–-as well as lesser charges not relevant to this appeal.

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Rivera was ultimately indicted in

In the summer of 1997, Rivera was tried on these charges in

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the Supreme Court for the State of New York, Kings County.

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Despite the dual indictment, at trial, the prosecution pursued a

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single theory of intentional murder.
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Specifically, the

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prosecution argued that, after a short and tumultuous marriage,

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and angry that Cassas was filing for divorce and seeking primary

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custody of their infant son, Rivera, who had a history of violent

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outbursts and domestic abuse, lured Cassas to his apartment with

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the intention of killing her and then, while the two were

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standing on the sidewalk outside the apartment, “put a 9mm

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handgun to [her] head . . . and pulled the trigger.”

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All of the State’s evidence at trial was calculated to support

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this theory of intentional murder, including evidence that Rivera

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was in possession of the nine-millimeter Beretta handgun used to

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kill Cassas immediately before the murder, testimony from

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Cassas’s divorce lawyer that Rivera called her twice in the days

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and hours before the murder threatening to kill Cassas with her

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gun, and testimony from Rivera’s former employer that the day

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before the shooting Rivera told his co-workers that he “couldn’t

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take [Cassas], couldn’t stand her,” and wished her dead.

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1020.

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J.A. 28.

J.A.

Indeed, in summation, the prosecutor told the jury:
The people maintain it was an intentional act . .
. . [E]veryone agrees that when you take this gun,
which they call a deadly weapon for a good reason,
and when it is pressed . . . against the head and
the trigger is pulled and the gun is discharged,
there can be no question in any reasonable person’s
mind that whoever pulled that trigger intended to
cause the death of the individual against whose
head it was pressed. So I submit that is not an
issue. This is an intent. An intent to kill.
J.A. 1463 (emphasis added).

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Throughout trial, Rivera’s sole defense was that Cassas

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committed suicide.

According to Rivera’s version, Cassas, who

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had been depressed ever since their son’s birth eight months

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earlier, showed up on the night of her death distraught and,

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threatening to kill herself, pulled the Beretta handgun from her

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car and put it to her head.

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the gun away from her, while the gun was pressed near her temple,

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a distraught Cassas pulled the trigger, inflicting upon herself a

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single gunshot wound to the head.

Although Rivera attempted to take

In support of this theory,

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Rivera presented, inter alia, both expert and eyewitness

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testimony suggesting that, at some point immediately before the

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gun went off, there had been a struggle between Rivera and Cassas

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for possession of the gun.

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During the trial, defense counsel moved to dismiss the

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depraved indifference murder charge for lack of evidence.

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court denied the motion and charged the jury on both intentional

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and depraved indifference murder, as well as on manslaughter in

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the first degree as a lesser included offense to intentional

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murder.

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indifference murder (i.e., “reckless manslaughter”) was not

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submitted to the jury.

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The

Manslaughter as a lesser included offense to depraved

The jury eventually found Rivera not guilty of intentional

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murder, but guilty of depraved indifference murder––and found

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Rivera guilty of the remaining misdemeanor charges not relevant

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to this appeal.

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The court then sentenced Rivera to 23 years to

life in prison on the depraved indifference murder charge.

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On direct appeal, Rivera challenged his conviction for

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depraved indifference murder on the ground that the evidence was

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insufficient to support a finding of recklessness since all of

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the evidence adduced at trial went to a theory of intentional

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conduct.

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upheld Rivera’s conviction.

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The Appellate Division rejected this argument and
See Rivera, 2 A.D.3d at 884.

On April 14, 2004, Judge Rosenblatt of the New York Court of

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Appeals denied Rivera leave to appeal to that court.

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2 N.Y.3d at 764.

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See Rivera,

In April 2005, Rivera filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of

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New York, on the sole ground that, by affirming Rivera’s

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conviction for depraved indifference murder, the state courts

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unreasonably applied federal law.

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Specifically, Rivera argued that the evidence was legally

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insufficient in his case to support a finding of reckless and

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depraved conduct since all of the evidence adduced at trial went

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to a theory of intentional conduct, and therefore his conviction

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violated the rule of Jackson v. Virginia, 443 U.S. 307 (1979),

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requiring proof beyond a reasonable doubt of every element of a

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crime to support a conviction.

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*15.

See 28 U.S.C. § 2254(d).

See Rivera, 2009 WL 4929264, at

The district court disagreed, holding that, under the law

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of depraved indifference in effect at the time of Rivera’s trial

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in September 1997, the evidence was legally sufficient to support

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a conviction for depraved indifference murder.

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23, 25.

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See id. at *22-

Rivera now appeals.

In June 2010, this Court granted a certificate of

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appealability on the specific issue of “whether, under the law as

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it existed when appellant’s conviction became final, the evidence

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was legally sufficient to support a conviction for depraved

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indifference murder,” and this appeal ensued.

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DISCUSSION
I. Standard of Review
We review the district court’s denial of habeas relief de

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novo, Henry v. Ricks, 578 F.3d 134, 137 (2d Cir. 2009), accepting

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the district court’s factual findings unless clearly erroneous,

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Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir. 2009).

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Under the Antiterrorism and Effective Death Penalty Act of

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1996 (“AEDPA”), we may grant habeas relief only if the challenged

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state court decision was “contrary to, or involved an

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unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States.”

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§ 2254(d); Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir. 2009).

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state court decision involves an “unreasonable application of”

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federal law “if it correctly identifies the governing legal

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principle but unreasonably applies or unreasonably refuses to
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28 U.S.C.
A

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extend that principle to the facts of a particular case.”

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Richard S. v. Carpinello, 589 F.3d 75, 80 (2d Cir. 2009).

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II.

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Governing Federal Law
“Under the Due Process Clause of the Fifth and Fourteenth

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Amendments, no conviction may be sustained ‘except upon proof

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beyond reasonable doubt of every fact necessary to constitute the

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crime . . . charged.’”

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Winship, 397 U.S. 358, 364 (1970)).

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entitled to habeas corpus relief if it is found that upon the

Henry, 578 F.3d at 138 (quoting In re
A habeas petitioner “is

10

record evidence adduced at trial no rational trier of fact could

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have found proof of guilt beyond a reasonable doubt.”

12

443 U.S. at 324.

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conviction, “[t]his ‘standard must be applied with explicit

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reference to the substantive elements of the criminal offense as

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defined by state law.’”

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Cir. 2011) (quoting Jackson, 443 U.S. at 324 n.16).

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III.

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Jackson,

When reviewing the sufficiency of a state

Langston v. Smith, 630 F.3d 310, 314 (2d

Applicable State Law
Under New York law, a person is guilty of depraved

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indifference murder when “[u]nder circumstances evincing a

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depraved indifference to human life, he recklessly engages in

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conduct which creates a grave risk of death to another person,

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and thereby causes the death of another person.”

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125.25(2) (emphasis added).

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an element of the offense of depraved indifference murder, see,

N.Y. Penal L. §

Thus, “recklessness” has always been

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e.g., People v. Sanchez, 98 N.Y.2d 373, 380(2002), which the

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prosecution had to prove beyond a reasonable doubt in order to

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support Rivera’s conviction, see Langston, 630 F.3d at 314-15.

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Because “one who acts intentionally in shooting a person to death

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. . . cannot at the same time act recklessly,” People v.

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Gallagher, 69 N.Y.2d 525, 528-29 (1987), “under N.Y. law,

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intentional murder and depraved indifference murder are mutually

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exclusive,” Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 812 (2d

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Cir. 2000).

10

From 1983 to 2002, the N.Y. Court of Appeals understood

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“depraved indifference” to “refer[] to neither the mens rea nor

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actus reus” of the crime of depraved indifference murder, but to

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the “factual setting in which the risk creating conduct must

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occur.”

15

removed from original); accord Sanchez, 98 N.Y.2d at 379-84.

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Under this formulation, “the very facts establishing a risk of

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death approaching certainty and thus presenting compelling

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circumstantial evidence of intent—–for example, a point blank

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shooting of a victim in the head—–likewise demonstrated depraved

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indifference.”

21

People v. Register, 60 N.Y.2d 270, 276 (1983) (emphasis

Policano v. Herbert, 7 N.Y.3d 588, 601 (2006).

In 2003, however, in People v. Hafeez, the New York Court of

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Appeals departed slightly from this earlier understanding of

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“depraved indifference,” recognizing that certain murders are so

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“quintessentially intentional” that they cannot properly be

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categorized as depraved indifference murder.

See 100 N.Y.2d 253,

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257-59 (2003); see also People v. Feingold, 7 N.Y.3d 288, 294

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(2006) (noting that the shift away from the Register/Sanchez

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formulation of depraved indifference murder began with Hafeez).

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In that case, Hafeez had plotted for months with a friend to get

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revenge on the victim––with whom they had a previous

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altercation––and had lured the victim out of a bar, where, after

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a brief struggle, the friend administered a fatal wound to the

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victim’s heart with a knife.

See Hafeez, 100 N.Y.2d at 257.

At

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trial, the State pursued a theory of intentional murder:

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defendants plotted the murder for months in advance, lured the

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victim out of the bar to a place “where he would be vulnerable to

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attack,” and then killed the victim instantly by way of a “single

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deliberate wound” to his chest.

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other hand, insisted that the death was accidental:

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friend intended only to beat up the victim but, during a “quick-

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moving fistfight,” the victim was accidentally stabbed.

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at 261 (dissent).

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murder, but convicted him of depraved indifference murder.

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See id. at 258.

the

Hafeez, on the
he and his

See id.

The jury acquitted Hafeez of intentional

On appeal, the N.Y. Court of Appeals held that, despite some

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possible evidence of a struggle, because the overwhelming weight

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of the evidence suggested that Hafeez and his friend had plotted

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the attack ahead of time, deliberately lured the victim out of

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the bar to effectuate their plan, and killed the victim by way of

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a “single deliberate wound,” the attack was “quintessentially

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intentional,” and therefore the “‘heightened recklessness’

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required for depraved indifference murder was simply not

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present.”

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As such, because “the actions of both defendants were focused on

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first isolating, and then intentionally injuring, the victim,”

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no reasonable jury could have found Hafeez guilty of depraved

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indifference murder rather than intentional murder.

9

See id. at 258-59 (quoting Sanchez, 98 N.Y.2d at 380).

Id. at 259.

The N.Y. Court of Appeals further eroded its prior case law

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in People v. Gonzalez, decided in March 2004.

See 1 N.Y.3d 464,

11

467 (2004).

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at close range could not be depraved indifference murder, the

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court explained:

Finding that defendant’s act of shooting his victim

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Depraved indifference murder differs from
intentional murder in that it results not from a
specific, conscious intent to cause death, but from
an indifference to or disregard of the risks
attending defendant’s conduct. . . . [W]here, as
here, a defendant’s conduct is specifically
designed to cause the death of the victim, it
simply cannot be said that the defendant is
indifferent to the consequences of his or her
conduct.
Id. at 467.

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“improperly convert every intentional homicide into a depraved

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indifference murder,” id. at 468, since there is always some

28

remote chance, if the jury wishes to so speculate, that a

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defendant who shot his victim point blank did so spontaneously or

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accidentally, see id. at 467-68.

Were it otherwise, the court cautioned, it would

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The court made clear, however,

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that such speculation cannot convert an intentional homicide into

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depraved indifference murder.

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See id.

After Rivera’s conviction became final in July 2004, the New

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York Court of Appeals decided a number of additional cases that

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further recast the Register/Sanchez formulation of depraved

6

indifference murder, see People v. Payne, 3 N.Y.3d 266 (2004);

7

People v. Suarez, 6 N.Y.3d 202 (2005), until finally, in People

8

v. Feingold, the court formally overruled Register and Sanchez. 7

9

N.Y.3d 288, 292, 296 (2006); see also id. (stating that, in

10

overruling Register and Sanchez, the court was simply “confirming

11

what [was] implicit in the line of cases [beginning with]

12

Hafeez”).

13

Rivera’s conviction became final in July 2004, we cite to them

14

only to the extent that they provide a clarification of pre-

15

existing law.

16

N.Y.3d 588, 603-04 (2006).

17

below, even in the absence of these additional cases, the New

18

York Court of Appeals had made sufficiently clear by the time

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Rivera’s conviction became final in July 2004 that facts such as

20

those in Rivera’s case could not support a conviction for

21

depraved indifference murder.

22

IV.

However, because these cases were decided after

See Henry, 578 F.3d at 138; People v. Policano, 7
In any event, as discussed further

Law To Be Applied On Collateral Review

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For habeas purposes, a New York state-court conviction

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becomes final 90 days after the New York Court of Appeals denies

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leave to appeal, which is when the petitioner’s time to apply for

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a writ of certiorari to the United State Supreme Court expires.

3

See Fernandez v. Artuz, 402 F.3d 111, 112 (2d Cir. 2005).

4

V.

Analysis

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As a preliminary matter, the district court erred in finding

6

that the applicable law of depraved indifference murder was the

7

law in effect when Rivera was convicted at trial on September 19,

8

1997.

9

district court should have applied the law as it existed at the

See Rivera, 2009 WL 4929264, at *23.

Instead, the

10

time Rivera’s conviction became final, 90 days after the New York

11

Court of Appeals denied Rivera leave to appeal to that court.

12

See Fernandez, 402 F.3d at 112.

13

conviction became final on July 13, 2004.

14

in further detail below, the date used to determine which version

15

of New York law to apply is determinative in Rivera’s case, we

16

reverse the district court on this point.

17

Applying this rule, Rivera’s
Since, as we explain

Turning to the merits, Rivera asks us to find that, by the

18

time his conviction became final in July 2004––and thus after

19

Hafeez and Gonzalez had been decided––the law of depraved

20

indifference had so fundamentally changed that no point-blank,

21

one-on-one shooting could be depraved indifference murder.

22

Appellant’s Br. 43-44.

23

that Hafeez and Gonzalez effected no change in New York’s law of

24

depraved indifference murder because both of those decisions

The State, on the other hand, suggests

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“necessarily rest on the particular facts of [those] cases.”

2

Appellee’s Br. 48-54.

3

Hafeez and Gonzalez have no bearing on Rivera’s case.

4

While we decline to go as far as Rivera urges, neither do we

5

accept the State’s position.

6

perhaps some point-blank shootings could still have been

7

categorized as depraved indifference murder when Rivera’s

8

conviction became final in July 2004, cf. People v. Baptiste, 51

9

A.D.3d 184, 185 (3d Dep’t 2008) (concluding that the law did not

Thus, the State argues, the decisions in
Id. at 49.

Rather, we find that, although

10

completely change until the New York Court of Appeals decided

11

Payne in October 2004), by that time, under any reasonable view

12

of the evidence adduced at trial, Rivera’s point-blank shooting

13

of Cassas––which, as explained in further detail below, was

14

either undoubtedly intentional or accidental in the course of a

15

struggle––could not support a depraved indifference murder

16

conviction.

17

depraved indifference murder in July 2004, the state courts

18

unreasonably applied federal law.

19

Jackson, 443 U.S. at 315, 324.

20

As such, by upholding Rivera’s conviction for

See 28 U.S.C. § 2254(d);

Viewing the evidence adduced at Rivera’s trial in the light

21

most favorable to the verdict, as we must at this juncture, see

22

id. at 319, a reasonable jury could have found either of two

23

possible scenarios to explain Cassas’s death.

24

reasonable jury could have found, as the State argued at trial,

15

First, a

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that Rivera plotted his attack on Cassas in advance, lured her to

2

his home on the night of the murder, and then deliberately “put a

3

nine millimeter semiautomatic Beretta handgun to [her] head . . .

4

and pulled the trigger.”

5

“quintessentially intentional attack” could no longer be

6

categorized as depraved indifference murder.

7

Thus, to the same extent as in Hafeez, in Rivera’s case, no

8

reasonable jury could find Rivera guilty of depraved indifference

9

murder rather than intentional murder on such facts.

10
11

J.A. 28.

After Hafeez, however, such a

See id. at 258-59.

See id. at

259.
Moreover, any doubt that may have remained after Hafeez as

12

to whether such a “quintessentially intentional” killing could

13

support a conviction for depraved indifference murder was

14

definitively laid to rest in Gonzalez (which we note had not yet

15

been decided at the time of Rivera’s trial or appeal to the

16

Appellate Division), when the New York Court of Appeals declared

17

that “where . . . a defendant’s conduct is specifically designed

18

to cause the death of the victim”––as would have been the case if

19

the jury found that Rivera lured Cassas to his apartment,

20

intentionally put the gun to her temple, and pulled the

21

trigger––“it simply cannot be said that the defendant is

22

indifferent to the consequences of his or her conduct.”

23

at 467, 469; accord Payne, 3 N.Y.3d at 270 (stating that Hafeez,

24

Gonzalez, and Sanchez “made it clear that depraved indifference

16

1 N.Y.3d

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murder may not be properly charged in the overwhelming majority

2

of homicides that are prosecuted in New York”).

3

Alternatively, the State now contends––contrary to its

4

position at Rivera’s trial––that a reasonable jury could also

5

have found that, after bringing the gun to his meeting with

6

Cassas in an attempt to scare or intimidate her, Rivera

7

accidentally shot Cassas when the gun discharged during a

8

struggle.1

9

would support a conviction for depraved indifference murder

10

because the act of “confronting [Cassas] . . .with a loaded

11

weapon, thereby precipitating a struggle for the gun,” was

12

sufficiently reckless to render Cassas’s resulting death depraved

13

indifference murder.

The State argues that this alternative set of facts

Appellee’s Br. 39-40.

1

This argument is

We note that this theory hinges on a good deal of speculation,
as it is relies in large part on the defense’s evidence at trial
that a struggle over the gun ensued when Rivera attempted to stop
Cassas from shooting herself in the head. See, e.g., Appellee’s
Br. 23-24, 26-27, 43; see also Langston, 630 F.3d at 314
(cautioning that “a conviction based on speculation and surmise
alone cannot stand, and courts cannot credit inferences within
the realm of possibility when those inferences are
unreasonable”); id. (explaining that, where an inference is
necessary to support an element of the crime, “it is not enough
that the inferences in the government’s favor are permissible”;
rather, the “inferences must be sufficiently supported to permit
a rational juror to find that the element is established beyond a
reasonable doubt”); Gonzalez, 1 N.Y.3d at 467-68 (rejecting the
prosecution’s speculative argument that the jury may have
concluded that defendant recklessly fired the first shot
spontaneously or impulsively rather than intentionally).
However, without passing on the reasonableness of this theory in
light of the trial record, we accept this version of the facts as
plausible for purposes of this appeal and proceed accordingly.
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1

without merit, however, as such facts would not rise to the level

2

of depraved indifference murder even under Register and Sanchez.

3

As the New York Court of Appeals has repeatedly explained,

4

to find depraved indifference murder rather than manslaughter,

5

the jury needs to

6
7
8
9
10
11
12
13
14

find defendant’s conduct, beyond being reckless, 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.
People v. Fenner, 61 N.Y.2d 971, 973 (1984); accord Gonzalez, 1

15

N.Y.3d at 467.

16

the distinction between depraved indifference murder and

17

manslaughter in Sanchez:

The New York Court of Appeals further reinforced

18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34

[T]he majority writing in Register does not hold
that “ordinary recklessness” is sufficient to
establish depraved indifference murder. Register
requires a significantly heightened recklessness,
distinguishing it from manslaughter in two ways.
First, “in a depraved mind murder the actor’s
conduct must present a grave risk of death whereas
in manslaughter it presents the lesser substantial
risk of death.” Then, it also requires proof of
circumstances manifesting a depraved indifference
to human life, focusing the injury, as we have
seen, “upon an objective assessment of the degree
of risk” which “converts the substantial risk
present in manslaughter into a very substantial
risk.”
98 N.Y.2d at 380 (quoting Register, 60 N.Y.2d at 276) (internal

35

citations omitted) (first emphasis added); see also id. (“[T]he

36

statutory requirement that the homicide result from conduct

18

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1

evincing a depraved indifference to human life is a legislative

2

attempt to qualitatively measure egregiously reckless conduct and

3

to differentiate it from manslaughter.” (quoting Register, 60

4

N.Y.2d at 279) (emphasis in original)).

5

Quintessential examples of such “significantly heightened

6

recklessness,” id., include intentionally firing multiple shots

7

into a crowd, see Fenner, 61 N.Y.2d at 973, intentionally firing

8

several shots through a lit window next to which the decedent was

9

standing, see People v. Jernatowski, 238 N.Y. 188, 193 (1924),

10

intentionally firing a pistol through a door into a small,

11

enclosed space that the shooter knew contained the victim, see

12

People v. Mannix, 302 A.D.2d 297, 297-98 (1st Dep’t 2003),

13

intentionally driving an automobile along a crowded sidewalk at

14

high speed, see People v. Gomez, 65 N.Y.2d 9, 12 (1985), or

15

shooting a partially loaded gun at a person’s chest during a game

16

of Russian roulette, see People v. Roe, 74 N.Y.2d 20, 27-28

17

(1989).

18

None of these fact patterns are analogous to Rivera’s case,

19

however.

To wit, the mere act of bringing a gun to a contentious

20

confrontation, as Rivera may have done––while grossly reckless

21

and perhaps posing the “substantial risk,” Sanchez, 98 N.Y.2d at

22

380, required to support a conviction for manslaughter––is not

23

“so wanton, so deficient in a moral sense of concern, so devoid

24

of regard of the life or lives of others, and so blameworthy,”

19

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1

Fenner, 61 N.Y.2d at 973, as to render a resulting death depraved

2

indifference murder as opposed to manslaughter.

3

N.Y.3d at 467; Sanchez, 98 N.Y.2d at 378-84; Fenner, 61 N.Y.2d at

4

973; People v. Magliato, 110 A.D.2d 266, 270 (1st Dep’t

5

1985)(reducing conviction from depraved indifference murder to

6

manslaughter because defendant’s conduct of bringing a loaded gun

7

to a confrontation, then cocking the gun and aiming it at

8

victim’s head, where it accidentally discharged and fired a fatal

9

bullet into the victim’s forehead, was not so egregiously

See Gonzalez, 1

10

reckless that it rendered the killing depraved indifference

11

murder rather than manslaughter under Register and its progeny),

12

aff’d, 68 N.Y.2d 24 (1986); id. (“If . . . the jury concluded

13

[that] the actual firing of the weapon was accidental, the

14

recklessness of defendant in placing himself in the position

15

where this could happen did not rise to the point where it was

16

the equivalent of [depraved indifference] murder.”).

17

Payne, the New York Court of Appeals made clear that, although it

18

is “reckless” to “br[ing] a weapon to a contentious

19

confrontation” or “wield a weapon carelessly,” the law does not

20

hold that “any homicide that results [from such conduct] could

21

qualify as depraved indifference murder.”2

2

In fact, in

3 N.Y.3d at 270.

While we recognize that this case was decided after Rivera’s
conviction became final, because this proclamation serves as a
clarification of existing law rather than a statement of new law,
we may rely on it on collateral review. See Henry, 578 F.3d at
138.
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1

Respondent has not provided, nor were we able to find, any case

2

to the contrary, in which a New York appellate court has held

3

that the mere act of bringing a gun to a contentious

4

confrontation, without more, could rise to the level of depraved

5

indifference murder.

6

Were there evidence that Rivera intentionally pulled the

7

trigger of the gun during the struggle, then perhaps his conduct

8

might rise to the level of depraved indifference murder.

9

e.g., People v. Lanier, 275 A.D.2d 937, 937 (4th Dep’t 2000)

See,

10

(finding that defendant’s conviction for depraved indifference

11

murder was appropriate because a reasonable jury could have

12

concluded that, although defendant did not have the conscious

13

objective to cause the victim’s death when he acted, his conduct

14

of firing several shots during his struggle with the victim was

15

“reckless[]” and “evinc[ed] a depraved indifference to human

16

life”).

17

there was no testimony at Rivera’s trial suggesting that Rivera

18

meant only to threaten or frighten Cassas, or that Rivera held

19

the gun to Cassas’s head, before the gun discharged.

20

absence of such evidence, the jury may not use its imagination to

21

fill in the blanks.

22

conviction based on speculation and surmise alone cannot stand,

23

and courts cannot credit inferences within the realm of

24

possibility when those inferences are unreasonable” (internal

But there is no such evidence in this case.

In fact,

In the

See Langston, 630 F.3d at 314 (“[A]

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1

citations and quotations marks omitted)); see also Gonzalez, 1

2

N.Y.3d at 467-68 (making clear that “no rational jury could have

3

accepted” the prosecution’s speculative argument that the

4

defendant recklessly fired his gun “spontaneously or impulsively”

5

rather than intentionally just so that defendant’s conviction for

6

depraved indifference murder could stand).

7

clear guidance from New York’s appellate courts regarding the

8

“significantly heightened recklessness” required to support a

9

conviction for depraved indifference, Sanchez, 98 N.Y.2d at 380,

Thus, in light of the

10

no reasonable jury could have found that the mere act of

11

“confronting [Cassas] . . . with a loaded weapon, thereby

12

precipitating a struggle for the gun,” Appellee’s Br. 39-40,

13

without more, could support a conviction for depraved

14

indifference murder.

15

Since neither of the two permissible views of the evidence

16

adduced at Rivera’s trial––that Rivera either (1) plotted to kill

17

Cassas, lured her to his apartment, and then intentionally shot

18

her once in the head at point-blank range; or (2) brought a gun

19

to his meeting with Cassas and then accidentally discharged the

20

weapon into her head during a struggle––carried the requisite

21

degree of recklessness needed to support a conviction for

22

depraved indifference murder when Rivera’s conviction became

23

final in July 2004, upholding Rivera’s conviction constituted an

24

“unreasonable application of clearly established federal law,” 28

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1

U.S.C. § 2254(d), namely the mandate in Jackson that the jury

2

find each element of the crime beyond a reasonable doubt.

3

443 U.S. at 315, 324.

4

remand this case with instructions to grant Rivera’s petition for

5

a writ of habeas corpus.

6
7
8
9
10

As such, we are compelled to

See

reverse and

See id.; 28 U.S.C. § 2254(d).
CONCLUSION

In light of the foregoing, the judgment of the district
court is REVERSED and REMANDED with instructions to grant
Rivera’s petition for a writ of habeas corpus.

11

23