Rivera v. Lantz
Filing
61
RULING on Petition for Writ of Habeas Corpus (Doc. No. 4 ). Signed by Judge Alvin W. Thompson on 9/30/2011. (Gallagher, Robyn)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
NORBERTO RIVERA,
:
Petitioner,
:
:
v.
:
:
THERESA LANTZ,
:
Respondent.
:
------------------------------x
Civ. No. 3:03CV1664(AWT)
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Norberto Rivera, is a state prisoner who
brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 to challenge his 1990 conviction for murder,
criminal attempt to commit murder and assault in the first
degree.
I.
PROCEDURAL BACKGROUND
On July 13, 1990, a Connecticut Superior Court jury
convicted the petitioner of one count of murder, one count of
criminal attempt to commit murder and one count of assault in the
first degree.
The petitioner was sentenced to 70 years
imprisonment on August 30, 1990.
On November 19, 1991, the
Connecticut Supreme Court affirmed the judgment of conviction.
State v. Rivera, 220 Conn. 408 (1991).
On May 20, 1992, the petitioner filed a habeas petition in
state court challenging his conviction on the ground that he was
not afforded effective assistance of counsel at trial.
On
November 10, 1997, the petitioner filed a second amended
petition, which was finally amended on April 11, 1999.
The state
habeas court dismissed the petition on December 30, 1999.
Rivera
v. Warden, No. CV 921467, 1999 WL 1328081 (Conn. Super. Ct. Dec.
30, 1999).
The Connecticut Appellate Court affirmed the habeas
court’s judgment on June 18, 2002.
App. 452 (2002).
Rivera v. Comm’r, 70 Conn.
The Supreme Court denied the petition for
certification for appeal on September 12, 2002.
Commissioner, 261 Conn. 921 (2002).
Rivera v.
On May 3, 2004, the
petitioner filed the present federal habeas petition.
(Am. Pet.
(Doc. No. 4).)
II.
FACTUAL BACKGROUND
The petitioner was convicted of shooting and killing
Fernando Fuentes (“Fuentes”) and shooting and wounding Rosendo
Javier Mautino (“Mautino”) on July 2, 1998 in front of Club Peru
in Hartford, Connecticut.
The Connecticut Appellate Court
determined that the jury reasonably could have found the
following facts underlying the petitioner’s conviction.
Javier
Mautino is the brother of the petitioner’s former girlfriend,
Maria Ortiz (“Ortiz”).
with the petitioner.
In 1984, Ortiz ended her relationship
The petitioner was angry at her and blamed
her family for interfering with their relationship.
On February
3, 1987, in a recorded conversation with Ortiz, the petitioner
threatened to kill Mautino.
Additionally, in June of 1988,
shortly before the incident underlying the petitioner’s
conviction, the petitioner placed several telephone calls to
2
Ortiz’s sister, telling her that he planned to kill Mautino.
On the evening of July 1, 1988, Mautino, Fuentes and the
petitioner were at Club Peru.
and challenged him to a fight.
The petitioner argued with Mautino
When Mautino refused to fight,
the petitioner called him a coward and left the club.
The
petitioner, who remained outside the club, shot both Mautino and
Fuentes when they walked outside.
wounds.
Fuentes died from the gunshot
Mautino survived the assault but died from cancer before
the petitioner’s trial.
As a result of that incident, the state
charged the petitioner with murder in violation of Connecticut
General Statutes § 53a-54a(a), criminal attempt to commit murder
in violation of C.G.S. §§ 53a-54a(a) and 53a-49(a)(2) and assault
in the first degree in violation of C.G.S. § 53a-59 (a)(1).
In addition to these facts, the following facts from the
record are relevant.
At trial, Mautino’s sisters testified that
the petitioner contacted them and stated: (1) “You know me, I
already killed one, and tonight, you are going to see the rest. .
. . I am going to blow up your business tonight,” (2) “I shot
your brother, I am going to kill your brother.
I am going to
finish with your brother, I am going to get your sister.
I am
going to get the whole family,” (3) that he had only “started
what he planned to do,” and (4) that he would shoot Mautino “in
the head,” because Mautino was the only witness to the incident
in question.
Rivera, 220 Conn. at 414.
3
Luz Gonzalez, who knew
the petitioner through her boyfriend, testified that following
the incident, the petitioner confessed to her that he “had to
kill . . . the Peruvian guy,” and repeated “I killed him, I
killed him.”
(Mem. Opp. Writ at 13 (citing T. 6/26/90 at 81-
89)).
The petitioner testified at trial that he left town
following the incident and stayed with relatives until he
eventually turned himself in.
90-94)).
(Id. at 28 (citing T. 3/4/98 at
His probation officer also testified that the
petitioner called her, told her he knew he was wanted by the
police and was not going to return to Connecticut.
n.22 (citing T. 6/26/90 at 23-26)).
(Id. at 29
Additionally, the petitioner
testified that he called his probation officer from Illinois and
contrived a story that Fuentes attacked him with a baseball bat
the night of the shooting.
(Id. (citing T. 3/4/98 at 95)).
III. STANDARD OF REVIEW
A federal court will “entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of
the United States.”
28 U.S.C. § 2254(a).
A federal court cannot
grant a petition for a writ of habeas corpus filed by a person in
state custody with regard to any claim that was rejected on the
merits by the state court unless the adjudication of the claim in
4
state court either:
(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). For purposes of the habeas statute, federal
law defined by the Supreme Court “may be either a generalized
standard enunciated in the Court’s case law or a bright-line rule
designed to effectuate such a standard in a particular context.”
Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002).
established federal law in
“Clearly
§ 2254(d)(1) refers to the holdings,
as opposed to the dicta, of [the Supreme Court’s] decisions as of
the time of the relevant state-court decision.”
Carey v.
Musladin, 549 U.S. 70, 74 (2006) (internal citations omitted).
A decision is “contrary to” clearly established federal law
“if the state court applies a rule different from the governing
law set forth in [Supreme Court] cases, or if it decides a case
differently than [the Supreme Court] ha[s] done on a set of
materially indistinguishable facts.”
Bell v. Cone, 535 U.S. 685,
694 (2002) (citing Williams v. Taylor, 529 U.S. 362, 404-05
(2000)).
“Contrary to” means “diametrically different, opposite
in character or nature, or mutually opposed” to the relevant
Supreme Court precedent.
See Williams v. Taylor, 529 U.S. 362,
405-06 (2000); Hanson v. Phillips, 442 F.3d 789, 798 (2d Cir.
5
2006).
A state court unreasonably applies Supreme Court law when
“the state court correctly identifies the governing legal
principle from [Supreme Court] decisions but unreasonably applies
it to the facts of the particular case.”
Id.
“[A] federal
habeas court making the ‘unreasonable application’ inquiry should
ask whether the state court’s application of clearly established
law was objectively unreasonable.”
Id. at 409.
“[A]n
unreasonable application of federal law is different from an
incorrect application of federal law.”
Id. at 410 (emphasis in
original).
When reviewing a habeas petition, a federal court presumes
that the factual determinations of the state court are correct.
28 U.S.C. § 2254(e)(1).
The petitioner bears the burden of
rebutting that presumption by clear and convincing evidence.
Id.
Because collateral review of a conviction applies a different
standard than a direct appeal, an error that may have supported
reversal on direct appeal will not necessarily be sufficient to
grant a habeas petition.
See Brecht v. Abrahamson, 507 U.S. 619,
634 (1993); see also Ciak v. United States, 59 F.3d 296, 301 (2d
Cir. 1995) (“Because requests for habeas corpus relief are in
tension with society's strong interest in the finality of
criminal convictions, the courts have established rules that make
it more difficult for a defendant to upset a conviction by
collateral, as opposed to direct, attack.”).
6
IV.
DISCUSSION
The petitioner challenges his conviction on the ground that
he was denied his Sixth Amendment right to effective assistance
of counsel.
An ineffective assistance of counsel claim is
reviewed under the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984).
“It is past question that the
rule set forth in Strickland qualifies as clearly established
Federal law, as determined by the Supreme Court of the United
States.”
Williams v. Taylor, 529 U.S. 362, 391 (2000) (internal
citations omitted).
Supreme Court precedent dictates that the
Connecticut state courts should have applied the Strickland test
in deciding the petitioner’s ineffective assistance of counsel
claim.
See id.
Thus, the petitioner is entitled to relief if
the appellate court’s decision rejecting his
ineffective-assistance claim was either “contrary to, or involved
an unreasonable application of” Strickland.
Id.
Under Strickland, the petitioner first “must show that
counsel’s performance was deficient.
This requires showing that
counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”1
1
466
Here, there is no dispute that the first prong of
Strickland is satisfied. The state habeas court determined that
trial counsel’s performance was deficient under Strickland.
First, the court noted that counsel failed to cross-examine and
expose certain inconsistencies in Mautino’s testimony concerning
whether he agreed to go outside to fight the petitioner and
whether there was actually a fight. Second, the habeas court
7
U.S. at 687.
Second, the petitioner “must show that the
deficient performance prejudiced the defense.”
Id.
To establish
prejudice, the petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Id. at 694.
“A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Id.
The court evaluates
counsel’s conduct at the time the decisions were made, not in
hindsight, and affords substantial deference to counsel’s
decisions.
Rompilla v. Beard, 545 U.S. 374, 381 (2005).
“In
making [the prejudice] determination, a court hearing an
ineffectiveness claim must consider the totality of the evidence
before the judge or jury.”
Id. at 695.
The petitioner makes three principal arguments.
First, he
argues that the state habeas court’s decision was contrary to
clearly established federal law because it applied the
preponderance of the evidence standard to its review of
Strickland’s prejudice prong instead of the reasonable
probability standard.
He contends that to the extent the state
appellate court correctly identified the proper standard, the
court’s decision was an unreasonable application of Strickland.
found trial counsel’s representation deficient regarding his
failure to impeach Mautino about the location of his car. Thus,
the petitioner focuses his argument exclusively on the prejudice
component of the Strickland test.
8
Second, he argues that the state appellate court’s decision was
contrary to clearly established federal law because the court
applied the Lockhart prejudice test instead of the Strickland
prejudice test.
Third, he argues that the state habeas court’s
decision was based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceeding.
The court first addresses the petitioner’s arguments that
the state court decisions were contrary to federal law, second,
the petitioner’s argument that the state appellate court decision
was an unreasonable application of federal law, and finally, the
petitioner’s argument that the state habeas court’s decision was
based on an unreasonable determination of the facts.
A.
Whether the State Habeas Court’s Decision was Contrary
to Clearly Established Federal Law
The petitioner argues that the state habeas court's decision
was contrary to clearly established federal law because it used
the preponderance standard instead of the reasonable probability
standard required by Strickland.
The court need not address this
argument, however, because the appellate court determined that
the state habeas court applied the incorrect standard.
Rivera v. Comm'r, 70 Conn. App. at 455 n.1.
See
The material issue
here is whether the state appellate court's prejudice analysis
was contrary to or an unreasonable application of clearly
established federal law.
9
B.
Whether the State Appellate Court’s Decision was
Contrary to Clearly Established Federal Law
The petitioner argues that the state appellate court’s
decision was contrary to clearly established federal law because
it applied the incorrect standard for prejudice.
Specifically,
the petitioner contends that the state appellate court’s
prejudice inquiry was directed to the fairness of the trial and
not whether its outcome would have been different, as required by
Strickland.
The Appellate Court of Connecticut applied the Connecticut
standard for ineffective assistance of counsel.
Under this
standard,
[t]he petitioner must make a two-fold showing: (1) that his
counsel’s performance fell below the required standard of
reasonable competence or competence displayed by lawyers
with ordinary training and skill in the criminal law; and
(2) this lack of competency contributed so significantly to
his conviction as to have deprived him of a fair trial . . .
A reviewing court can find against petitioner on either
ground, whichever is easier.
Rivera v. Comm’r, 70 Conn. App. 452, 455-56 (2002) (citing Mercer
v. Comm’r, 31 Conn. App. 771, 774 (1993) (rev’d on other grounds)
(internal citations omitted).
The Connecticut standard differs
from the Strickland standard in that the prejudice inquiry under
the Connecticut standard focuses on whether counsel’s deficient
performance “deprived him of a fair trial,” whereas the
Strickland standard asks whether “but for counsel’s
unprofessional errors” there is a “reasonable probability that
10
the outcome of the proceedings would have been different.”
Henry v. Poole, 409 F.3d 48, 69 (2d Cir. 2005).
See
In other words,
“the [Connecticut] standard’s prejudice component . . . focuses
on the fairness of the process as a whole rather than any
particular impact on the outcome of the case.”
Id. (internal
quotations omitted) (emphasis in original).
The Second Circuit confronted a similar situation in Henry
v. Poole where it examined New York’s test for ineffective
assistance of counsel.
Speaking to the difference between the
New York and Strickland tests, the court noted, “whereas both
tests contain a prejudice component, the touchstone of the New
York test is the fairness of the process of a whole, while the
federal test considers the outcome of the proceeding for the
defendant.”
Id. (internal citations omitted).
The court went on
to state that “[n]otwithstanding that difference, this Court has
ruled on at least three occasions that the New York standard . .
. “is not ‘contrary to’ the Strickland standard for purposes of
§ 2254(d)(1).”
Id. at 69-70 (citing Eze v. Senkowski, 321 F.3d
110, 122-24 (2d Cir. 2003); Lindstadt v. Keane, 239 F.3d 191, 198
(2d Cir. 2001); Loliscio v. Goord, 263 F.3d 178, 193 (2d Cir.
2001)).
Likewise, the Connecticut standard is not “contrary to”
Strickland.
Additionally, even if the Connecticut test was contrary to
Strickland, the Appellate Court of Connecticut’s analysis
11
complied with the Strickland standard.
While the appellate court
did not specifically articulate the federal standard in its
analysis of counsel’s failure to impeach Mautino’s testimony, the
court correctly stated the standard in two other sections of the
opinion.
See Rivera v. Comm’r, 70 Conn. App. 452, 455 n.1, 460
(2002).
Moreover, with respect to counsel’s failure to impeach
Mautino’s testimony, the court concluded “that had [trial
counsel] impeached Mautino’s testimony, such elicitation would
have proven trivial at best because it would not have refuted the
‘totality of the evidence before the judge or jury.’ ” Id. at 459
(citing Strickland, 466 U.S. at 695).
Thus, notwithstanding the
fact that the language used by the appellate court centered on
the fairness of the trial, the court’s decision explicitly relied
on its determination that the outcome of the proceeding would not
have changed had counsel performed effectively.
C.
Whether the State Appellate Court's Decision was an
Unreasonable Application of Clearly Established Federal
Law
The petitioner argues that the state appellate court’s
prejudice determination was an unreasonable application of
Strickland.
“Under the unreasonable application clause, a
federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this
Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case.”
Williams, 529 U.S. at 413. A
12
state court’s prejudice determination is “unreasonable insofar as
it fail[s] to evaluate the totality of the available mitigation
evidence– both that adduced at trial, and the evidence adduced in
the habeas proceeding.”
Id. at 397; see also Wiggins v. Smith,
539 U.S. 510, 534 (2003) (“In assessing prejudice, we reweigh the
evidence in aggravation against the totality of available
mitigating evidence.”).
Here, the petitioner argues that the state appellate court’s
prejudice determination was unreasonable because it was not
supported by the entire record.
Specifically, he contends that
neither the habeas court nor the appellate court analyzed the
habeas testimony of Detectives Michaud and Gervais in light of
the eyewitness testimony of three witnesses who testified that
the petitioner was not the shooter.
Also, in his deposition,
Mautino testified that when he left the club, he turned north to
get onto the street.
He further testified that the petitioner
was standing “very near” Mautino’s car, which was across the
street and close to a light pole.
At the habeas hearing,
however, Detective Michaud testified that Mautino’s car was 145
feet south of where the shooting took place.
Detective Gervais’s
habeas testimony also confirmed that Mautino’s car was south of
the club, contradicting Mautino’s version of events.
The
petitioner contends that, had the jury heard the detectives’
testimony that the two detectives independently found Mautino’s
13
car south of the crime scene, Mautino’s credibility would have
been undermined, the testimony of the three eyewitnesses that the
petitioner was not the shooter would have been bolstered and the
outcome of the trial would have been different.
The court
disagrees.
After reviewing the record in its entirety, the court finds
that the totality of the evidence properly before the jury was so
compelling that there is no reasonable probability that the
outcome of the trial would have been different had trial counsel
acted effectively.
overwhelming.
The evidence of the petitioner’s guilt was
As the appellate court noted, testimony revealed
that the petitioner threatened to kill Mautino and that he stated
his intention to Ortiz's sister.
Additionally, Mautino was
within five or six feet of his shooter and unambiguously
identified the petitioner as his shooter.
He testified not only
that he saw the petitioner shoot him, but also that he heard the
petitioner say: "So there are two of you, so there is two for
one;” “Now everybody knew who [the petitioner] was;” and “I am
going to kill you.”
The jury credited this testimony over the
testimony from the three eyewitnesses who testified at trial that
the petitioner was not the shooter.
Moreover, the state habeas
court reviewed Mautino’s deposition tape and noted that the jury
could reasonably have found Mautino’s testimony “credible and
compelling.”
Rivera v. Warden, No. CV 921467, 1999 WL 1328081,
14
at *4 (Conn. Super. Dec. 30, 1999).
The jury also heard testimony from Mautino's sisters that
the petitioner contacted them after the shooting and stated: (1)
“You know me, I already killed one, and tonight, you are going to
see the rest. . . . I am going to blow up your business tonight,”
(2) “I shot your brother, I am going to kill your brother.
I am
going to finish with your brother, I am going to get your sister.
I am going to get the whole family,” (3) that he had only
“started what he planned to do,” and (4) that he would shoot
Mautino “in the head,” because Mautino was the only witness to
the incident in question.
Luz Gonazlez testified that the
petitioner confessed to her that he “had to kill . . . the
Peruvian guy,” and repeated “I killed him, I killed him.”
The
petitioner testified that he fled after the shooting and
fabricated a story about Fuentes attacking him with a baseball
bat the night of the shooting.
The jury also heard testimony
from the petitioner’s probation officer, who stated that the
petitioner called her and told her that he knew he was wanted by
the police and was not going to return to Connecticut.
Based on a review of the totality of the evidence, the court
agrees with the state appellate court that the petitioner did not
suffer any prejudice because the outcome of his trial would not
have been different had counsel acted effectively.
15
D.
Whether the State Habeas Court’s Decision was Based on
an Unreasonable Determination of the Facts
Finally, the petitioner argues that he is entitled to relief
under § 2254(d)(2) because his incarceration resulted from “a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.”
Specifically, he contends that the state habeas
court committed clear factual error when it decided that Rivera
was not prejudiced by trial counsel’s omission.
In reaching its conclusion that the petitioner was not
prejudiced by trial counsel’s omission, the state habeas court
noted: “Mautino indicates a shorter hispanic male may have been
with Rivera thus making Rivera the ‘taller’ shooter.
have been consistent with the other witnesses.”
This would
Rivera v.
Warden, No. Cv 921467, 1999 WL 1328081, at *8 n.6 (Conn. Super.
Dec. 30, 1999).
The petitioner takes issue with this
characterization of the facts because at trial, three defense
eyewitnesses testified that (1) Rivera was fighting Mautino in
the street; (2) Rivera was not the shooter, and (3) Rivera was
taller than the shooter.
He argues that the Appellate Court of
Connecticut did not specifically review his claim that the habeas
court’s factual error affected its prejudice analysis.
The court
need not address this argument, however, because for the reasons
set forth in Section IV.C, it finds that the petitioner was not
prejudiced by trial counsel’s omissions.
16
See Henry v. Poole, 409
F.3d 48, 67 (2d Cir. 2005) (noting that a state prisoner seeking
a federal writ of habeas corpus on the ground that he was denied
effective assistance of counsel must show that he meets the
Strickland standard and the requirements of 28 U.S.C. § 2254).
V.
CONCLUSION
The amended petition for a writ of habeas corpus is hereby
DENIED.
The Clerk is directed to enter judgment in favor of the
respondent and close this case.
Because the petitioner has not
“made a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), the court declines to issue a
certificate of appealability.
Signed this 30th day of September, 2011 at Hartford,
Connecticut.
/s/AWT
Alvin W. Thompson
United States District Judge
17
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