RIVERA v. WARREN et al
Filing
13
OPINION. Signed by Judge Kevin McNulty on 10/30/2013. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSE RIVERA,
Petitioner,
Civ. No. 12-2949 (KM)
OPINION
V.
CHARLES WARREN, et al.,
Respondents.
KEVIN MCNULTY, U.S.D.J.
I.
INTRODUCTION
Petitioner, Jose Rivera, is a state prisoner currently incarcerated at the
New Jersey State Prison in Trenton, New Jersey. Mr. Rivera was found guilty by
a jury of first-degree murder and third-degree hindering apprehension by
attempting to conceal the victim’s body. He is currently serving a life sentence
of imprisonment with a thirty-five year parole ineligibility. Now before the Court
is Rivera’s pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.
§
2254. The petition raises four claims:
1. Ineffective assistance of counsel;
2. Violation of Article 36 of the Vienna Convention on Consular
Relations;
3. Violation of his right to testify on his own behalf; and
4. All of Rivera’s statements should have been suppressed.
For the following reasons, the habeas petition will be denied. I discuss Claim
Claim 3 immediately after Count 1, to which it is closely related.
II.
FACTUAL AND PROCEDURAL BACKGROUND’
The victim, Amalia Rojas, and defendant were married
in Mexico in 1983. According to the adult presentence
report, three children were born of the marriage. The
oldest child resides in Astoria Queens, and the two
youngest reside with an aunt in Mexico. In the mid
nineties, Amalia and the children emigrated to the
United States, and defendant joined the family in the
late nineties.
During September 1998, the timeframe of the murder,
defendant, Amalia, and the two youngest children
resided in one room of a basement apartment in
Queens that they shared with Amalia’s seventeen-yearold nephew, Armando Rojas, and a man named David
Alvarez. Amalia had married Alvarez after her arrival in
the United States.
On Sunday, September 13, 1998, Amalia and
defendant left the apartment together, but when
defendant returned to the apartment at about 6:00
p.m. that evening, he was alone. He told Armando
Rojas that he and Amalia had gone to 42nd Street in
New York City, and that “she had gone into the
bathroom and hadn’t come out.”
On Monday, September 14, 1998, at about 7:00 a.m.,
Pedro Soto arrived for work at the Gilmont Industries
distribution warehouse located at 738 Schulyer
Avenue in Lyndhurst, New Jersey. After lunch, as part
of his duties, Soto drove a forklift to the back of the
building in order to retrieve a container. While in this
area, Soto noticed “the legs” sticking out from between
the building and a 36 x 26 x 24 inch shipping
container. When Soto moved a blue plastic container
lid that was partially covering the body, he observed
an unknown dead woman. Immediately thereafter,
Soto notified the police.
This factual background is taken from the New Jersey Superior Court, Appellate
Division opinion on Mr. Rivera’s direct appeal, filed August 23, 2007. (See Dkt.
No. 103.)
7
Sergeant Brian Callanan of the Bergen County
Prosecutor’s Office (BCPO) was one of the officers who
responded to the scene. Upon his arrival, Callanan
noted a ligature around the victim’s neck, abrasions
on her left arm, and a laceration on her face. These
abrasions suggested to him that the body had been
dragged.
Dr. Sunandan Singh, the Bergen County Medical
Examiner, also came to the scene. Dr. Singh
pronounced the woman dead at 2:45 p.m., and based
on his evaluation of the body at the scene, he opined
that the woman had died between 2:00 p.m. and
midnight the previous day.
A search of the area around the body did not result in
any identification for the victim but did reveal several
yellow grocery-type plastic bags. It was later learned
that these bags originated from a grocery store in
Queens.
Further investigation revealed that a man named Jorge
Onofre had brought a group of men from Queens to
the Gilmont Warehouse with the task of cleaning out
the warehouse. This crew had worked at the
warehouse about six weeks earlier. The police obtained
a list of the workers that Onofre had brought to the
site. Defendant and Armando, the victim’s nephew,
were both on the list of individuals who had previously
worked at the warehouse.
On the following evening, Tuesday, September 15,
1998, officers from the BCPO went to Queens to
question defendant and some of the other individuals
who had worked at the Lyndhurst warehouse. The
police were especially interested in defendant because
they had learned, through another worker, that
defendant’s wife had been missing since Sunday,
September 13, 1998.
Shortly before midnight on September 15, Detective
Joseph Macellaro of the BCPO and Detective Peter
Ortega of the New York [C]ity Police Department went
to defendant’s residence, Apartment 9B at 2513 31st
Avenue, Astoria, Queens. When defendant opened the
door, Detective Ortega, acting as interpreter, informed
3
defendant they wanted to speak with him regarding
his wife’s disappearance and asked to see a
photograph of her. Defendant produced his wife’s
passport and agreed to accompany the officers to the
precinct. The officers transported defendant and
Armando to the local precinct.
At the precinct, defendant and Armando were
interviewed separately, and after he was advised of his
Miranda [FN 1] warnings, defendant agreed to speak
with the police. Initially, defendant told police his wife
and David Alvarez had argued on Sunday, and she
had “stormed out” of the apartment and had not
returned. Afterwards, he had searched for her by
bicycle, but had been unable to locate her. Defendant
explained he did not report his wife missing because
he assumed she would return on her own.
[FN 1] Miranda u. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966).
Detective Macellaro told defendant he did not believe
him. In response, defendant stated his wife had been
out drinking all night, before returning home early in
the morning. He also indicated he had an argument
with her that almost turned physical, but her nephew
Armando interceded. Defendant told Detective
Macellaro that his wife had also argued with David
Alvarez and, thereafter, she “stormed out” of the
apartment and had not returned.
Macellaro told defendant they had discovered a
woman’s body behind the warehouse in Lyndhurst
where defendant had worked, and they believed it to
be his wife. According to Macellaro, defendant did not
react with any obvious emotion to this news.
After again telling defendant he was having a hard
time believing his story, Macellaro speculated aloud
that defendant and his wife had argued because she
was planning on leaving him. Defendant denied having
anything to do with his wife’s disappearance, but he
admitted his wife was planning to leave him, and he
was upset about that because he did not want her to
leave him and the children.
4
Just before 3:00 a.m., Detective Luis Alvarez of the
BCPO entered the interview room and asked defendant
for consent to search his apartment. Defendant
consented to the search, and he read and signed a
Spanish version of a consent-to-search form at
approximately 2:57 a.m.
Thereafter, Detective Macellaro continued to tell
defendant he did not believe him, the police were going
to find out the truth, and it would be in his best
interest to tell the truth. At this point, defendant
started crying and he blurted out (in Spanish), “I didn’t
want it to happen, it had to happen.” Detective
Macellaro then asked defendant if he had killed his
wife, and he answered “yes.”
After allowing defendant a few moments to compose
himself, Macellero asked defendant to describe the
events of Sunday, September 13, 1998. Defendant
began by stating that his wife had been out drinking
all night the previous evening, and they argued when
she returned. During the course of their argument,
Amalia accused defendant of having a girlfriend in New
Jersey. Defendant denied the accusation, and offered
to take Amalia to the site where he had worked in New
Jersey. At about 11:00 a.m., they took a train to the
Port Authority Bus Terminal where they boarded a bus
to New Jersey. They arrived at the warehouse in
Lyndhurst at approximately 12:30 or 1:00 p.m. The
warehouse was closed, and the two argued as they
proceeded towards the rear of the building. While they
were arguing, defendant slowly grabbed his wife
around the neck and began to choke her with his
hands until she fell to the ground. Once she fell to the
ground, he picked up an elastic strap that was lying
on the ground and wrapped it around her neck, and
he applied pressure. Defendant stated he held the
strap for approximately five to ten minutes until his
wife stopped moving or breathing. Defendant then tied
the strap in a knot around her head and, when he
realized his wife was dead, he covered the upper
portion of her body with a blue plastic container top.
Defendant walked back to the bus stop, and he went
into a nearby liquor store to purchase a return ticket
to New York and a beer. While waiting for the bus,
5
defendant returned to the liquor store, inquired about
the bus, and purchased a second beer, which he
drank before returning home. Defendant told the
police that later in the evening, he and Armando went
to visit a friend named Felipe, and outside of
Armando’s presence, defendant told Felipe he had
killed his wife. The next day, he twice telephoned a
former coworker, on a pretext, in an effort to obtain
information regarding the police investigation.
While waiting for a stenographer to be available, the
police reviewed defendant’s statement with him a
second time. Between 5:48 a.m. and 6:45 a.m. on
September 16, 1998, with the aid of a Spanish
interpreter, defendant gave a twenty-four page
stenographic statement. In his statement, defendant
described how he killed his wife at the deserted
warehouse in Lyndhurst:
Question: Did a fight start between the
two of you?
Answer: Yes, then we started to argue
because she told me that if I arrived home
drunk she was going to kill me.
Question: Did the fight turn physical?
Answer: Yes, She told me that, then I told
her why you telling me lies.
Question: Did you touch your wife?
Answer: I slowly grabbed her from the
front.
Question: When you say you grabbed her
what part of her body did you grab?
Answer: The neck.
Question: Did you grab her throat with
two hands or one hand?
Answer: First I believe it was one, then
with two
Question: So you were choking her with
two hands. Is that correct?
Answer: When she was on the floor.
Question: So she fell on the floor?
Answer: Yes, she fell on the floor.
Question: Then what happened?
Answer: I grabbed her there with that
elastic. I grabbed that elastic, I gave it a
turn, I held it.
6
Question: When you say elastic what are
you talking about something like a rope?
Answer: It was something like this but it
stretched.
Question: Let the record reflect he is
pointing to the strap which is on the
stenographer’s case. How long was this
piece of strap?
Answer: I just know that I stretched it
and it stretched long.
Question: Where did you get this from?
Answer: It was lying on the floor.
Question: And you said did you wrap it
around your wife’s neck?
Answer: Yes.
Question: How many times did you wrap
it around her neck?
Answer: I believe it was two times.
Question: Then what did you do after you
had it wrapped around her neck? What
did you do? Did you put pressure on it,
did you squeeze?
Answer: I grabbed her neck and I used
that elastic.
Question: How long did you hold the
elastic around her neck for?
Answer: Like five, 10 minutes. It seemed
like five minutes.
Question: What happened next? What
happened to her?
Answer: She stayed there.
Question: Was she trying to pull the
elastic off while you were holding it on her
neck?
Answer: Yes, she was trying to but she
couldn’t because she grabbed me by my
right arm and made these marks.
Question: Let the record reflect he’s
pointing to a contusion on his right arm
that he indicated was done by his wife.
And just to clarify how did you get that
bruise on your right arm?
Answer: She grabbed me like this and I
pulled away.
Question: So she grabbed your arm. Is
that correct?
—
7
Answer: She was trying to grab me, but I
didn’t allow her to.
Question: Was she on the ground when
you were holding this against her?
Answer: Yes, she was on the floor.
Question: Was she close to the building?
Answer: In the corner.
Question: Did there come a time when
she stopped moving or stopped breathing?
Answer: I believe she stopped breathing
because she fell back.
Just so I understand, your
Question:
wife is on the ground and you have this
elastic around her neck. Is that correct?
Answer: Yes.
.
.
.
Question: So there comes a point in time
you tied a knot in the elastic?
Answer: I said when she was face down.
Question: And you turned her on her
back?
Answer: I tied it. I turned her over face up
and I lifted her arms.
Question: When you turned her on her
back was she breathing?
Answer: I don’t think so because she
wasn’t breathing.
Question: After you did this what did you
do? Did you put anything over her to
cover her?
Answer: Oh yes. I put plastic there. It was
covering sand that was on the ground.
Defendant was arrested after he gave his stenographic
confession. Following his arrest, defendant was
examined for injuries. The only injury observed was
the contusion on his arm, which defendant said was
caused by his wife grabbing him while he was
strangling her.
While defendant was giving his statement to Macellaro,
other police officers conducted a consent search of
defendant’s apartment. As a result of the search, the
police seized a backpack from the room shared by
defendant and his family. The contents of the
backpack included several tools and a workman’s
8
black back-support belt. Because the workman’s belt
bore visual similarities to the elastic used to strangle
defendant’s wife, and the ligature appeared to be the
missing strap from the shoulder harness of the backsupport belt, both items were submitted to the State
Police laboratory for microscopic analysis. At trial, the
State produced testimony that the fiber content and
weave pattern of the two items exhibited the same
characteristics, and that the clip fastener on the backsupport belt fit the clip on the ligature.
On Thursday, September 17, 1998, following an
extradition hearing, defendant was transported from
Queens to New Jersey by police officers. During this
ride, defendant, for the first time, mentioned that he
and his wife had had a physical altercation. Also
during this ride, defendant agreed to show the officers
the route he and Amalia took to and from the
warehouse.
At trial, the State produced the testimony of Pedro
Soto, who had worked at the warehouse in Lyndhurst
with defendant. He testified that, when defendant
worked at the warehouse, he wore a black backsupport belt around his waist made from “stretchable
cloth material.” In addition, when he was asked if he
recognized the black back-support belt that had been
seized by the police, he testified it was “very similar to
the one [defendant] used to wear.” This information
was confirmed by Armando, who also testified he saw
defendant wearing a black back-support belt at work.
Michael Manzo, a Lyndhurst resident, was another
State’s witness. He testified that on the Sunday in
question, he had been standing outside of his house
when a man and woman, who appeared to be Mexican,
walked by. According to Manzo, the man was “at least
eight steps” ahead of the woman, and the man “looked
like he was really angry.” On September 23, 1998,
Manzo was shown a photograph of defendant, and he
identified him as the man he had seen walk by his
house. Manzo testified he contacted the police when he
learned that the body of a Mexican woman had been
found “down the street.”
9
Dr. Singh, the Bergen County Medical Examiner, also
testified at trial. Dr. Singh stated when he initially
examined the victim’s body at the warehouse in
Lyndhurst, he saw some injuries on her face and
“some abrasions,” but “the most remarkable thing” he
observed “was a ligature around her neck,” which he
described as follows:
[P]art of the ligature had passed through
the mouth, and it was wove very tightly
around her neck as well as the mouth.
And also after further examination it
appeared that there were the whole
ligature itself was tied behind the back.
And in doing so, apparently her hair had
been caught in that knot, and it was
implicated in that.
—
According to Dr. Singh, a black elastic belt had been
used to cut off the victim’s oxygen supply. Dr. Singh
testified that because of the “elastic nature” of the
ligature, it has been “tightly wound, both around the
neck as well as the mouth. It was extremely tight.” Dr.
Singh determined the cause of death was “asphyxia
due to ligature of [the] neck.”
In response to a hypothetical question, Dr. Singh
opined if an asphyxiation took place over a five to ten
minute period, the victim would not be acting
passively, but rather, struggling against the
asphyxiating force. Dr. Singh also testified a knot in
the rear of a ligature would likely have been tied when
the person being strangled was unconscious.
Dr. Singh’s examination also revealed blunt force
injuries to the victim’s head and neck. The majority of
those injuries were located on the left side of Amalia’s
forehead above the ear. According to Dr. Singh, these
injuries could have been caused by a hard object
hitting Amalia’s head or by her heard hitting a hard
object.
Defendant elected not to testify at trial, and no
witnesses were produced on his behalf.
(Dkt. No. 10-3 at pp. 3-16.)
10
On direct appeal, the New Jersey Superior Court, Appellate Division
affirmed the conviction but remanded the matter for resentencing. (See Dkt.
No. 10-3.) The New Jersey Supreme Court denied Mr. Rivera’s petition for
certification on his direct appeal. See State v. Rivera, 193 N.J. 221, 936 A.2d
968 (2007).
Mr. Rivera also filed a petition for post-conviction relief (“PCR”) in the
Superior Court. The Superior Court denied the PCR petition (Docket No. 10-31)
and the Appellate Division affirmed. (Docket No. 10-9) On January 13, 2012,
the New Jersey Supreme Court denied certification on Mr. Rivera’s appeal from
denial of his PCR petition. See State v. Rivera, 209 N.J. 97, 35 A.2d 680 (2012).
On May 7, 2012, Mr. Rivera filed this federal habeas petition.
Respondents answered the petition on December 31, 2012. The matter is now
ripe for adjudication.
III.
HABEAS CORPUS LEGAL STANDARD
An application for a writ of habeas corpus by a person in custody under
judgment of a state court can be granted only for violations of the Constitution,
laws or treaties of the United States. See Engle v. Isaac, 456 U.S. 107, 119
(1982); see also Mason v. Myers, 208 F.3d 414, 415 n. 1 (3d Cir. 2000) (citing
28 U.S.C.
§ 2254). Because Mr. Rivera filed this petition for a writ of habeas
corpus after April 24, 1996, the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) applies. See Pub. L. 104-132, 110 Stat. 1214 (Apr. 24,
1996); Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal
habeas corpus relief is not available for any claim decided on the merits in
11
state court proceedings unless the state court’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
state court. See 28 U.S.C.
§ 2254(d).
Thus a federal court must “first decide what constitutes ‘clearly
established Federal law, as determined by the Supreme Court of the United
States.” Lockyer v. Andrade, 538 U.S. 63, 71(2003) (quoting 28 U.S.C.
2254(d)(1)). “[C]learly established federal law’ under
§
§ 2254(d)(1) is the
governing legal principle set forth by the Supreme Court at the time the state
court renders its decision.” Id. (citations omitted). A federal habeas court
making an unreasonable application inquiry should ask whether the state
court’s application of clearly established federal law was “objectively
unreasonable.” See Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, “a
federal court may not issue a writ simply because the court concludes in its
independent judgment that the relevant state court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application
must also be unreasonable.” Id. at 411.
The AEDPA standard under
§ 2254(d) is a “difficult” test to meet and is a
“highly deferential standard for evaluating state-court rulings, which demands
that state-court decisions be given the benefit of the doubt.” Cullen v.
Pinhoister,
-
U.S.
-,
131 5. Ct. 1388, 1398 (2011). The petitioner carries the
12
burden of proof and with respect to review under § 2254(d)(1), that review “is
limited to the record that was before the state court that adjudicated the claim
on the merits.” id.
In applying AEDPA’s standards, the relevant state court decision that is
appropriate for federal habeas corpus review is the last reasoned state court
decision. See Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008).
Furthermore, “[w]here there has been one reasoned state judgment rejecting a
federal claim, later unexplained orders upholding that judgment or rejecting
the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.s.
797, 803 (1991). Additionally, AEDPA deference is not excused when state
courts issue summary rulings on claims as “[wjhen a federal claim has been
presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.”
Harrington v. Richter,
-
U.S.
-,
131 S. Ct. 770, 784-85 (2011) (citing Harris v.
Reed, 489 U.S. 255, 265 (1989)).
IV.
A. Claim I
—
DISCUSSION
Ineffective Assistance of Counsel
In Claim I, Mr. Rivera argues that his trial counsel was ineffective for
failing to call him as a witness at a pretrial suppression hearing. Mr. Rivera
faults counsel because Rivera allegedly was never informed that he had a right
to testify, and would have done so if he had known that he had that right. (See
Docket No. 1 at pp. 18-19.) Furthermore, Mr. Rivera argues that his trial
13
counsel told him not to testify at trial and he was unaware that he could
override his attorney’s decision. (See id. at p. 19.) The last reasoned decision
on this claim came from the Appellate Division on Mr. Rivera’s appeal from
denial of PCR. There, the Appellate Division analyzed these issues as follows:
Under the Sixth Amendment of the United States
Constitution, a person accused of crimes is guaranteed
the effective assistance of legal counsel in his defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To
establish a deprivation of that right, a convicted
defendant must satisfy the two-part test enunciated in
Strickland by demonstrating that: (1) counsel’s
performance was deficient, and (2) the deficient
performance actually prejudiced the accused’s defense.
Ibid. The Strickland test has been adopted in New
Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also
State v. Allegro, 1.93 N.J. 352, 366 (2008); State v.
Loftin, 191 N.J. 172, 197-98 (2007). In reviewing such
claims, we apply a strong presumption that defense
counsel “rendered adequate assistance and made all
significant decisions in the exercise of reasonable
professional judgment.” Strickland, supra, 466 U.S. at
690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
“[Cjomplaints ‘merely of matters of trial strategy’ will
not serve to ground a constitutional claim so
Fritz, supra, 105 N.J. at 54 (quoting
inadequacy.
State v. Williams, 39 N.J. 471, 489, cert. denied, 374
U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963),
overruled in part on other grounds by, Stat v. Czachor
82 N.J. 392, 402 (1980)); see also State v. Perry, 124
N.J. 128, 153-54 (1991).
.
.
.“
In assessing the first prong, we must determine
whether counsel’s conduct “fell outside the wide range
of professionally competent assistance considered in
light of all of the circumstances of the case.” State v.
Castagna, 187 N.J. 293, 314 (2006) (citation and
internal quotation marks omitted). As noted, in
considering the conduct of counsel, there is a strong
presumption that such conduct “falls within the wide
range of professional assistance.” Ibid. (citation and
14
internal quotation marks omitted). Defendant must
demonstrate that counsel’s action “did not equate to
sound trial strategy.” Ibid. (citation and internal
quotation marks omitted). As the Court observed:
an otherwise valid conviction will not be
overturned merely because the defendant
is dissatisfied with his or her counsel’s
exercise of judgment during trial. The
quality of counsel’s performance cannot be
fairly assessed by focusing on a handful of
issues while ignoring the totality of
counsel’s performance in the context of
the State’s evidence of defendant’s guilt.
As a general rule, strategic
miscalculations or trial mistakes are
insufficient to warrant reversal except in
those rare instances where they are of
such magnitude as to thwart the
fundamental guarantee of a fair trial.
[Allegro, supra, 193 N.J. at 367 (quoting
Catagna, supra, 187 N.J. at 3 14-15)
(citations, internal quotation marks and
editing marks omitted).]
The second prong of the Strickland test requires that
“prejudice must be proved; it is not presumed.” Fritz,
supra, 105 N.J. at 52 (citing Strickland, surpa, 466
U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d 69697). To prove prejudice, defendant must show the
“reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the
outcome.” ibid. (quoting Strickland, supra, 466 U.S.
at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See
also State v. Gaither, 396 N.J. Super. 508, 513-14
(App. Div. 2007), certif denied, 194 N.J. 444 (2008);
State v. Rountree, 388 N.J. Super. 190, 206-07 (App.
Div. 2006), cert denied, 192 N.J. 66 (2007).
Here, defendant claims counsel was ineffective in not
fully advising him of his right to testify at trial or the
suppression hearing. As to the suppression hearing,
15
the record is devoid of evidence suggesting that
defendant was not advised of his right to testify. A
review of the entire record reveals that trial counsel
developed a sophisticated attack on the confession
including presenting expert testimony. Counsel made
a strategic decision, and defendant’s testimony at the
suppression hearing, a rare occurrence in any event,
would have provided substantial discovery
opportunities for the prosecution. We find no basis for
concluding that counsel was ineffective; moreover, the
confession was not the sole basis for defendant’s
conviction. He had told a friend of his guilt and offered
to lead police along the route that he had taken on the
day of the murder.
(Dkt. No. 10-9 atp. 8-11.)
The State court correctly articulated the law governing a federal
constitutional claim of ineffective assistance of counsel. Strickland v.
Washington, 466 U.S. 668 (1984).
First, Strickland requires that the petitioner show that counsel’s
performance was deficient, i.e., that it fell below an objective standard of
reasonableness. See id. at 688; see also Ross v. Varano, 712 F.3d 784, 798 (3d
Cir. 2013). Petitioner must identify the particular acts or omissions that are
alleged to have been deficient. See Strickland, 466 U.S. at 690. The federal
court must then determine whether, in light of all of the circumstances, the
identified acts or omissions fell outside the wide range of professional,
competent assistance. See id.
Second, Strickland requires that a petitioner affirmatively show prejudice,
i.e., that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
16
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” See id. at 694; see also McBride v. Superintendent, SClHoutzdale,
687 F.3d 92, 102 n.h
(3d Cir. 2012).
“With respect to the sequence of the two prongs, the Strickland Court
held that ‘a court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result
of the alleged deficiencies
.
.
.
.
If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed.” Rainey v. Vamer 603 F.3d 189, 201
(3d Cir. 2010) (quoting Strickland, 466 U.S. at 697).
Mere Strickland error is not sufficient to require habeas relief under
AEDPA. In assessing an ineffective assistance of counsel claim on habeas,
[t]he pivotal question is whether the state court’s
application of the Strickland standard was
unreasonable. This is different from asking whether
defense counsel’s performance fell below Strickland’s
standard. Were that the inquiry, the analysis would be
no different than if, for example, this Court were
adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court.
Under AEDPA, though, it is a necessary premise that
the two questions are different. For purposes of §
2254(d)(1), an unreasonable application of federal law
is different from an incorrect application of federal law.
A state court must be granted a deference and latitude
that are not in operation when the case involves review
under the Strickland standard itself.
Harrington, 131 S. Ct. at 785 (internal quotation marks and citation omitted)
(emphasis in original).
17
Mr. Rivera first argues that counsel was ineffective because he failed to
advise Rivera of his right to testify at the pretrial suppression hearing. The
Court finds that the state courts’ denial of this claim was not an unreasonable
application of the Strickland standard.
As to this claim, the Appellate Division’s discussion implicates both the
deficient-performance and the prejudice prong of Strickland. Reviewing the
suppression hearing, the state court found that counsel developed a
“sophisticated attack” on the confession. I note that the suppression hearing
occupied five days, far beyond the norm. (Docket 10-9 at 3; see also
transcripts, Docket 10-14 through 10-20.) Trial counsel extensively cross
examined the police officers and brought out circumstances that might have
cast doubt on the confession. Going beyond the norm, defense counsel
introduced expert psychological testimony, as the state court noted. (Docket
10-9 at 11). This counsel did in an attempt to establish that Rivera was
mentally incapable of effectively waiving his rights. (Docket 10-16, 10-18, 1019) The state court, more experienced in matters of state procedure than this
one, also noted that a defendant’s testimony at a suppression hearing, far from
being a routine feature of professionally competent representation, would have
been “a rare occurrence.” Indeed, especially given the availability of alternative
evidence, it was a reasonable strategic decision to keep defendant off the stand,
because Rivera’s testimony might have provided “substantial discovery
opportunities for the prosecution.” (Docket 10-9 at 11). The trial court judge
made careful findings that established the voluntariness of the confession, as
18
well as substantial compliance with the Vienna Convention, see infra. (Docket
10-20 at 24 et seq.) These were upheld by the PCR judge, and on appeal. In
short, the state court’s finding that defense counsel’s performance did not
deviate from professional standards was legally sound; it was a reasonable
conclusion from the evidence before the court; and it certainly was not an
unreasonable application of the deficient-performance Strickland.
As for the prejudice prong, the state court correctly noted that, to show
prejudice, Mr. Rivera would need to establish that, but for counsel’s errors, he
would have testified at the suppression hearing and his testimony would, to a
reasonable probability, have changed the outcome of the proceedings. Mr.
Rivera states that he would have testified if counsel had told him he had the
right to do so. (See Dkt. No. 1 at p. 19.) Furthermore, he states that his
testimony would have established that he did not read, write or understand
English, and was unable to comprehend the waiver forms that he signed.
The state court found no evidence in the record of the suppression
hearing or the PCR proceeding to suggest that defendant was not advised of his
right to testify. (Docket 10-9 at 11) At any rate, counsel was able to fully
explore the factual circumstances surrounding the motion to dismiss through
the testimony of other witnesses. At the suppression hearing, the court heard
expert testimony that Rivera “didn’t comprehend what was being.
That essentially, had he comprehended, that he
—
.
.
told him.
whatever he was going to say
was going to be used against him, he wouldn’t have made those statements.”
(Dkt. No. 10-19 at p. 7.) Evidence of Rivera’s lack of language ability and lack
19
of mental capacity to make an informed waiver was placed before the court
through psychological expert testimony. Rivera’s own testimony would
therefore have been largely cumulative. Moreover, it would have carried the
disadvantage of exposing Rivera himself to cross-examination or disclosing his
position before trial. The court accepted other evidence, for example from the
Spanish-speaking officers who interviewed Rivera, that he well understood
what was going on.
Finally, as the court noted, even assuming that any error occurred, other
evidence independent of Rivera’s confession was strongly corroborative of guilt,
further lessening the possibility of prejudice. By way of example only, upon
being transferred back to New Jersey after his extradition hearing in New York
on September 17, 1998, Mr. Rivera showed police the route he took to the
Lyndhurst warehouse with his wife on the date of her murder. (See Dkt. No.
10-27 at p. 7.) Additionally, other witnesses, such as Michael Manzo, placed
Mr. Rivera at or near the Lyndhurst warehouse at the time of the murder. (See
Dkt. No. 10-25 at p. 6-9.) Scientific evidence linked the ligature found on the
victim to Mr. Rivera’s work belt.
Accordingly, the state court did not unreasonably apply Strickland when
it denied relief on the portion of Mr. Rivera’s ineffective assistance claim that
relates to the suppression hearing.
Mr. Rivera asserts a similar claim of ineffective assistance at trial, as
opposed to the suppression hearing. That is, he claims he did not know he had
a right to testify at trial and could have overridden his counsel’s advice not to
20
do so. As the state court found, the record plainly contradicts Mr. Rivera’s
contentions.
The following colloquy took place at trial between the trial judge, Mr.
Rivera and his trial counsel, Mr. Weichsel:
THE COURT: The next question is will [Mr. Riveral
testify?
MR. WEICHSEL: I believe not. I’d like to can I use
the interpreter for one second.
THE COURT: Yes.
(Counsel and client confer)
—
MR. WEICHSEL: Okay. Well, do you want me to voir
dire him?
THE COURT: I would like to have you voir dire him,
and then I might fill in some questions where I need
to.
MR. WEICHSEL: Okay. Fine.
THE COURT: Mr. Rivera, stand please. [J] Mr. Rivera,
do you understand that under the Constitution of the
United States and the Constitution of the State of New
Jersey you have an absolute right either to testify on
your own behalf or to choose not to testify and to
remain silent. If you choose not to testify and remain
silent the jury is not permitted to draw an adverse
inference by virtue of the fact that you did not testify.
[Jj Do you understand what I just told you?
THE DEFENDANT: Yes. Well, but there are things I
guess I am saying that it was not my intention to
commit that crime and I would like to talk also
because my desire was not to leave my house and to
abandon my children, that’s why I didn’t leave my wife
so I wouldn’t leave my children abandoned because I
knew that my children were going to suffer if I left the
house.
THE COURT: Mr. Weichsel, I would like just the area
whether he wanted to testify or not.
MR. WEICHSEL: Judge, that’s all I asked him. [Jj Mr.
Rivera, we’re here today, right now, is for you to tell
Judge Conte whether you want to testify on your own
behalf in this trial. You’ve got to understand if you
testify on your own behalf, whatever your testimony is
will be subject to cross-examination by Mr. Santulli.
21
You’re not permitted to make a statement to the jury.
You would only be able to you’re permitted to testify
in question and answer form, and as I advise you
before if you don’t testify then the jury can draw no
adverse inference based on the fact that you didn’t
testify, and as I also told you before whether you
despite my advice whether you choose to testify or not
is a right that is personal to you and only you can
make that decision. And the whole purpose of this
hearing right now is for you to tell Judge Conte
whether you want to testify in front of a jury or
whether you don’t.
THE DEFENDANT: But I don’t really know the law
and I’m depending on him. If he tells me to be silent
then I’m silent, but if he gives me the opportunity to
speak then I will do it.
THE COURT: You’re not making it easy. [Jj Mr.
Rivera, you have a right to take the stand and testify.
Do you understand that?
THE DEFENDANT: The witness stand, what is that?
MR. WEICHSEL: Right up there.
THE COURT: Here.
THE DEFENDANT: Well, I could go to the witness
stand and testify, but if he’s advising me to be quiet
then I will be quiet.
THE COURT: Do you understand that it’s your
decision to make whether you want to testify in this
case or not?
THE DEFENDANT: To give testimony? To give
testimony?
THE COURT: Yes.
MR. WEICHSEL: That’s what we’ve been talking about
for the last 15 minutes.
THE DEFENDANT: To be honest I don’t have an
opinion.
THE COURT: Do you have any other questions you
want to ask your attorney?
THE DEFENDANT: Well, I will need to talk to him.
There are a lot of questions. For instance, what the
detectives had testified to not everything happened
that way.
THE COURT: I guess the only thing I need to know
from Mr. Rivera if he wants to take the witness stand
and have his attorney ask him questions.
THE DEFENDANT: Honestly, I don’t know.
—
—
22
THE COURT: Once he takes the witness stand the
State, Mr. Santulli has a right to ask him questions.
THE DEFENDANT: Well, if I’m asked questions then I
will answer.
MR. WEICHSEL: Well, Judge let me put it another
way. [J] Mr. Rivera, we’ve discussed you testifying
both here in court and over at the jail. Isn’t that
correct?
THE DEFENDANT: Uh—huh.
MR. WEICHSEL: And has my consistent advice to you
that as your attorney I’ve advised you for the reasons
best known to myself which we’ve discussed that you
ought not to take the witness stand?
THE DEFENDANT: Uh-huh.
MR. WEICHSEL: And has it been my consistent advice
for a long time.
THE DEFENDANT: Yes, that’s the way that he has
told me.
MR. WEICHSEL: Now, Mr. Rivera, you’re free to
accept or reject that advice. Do you wish to accept my
advice and not testify or do you wish to testify?
THE DEFENDANT: No, I will leave it like this better.
THE COURT: Okay. I will take it that he does not
want to testify based upon his attorney’s advice.
(Dkt. No. 10-27 at p. 78-82.)
As the above colloquy indicates, Mr. Rivera was advised in open court by
his attorney that it was his decision whether or not to accept his advice and
testify at trial. Mr. Rivera’s argument that he was not so advised, and did not
know he could opt to testify, is without merit. The state court so found, and I
have no basis to abandon my deference to such a finding; it is not an
unreasonable determination of the facts in light of the evidence presented in
state court. Indeed, it is virtually the only possible conclusion from this record.
The state court did not unreasonably apply the Strickland standard here. This
component of Mr. Rivera’s ineffective assistance claim, like the other, does not
merit federal habeas relief.
23
Accordingly, I will deny Mr. Rivera’s petition for habeas relief on Claim I,
ineffective assistance of counsel.
B. Claim III
—
Right to Testify at Trial
In Claim III, Mr. Rivera asserts that he was deprived of his right to testify
on his own behalf at trial: specifically, that “[tjrial counsel told defendant not to
testify at trial, and defendant was unaware of the fact that he could override
that decision.” (Dkt. No. 1 at p. 21.) Essentially, this is a substantive version
of the claim brought via ineffective assistance of counsel, discussed in the
preceding section.
The Appellate Division summarily denied this claim on appeal from the
denial of PCR. That denial is considered a decision on the merits; like the
ineffective assistance claim, this related right-to-testify claim is therefore
subject to AEDPA, rather than de novo, review. See Harrington, 131 S. Ct. at
784-85 (‘When a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the
claim on the merits in the absence of any indication or state law procedural
principles to the contrary.”). This Court therefore must look, not just for error,
but for an unreasonable application of Supreme Court precedent.
“The right to testify on one’s own behalf at a criminal trial is undoubtedly
a constitutional right.” United States v. Rahamin, 168 F. App’x 512, 519 (3d
Cir. 2006) (citing Rock v. Arkansas, 483 U.S. 44, 51(1987)). “The right is
personal and thus only the defendant may waive it.” United States v.
Pennycooke, 65 F.3d 9, 10 (3d Cir. 1995) (citations omitted); see also Donna v.
24
*5 (D.N.J. Jan. 31, 2011)
United States, No. 10-1607, 2011 WL 322636, at
(“The decision whether to testify is a ‘fundamental’ litigation decision not left
solely to counsel’s professional judgment, and is for the client to make.”) (citing
Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996)). “As a constitutional right
essential to due process of law in a fair adversary process, a defendant’s waiver
of the right to testify must be knowing and intelligent.” Pennycooke, 65 F.3d at
11 (internal quotation marks and citations omitted); see also Donna, 2011 WL
322636, at *5
The peculiar quality of the right to testify, however, is that it is the mirror
image of another constitutional right: the Fifth Amendment right to remain
silent. Every defendant who goes to trial must do one or the other. A defendant
cannot do one without waiving the other. Thus there is nothing inherently
suspect about the choice of either alternative. Nevertheless, many courts have
adopted the practice of ensuring that the defendant’s decision is placed on the
record. And the trial court, as we have seen, did that here.
In Part IV.A, supra, pp. 2 1-23, this Court quoted an extensive colloquy
involving trial counsel, the trial judge, and Mr. Rivera, aimed at determining
whether Mr. Rivera wished to testify at trial. At the prompting of the trial judge,
trial counsel explicitly told Mr. Rivera on the record that the decision whether
to testify was personal to him and that he was free to reject his counsel’s advice
that he not testify. When Mr. Rivera gave equivocal answers, both the trial
judge and counsel probed further, until they were satisfied that they had a
25
definitive answer from him. Ultimately, Mr. Rivera stated that he did not want
to testify.
Given this record, I could not possibly find that the state court(s)
unreasonably applied clearly established federal law or arrived at a decision
that was based on an unreasonable determination of the facts based on the
record before them. Mr. Rivera was informed of his right to testify, and he made
a free, voluntary decision to rely on his attorney’s strategic advice that he stay
off the witness stand.
C. Claim II
Vienna Convention on Consular Relations
In Claim II, Mr. Rivera argues that, because he is a Mexican national,
upon his arrest, the Mexican Consulate should have been notified under the
Vienna Convention on Consular Relations. That, he says, “would have led
petitioner to request Spanish speaking counsel in light of the magnitude of the
charges pending against him, and the time he was facing.” (Dkt. No. 1 at p.
20-21.)
As to this claim, the trial court made a full record in connection with a
five-day suppression hearing and made reasonable factual findings contrary to
Rivera’s position. (Docket 10-14 through 10-20). The last reasoned decision on
this claim came from the Superior Court, Law Division, Bergen County, during
Mr. Rivera’s PCR proceedings. That court’s oral opinion on the record stated, in
part:
[T]he issue with respect to the Vienna Convention on
consular relations. There is nothing. In fact, it’s
contrary to the record to indicate that this defendant
wasn’t aware of that circumstance. This particular
26
defendant, in my opinion, based on the testimony from
the New York City detective, whose name I believe is
Ortega, and also from someone from the Prosecutor’s
Office, is that Mr. Rivera was notified of his consulate
rights to not want the Mexican Consulate notified, and
he circled “no” on the rights form when asked if he
wanted notification.
Nevertheless, there was even testimony that Detective
Palotta that’s the gentleman from the Prosecutor’s
Office followed his training and actually made a
notification anyway because the victim was also
Mexican, and the treaty requires notification when a
murder victim is also a foreign national.
—
—
The record is complete on all fours and in all corners
with the fact that this individual this defendant
was entitled to and did receive all the rights that he
was accorded under that Vienna Treaty! Convention.
There’s nothing to indicate that he was misled or
otherwise did not receive the consulate notice.
—
—
(Dkt. No. 10-31 at pp. 9-10.) The “testimony” and the “record” referred to are
the record of the five-day suppression hearing.
The United States is a signatory to the Vienna Convention on Consular
Relations and Optional Protocol on Disputes (“Vienna Convention”), Dec. 14,
1969, 21 U.S.T. 77, T.I.A.S. No. 6820. Article 36 of the Vienna Convention
provides as follows:
1. With a view to facilitating the exercise of consular
functions relating to nationals of the sending State:
(a) Consular officers shall be free to
communicate with nationals of the
sending State and to have access to
them. Nationals of the sending State
shall have the same freedom with
respect to communication with and
access to consular officers of the
sending State;
27
(b) If he so requests, the competent
authorities of the receiving State shall,
without delay, inform the consular post
of the sending State if, within its
consular district, a national of that
State is arrested or committed to prison
or to custody pending trial or is
detained in any other manner. Any
communication addressed to the
consular post by the person arrested,
in prison, custody or detention shall
also be forwarded by the said
authorities without delay. The said
authorities shall inform the person
concerned without delay of his rights
under this sub-paragraph;
(c) Consular officers shall have the right to
visit a national of the sending State
who is in prison, custody or detention,
to converse and correspond with him
and to arrange for his legal
representation. They shall also have
the right to visit any national of the
sending State who is in prison, custody
or detention in their district in
pursuance of a judgment. Nevertheless,
consular officers shall refrain from
taking action on behalf of a national
who is in prison, custody or detention if
he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article
shall be exercised in conformity with the laws and
regulations of the receiving State, subject to the
proviso, however, that the said laws and regulations
must enable full effect to be given to the purposes for
which the rights accorded under this article are
intended.
21 U.S.T. 77.
In Sanchez-Llamas v. Oregon, 548 U.S. 331, 343 (2006), the United
States Supreme Court assumed, without deciding, that the Vienna Convention
granted individuals enforceable rights. Sanchez-Llamas thus left the question
28
open, and “[t]he circuits disagree as to whether the Vienna Convention creates
enforceable individual rights.” Huggins v. Kerestes, No. 12-3655, 2013 WL
5405320, at *4 (E.D. Pa. Sept. 26, 2013) (comparing Osagiede v. United States,
543 F.3d 399 (7th Cir. 2008), with Mora v. State of New York, 524 F.3d 183,
196 (2d Cir. 2008)). In this case, I may assume without deciding that the
Vienna Convention creates enforceable individual rights. Even on that
favorable assumption, Mr. Rivera has failed to show that he is entitled to
federal habeas relief on this claim.
The Superior Court made the factual determination that Mr. Rivera
waived his consulate notification rights. Furthermore, the Superior Court made
the factual finding that the Mexican Consulate was in fact notified of Mr.
Rivera’s arrest. Under AEDPA, these factual determinations are presumed
correct.
Mr. Rivera fails to show by clear and convincing evidence—or even to
suggest that any such evidence exists—that his contentions are true, and that
the Superior Court’s factual determinations were in error. At the suppression
hearing, Detective Ortega testified that Mr. Rivera waived his right to consular
notification. (See Dkt. No. 10-15 at p. 33.) Detective Palotta similarly testified
at the suppression hearing that Mr. Rivera waived his right to notification. (See
Dkt. No. 10-17 at p. 9.)
Nevertheless, despite Mr. Rivera’s waiver, Detective
Palotta attempted to notify the Mexican Consulate on September 16, 1998, the
day of Mr. Rivera’s arrest. He was unable to get through that day, but he did
notify the Mexican Consulate in Philadelphia of Mr. Rivera’s arrest on the
29
following day, September 17, 1998.2 (See id. at pp. 11-12.) At the suppression
hearing, the trial court heard the witnesses, made credibility determinations,
accepted this testimony and found it to be true. (Docket 10-20 at pp. 30-34).
I find that these factual findings, later reaffirmed by the PCR court, are
firmly rooted in the evidence of record. They do not constitute an unreasonable
determination of the facts in light of the evidence presented in state court. And
having made these factual findings the Superior Court necessarily held as a
matter of law that Mr. Rivera had received everything to which he was entitled
under the Vienna Convention.
Not only Mr. Rivera waive those rights; an officer notified the Mexican
Consulate of his arrest anyway. Accordingly, Mr. Rivera fails to show that the
state court’s denial of this claim was a decision based on an unreasonable
application of federal law or an unreasonable determination of the facts. Mr.
Rivera is not entitled to federal habeas relief on this claim, and I deny his
petition on this ground.
D. Claim IV
-
Suppression of Evidence
In Claim IV, Mr. Rivera argues that all of the statements he made to the
police should be suppressed for the reasons stated in Claims I and II. This
amounts to an argument that all such statements are fruits of the violations
In her concurring opinion in Sanchez-Llamas, 548 U.S. at 362, Justice
Ginsburg noted that Article 36 of the Vienna Convention “does not require the
arresting authority to contact the consular post instantly.” Justice Ginsburg cited to
the International Court of Justice which had found that notification within three days
satisfied Article 36’s “without delay” requirement, and the United States Department of
State website which directed authorities to notify the appropriate consular post within
twenty-four, and certainly within seventy-two, hours. See id. (citations omitted).
2
30
alleged in Claims I and II. This claim fails because its premise fails. As
established in Part IV.A and C, supra, Mr. Rivera is not entitled to federal
habeas relief on Claims I and II. It therefore follows that Mr. Rivera’s derivative
claim for federal habeas relief in Claim IV must fail as well.
V.
CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C.
§ 2253(c), unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken from a final order in a
proceeding under 28 U.S.C.
§ 2254. A certificate of appealability may issue
“only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C.
§ 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Applying this
standard, the Court finds that a certificate of appealability should not issue in
this case.
VI.
CONCLUSION
For the foregoing reasons, the habeas petition will be denied and a
certificate of appealability shall not issue. An appropriate order will be entered.
1
/L(
Dated October 30, 2013
KEVIN MCNULTY
United States District Judge ‘1
31
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