Rivera v. Folino
MEMORANDUM (Order to follow as separate docket entry) re 1 Petition for Writ of Habeas Corpus filed by Reuben Rivera. Signed by Honorable A. Richard Caputo on 6/2/14. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LOUIS FOLINO, et al.,
CIVIL NO. 3:CV-06-0716
Reuben Rivera, a state prisoner incarcerated at the Graterford State
Correctional Institution (SCI-Graterford), in Graterford, Pennsylvania, has filed a pro
se petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254,
a supporting memorandum and exhibits. (See Docs. 1 - 4.) Mr. Rivera challenges
his 1994 convictions in the Court of Common Pleas of Lebanon County,
Pennsylvania for first degree murder and criminal conspiracy to commit criminal
homicide. Mr. Rivera was convicted following a jury trial and is serving a life
For the reasons expressed below, this Court will deny the Petition with
prejudice and decline to issue a certificate of appealability.
This case arises out of the murder of Dennis Glant (victim) on August 16,
1993. Mr. Rivera does not dispute that he stabbed Mr. Glant, but rather claims he
did so in self-defense, and without any intent to kill him.
On November 12, 1993, Mr. Rivera was charged with one count each of
criminal homicide and criminal conspiracy. He was tried before a jury on April 6 - 8,
1994. (Doc. 3, ECF p. 4, Commonwealth v. Rivera, No. 93-10961 (Lebanon Ct.
Com. Pl., Nov. 18, 1994).
A detailed recitation of the underlying facts is necessary to the discussion of
the claims presented in this matter. The following is a lengthy excerpt from the trial
court’s opinion denying Mr. Rivera’s post-sentence motions, and provides a helpful
summary of the testimony adduced at trial:
Waldo Mercado, who also was charged in the murder,
testified for the prosecution. Mercado testified that early in
the evening on August 16, 1993, he, Reuben Rivera and
Jon Lebo were sitting on the steps of a house ... in
Lebanon ... drinking beer.
Mercado testified that after the three men saw the victim,
Dennis Glant, drive up and stop in front of the house, Lebo
told [Rivera] to punch the victim. [Rivera] went to the
victim’s car window and complied with the request, and the
victim drove off ... Lebo then suggested to [Rivera] that
they ‘go beat somebody up,’ and [Rivera] and Lebo walked
[away] ... Mercado followed them shortly thereafter,
believing they were going to get into
A representational diagram of the streets at issue follows:
Mercado followed Lebo and [Rivera] down Lehman
Street and saw [Rivera] stop at an establishment called
‘The Spanish Store.’ He saw Lebo continue down
Lehman Street and stop at the corner of 10th and
Lehman Streets. Mercado followed Lebo, and when he
caught up with him on 10th Street, saw the victim
standing a couple of feet away. The victim was holding a
Lebo approached the victim, addressed him, then hit him
in the face. The victim did not fight back; instead, he
crossed 10th Street and went north to Lehman Street.
[Rivera] came down 10th Street and approached Lebo
and Mercado. Lebo told [Rivera] the victim was ‘talking
[Rivera] then crossed 10th Street, went north and began to
follow the victim on Lehman Street. Lebo went south to
Church Street and turned north on Partridge Street, which
connects Church and Lehman Streets. Mercado followed
Lebo, and when he arrived at the corner of Church and
Partridge, he saw the victim and Lebo arguing. Mercado
then saw [Rivera] walk south on Partridge toward the victim
and Lebo, and stop directly behind the victim. He heard
[Rivera] ask, ‘What’s up?’ He saw [Rivera] pull out a knife
7 Lehman Street L
7 Partridge Street L
7 11th Street L
7 Church Street L
7 10th Street L
(Doc. 3, Trial Ct. Op. Den. Post-Sentence Mot., fn. 1 at ECF p. 5.)
and stab the victim in the back. The victim died the next
day in a local hospital.
Mercado testified that the victim never swung the wrench
at either [Rivera] or Lebo, and never made any threatening
gestures at all. Mercado followed [Rivera] from the scene
to a home on Lehman Street, where [Rivera] told Mercado,
‘I think I stabbed him.’ [Rivera] asked Mercado to retrieve
the knife, but Mercado refused. [Rivera] also told Mercado
to tell the police that the victim had hit him with the wrench.
Mercado testified that he had agreed to plead guilty to
Hindering Apprehension and to assist in the prosecution of
[Rivera], provided the District Attorney were to recommend
to the sentencing judge that he receive a one-to two-year
sentence for his offense.
Michael Felty, a 10–year-old boy who lives on Partridge
Street in Lebanon, was riding his bicycle near his home
when he saw four men. He identified one of the men as
Dennis Glant, the murder victim. He stated three men were
beating the victim and that one man was south of the victim
and one was north of the victim. Alarmed, he went home
and returned with his father. When he returned, he heard
the victim screaming for an ambulance.
Michael Felty testified that the victim was holding a wrench
near his head during the fight but was not swinging it. He
testified that he did not see the victim punching at the other
Witness Tonya Arehart testified that on the night of the
assault she was riding in a car with four friends when she
saw Jon Lebo, Waldo Mercado, and Reuben Rivera on
Partridge Street. She saw Waldo Mercado as he stood on
the corner of Partridge and Lehman Streets, and saw Jon
Lebo and Reuben Rivera as they were walking down
Partridge Street toward Church Street. She also saw the
victim staggering in the street, saying he was dying and
asking for help. She asked the driver to stop the car and,
after seeing that the victim was wounded, knocked on a
door to seek help. Tonya, like Michael, did not see the
victim strike anyone with the wrench he was holding.
William Davis, Jr., testified that he lived near the corner of
10th and Partridge Street at the time of the murder, and
saw a knife on the sidewalk next to the house where he
lived immediately after he noticed the activities surrounding
Detective Greg Holler of the Lebanon City Police
Department stated that he interviewed the Defendant
Reuben Rivera after receiving information, via an
anonymous phone call, that he might be connected with the
murder. [Rivera] told Detective Holler that he was in
Allentown, Pennsylvania, on the date of the murder.
Detective Daniel Kauffman of the Lebanon City Police
testified that [Rivera] voluntarily came to the Lebanon
Police Department on August 20, about 36 hours after the
Police Department made it known that a warrant had been
issued for his arrest. [Rivera] told Detective Kauffman that
he and Jon Lebo had talked with the victim on the night of
the murder and [that Rivera] had hit the victim while the
victim was in his car. He told Detective Kauffman that
afterward, he, Mercado, and Lebo walked to 10th and
Lehman Streets, and [that] Lebo and Mercado went south
on 10th Street while he stayed at the corner talking with
another person. He then saw the victim with Mercado and
Lebo on 10th Street and walked down 10th Street to join
the group. He said he saw that the victim was holding a
[Rivera] then told Detective Kauffman that the victim
crossed 10th Street and returned to Lehman Street, and he
followed. When [Rivera] arrived at the intersection of
Lehman and Partridge streets, he looked south on
Partridge to see Lebo, Mercado and the victim. [Rivera]
said he approached the group and the victim turned and
struck him on the forearm with a wrench. [Rivera] then took
out his knife and, using his left hand to make a
‘roundhouse’ swing, stabbed the victim.
Dr. Wayne K. Ross, a forensic pathologist, testified that
the wound inflicted upon the victim caused his death. He
testified that the victim also had a large bruise on the left
side of his head, which had been inflicted less than an hour
before he was admitted to the hospital. The stab wound
began in the lower back and continued through the victim’s
diaphragm and kidney and ended in his liver. The wound
caused uncontrollable bleeding.
Dr. Ross testified that the knife, which he examined during
the autopsy of the victim, entered the victim’s back at a
downward angle of 60 degrees, and [that] its upper haft
struck the victim’s back with such force as to abrade the
skin. The knife was nine inches long, including its handle,
and its blade was five inches long. The stab wound was
five and a quarter inches long. Dr. Ross explained that the
wound was longer than the knife blade because the human
body is somewhat compressible. Dr. Ross opined that the
wound was consistent with a person delivering a side blow
directed downward. He also opined that a ‘severe amount
of force’ was needed to inflict the wound he saw, consistent
with a purposeful, determined movement.
Dr. Ross also testified that the victim exhibited no
defensive wounds, implying that he was taken by surprise
by the knife attack. He concluded that the wound was the
result of a ‘determined aggressive insertion’ of a knife.
Moreover, Dr. Ross opined that the victim would not have
been [in] a position to use deadly force against the person
who wielded the knife at the time the wound was inflicted,
as he was not in the correct position to use such force.
Dr. Ross also testified that a left-handed ‘roundhouse’
blow was not consistent with the nature and location of the
wound. He also stated the parties to the wounding were
not in motion relative to each other at the time of the
Detective Holler testified that when he interviewed [Rivera]
on August 17, the day after the murder, he saw no bruises
or other injuries to [Rivera].
[Rivera] called Nicholas T. Forbes, M.D., a forensic
pathologist, to testify in support of his argument that he was
struggling with the victim when he accidentally stabbed
him. Dr. Forbes testified that what Dr. Ross described as
‘defensive wounds’ do not always explain the nature of
wounds if a struggle occurred. He noted that the victim
may have moved backward at the time when the knife was
in a position to wound him. Given the sharp nature of the
knife’s point and its heaviness, Dr. Forbes stated the knife
could have inflicted a five-inch wound without the use of
much force once it had penetrated the skin of the victim.
Thus, Dr. Forbes opined the stabbing could have been
accidental and not purposeful. He agreed, however, that
the lack of defensive wounds was more consistent with a
surprise attack and conceded that the wound was more
consistent with an intentional assault rather than selfdefense.
Dr. Forbes also testified that it was not unusual for a knife
wound to be deeper than the length of the knife blade,
because of the compressibility of flesh. Finally, Dr. Forbes
testified that he could not, within a reasonable degree of
medical certainty, state that the wound that resulted in the
victim’s death arose from a surprise attack. At the same
time, he stated that he could not testify that the wound
resulted from an act of self-defense.
[Rivera] took the witness stand and testified that on the
night of the murder, he and Jon Lebo, after drinking about
60 ounces of beer each, were sitting on the steps of a
house near 11th and Lehman streets in Lebanon. He said
Dennis Glant, the victim, pulled up in a car, and Jon Lebo
spoke to him. [Rivera] approached the car and placed his
hand on the window post. The victim asked him a
question, and then Jon Lebo told [Rivera] to punch the
victim. The victim put his hand over [Rivera’s] hand on the
window post, apparently to prevent [Rivera] from striking
him and began driving off. [Rivera] pushed the victim’s
hand off his own and moved away from the car. The
victim drove off down Lehman Street.
A few minutes later, [Rivera] and Lebo, for no particular
reason, began walking on Lehman Street toward 10th
Street. Mercado joined them, and [Rivera] stopped in front
of The Spanish Store on Lehman Street to speak with an
acquaintance. Mercado and Lebo went to 10th street and
turned south on 10th toward Church Street.
[Rivera] testified that when he arrived at the corner of 10th
and Lehman, he looked south on 10th Street to see that
Mercado and Lebo were almost at the corner of 10th and
Church Streets, and the victim was in front of them. He
saw Lebo punch the victim, and noticed that the victim held
a wrench. [Rivera] walked close to the three and addressed
them. The victim then backed away from Mercado and
Lebo and began walking toward Lehman Street, moving
closer to [Rivera]. [Rivera] crossed the street to avoid the
victim, then looked for Mercado and Lebo. Seeing they
were still at the corner of 10th and Church Streets, he then
looked around for the victim but did not see him.
[Rivera] stated he returned to Lehman Street, walked to
Partridge Street, and went south on Partridge. He saw his
friends at the south end of Partridge moving north toward
him and saw the victim as well. He saw the victim and
Lebo arguing and Mercado trying to interfere by pulling
[Rivera] said he approached and the victim swung the
wrench at him. [Rivera] grabbed the victim in a bear hug
then pushed him away. The victim approached [Rivera]
again, raising his wrench, and [Rivera] grabbed him in a
bear hug again. When the victim began slipping away,
[Rivera] stabbed him. [Rivera] then pushed the victim away
and ran off.
[Rivera] admitted to throwing the knife between some
houses on Church Street and running back to the home of
his girlfriend’s mother. He admitted to lying to the police
the next day. He stated he stabbed Dennis Glant because
he was scared and that he never intended to kill him.
(Doc. 19-10, Commonwealth v. Rivera, No. 93-10961 (Lebanon Ct. Com. Pl., Nov.
18, 1994, ECF pp. 2 - 12)(unpublished op.)(internal citations omitted)).
On June 8, 1994, the trial court imposed a life sentence upon Mr. Rivera. He
filed post-sentence motions on June 20, 1994. (See Doc. 19-8, Mr. Rivera’s PostSentence Mot.) Among other issues, Mr. Rivera challenged the sufficiency of the
evidence with respect to the charges of Homicide and Criminal Conspiracy. Id.
Specifically, Mr. Rivera argued that:
1. the evidence presented [at trial] was not sufficient to
prove the elements of criminal conspiracy to commit
homicide beyond a reasonable doubt. Specifically, the
Commonwealth failed to show an agreement, between
Rivera and any other party, including Jonathan Lebo and
Waldo Mercado, to commit the crime of criminal homicide
upon Dennis Glant; and
2. the evidence presented [at trial] is not sufficient to prove
the elements of murder in the first degree beyond a
(Doc. 19-9, Mr. Rivera’s Post-Sentence Mot. Br., ECF p. 2.) On November 18,
1994, the trial court denied Mr. Rivera’s post-trial motions.
On December 14, 1994, Mr. Rivera filed a Notice of Appeal to the
Pennsylvania Superior Court from the trial court’s order of November 18, 1994. Mr.
Rivera raised three issues in his direct appeal to the Pennsylvania Superior Court.
(See Doc. 19-11, Appellee’s Br.) Aside from other issues, Mr. Rivera’s challenged
“[w]hether sufficient evidence exist[ed] to justify the jury’s verdicts of guilty.” (Id.,
ECF p. 7.)
On July 11, 1995, the Pennsylvania Superior Court affirmed, adopting the trial
court’s opinion in its entirety. (Doc. 19-12, Commonwealth v. Rivera, 446 Pa. Super.
681, 667 A.2d 423 (Pa. Super. July 11, 1995)(Table, No. 00054 HBG
95)(unpublished op.)) The court held that “[a]fter carefully reviewing the parties’
briefs and the record of the proceeding below, we find that the trial court has
thoroughly addressed these issues in its well-reasoned opinion” and “affirm[ed] for
the reasons stated therein.” (Id., ECF p. 3.)
On August 7, 1995, Mr. Rivera filed a Petition for Allowance of Appeal to the
Pennsylvania Supreme Court. (See Doc. 19-13, Pet. for Allowance of Appeal.) On
March 29, 1996, the Pennsylvania Supreme Court denied Mr. Rivera’s petition.
(See Doc. 19-14, Commonwealth v. Rivera, 544 Pa. 605, 674 A.2d 1070 (Pa.
1996)(Table No. 0399 M.D. Alloc. 1995)(unpublished op.)) Mr. Rivera did not seek
review in the United States Supreme Court.
On October 21, 1996, Mr. Rivera filed a timely pro se petition for collateral
relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§
9541-9546. (See Doc. 19-15, PCRA Pet.) On June 20, 2002, with the assistance of
counsel, Mr. Rivera filed an Amended Petition for Post Conviction Relief. (See Doc.
19-17, Am. PCRA Pet.) In his Petition, Mr. Rivera argued that trial counsel was
ineffective by failing “to investigate and introduce evidence of the victim’s violent
nature and propensity for violence” and that such ineffectiveness was the result of
trial counsel’s “misunderstanding and/or lack of knowledge of the law as it existed at
that time.” (Id., ECF p. 2.)
On October 25, 2004, a full evidentiary hearing on the Amended PCRA
Petition was held before the trial court, now acting as the PCRA court. (See Doc.
19-18, Tr. PCRA Hr’g Proceedings.) On January 12, 2005, the PCRA court denied
the Amended PCRA petition. (See Doc. 19-21, Commonwealth v. Rivera, No. 199310961(Lebanon Ct. Com. Pl., Jan. 12, 2005)(unpublished op.)).
Mr. Rivera’s timely appeal to the Pennsylvania Superior Court raised the
A. The Trial Court erred in holding that the Protection from
Abuse Order and/or Contempt Orders of the violations of
the PFA’s filed against Glant were insufficient and/or
irrelevant to establish he had propensities toward violence
in showing that he acted as the aggressor and [Mr. Rivera]
was acting in self-defense.
B. The Trial Court erred in failing to find that [Mr. Rivera’s]
trial counsel was ineffective so as to undermine the truth
determining process that no reliable adjudication of guilt or
innocence could have taken place.
(See Doc. 19-22, Appellant’s PCRA Br. on Appeal, ECF p. 2.) On August 17, 2005,
the Superior Court of Pennsylvania affirmed the decision of the PCRA court. (Doc.
19-24, Commonwealth v. Rivera, No. 223 MDA 2005 (Pa. Super. Aug. 17,
2005)(unpublished op.)). The superior court held that: (1) since Mr. Rivera did not
know the victim prior to the night of the murder, he was not entitled to use evidence
of the victim’s character to show that he believed his life to be in danger due to the
victim’s reputation for violence; (2) the allegations which served as the basis for the
issuance of the PFA Orders against Mr. Glant were themselves inadmissible
because the PFA Orders were obtained as a result of a civil, rather than a criminal,
proceeding where the complainant’s burden of proof is lower than in criminal
matters; and (3) Mr. Glant’s criminal contempt conviction for violating the PFA was
also inadmissible as it “did not involve aggressive behavior similar in character to
that in the instant case,” rather Mr. Glant was convicted of criminal contempt due to
his presence at his wife’s home, an event prohibited by the PFA. (Id., ECF p. 4 - 5.)
As for Mr. Rivera’s trial counsel’s alleged failure to call witnesses concerning the
victim’s reputation for violence, the court dismissed this claim finding he had failed
to present testimony or sworn statements at the PCRA hearing from any witness as
to the substance of their potential trial testimony, and thus he did not carry his
burden on this claim. (Id., ECF p. 6 - 7.) Based on these findings, the court found
Mr. Rivera was not prejudiced by his counsel’s alleged failure to introduce this
information as to the victim’s propensity for violence.
On August 29, 2005, Mr. Rivera filed a timely appeal to the Pennsylvania
Supreme Court. (See Doc. 19-25, Pet. for Allowance of Appeal.) The Pennsylvania
Supreme Court denied the Petition on March 15, 2006. (See Doc. 19-26,
Commonwealth v. Rivera, No. 736 MAL 2005 (Pa., Mar. 15, 2006)).
Federal Habeas Corpus Proceedings
On April 6, 2006, Mr. Rivera filed the instant Petition for Writ of Habeas
Corpus in which he raises the following challenges to his conviction and sentence:
1. Petitioner was denied his constitutional right to due
process of law, in that the state court applied an
unreasonable determination of fact in ruling that the
prosecution had proven beyond a reasonable doubt every
element to constitute first-degree murder.
2. Petitioner was denied his constitutional right to due
process of law, in that the state court applied an
unreasonable determination of fact in ruling that the
prosecution had proven beyond a reasonable doubt every
element to constitute petitioner was guilty of conspiracy to
3. Petitioner was denied his constitutional right to due
process of law, in that the state court applied an
unreasonable application of law in concluding that evidence
of victim’s violent character, via prior criminal conviction for
contempt of protection from abuse order, was not
(Doc. 2, Mem. in Supp. of Habeas Pet., ECF pp. 8, 12 and 14.)
In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and
Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), the Court issued formal notice to Mr.
Rivera that he could either have the petition ruled on as filed, that is, as a § 2254
petition for writ of habeas corpus and heard as such, but lose his ability to file a
second or successive petition, absent certification by the court of appeals, or
withdraw his petition and file one all-inclusive § 2254 petition within the one-year
statutory period prescribed by the Antiterrorism Effective Death Penalty Act
(AEDPA). (See Doc. 8.) On May 1, 2006, Mr. Rivera returned the notice of election
form, indicating that he wished to proceed with his petition for writ of habeas corpus
as filed. (See Doc. 10.) Thus, a Show Cause Order was issued on May 2, 2006.
(See Doc. 11.) On May 25, 2006, the District Attorney of Lebanon County filed a
response to the petition. (See Docs. 16, 17 and 19.) Mr. Rivera did not file a
Standard of Review
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), went into effect and amended
the standards for reviewing state court judgments in federal habeas petitions filed
under 28 U.S.C. § 2254. A habeas corpus petition pursuant to § 2254 is the proper
mechanism for a prisoner to challenge the “fact or duration” of his confinement.
Preiser v. Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439
(1973). Federal habeas review is restricted to claims based “on the ground that
[petitioner] is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). Accordingly, a claim must be cognizable for
purposes of federal habeas review, meaning that such review is limited to
determining whether a conviction violated federal law. “[I]t is not the province of a
federal habeas court to reexamine state-court determinations on state-law
questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116
L.Ed.2d 385 (1991); see also Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).
Mr. Rivera’s habeas petition is governed by the AEDPA as it was filed after
April 24, 1996. The AEDPA imposes the following standard of review that a federal
court must utilize when reviewing such applications:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the 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
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented at the State court proceeding.
28 U.S.C. § 2254(d).
For the purpose of § 2254(d), a claim has been “adjudicated on the merits in
state court proceedings when a state court has made a decision that finally resolves
the claim based on its substance, not on a procedural, or other, ground.” Thomas v.
Horn, 570 F.3d 105, 117 (3d Cir. 2009). Under 28 U.S.C. § 2254(e)(1), when a
state court reaches the merits of a claim, a "federal habeas court must afford a state
court’s factual findings a presumption of correctness and ... the presumption applies
to factual determinations of state trial and appellate courts." Fahy v. Horn, 516 F.3d
169, 181 (3d Cir. 2008). The applicant bears the burden of rebutting the
presumption of correctness by providing “clear and convincing evidence” of the state
court’s error. 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to
both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 285-86
(3d Cir. 2000). A decision adjudicated on the merits in a state court and based on a
factual determination will not be overturned on factual grounds unless objectively
unreasonable in light of the evidence presented in the state court proceeding. See
28 U.S.C. § 2254(d)(2), (e); Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029,
1041, 154 L.Ed.2d 931 (2003).
Next, the court must examine the independent meanings of the “contrary to”
and “unreasonable application” clauses of 28 U.S.C. § 2254(d). Bell v. Cone, 535
U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). A state court
judgment is “contrary to” federal law when it is “diametrically different, opposite in
character or nature, or mutually opposed” to “clearly established” decisions of the
United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct.
1495, 1519-20, 146 L.Ed.2d 389 (2000). This may occur if “the state court ignores
or misapprehends clear precedent or it ‘confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at
a result different from [Supreme Court] precedent.” Wilkerson v. Klem, 412 F.3d
449, 452 (3d Cir. 2005)(quoting Williams, 529 U.S. at 406, 120 S.Ct. at 1519-20).
But, a state court decision is not contrary to clearly established law because it failed
to cite applicable Supreme Court precedent. Mitchell v. Esparza, 540 U.S. 12, 16,
124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003). The state court need not cite or even be
aware of the controlling Supreme Court cases, “so long as neither the reasoning nor
the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3,
8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002).
State court decisions which are not “contrary to” Supreme Court law may only
be set aside on federal habeas review “if they are not merely erroneous, but ‘an
unreasonable application’ of clearly established federal law, or are based on ‘an
unreasonable determination of the facts.’” Early, 537 U.S. at 11, 123 S.Ct. at 366
(citing 28 U.S.C. § 2254(d))(emphasis in original). Consequently, a state court
decision that correctly identified the governing legal rule may be rejected if it
unreasonably applied the rule to the facts of a particular case. Williams, 529 U.S. at
413, 120 S.Ct. at 1523; McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir. 2009).
However, to obtain federal habeas relief for such an “unreasonable application,” a
petitioner must show that the state court’s application of Supreme Court law was
“objectively unreasonable.” Woodford v. Visciotti, 537 U.S. 19, 27, 123 S.Ct. 357,
361, 154 L.Ed.2d 279 (2002). An “unreasonable application” is different from an
incorrect application of federal law.” Williams, 529 U.S. at 409-410, 120 S.Ct. at
1522. “In determining whether the state court unreasonably applied Supreme Court
precedent, the question is whether the state court's application of federal law was
objectively unreasonable, not whether the application was, in the judgment of the
federal habeas court, erroneous or incorrect.” Siehl v. Grace, 561 F.3d 189, 195 (3d
The Third Circuit has set forth a two-step process for reviewing a § 2254
petition. First, the court must identify the applicable Supreme Court precedent.
Outten v. Kearney, 464 F.3d 401, 413 (3d Cir. 2006). The Petitioner must show that
the Supreme Court precedent requires the opposite result, not merely that his
interpretation is more plausible than that of the state court. Id. Second, the federal
habeas court must objectively evaluate whether the state court decision was an
unreasonable application of Supreme Court precedent. Id., 464 F.3d at 414(citing
Werts v. Vaughn, 228 F.3d 178 (3d Cir. 2000)). The district court cannot grant relief
simply because “we disagree with the state court’s decision or because we would
have reached a different result.” Id. We may only grant relief if “the state court
decision, evaluated objectively and on the merits, resulted in an outcome that
cannot reasonably be justified under existing Supreme Court precedent.” Id.
(quoting Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004)).
Finally, “[i]n considering a § 2254 petition, we review the ‘last reasoned
decision’ of the state courts on the petitioner’s claims.” Simmons v. Beard, 590 F.3d
233, 232, (3d Cir. 2009)(quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir.
Timeliness of Federal Habeas Petition.
Respondent has raised an objection to the timeliness of Mr. Rivera’s petition.
Upon review, the Court finds the Petition timely.
A petitioner confined under a state-court judgment has one year to file a
§ 2254 petition challenging the judgment. 28 U.S.C. § 2244(d)(1). As relevant here,
the limitations period runs from “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.” Id.
at § 2244(d)(1)(A). This language applies to the right to seek discretionary review in
state appellate courts and means that the judgment does not become final until the
time period for seeking such review expires, even if review is not sought. See
Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000). Furthermore, the limitations
period is tolled for the “time during which a properly filed application for State
post-conviction relief or other collateral review with respect to the pertinent judgment
or claim is pending,” 28 U.S.C. § 2244(d)(2)(emphasis added).
Applying these principles, the Court finds that Mr. Rivera’s § 2254 petition is
timely. The statute of limitations began to run when Mr. Rivera’s conviction became
final on June 26, 1996, 90 days after the Pennsylvania Supreme Court dismissed
his direct appeal. See Sup.Ct. R. 13(1)(allowing 90 days for the filing of a certiorari
petition); Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999)(a judgment does
not become "final" until the time for seeking certiorari review expires, even if
defendant does not file such a petition). The statute was tolled when his PCRA
petition was docketed 117 days later on October 21, 1996. The statute resumed
running when the Pennsylvania Supreme Court denied his petition for allowance of
appeal on March 15, 2006. Stokes v. Dist. Attorney of County of Philadelphia, 247
F.3d 539, 543 (3d Cir. 2001). Mr. Rivera’s instant federal petition was docketed 22
days later, on April 6, 2006. Therefore, less than a year passed from the date his
conviction became final to the date he filed his petition, making it timely within the
meaning of 28 U.S.C. § 2244(d)(1)(A) and (2).
Sufficiency of the Evidence Claims.
Mr. Rivera contends there was insufficient evidence to support his first
degree murder and criminal conspiracy to commit homicide convictions. Mr. Rivera
presented both claims in his post-sentence motion to the Lebanon County Court of
Common Pleas. He raised them again on direct appeal. The Pennsylvania
Superior Court adopted the trial court’s summary of the evidence and rationale for
denying his post-trial motions on these issues and affirmed Mr. Rivera’s conviction
and sentence. The Court will first address the appropriate law to be applied in
reviewing these claims and then address them individually.
The Third Circuit Court of Appeals has held that the test for insufficiency of
evidence is the same under both Pennsylvania and federal law. See Evans v. Court
of Common Pleas, Delaware County, Pennsylvania, 959 F.2d 1227, 1232-1233 and
n. 6 (3d Cir. 1992).
Principles of due process dictate that a person can be convicted of a crime
only by proof of every element of the charged offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979);
In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970);
United States v. Ozcelik, 527 F.3d 88, 93 (3d Cir. 2008). In reviewing challenges to
the sufficiency of the evidence, a court must determine "whether, after reviewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 (emphasis in original). Moreover, when
the factual record supports conflicting inferences, the federal court must presume,
even if it does not affirmatively appear on the record, that the trier of fact resolved
any such conflicts in favor of the prosecution, and the court must defer to that
resolution. Id., 443 U.S. at 326, 99 S.Ct. at 2793. Reviewing federal district courts
are to refer to the substantive elements of the criminal offense as defined by state
law and must look to state law to determine what evidence is necessary to convict
on the crime charged. Id., 443 U.S. at 324, 99 S.Ct. at 2792. “The burden on a
defendant who raises a challenge to the sufficiency of the evidence is extremely
high.” United States v. Iglesias, 535 F.3d 150, 155 (3d Cir. 2008) (internal quotation
In this case, the AEDPA, however, requires the federal court to not only apply
the standards of Jackson, supra, but to also determine whether the state court
decision reflected an “unreasonable application” of Jackson to the facts of the case
under review. See Williams, 529 U.S. at 407-08, 120 S.Ct. at 1520.
It is clear from the record that the trial court employed the Jackson, supra,
standard in deciding the insufficiency issues raised in Mr. Rivera’s post-trial
When a defendant asks for a judgment of acquittal, he
challenges the sufficiency of the evidence. Pa. R. Crim. P.
1124, 42 Pa. C.S. (Purdon 1994 Supp.). The effect of such
a motion is to admit for the purposes of the motion, all the
facts which Commonwealth’s evidence tends to prove.
Commonwealth v. Rawles, 501 Pa. 504, 462 A.2d 619
(1983). When a defendant argues that the evidence is
insufficient to support the verdict, we accordingly must view
the evidence in the light most favorable to the
Commonwealth. Commonwealth v. Hughes, 521 Pa. 423,
555 A.2d 1264 (1989). And before we may grant a motion
for judgment of acquittal, we must determine that the
evidence supporting the guilty verdict is so weak and
inconclusive that a reasonable jury would not be satisfied
as to the defendant’s guilt beyond a reasonable doubt.
Commonwealth v. Kominsky, 240 Pa. Super. 532, 361 A.2d
(Doc. 19-10, Commonwealth v. Rivera, No. 93-10961 (Lebanon Ct. Com. Pl., Nov.
18, 1994, ECF pp. 14 - 15)). As the state court properly identified the applicable
Supreme Court precedent, the federal habeas court must objectively evaluate
whether the state court decision was an unreasonable application of Supreme Court
First Degree Homicide
Mr. Rivera first challenges the sufficiency of the evidence underlying his
conviction for first degree homicide on the ground that sufficient evidence was not
presented to show that the killing was premeditated. He argues that while he did
stab the victim, he did so in self-defense as the victim was the aggressor in the
incident. The victim’s death, according to Mr. Rivera, was the result of a tragic
accident rather than a premeditated event.
Under Pennsylvania law, a person is guilty of first degree murder where the
Commonwealth proves: (1) a human being was unlawfully killed; (2) the person
accused is responsible for the killing; and (3) the accused acted with a specific intent
to kill. See 18 PA. CONS. STAT . § 2502; Commonwealth v. Vandivner, 599 Pa. 617,
628, 962 A.2d 1170, 1176 (2009). An intentional killing is a “[k]illing by means of
poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated
killing.” 18 Pa.C.S. § 2502(d). Specific intent to kill can be inferred from the use of
a deadly weapon upon a vital part of the victim’s body.” Vandivner, 599 Pa. at 628,
962 A.2d at 1176.
At trial, the Commonwealth presented compelling evidence of Mr. Rivera’s
specific intent to kill in support of the first degree murder conviction.
The evidence . . . equivocally shows [Mr. Rivera], Mercado,
and Lebo followed the victim after an argument at the
corner of 11th and Lehman Streets in Lebanon. After Lebo
and Mercado met the victim again on 10th Street, Lebo
struck the victim. [Mr. Rivera] approached, and when the
victim again left the three men, [Mr. Rivera] followed him.
Lebo and Mercado intercepted the victim on Partridge
Street and Lebo resumed the argument. After [Mr. Rivera]
approached the victim from behind, he took out his knife
and stabbed him in the back. The wound was deeper than
the length of the knife blade.
The victim, although he held a large wrench in his hand,
never struck any of the three men who followed him from
the site of the initial dispute, according to two witnesses,
Michael Felty and Waldo Mercado. After the stabbing, [Mr.
Rivera] ran off and threw the knife away.
We cannot find [Mr. Rivera] is entitled to judgment of
acquittal on the charge of first-degree murder. The
evidence adduced by the Commonwealth tends to prove
that [Mr. Rivera] walked up behind the victim, and, in the
absence of any need to defend himself, thrust a knife
deeply into the victim’s back. The jury was free to
disbelieve [Mr. Rivera’s] ‘justification’ defense, and to
(Doc. 19-10, ECF pp. 14 - 15.) Again, it is noted that Mr. Rivera does not dispute
that he stabbed the victim with a knife that had a five inch blade, and that the victim
died of the wounds he inflicted. As indicated earlier, the use of a deadly weapon on
a vital part of the body can provide circumstantial evidence of a criminal defendant’s
specific intent. See Vandivner, 599 Pa. at 628, 962 A.2d at 1176. Additionally, the
trial record includes the testimony of two forensic pathologists who concurred that
the victim’s wounds were more consistent with an intentional assault rather than
self-defense. Accordingly, the court concludes that there was sufficient evidence
adduced at trial for a jury to find that Mr. Rivera acted with the specific intent to kill
the victim. Further, in light of the relevant undisputed facts and the proof of specific
intent, the court finds there was sufficient evidence elicited at trial to establish all the
elements of first degree murder.
Finally, based on an independent review of the record, and after reviewing
the evidence presented at trial in the light most favorable to the prosecution,
presuming that the jury resolved all conflicting inferences from the evidence against
Mr. Rivera, the court finds that a rational juror “could reasonably have found beyond
a reasonable doubt” that Mr. Rivera was guilty of first degree murder. Jackson,
443 U.S. at 325-26, 99 S.Ct. at 2792-93. Petitioner has failed to demonstrate that
the state court’s resolution of this claim was contrary to, or involved an
unreasonable application of, clearly established federal law as determined by the
Supreme Court, 28 U.S.C. § 2254(d)(1), or an unreasonable determination of the
facts, 28 U.S.C. § 2254(d)(2).
3. Criminal Conspiracy to Commit Murder.
Mr. Rivera claims that there was insufficient evidence to support a conviction
for criminal conspiracy to commit murder because the Commonwealth failed to
establish beyond a reasonable doubt that Mr. Rivera intended to commit first
degree murder. Likewise, Mr. Rivera claims the prosecution did not prove that he
entered into an agreement with anyone to kill the victim.
In Pennsylvania, “[a] person is guilty of conspiracy with another person . . . to
commit a crime if with the intent of promoting or facilitating its commission he: (1)
agrees with such other person . . . that they or one or more of them will engage in
conduct which constitutes such crime . . . or (2) agrees to aid such other person . . .
in the planning or commission of such crime.” 18 Pa. C.S. § 903. To convict on
conspiracy, “the trier of fact must find that: (1) the defendant intended to commit or
aid in the commission of the criminal act; (2) the defendant entered into an
agreement with another . . . to engage in the crime; and (3) the defendant or one or
more of the other co-conspirators committed an overt act in furtherance of the
agreed upon crime.” Commonwealth v. Murphy, 577 Pa. 275, 844 A.2d 1228, 1238
(2004). “An explicit or formal agreement to commit crimes can seldom, if ever, be
proved and it need not be, for proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its activities.” Commonwealth v.
Swerdlow, 431 Pa. Super. 453, 460, 636 A.2d 1173, 1177 (1994). “An agreement
sufficient to establish a conspiracy can be inferred from a variety of circumstances
including, but not limited to, the relation between the parties, knowledge of and
participation in the crime, and the circumstances and conduct of the parties
surrounding the criminal episode. In fact, the Commonwealth may sustain its
burden of proof by means of wholly circumstantial evidence, so long as the inferred
facts flow, beyond a reasonable doubt, from the proven facts to establish the
accused’s guilt or elements of the crime.” Commonwealth v. Rivera, 432 Pa. Super.
88, 91, 637 A.2d 997, 998 (1994)(internal citations omitted). Flight, along with other
circumstantial evidence, supports the inference of criminal conspiracy.
See Commonwealth v. Davenport, 307 Pa. Super. 102, 452 A.3d 1058 (1982).
However, “evidence of a defendant's association with the perpetrator of the crime,
presence at the scene of the crime, or knowledge of the crime cannot establish an
unlawful agreement, Commonwealth v. Murphy, 577 Pa. 275, 844 A.2d 1228, 1238
(2004), but together, such evidence ‘may coalesce to establish a conspiratorial
agreement beyond a reasonable doubt where one factor alone might fail,’
Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011)(quotation
omitted).” Eley v. Erickson, 712 F.3d. 837, 848 (3d Cir. 2013).
As noted above, there was sufficient evidence in the record to convict Mr.
Rivera of first degree murder; thus, Mr. Rivera’s argument that he could not have
conspired with anyone to kill the victim because he did not have specific intent to kill
is unpersuasive. Mr. Rivera’s next argument suggests that there was no evidence
adduced at trial that he or Lebo planned the confrontation that led to the victim’s
death. This argument, however, ignores much of the evidence presented at trial
and the reasonable inferences that the jury could permissibly draw from such
The evidence adduced at trial demonstrated that:
[Mr. Rivera], Mercado, and Lebo followed the victim after
an argument at the corner of 11th and Lehman Streets in
Lebanon. After Lebo and Mercado met the victim again on
10th Street, Lebo struck the victim. [Mr.
approached, and when the victim again left the three men,
Mr. Rivera followed him. Lebo and Mercado intercepted
the victim on Partridge Street and Lebo resumed the
argument. After [Mr. Rivera] approached the victim from
behind, he took out his knife and stabbed him in the back.
The wound was deeper than the length of the knife blade.
The victim, although he held a large wrench in his hand,
never struck any of the three men who followed him from
the site of the initial dispute, according to two witnesses,
Michael Felty and Waldo Mercado. After the stabbing, [Mr.
Rivera] ran off and threw the knife away.
In this case, the two men, after the initial argument and [Mr.
Rivera’s] initial attack upon the victim, went off in the
victim’s direction and pursued him. They split up. Lebo
then engaged the victim in an argument twice, while [Mr.
Rivera] came up behind the victim. During the second
argument, when [Mr. Rivera] came up behind the victim,
he stabbed him.
(Doc. 19-10, ECF pp. 14 and 16.) From this evidence, the Court finds a rational
jury could convict Mr. Rivera of conspiracy to commit murder. A rational jury could
find the agreement between Mr. Rivera and Lebo required to convict Mr. Rivera of
criminal conspiracy to commit murder through the circumstantial evidence
presented, including Mr. Rivera’s close relationship with Lebo; his awareness that
Lebo wanted to hurt the victim as evidenced by his instruction to Mr. Rivera during
their initial encounter with the victim - Lebo told Mr. Rivera to punch the victim; Mr.
Rivera’s departure with Lebo after the first encounter and Lebo suggested they “go
beat somebody up”; his knowledge that Lebo had punched the victim; the cat-andmouse-game of following the victim through the streets to confront him and Mr.
Rivera’s flight after the incident and lying to the police about his involvement.
The Court concludes that the state court’s determination was not an
unreasonable application of Jackson, supra. The web of circumstantial evidence,
taken as a whole, points to the existence of a criminal conspiracy carried out by Mr.
Rivera and Lebo. The fact that the evidence against Mr. Rivera was almost entirely
circumstantial is not a sufficient basis to upset the jury’s verdict. Mr. Rivera’s
assertion that he and Lebo “for no particular reason” began walking in the direction
the victim traveled is unconvincing and the jury was free not to believe him. The
assertion that he just kept encountering the victim during his stroll through the
streets of Lebanon is equally unlikely and the jury was free to weigh Mr. Rivera’s
testimony as they saw fit. The evidence provided at trial was sufficient to allow the
jury to conclude there was a criminal conspiracy.
Ineffectiveness Assistance of Counsel Claims.
Mr. Rivera alleges that his trial counsel was ineffective for failing to introduce
evidence of the victim’s violent tendencies to show that the victim was, in fact, the
aggressor. Mr. Rivera believes his counsel failed to bolster his self-defense strategy
by failing to introduce at trial the victim’s conviction for indirect criminal contempt for
violating a PFA and the underlying facts that gave rise to the granting of the PFA,
namely that the victim had engaged in threatening behavior towards his wife. He
raised this claim in his PCRA motion. The trial court dismissed the claim on the
basis that such evidence was not admissible and because it was without merit. The
Pennsylvania Superior Court affirmed.
The constitutional standard for determining whether a criminal defendant has
been denied the effective assistance of trial counsel, as guaranteed by the Sixth
Amendment of the Constitution, was announced by the Supreme Court in Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 675 (1984):
A convicted defendant’s claim that counsel’s assistance
was so defective as to require reversal of a conviction or
death sentence has two components. First, the defendant
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
the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
To satisfy the first prong of Strickland, a convicted defendant must show that
counsel’s representation “fell below an objective standard of reasonableness.”
Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471(2003);
Williams v. Taylor, 529 U.S. 390-91, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000);
Grant v. Lockett, 709 F.3d 224, 234 (3d Cir. 2013). In so doing, a convicted
defendant must overcome a strong presumption that the conduct of trial counsel fell
within a wide range of reasonable professional assistance. Strickland, 466 U.S. at
687-91, 104 S.Ct. at 2064-66. An attorney does not act unreasonably or prejudice
his client when he declines to raise a meritless argument. Real v. Shannon, 600
F.3d 302, 309 (3d Cir. 2010). “[I]neffectiveness will not be found based on a
tactical decision which had a reasonable basis designed to serve the defendant's
interests.” Wertz v. Vaughn, 228 F.3d 178, 190 (3d Cir. 2000)(citing Strickland, 466
U.S. at 690-91, 104 S.Ct. at 2066). Courts are extremely deferential in scrutinizing
the performance of counsel and make every effort to eliminate the distorting effects
of hindsight. See Wiggins, 539 U.S. at 523, 123 S.Ct. at 2536 (citing Strickland, 466
U.S. at 689, 104 S.Ct. at 2065).
“Strickland does not guarantee perfect representation, only a reasonably
competent attorney.” Harrington v. Richter,
, 131 S.Ct. 770,
791, 178 L.Ed.2d 624 (2011)(internal quotation marks omitted). To satisfy the
“prejudice” prong, a convicted defendant must establish a reasonable probability
that, but for the objectively unreasonable misconduct of his counsel, the result of the
proceeding would have been different. Wong v. Belmontes, 558 U.S. 15, 19, 130
S.Ct. 383, 386, 175 L.Ed.2d 328 (2009)(quoting Strickland, 466 U.S. at 694, 104
S.Ct. at 2068); see also Wiggins, 539 U.S. at 534, 123 S.Ct. at 2542. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Cullen v. Pinholster,
, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557
(2011)(quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068); see also Richter,
, 131 S.Ct. at 792 (the question is “whether it is ‘reasonably likely’ the
result would have been different.”) The prejudice component “focuses on the
question whether counsel’s deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372, 113 S.Ct. 838, 845, 122 L.Ed.2d 180 (1993).
A court evaluating an ineffective assistance of counsel claim does not need
to address both components of the test if the petitioner cannot sufficiently prove
either one of them. Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411,
1419, 173 L.Ed.2d 251 (2009)(citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).
“If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, ... that course should be followed.” Strickland, 466 U.S. at 697,
104 S.Ct. at 2069.
In assessing a deficient performance claim, this court must first determine
whether the Pennsylvania state court applied a rule that contradicts the United
States Supreme Court’s standard set forth in Strickland for evaluating an
ineffectiveness of counsel claim or was confronted with a set of facts materially
indistinguishable from a decision of the United States Supreme Court but reached a
In the instant matter, the Pennsylvania Superior Court used the following
Pennsylvania standard in analyzing Mr. Rivera’s ineffective assistance of counsel
claim on appeal from the denial of his PCRA petition:
[I]n order to successfully demonstrate ineffective
assistance of counsel, [Mr. Rivera] must establish that (1)
the underlying claim is of arguable merit; (2) counsel had
no reasonable strategic basis for his or her action or
inaction; and (3) that, but for the errors and omissions of
counsel, there is a reasonable probability that the outcome
of the proceedings would have been different.
Commonwealth v. Miller, 560 Pa. 500, 512, 746 A.2d 592,
598 (2000). We presume counsel is effective and place
upon appellant the burden of proving otherwise.
Commonwealth v. Stevens, 559 Pa. 171, 180, 739 A.2d
507, 512 (1999). A failure to satisfy any prong of the test
for ineffectiveness of counsel will require rejection of the
claim. Commonwealth v. Gribble,
A.2d 455, 460 (2004).
(Doc. 19-24, ECF p. 3, Commonwealth v. Rivera, No. 223 MDA 2005 (Pa. Super.
Aug. 17, 2005)(unpublished op.)). This three-pronged standard is derived from
Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (Pa. 1987), and is materially
identical to the test enunciated in Strickland. See Commonwealth v. Fears, 86 A.3d
795 )(Pa. 2014). The Third Circuit Court of Appeals has held that Pennsylvania’s
test for assessing ineffective assistance of counsel claims does not contradict the
Supreme Court’s holding in Strickland. Abdul-Salaam v. Beard, No. 4:02-CV-2124,
2014 WL 1653208, *14 (M.D. Pa. Apr. 24, 2014)(citing Rainey v. Varner, 603 F.3d
189, 197 (3d Cir. 2010)).
Because the court finds that the Pennsylvania courts did not apply a rule of
law that contradicts Strickland, the court must now consider under § 2254(d)(1)-(2),
“whether the state court’s application of the Strickland standard was unreasonable,”
which is a “doubly” deferential inquiry. Richter,
, 131 S.Ct. at 785;
see also Knowles, 556 U.S. at 123, 129 S.Ct. at 1420. The relevant inquiry in
assessing ineffectiveness claims that have been adjudicated on the merits is
whether the state court’s decision involved an unreasonable application of Strickland
or are based on an unreasonable determination of the facts in light of the record at
the time of the state court’s adjudication. Jacobs v. Horn, 395 F.3d 92, 107 n. 9 (3d
Cir. 2005); Werts, 228 F.3d at 204. The court will now address Mr. Rivera’s
ineffective assistance of counsel claim.
Trial Counsel’s Failure to Present Evidence
of the Victim’s Violent Character.
Mr. Rivera claims that trial counsel was ineffective for failing to introduce
evidence of the victim’s violent tendencies and to show that the victim was the
aggressor, and that Mr. Rivera was simply defending himself when he stabbed the
victim. Specifically, claims his trial counsel should have introduced evidence that
the victim had a PFA lodged against him, and that he was convicted of violating the
PFA order just eleven (11) days prior to the August 16, 1993 incident.
The thorough decision of the Pennsylvania Superior Court rejected Mr.
Rivera’s claim as meritless. First, as explained by the state appellate court, it was
reasonable for trial counsel to exclude the introduction of this evidence in support of
Mr. Rivera’s claim of self defense strategy because Mr. Rivera admitted not knowing
the victim, and thus, more importantly his character or reputation for violence, before
August 16, 1993. (Doc. 19-24, ECF pp. 3-7.) The victim’s specific acts of violent
conduct were relevant only if Mr. Rivera had been aware of those acts. As Mr.
Rivera admitted not knowing the victim, the admission of the PFA, or the criminal
contempt conviction for the violation of the PFA, was not relevant to Mr. Rivera’s
assertion that he believed his life was in danger due to the victims reputation for
violence. Likewise, the state appellate court determined that because the victim’s
conviction for criminal contempt of the PFA order did not involve any aggressive or
violent behavior, but rather his disobedience of the terms of the PFA order, his
unwanted presence at his wife’s home, the criminal behavior was not similar in
character to that in the instant case, and thus could not have been used to
demonstrate that the victim was the aggressor in that event. (Id., ECF p. 5.)
Finding that the PFA, and the victim’s conviction for criminal contempt of the PFA
would have been inadmissible, the state appellate court found Mr. Rivera’s
ineffective counsel claim on this ground meritless. An attorney does not act
unreasonably or prejudice his client when he declines to raise a meritless argument.
Real v. Shannon, 600 F.3d 302, 309 (3d Cir. 2010).
Moreover, even if Mr. Rivera could show that the evidence at issue was
improperly excluded, he failed to show that its exclusion had a substantial or
injurious effect at trial. The record reflects several eye witness accounts that the
victim did not strike anyone with the wrench when confronted by Mr. Rivera and
others. Additionally, the testimony of the two forensic pathologists concurred that
the victim’s wounds, admittedly inflicted by Mr. Rivera, were more consistent with an
intentional assault rather than self-defense. Thus, Mr. Rivera has not established
that the absence of this PFA related information at trial prejudiced the defense.
Upon reviewing the record, state appellate court’s adjudication of this claim
was not unreasonable. The state court applied Strickland and reasonably applied
the facts. Accordingly, this court will not disturb the state court’s ruling, and this
claim of ineffectiveness of counsel will be denied.
The Court will issue an order denying the section 2254 petition. The order
will also deny a certificate of appealability, based on the analysis in this
memorandum. However, Petitioner is advised that he has the right, for thirty (30)
days, to appeal the order denying his 2254 petition, see 28 U.S.C. § 2253(a); Fed.
R. App. P. 4(a)(1)(A), and that the denial of a certificate of appealability does not
prevent him from doing so, as long as he also seeks a certificate of appealability
from the court of appeals. See Federal Rule of Appellate Procedure 22; Local Rule
of Appellate Procedure 22.1.
An appropriate Order follows.
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: JUNE 2, 2014
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