Rivera v. Wall

Filing 32

MEMORANDUM AND ORDER granting 19 Motion to Dismiss and denying and dismissing Plaintiff's 1 Petition for Writ of Habeas Corpus. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Proceedings in the United States District Courts, th is Court hereby finds that this case is not appropriate for the issuance of a certificate of appealability (COA) because Rivera has failed to make a substantial showing of the denial of a constitutional right as to any claim, as required by 28 U.S.C. § 2253(c)(2) - So Ordered by Chief Judge William E. Smith on 8/10/2018. (Urizandi, Nisshy)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
)
)
v.
)
)
ASHBEL T. WALL
)
______________________________)
FIRLANDO RIVERA

C.A. No. 14-23 WES

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Petitioner Firlando Rivera has filed a Petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody (ECF No. 1).
Petition

(ECF

No.

The State has filed a motion to dismiss the
19),

opposition (ECF No. 29).
is necessary.

to

which

Rivera

filed

a

response

in

The Court has determined that no hearing

For the reasons that follow, the Motion to Dismiss

is GRANTED and the Petition is DENIED and DISMISSED.
I.

Background and Travel
On October 19, 1999, following a six-day trial, Rivera was

convicted by a jury of first degree murder and related firearms
charges and was found to be a habitual offender.

He filed a motion

for a new trial, which was denied on October 27, 1999.

Rivera was

sentenced on February 3, 2000, to life in prison for the murder
conviction, two concurrent ten year sentences and one suspended
ten-year sentence for the firearms offenses, and a consecutive
term of 20 years, non-parolable, as a habitual offender.

Rivera

timely appealed the conviction, as well as the denial of his motion
for new trial, but in a decision issued on November 19, 2003, the
Rhode Island Supreme Court affirmed the lower court’s judgment.
Rivera did not seek further review.
Thereafter, Rivera filed both a motion for sentence reduction
and an application for post-conviction review in the Superior
Court.

The motion for sentence reduction was denied on July 21,

2004, and the post-conviction petition was denied, after a twoday hearing, on February 11, 2011.

Rivera appealed the latter

denial, and on January 14, 2013, the Rhode Island Supreme Court
again affirmed the lower court’s decision.
On January 13, 2014, Rivera, through counsel, filed the
instant Petition. 1

The State initially filed a motion to dismiss

(ECF No. 4) (“First Motion to Dismiss”) based on timeliness grounds
on February 21, 2014.

Rivera filed a response in opposition (ECF

No. 10) to the First Motion to Dismiss on August 4, 2014.

The

State subsequently filed a reply (ECF No. 14), to which Rivera
filed a further response (ECF No. 17).

In an Order (ECF No. 18)

dated September 23, 2015, the Court denied the First Motion to

1

The Petition consists of the main document and two
attachments (ECF Nos. 1-1, 1-2) (“Att.”) containing additional
grounds and exhibits.
2

Dismiss without prejudice and directed the State to respond to the
Petition on the merits.
The State filed a second motion to dismiss (ECF No. 19)
(“Second Motion to Dismiss”) on October 30, 2015, followed by an
appendix of exhibits (ECF No. 20) (“State’s Ex.”).
2016,

Rivera

filed

a

response

in

opposition

On October 8,
(ECF

No.

29)

(“Opposition”) to the Second Motion to Dismiss as well as a
supplemental memorandum (ECF No. 30).
II.

Law
A.

Section 2254

Section 2254 provides that “a district court shall entertain
an application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or
laws or treaties of the United States.”
B.

28 U.S.C. § 2254(a).

Exhaustion and Procedural Default

The exhaustion doctrine, codified at 28 U.S.C. 2254(b)(1), 2
“is principally designed to protect the state courts’ role in the

2

Section 2254(b)(1) provides that:
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 unless it appears that-(A)
the applicant has exhausted the remedies
available in the courts of the State; or
3

enforcement of federal law and prevent disruption of state judicial
proceedings.

Under our federal system, the federal and state

courts [are] equally bound to guard and protect rights secured by
the

Constitution.”

Rose

v.

Lundy,

455

U.S.

509,

518

(1982)(alteration in original)(internal citations and quotation
marks omitted). Moreover, “it would be unseemly in our dual system
of government for a federal district court to upset a state court
conviction without an opportunity to the state courts to correct
a constitutional violation[.]” Id. Thus, the Rose Court cautioned
litigants, “before you bring any claims to federal court, be sure
that you first have taken each one to state court.”

Id. at 520;

see also O’Sullivan v. Boerckel, 526 U.S. 838, 839 (1999)(“Federal
habeas relief is available to state prisoners only after they have
exhausted their claims in state court.”).
In O’Sullivan, the Supreme Court stated: “To ... ‘protect the
integrity’ of the federal exhaustion rule, we ask not only whether
a prisoner has exhausted his state remedies, but also whether he
has properly exhausted those remedies, i.e., whether he has fairly

(B)(i) there is an absence of available State
corrective process; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
4

presented his claims to the state courts[.]”
(internal

citation

omitted);

see

also

id.

at

526 U.S. at 848
844

(“Section

2254(c)[3] requires only that state prisoners give state courts a
fair opportunity to act on their claims.”).

The question, then,

is “[w]hether a prisoner who fails to present his claims in a
petition for discretionary review to a state court of last resort
has properly presented his claims to the state courts.
answer

this

question

‘no,’

we

procedurally defaulted his claims.”

conclude

that

Id. at 848.

Because we

Boerckel

has

In other words,

“state prisoners must give the state courts one full opportunity
to resolve any constitutional issues by invoking one complete round
of the State’s established appellate review process.”

Id. at 845.

The Court noted, however, that:
[N]othing in our decision today requires the exhaustion
of any specific remedy when a State has provided that
that remedy is unavailable. Section 2254(c), in fact,
directs federal courts to consider whether a habeas
petitioner has “the right under the law of the State to
raise, by any available procedure, the question
presented” (emphasis added). The exhaustion doctrine,
in other words, turns on an inquiry into what procedures
are “available” under state law.
In sum, there is
nothing in the exhaustion doctrine requiring federal
courts to ignore a state law or rule providing that a
given procedure is not available.

3

Section 2254(c) states that: “An applicant shall not be
deemed to have exhausted the remedies available in the courts of
the State, within the meaning of this section, if he has the right
under the law of the State to raise, by any available procedure,
the question presented.” 28 U.S.C. § 2254(c).
5

Id. at 847-48.
The Supreme Court has further stated that it “will not review
a question of federal law decided by a state court if the decision
of that court rests on a state law ground that is independent of
the

federal

question

and

adequate

to

support

Coleman v. Thompson, 501 U.S. 722, 729 (1991).
“whether the state law

the

judgment.”

The rule applies

ground is substantive or procedural.”

Id.

In such cases, “federal habeas review of the claims is barred
unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.”

Id. at 750.

“Cause” generally consists of “some objective factor external
to the defense.” Murray v. Carrier, 477 U.S. 478, 488 (1986); see
also Coleman, 501 U.S. at 75. For example, “a showing that the
factual or legal basis for a claim was not reasonably available to
counsel, or that some interference by officials made compliance
impracticable . . . .” Carrier, 477 U.S. at 488 (internal citations
and quotation marks omitted). In order to demonstrate “prejudice,”
a petitioner “must show not merely that the errors at . . . trial
created a possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions.”
6

Id. at 494 (alteration

in

original)(internal

quotation

marks

omitted).

Lastly,

the

“fundamental miscarriage of justice” exception applies “in an
extraordinary case, where a constitutional violation has probably
resulted in the conviction of one who is actually innocent . . .
.”

Id. at 495-96.

“To establish the requisite probability, “a

petitioner must show that it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a
reasonable doubt.”

Schlup v. Delo, 513 U.S. 298, 327 (1995); see

also Lee v. Corsini, 777 F.3d 46, 62 (1st Cir. 2015)(quoting
Schlup, 513 U.S. at 324)(noting that showing of actual innocence
must be supported by “new reliable evidence — whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence — that was not presented at trial”).
C.
“The

Strickland
Sixth

Amendment

guarantees

effective assistance of counsel.”

defendants

the

right

to

Lema v. United States, 987 F.2d

48, 51 (1st Cir. 1993)(citing Strickland v. Washington, 466 U.S.
668, 687 (1984)).

However, “[t]he Constitution does not guarantee

a defendant a letter-perfect defense or a successful defense;
rather, the performance standard is that of reasonably effective
assistance under the circumstances then obtaining.”

Id. (quoting

United States v. Natanel, 938 F.2d 302, 309-10 (1st Cir. 1991)).

7

A defendant who claims that he was deprived of his Sixth
Amendment

right

to

effective

assistance

of

counsel

must

demonstrate:
(1)
(2)

that his counsel’s performance fell below an objective
standard of reasonableness; and
a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.

Strickland, 466 U.S. at 687-88, 694.

In assessing the adequacy of

counsel’s performance, a defendant “‘must identify the acts or
omissions of counsel that are alleged not to have been the result
of

reasonable

professional

judgment,’

and

the

court

then

determines whether, in the particular context, the identified
conduct or inaction was ‘outside the wide range of professionally
competent assistance.’”

United States v. Manon, 608 F.3d 126, 131

(1st Cir. 2010)(quoting Strickland, 466 U.S. at 690). With respect
to

the

prejudice

requirement

under

Strickland,

a

“reasonable

probability is one sufficient to undermine confidence in the
outcome.” Id. (quoting Gonzalez-Soberal v. United States, 244 F.3d
273, 278 (1st Cir. 2001)(internal quotation marks omitted). In
making the prejudice assessment, [the court] focus[es] on the
fundamental fairness of the proceeding.”
citations and quotation marks omitted).

Id. at 131-32 (internal
“Unless a defendant makes

both showings, it cannot be said that the conviction . . . resulted
from a breakdown in the adversary process that renders the result
8

unreliable.”

Strickland, 466 U.S. at 687; see also Reyes-Vejerano

v. United States, 117 F. Supp. 2d 103, 106 (D.P.R. 2000)(“The
petitioner has the burden of proving both prongs of this test, and
the burden is a heavy one.”).

“The benchmark for judging any claim

of ineffectiveness must be whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Strickland,
466 U.S. at 686.
Strickland instructs that “[j]udicial scrutiny of counsel’s
performance must be highly deferential.”

Id. at 689; see also id.

(“It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too
easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.”).

The court “must indulge a strong

presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome

the

presumption

that,

under

the

circumstances,

the

challenged action ‘might be considered sound trial strategy.’”
Id.

(citing

Moreover,

Michel

“[a]n

v.

error

Louisiana,
by

350

counsel,

U.S.
even

91,
if

101

(1955)).

professionally

unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.”
9

Id. at 691.

Finally, “[a] fair assessment of attorney performance

requires that every effort be made to eliminate the distorting
effects

of

hindsight,

to

reconstruct

the

circumstances

of

counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.”

Id. at 689.

III. Discussion
Rivera

presents

sixteen

grounds

for

the

Court’s

review,

including allegations of ineffective assistance of counsel, due
process violations, and failures on the part of both the Superior
Court and the Rhode Island Supreme Court.
three

of

Rivera’s

claims

are

The State contends that

unexhausted,

six

have

been

procedurally defaulted, and the remainder fail on the merits.
A.

Unexhausted claims

The State contends that three of Rivera’s claims—Grounds
Twelve, Thirteen
Rivera’s

and

submissions

Sixteen—have
to

the

Rhode

not

been

Island

raised
Supreme

in

any

Court

of

and,

therefore, are unexhausted and cannot be litigated for the first
time in a § 2254 petition.

(Second Mot. to Dismiss 5.)

Rivera

maintains that it is “manifestly clear” that he “has exhausted his
State Court remedy . . . .”

(Opp. 2.)

He further states that

“[c]laims of actual innocence based evidence like that set forth

10

in Ground Thirteen, Twelve, and Sixteen ought to . . .

survive.” 4

(Id. 26.)
Rivera

argues

in

Ground

Twelve

that

his

post-conviction

counsel failed “to present evidence and legal argument on all the
named grounds of [his] state post-conviction petition and fail[ed]
to adequately brief and argue [his] appeal from denial of postconviction

relief”

ineffective

(Pet.’s

assistance

of

Att.

counsel.

1

11),
(Id.)

thereby
Rivera

rendering

additionally

argues that:
My post-conviction counsel obtained a statement from
Hector
Rodriguez
wherein
he
recanted
his
trial
testimony. My post-conviction counsel failed to present
this new evidence in my post-conviction relief case.
This
failure
further
constituted
constitutionally
ineffective assistance of counsel pursuant to the Sixth
Amendment and due process pursuant to the Fifth
Amendment of the U.S. Constitution as applied to the
States.
(Id. at 12.) 5

Rivera further asserts that:

4

It is unclear whether Rivera is presenting “actual
innocence” as a gateway to have an otherwise defaulted claim
considered by the court or as a freestanding “actual innocence”
claim.
In either case, he has not met the criteria for
demonstrating that a fundamental miscarriage of justice would
occur were the Court to decline to consider the claim or the more
demanding standard for a freestanding claim of actual innocence.
See Schlup, 513 U.S. at 316.
5

Rivera’s post-conviction petition is not part of the record
in this Court.
However, there is no reference to new evidence
regarding Hector Rodriguez in the trial court’s oral decision.
Rivera’s initial appellate brief refers to a “Statement taken from
Hector Vasquez in which he stated that he did not go to the Weiner
Palace with any of the named parties in the State’s assertion,”
11

[T]he result of the State PCR proceeding [is] so tainted
by the application of the wrong standard to counsels[’]
performance that it is patently unreliable and as such
renders equally unreliable the Rhode Island Supreme
Court’s appellate findings.
The Supreme Court went
along without comment with the Superior Court’s
standards based on . . . their prior case law. Therefore
the Ground 12 should survive but even absent that
analysis in the actual innocence context the claim ought
to be free standing in the federal court.
(Opp. 27-28.) 6

The State contends that to the extent Ground 12

“allege[s] deficiencies with the Rhode Island Supreme Court’s
determination

of

Petitioner’s

post-conviction

appeal,

such

allegations, having not been previously raised in state court,
cannot be litigated for the first time in a § 2254 action.” (Second
Mot. to Dismiss 5.)
For the most part, the Court reads Ground 12 as alleging
deficiencies

with

post-conviction

respect to the hearing and appeal.

counsel’s

performance

with

As to alleged failure to

present evidence and argument on all grounds in Rivera’s state
petition, as well as to present new evidence, during the hearing,
the State is correct that Rivera has not given the state courts an
opportunity to address any constitutional errors.

See Rose, 455

(State’s Ex. 6 5), in the context of his conflict of interest
argument. (Id.)
6

The first portion of this argument will be discussed infra.
Regarding the reference to “the actual innocence context,” see
n.4.
12

U.S. at 518; see also O’Sullivan, 526 U.S. at 845.

The same is

true with respect to Rivera’s allegation regarding the inadequacy
of counsel’s performance in his appeal from the denial of postconviction relief.

Rivera admits as much in the Petition, arguing

that “[t]hese issues arose as a result of counsel’s performance in
the post-conviction relief hearing on the merits and the appeal of
the denial of relief.” (Pet.’s Att. 1 13.) He provides no evidence
that he has made any attempt to redress these issues in the state
courts.

Nor does Rivera argue that there is an absence of

available corrective process in the state courts or that any such
process would be ineffective to protect his rights.

See 28 U.S.C.

§ 2254(b)(1)(B).
Accordingly, the claims regarding post-conviction and postconviction

appellate

counsel

considered by this Court.

are

unexhausted

and

may

not

be

See id.

In Ground Thirteen, Rivera faults both the Superior Court and
trial counsel, alleging denial of his right to due process and to
effective assistance of counsel.

(Pet.’s Att. 1 13-14.)

states:
Failure of the Superior Court to preclude testimony and
grant a new trial where a witness having previously being
informed of her obligation to appear and testify by the
court was nevertheless asked just prior to her
appearance in court by the prosecutor that “There’s no
question you’re scared about testifying, correct?” To
which she responded “yes.” The Court’s failure to do so
13

He

denied the defendant a fair trial under the due process
clause of the United States Constitution. Defendant[’]s
counsel similarly failed to object to the witnesses’
[sic] testimony which constituted unconstitutional
ineffective assistance of counsel.
(Id. at 13.)

The State contends that “Issue 13 does not appear to

have been raised in any of the appellate submissions Petitioner
tendered to the Rhode Island Supreme Court, either upon his direct
appeal or upon his post-conviction relief appeal.”

(Second Mot.

to Dismiss 5; see also id., Exs. 4, 6, 8.)
In his brief on direct appeal, Rivera stated that Cournoyer
“reluctantly” testified at trial. 7

7

(State’s Ex. 4 14.)

However,

In a footnote, Rivera elaborated:

On the first day of trial, Heather Cournoyer appeared
before the court, out of the jury’s presence, and told
the court, “I’m not saying anything.” When asked why,
the witness responded, “Because I don’t.
Because I’m
scared, and I don’t want to. I don’t remember. It’s
been too long.” The court, however, told her she was
under a subpoena and must testify.
Right before her
testimony the next day, the prosecutor, without
objection being made, asked the witness, “There’s no
question you’re scared about testifying, correct?” The
witness confirmed that she was – “I just – lot of
questions, things people being calling me . . . I was
getting threats from people talking; I don’t know. But
I’m just scared.” The witness again reiterated that the
incident was a long time ago. However, she understood
she was required to testify.
(State’s Ex. 4 14 n.1)(internal citations omitted).
Where, as
here, there is a discrepancy in the page numbering of the original
document and the ECF pagination, the Court’s citations refer to
the ECF page number.
14

the statement was made in Rivera’s summary of the facts of the
case (id. at 14), not as a separate ground for relief (id. at 8),
or as part of his argument that the evidence did not support the
verdicts (id. at 24-30).

Rivera made no mention of Cournoyer’s

alleged fear or duress (Pet.’s Att. 1 15), in his post-conviction
filings with the Rhode Island Supreme Court. (State’s Exs. 6, 8.)
Therefore, the Court does not discuss Rivera’s allegations in
Ground Thirteen.
Rivera argues in Ground Sixteen that he was denied due process
due to prosecutorial misconduct and ineffective assistance of both
trial

and

post-conviction

counsel

for

prosecutorial misconduct as a separate issue. 8

failing

to

raise

(Pet., Att. 1 19.)

He states:
The Petitioner was denied due process and a fair trial
where the prosecutor wrongly introduced evidence, to
wit, the pre-trial photo pack arrays, where the State
prosecutor had knowledge that there were issues relevant
to the legality and reliability of how the photo arrays
were presented to the witnesses pre-trial, knew that
they had not produced the original array with the
numbering on the reverse side in discovery, and knew the
police
reports
clearly
showed
that
the
Defendant/Petitioner was not identified on the night of
the murder by the witnesses with reference to the packs
as numbered.[] At trial, Defendant was pictured in photo
pack 2, which was introduced at trial.
The police
reports clearly stated that the witnesses, when shown
photo pack 2, were unable to identify the Defendant.

8

As noted previously, Rivera’s state post-conviction petition
is not part of the record. See n.5
15

(Id.)
Rivera concedes that the “issue of prosecutorial misconduct
was not raised on appeal from the conviction,” but states that
“the

issue

of

the

insufficiency

of

evidence

presented

and,

specifically, the disturbing lack of reliability of the pre-trial
identifications in the photo arrays was raised.” (Id.) 9 Similarly,
Rivera acknowledges that “[t]he issue of prosecutorial misconduct
in presenting the evidence stated above was not raised,” in his
post-conviction relief action.

Id. Again, however, he argues that

the pretrial identification issue was raised during the postconviction relief proceedings, as was trial counsel’s failure to
press the motion to suppress.

(Id.)

Further, Rivera states that

“[i]n the context of actual innocence of the defendant where he
was wrongly identified as the shooter, justice demands this court
allow these claims to be heard.”

9

(Opp. 28.) 10

Rivera further states that:

Ground[] 16 as stated is a subset to the entire photo
pack/pre-trial
identification
issue
and
counsel’s
failings with respect to it. It is stated as a discovery
violation and prosecutorial misconduct.
The issue is
brought as a subset of the failings of trial counsel to
confront this issue in the motion to suppress . . . .
(Opp. 11.)
10

See n.4. Simply stating that he was “wrongly identified”
(Opp. 28), is not enough to demonstrate actual innocence.
16

Clearly

Rivera’s

prosecutorial

misconduct

claim

is

unexhausted, along with the allegations of ineffective assistance
of counsel based on failing to raise prosecutorial misconduct as
a separate issue in the state court proceedings.

Although related

issues 11 were presented to the state courts, the courts were not
given an opportunity to determine in the first instance whether
Rivera’s constitutional rights were violated by the prosecution.
See Rose, 455 U.S. at 518.
Grounds Twelve, Thirteen, and Sixteen have not been “fairly
presented” to the state courts and, therefore, cannot be raised in
this Court.

See Picard v. Connor, 404 U.S. 270, 275 (1971); cf.

O’Sullivan, 526 U.S. at 848 (noting, in procedural default context,
that federal habeas court asks “whether [a prisoner] has fairly
presented his claims to the state courts”).

Accordingly, Rivera’s

unexhausted claims are dismissed.
B.

Procedurally defaulted claims

The State also contends that Grounds Four through Seven, Ten,
and Fifteen have been procedurally defaulted because they were not
considered by the Rhode Island Supreme Court based on independent
and adequate state procedural grounds.

11

(Second Mot. to Dismiss

Those issues will be discussed infra.
17

6.)

Rivera counters that the claims are not procedurally barred,

(Opp. 2), and argues that:
The fact is that each of the claims brought in the PCR
case were wrongly adjudicated and this Court should
consider the findings in that action completely
unreliable. Each of the claims brought there and acted
upon or disregarded by the court require adjudication
here to assure this defendant[’s] federally recognized
Sixth Amendment right to effective assistance of
counsel.
(Id. at 8.)

He further states that “[c]ertainly grounds 3, 4, 5,

15 are all part and parcel of that cohort of Grounds including the
failure to attack the photo array evidence/pretrial identification
evidence and all that were raised tog[]ether with 3, 11 and 14.”
(Id. at 11.)

Rivera also argues that he sought to preserve the

issues passed on by the post-conviction court for federal habeas
review by filing a supplemental memorandum in support of his appeal
of the denial of post-conviction relief.

(Id. at 12; see also

State’s Ex. 8).
In Grounds Four, Five, and, to an extent, Fifteen, Rivera
claims that trial counsel failed to conduct any investigation or
pretrial preparation.

(Pet. 12; Pet’r’s Att. 1 1, 19.)

Grounds

Six and Ten focus on his attorneys’ failure to preserve issues for
appeal and to challenge evidence.
Ground

Seven,

Rivera

alleges

(Pet’r’s Att. 1 2-3, 9.)

that

he

received

In

ineffective

assistance of counsel based on counsels’ failure to argue a motion
18

for speedy trial.

(Id. at 4.)

Rivera argues in Ground Fifteen

that trial counsel were ineffective for failing to insist on
production
identified.

of

the

original

photo

arrays

from

which

he

was

(Id. at 19.)

Rivera originally presented seven grounds for post-conviction
review in state court. 12

Rivera II, 58 A.3d at 174-75.

In a

subsequent filing, however, Rivera abandoned several of these
claims.

Id. at 175. According to the Rhode Island Supreme Court,

Rivera stated that he “intended to press only four grounds of
alleged ineffective assistance of counsel: that his attorneys were
conflicted in their representation of him; that they failed to
adequately investigate and prepare for trial; that they failed to
pursue a motion to suppress; and that they failed to mount a thirdparty perpetrator defense.”

Id.

The court found that only three

grounds had been properly preserved for appellate review: that
trial counsel labored under a conflict of interest; that they

12

The seven
counsel were:

grounds

alleging

ineffective

assistance

(1) attorney conflict of interest; (2) failure to raise
a third-party perpetrator defense; (3) failure to pursue
a motion to suppress; (4) failure to investigate or
conduct pretrial preparation; (5) failure to conduct
pretrial investigation; (6) failure to raise a motion
for a speedy trial; and (7) failure to preserve issues
at trial.
Rivera v. State (Rivera II), 58 A.3d 171, 175 (R.I. 2013).
19

of

failed to pursue a motion to suppress; and that they failed to
mount

a

third-party

perpetrator

defense.

Id.

at

178.

The

appellate court also found that Rivera had waived the following
grounds: the adequacy of his attorneys’ pretrial investigation and
preparation; their failure to move for a speedy trial; and their
failure

to

preserve

certain

issues

for

appeal.

Id.

(citing

Wilkinson v. State Crime Lab. Comm’n, 788 A.2d 1129, 1131 n.1 (R.I.
2002) (“Simply stating an issue for appellate review, without a
meaningful discussion thereof or legal briefing of the issues,
does not assist the Court in focusing on the legal questions
raised, and therefore constitutes a waiver of that issue.”)).
As to the adequacy of pretrial investigation and preparation,
the court found:
At the postconviction-relief hearing, Rivera adduced
testimony relevant to the adequacy of his attorneys’
pretrial investigation and preparation.
He did not,
however, raise this issue during closing arguments at
the hearing, and he did not object when the hearing
justice did not discuss this issue when he rendered his
bench decision. Accordingly, we deem that issue to be
waived.
Id. at 178 n.6.
With respect to the alleged failure of trial counsel to
preserve issues for appeal and challenge evidence, Rivera focuses
primarily on ballistics questions.
also id. at 9-10).

(Pet’r’s Att. 1 2-3); (see

On direct appeal, as part of his contention
20

that the evidence was insufficient to sustain his conviction,
Rivera attempted to raise arguments regarding the position of the
victim’s body and the trajectory of the bullets.
(Rivera I), 839 A.2d 497, 501 (R.I. 2003).

State v. Rivera

The court stated:

We decline to address defendant’s argument about the
position of the victim or the location of the entry
wounds as grounds for exoneration. The state correctly
contends that defendant failed to raise this issue as a
basis for new trial in the Superior Court. Therefore,
in accordance with our well-established rule, it cannot
be raised for the first time on appeal.
Id.

In his appeal of the denial of post-conviction relief, Rivera

originally alleged that counsel failed to preserve issues at trial.
See Rivera II, 58 A.3d at 175.

However, as noted above, in a later

filing Rivera “abandoned” this ground, id., and the Rhode Island
Supreme Court found that he had waived the issue, id. at 178.
Similarly, the Rhode Island Supreme Court found that the
ground that counsel were ineffective due to their failure to raise
a speedy trial motion, although originally presented in Rivera’s
appeal of the Superior Court’s decision denying post-conviction
relief, had also been abandoned, see id. at 175, and thus deemed
it waived, id. at 178.
Regarding Rivera’s argument that counsels’ “failure to insist
upon obtaining production of the original photo arrays used for
pre-trial identification prior to trial constituted constitutional
ineffective assistance of counsel” (Pet’r’s Att. 1 19), although
21

the contention is certainly related to issues respecting the
alleged failure to investigate or conduct pretrial preparation and
to the motion to suppress, the allegation does not appear to have
been raised as a separate issue in the state courts.

It was not

argued in Rivera’s state filings as such (see State’s Exs. 6, 8),
and, to the extent it formed part of the failure to conduct
pretrial investigation and preparation claim, the Rhode Island
Supreme Court found that Rivera had waived that issue, see Rivera
II, 58 A.3d at 179.
The Rhode Island Supreme Court’s finding that Rivera had
waived

the

foregoing

issues

for

the

reasons

stated

above

constitutes an independent and adequate state ground; the waiver
finding is independent of Rivera’s federal ineffective assistance
claim, and it is adequate to support the state court’s judgment.
See Coleman, 501 U.S. at 729.

Rivera has presented no evidence or

argument that the state courts do not consistently enforce the
waiver rule.

Therefore, the Court does not address Grounds Four

through Seven, Ten, and Fifteen because they were procedurally
defaulted in the state courts and, therefore, cannot be raised in
this Court.

22

C.

Remaining claims

Section 2254(d) provides that:
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 States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the
evidence
presented
in
the
State
court
proceeding.
28 U.S.C. § 2254(d); see also Hurtado v. Tucker, 245 F.3d 7, 15
(1st Cir. 2001)(“As amended by AEDPA,[13] § 2254 places a new
constraint on the power of a federal habeas court to grant a state
petitioner’s application for a writ of habeas corpus with respect
to claims adjudicated on the merits in state court.”)(internal
quotation marks omitted).
A

state

court

decision

can

be

“contrary

to”

established Supreme Court precedent in two ways.

clearly

Williams v.

Taylor, 529 U.S.C. 362, 405 (2000). In Williams, the Supreme Court
explained:
First, a state-court decision is contrary to this
Court’s precedent if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law. Second, a state-court decision is also
13

Antiterrorism and Effective Death Penalty Act.
23

contrary to this Court’s precedent if the state court
confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives at
a result opposite to ours.
Id. (citing Green v. French, 143 F.3d 865, 869-70 (4th Cir. 1998));
see also id. at 412-13.
“Under

the

‘unreasonable

application’

clause,

a

federal

habeas court may grant the writ if the state court identifies the
correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s
case.” Id. at 413.

Thus, “an unreasonable application of federal

law is different from an incorrect application of federal law.”
Id. at 410; see also Phoenix v. Matesanz, 233 F.3d 77, 80-81 (1st
Cir. 2000)(discussing Supreme Court’s explication of § 2254(d) in
Williams). The court’s inquiry is an objective one. See Williams,
529 U.S. at 409 (“[A] federal habeas court making the ‘unreasonable
application’

inquiry

should

ask

whether

the

state

court’s

application of clearly established federal law was objectively
unreasonable.”).

“‘[U]nreasonable’ here means something more than

incorrect or erroneous.”

Teti v. Bender, 507 F.3d 50, 57 (1st

Cir. 2007) (citing Williams, 529 U.S. at 411).
“The AEDPA also allows collateral relief in a quite different
situation: when a federal habeas court determines that a state
court adjudication ‘resulted in a decision that was based on an
24

unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’”

Sanna v. DiPaolo, 265

F.3d 1, 7 (1st Cir. 2001)(quoting 28 U.S.C. § 2254(d)(2)).

The

First Circuit has noted, however, that ”these words cannot be read
in

a

vacuum[.]”

conjunction

with

Id.
a

Rather,

companion

“they

must

subsection

be

interpreted

specifying

that

in
‘a

determination of a factual issue made by a State court shall be
presumed to be correct,’ and that ‘the applicant shall have the
burden of rebutting the presumption of correctness by clear and
convincing

evidence.’”

2254(e)(1))(alteration

Id.
in

(quoting

original).

For

28

U.S.C.

purposes

of

§
§

2254(e)(1), “factual issues are defined as basic, primary, or
historical facts: facts in the sense of a recital of external
events and the credibility of their narrators.”

Coombs v. Maine,

202 F.3d 14, 18 (1st Cir. 2000)(internal citations and quotation
marks omitted).
With this framework in mind, the Court turns to the merits of
Rivera’s remaining claims, albeit not in the order in which he
presented them. 14

14

Where possible, the Court has grouped Rivera’s claims in
order to avoid unnecessary repetition.
25

1.

Sufficiency of the evidence (Ground Nine)

In addition to allegedly receiving ineffective assistance of
counsel, which will be discussed infra, Rivera claims that he was
denied a fair trial “because of the utter insufficiency of the
evidence.”

(Pet’r’s Att. 1 8.)

Specifically, he contends that

there was insufficient evidence put forth to convict him of first
degree murder.

(Id.)

In Jackson v. Virginia, the U.S. Supreme Court held that:
[I]n a challenge to a state criminal conviction brought
under 28 U.S.C. § 2254—if the settled procedural
prerequisites for such a claim have otherwise been
satisfied—the applicant is entitled to habeas corpus
relief if it is found that upon the record evidence
adduced at the trial no rational trier of fact could
have found proof of guilt beyond a reasonable doubt.
443 U.S. 307, 324 (1979); see also Cavazos v. Smith, 565 U.S. 1,
2 (2011)(per curiam)(“A reviewing court may set aside the jury’s
verdict on the ground of insufficient evidence only if no rational
trier of fact could have agreed with the jury.”).

The Jackson

Court explained:
After Winship[15] the critical inquiry on review of the
sufficiency of the evidence to support a criminal
conviction must be . . . whether the record evidence
could reasonably support a finding of guilt beyond a
reasonable doubt. But this inquiry does not require a
court to ask itself whether it believes that the evidence
at the trial established guilt beyond a reasonable
doubt. Instead, the relevant question is whether, after
reviewing the evidence in the light most favorable to
15

In re Winship, 397 U.S. 358 (1970).
26

the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt.
Id. at 318-19 (footnote, internal citations, and quotation marks
omitted); see also Cavazos, 565 U.S. at 2 (quoting Renico v. Lett,
559 U.S. 766, 773 (2010))(“What is more, a federal court may not
overturn a state court decision rejecting a sufficiency of the
evidence challenge simply because the federal court disagrees with
the state court.

The federal court instead may do so only if the

state court decision was ‘objectively unreasonable.’”); Winfield
v. O’Brien, 775 F.3d 1, 8 (1st Cir. 2014)(“[W]e do not ask, as we
might on direct review of a conviction in federal court, whether
the evidence was constitutionally sufficient.
whether

the

state

constitutionally

courts’

sufficient

ruling
was

that
itself

We ask, instead,
the

evidence

is

‘unreasonable.’”).

“‘Unreasonable’ in this context means that the decision ‘evinces
some increment of incorrectness beyond mere error.’”

Winfield,

775 F.3d at 8 (quoting Leftwich v. Maloney, 532 F.3d 20, 23 (1st
Cir. 2008)).

Thus, habeas review “involves the layering of two

standards. The habeas question of whether the state court decision
is objectively unreasonable is layered on top of the underlying
standard governing the constitutional right asserted.”
(quoting Hurtado, 245 F.3d at 16).

27

Id. at 8

In reviewing Rivera’s appeal of his judgment of conviction
and challenge to the lower court’s denial of his motion for a new
trial on direct appeal, the Rhode Island Supreme Court stated:
[A] trial justice may grant [a] new-trial motion if,
relying on his or her independent assessment of the
weight and the credibility of the evidence, he or she
determines that the verdict is against the preponderance
of the evidence. The new-trial motion must be denied,
however, if a trial justice agrees with the verdict or
determines that reasonable minds could fairly come to
different conclusions.
Rivera I, 839 A.2d at 502 (second alteration in original)(internal
quotation

marks

and

citations

omitted);

see

also

State

v.

Vorgvongsa, 670 A.2d 1250, 1255 (R.I. 1996)(concluding that direct
and circumstantial evidence was “more than sufficient to permit a
reasonable jury to conclude the guilt of the defendant beyond a
reasonable doubt”). The Rhode Island Supreme Court did not mention
Jackson.

However, the First Circuit “ha[s] held that a state-

court adjudication of an issue framed in terms of state law may
receive section 2254(d)(1) deference so long as the state standard
is at least as protective of the defendant’s rights as the federal
counterpart.” Leftwich, 532 F.3d at 23-24; cf. Morgan v. Dickhaut,
677 F.3d 39, 49 (1st Cir. 2012)(quoting Leftwich and noting that
Massachusetts Supreme Judicial Court had adopted sufficiency of
evidence standard that “we have recognized as consistent with
Jackson”).
28

Rivera does not contend that the Rhode Island Supreme Court’s
decision was “contrary to . . . clearly established Federal law,
as determined by the Supreme Court of the United States[.]”
U.S.C. § 2254(d)(1).
the

Rhode

Island

28

He initially states that he “does not allege
Supreme

Court

misapprehended

the

law

in

determining the credibility of Evans[16] (and denying relief) so
much as it made an unreasonable determination of fact.”
31.)

(Opp.

Rivera subsequently argues that “[t]he Rhode Island Supreme

Court’s decision on Petitioner’s Motion for Acquittal and New Trial
Motion

was

both

an

unreasonable

interpretation of the facts.”

application

(Id. 32-33.)

and

unreasonable

Therefore, both

subsections of § 2254(d) are implicated.
The Court begins with the facts.

The Rhode Island Supreme

Court summarized the evidence presented at trial as follows:
In the early morning hours of November 23, 1997, the
victim, Edward “Chipper” Wilson IV, and his friend
Robert K. Rhoads arrived at the Weiner Palace in
Woonsocket for a late night bite after an evening out.
As they were conversing with two female employees and
the owner of the establishment, defendant, nicknamed
“Hippy,” and three male friends entered the Weiner
Palace.
Although some derogatory comments were
exchanged between members of each group of men, Wilson
and his friend made an uneventful exit from the
restaurant and headed back to their parked vehicle.
Before he got to the vehicle, however, Wilson noticed
defendant staring at him from the front window inside
16

The reference to “Evans” is unclear. There is no mention
of anyone named “Evans” in the Rhode Island Supreme Court’s
opinion. See Rivera I, 839 A.2d 497.
29

the Weiner Palace.
Wilson, who was a martial arts
instructor, challenged defendant to come outside. The
defendant complied, and the two exchanged profanities
and blows, resulting in defendant’s being knocked to the
pavement.
At some point, defendant’s friends also
became involved in the scuffle.
At trial, Rhoads
testified that defendant pulled out a metal object and
hit Wilson over the head with it. At this point Wilson
fled down the hill in a direction away from the Weiner
Palace.
By several eyewitness accounts, Wilson was
pursued by defendant. Shots were fired and Wilson was
struck twice, once in the abdomen and once in the head,
the wound that proved to be fatal.
Although no eyewitness could testify [to] seeing
defendant fire the bullet that killed Wilson, the state
presented several witnesses throughout the course of the
six-day trial who testified to having seen defendant
with a weapon and heading in the direction of where
Wilson fled just before Wilson was shot.
The two
waitresses on shift at the Weiner Palace, Heather
Cournoyer and Michelle Oliveira, gave consistent
testimony about the events that unfolded that evening.
Each testified that, from their vantage point inside the
Weiner Palace, they had seen defendant pull out a gun,
cock it, and walk in the direction of the victim. Each
then heard what sounded like a thud and then a gunshot
ring out in rapid succession.
John Muniz, one of
defendant’s friends involved in the fight, told police
that he saw defendant in possession of a gun and that he
saw him pull it back and cock it as the victim fled.
However, Muniz later recanted this version of events
while testifying for the state. At trial he said that
defendant had never had a gun and that it was only upon
threats by police that he placed a gun in defendant’s
hands. Rhoads, Wilson’s friend, testified that he saw
defendant pointing a gun at Wilson, heard a gunshot, and
saw his friend fall. Rhoads heard a second gunshot while
running away. Michael Cote, a customer at the Weiner
Palace, testified that although he never saw a weapon in
defendant’s
hands,
defendant
was
involved
in
a
confrontation with Wilson, and that he heard a scuffle
outside the restaurant, followed by two gunshots about
fifteen seconds apart.
Evidence was presented at trial that positive
identifications of defendant were made using a series of
30

photo packs shown to witnesses not more than a day after
the shooting.
Cournoyer, Oliveira, and Rhoads all
selected defendant’s photo from one of several photo
packs. At trial almost two years after the incident,
only Oliveira, among these three witnesses, was able to
make a positive in-court identification of defendant.
However, other witnesses, including three of his
friends, were able to identify defendant at trial as the
same man referred to as “Hippy.” Rhoads and Cournoyer
did not recognize defendant as the same man they had
seen that night.
All three witnesses, however, did
testify that they were confident in their selection of
defendant’s photo at the time following the incident and
that the man in the photo was the assailant.
Furthermore, Cournoyer and three police sergeants
involved in the case testified that defendant looked
significantly different at trial than he did at the time
of the crime. These physical changes included a gain in
weight, a haircut, shave of facial hair, and the addition
of glasses.
In addition to the abovementioned witnesses, the state
presented additional evidence of suspicious behavior by
defendant in the hours following the murder.
Wanda
Vasquez, a friend of defendant, testified that defendant
asked her on the morning after the murder to care for a
dog in his care because he had to go out.
Hector
Rodriguez, another friend, testified that he gave
defendant a ride to Providence later that day so that
defendant could “get out of Woonsocket.”
Finally,
evidence was presented to establish that Maribel Albino,
the sister of defendant’s then-girlfriend, told police
that on the evening after the murder, defendant told her
he had been in a fight with a white man and that he spoke
of going to a hotel. However, she recanted this story
on the stand.
Rivera I, 839 A.2d at 499-500 (footnote omitted).
Based on the above evidence, the Rhode Island Supreme Court
concluded:
Upon review of the record in this case, it is apparent
that the trial justice did not err in denying defendant’s
motion for a new trial. He acknowledged that he made
31

his decision upon independently weighing the evidence
and considering the testimony and credibility of the
witnesses. To that effect, he referred specifically to
the facts and testimony upon which he relied.
With
regard to the identification of defendant, the trial
justice said that “[a]s to Oliveira and Cournoyer, they
satisfactorily * * * identified this defendant as the
culprit with the firearm.”
Furthermore, the trial
justice noted that Rhoads’s inability to make an incourt identification in no way diminished or dispelled
his earlier out-of-court identification using a photo
pack in which he picked out defendant’s picture. With
respect to the issue of premeditation, the trial justice
noted that Oliveira and Cournoyer both saw defendant
pull out a handgun, cock it, and set out in the direction
where Wilson had fled. The trial justice regarded as
truthful a similar statement that Muniz made to the
police, and he rejected as not truthful Muniz’s
subsequent change of story while testifying at trial.
Additionally, the trial justice addressed the issue of
premeditation by saying that, based on the entry point
of the second bullet as the medical examiner testified
to,[17] and the evidence that defendant was armed with a
gun while pursuing the victim, he believed the murder to
have been “an execution which bespeaks first degree
murder.” Finally, the trial justice said that “the State
produced in my mind credible and substantial evidence
that this defendant did, in fact, commit first degree
17

Here, the Rhode Island Supreme Court included a footnote
in which it noted:
[T]he trial justice’s reference to the medical testimony
was made in an effort to address the issue of
premeditation, insofar as the victim’s position on his
knees after having been shot once in the abdomen rendered
him effectively helpless and at defendant’s mercy. The
medical testimony was not used for the purpose of
addressing the issue of the unlikelhood that defendant
could have fired shots to the front of the victim while
pursuing him from behind; medical testimony used for
this purpose has been waived by defendant for failure to
raise the issue in the first instance.
Rivera I, 839 A.2d at 504 n.7.
32

murder and all of the other offenses for which he was
charged; that proof was easily to the level of beyond a
reasonable doubt.
And the jury, in my view, quite
properly made the correct decision * * *.” To our mind,
the trial justice conducted a proper and thorough
analysis of the evidence before him. Only after making
his own independent assessment did he agree with the
jury’s verdict and deny the defendant’s motion. Because
the trial justice agreed with the verdict, his analysis
need not have extended beyond that which it did. Because
we hold that the trial justice neither misconceived nor
overlooked material evidence, nor was he otherwise
clearly wrong, we defer to his factual findings and his
judgment.
For these reasons, we disagree with the
defendant’s allegations of error.
Accordingly, we
affirm the judgment of the Superior Court.
Id. at 503-04 (alterations other than footnote in original).
Just as the Rhode Island Supreme Court deferred to the trial
court’s factual findings, id. at 504, this Court must defer to the
state court on issues of fact. See 28 U.S.C. § 2254(e)(1); Teti,
507

F.3d

at

58

(“The

presumption

of

correctness

is

equally

applicable when a state appellate court, as opposed to a trial
court, makes the finding of fact.”) (internal quotation marks
omitted).

This includes the state courts’ credibility findings,

which are considered factual findings for purposes of § 2254(e)(1).
See

Teti,

credibility

507

F.3d

at

59

determinations

(noting
“are

that

exactly

state
the

trial

type

of

judge’s
factual

determinations to which [federal courts] defer, at least short of
any indication of serious error”).

Further, “a federal habeas

corpus court faced with a record of historical facts that supports
33

conflicting

inferences

must

presume—even

if

it

does

not

affirmatively appear in the record—that the trier of fact resolved
any such conflicts in favor of the prosecution, and must defer to
that resolution.”

Jackson, 443 U.S. at 326.

Rivera has not met his burden of rebutting the presumption of
correctness by clear and convincing evidence.
2254(e)(1).

See 28 U.S.C. §

On the contrary, he relies on the same arguments and

evidence presented to—and rejected by—the Rhode Island Supreme
Court.

(Opp. 29-33; State’s Ex. 4 21-23, 24-30); see also Rivera

I, 839 A.2d at 500-01.

This approach falls short of providing the

clear and convincing evidence necessary to demonstrate that the
state court’s findings of fact were clearly erroneous.

See Teti,

507 F.3d at 59 (“[Petitioner] does not attempt to argue that he
has clear and convincing evidence to overcome the presumption here.
Instead

he

tries

to

refute

the

[appellate

court’s]

factual

determinations by employing the same documents already considered
by the state courts.

That approach fails.”).

Based on the

foregoing, the Court concludes that the Rhode Island Supreme
Court’s adjudication of Rivera’s claim did not “result[] in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding,” 28 U.S.C. § 2254(d)(2), and was not “objectively
unreasonable,” Hurtado, 245 F.3d at 16.
34

Nor can it be said that the state supreme court unreasonably
applied clearly established federal law to the facts of the case.
28 U.S.C. § 2254(d)(1).

There is no dispute that the “clearly

established federal law” in this case is the Jackson standard.
(Opp. 31) (“Sufficiency of the evidence already on the record is
analyzed under the standard set forth in Jackson v. Virginia.").
Rivera argues, however, that the Rhode Island Supreme Court’s
application of that standard was unreasonable.

(Id. at 32-33.)

He states that “the inability of witnesses to make in court
identifications and the troubling recantations coupled with the
troubling photo pac[k]s, trajectory of the bullets from directions
where the Petitioner was not located, [and a] witness testifying
under

apparent

fear

or

duress

manifestly

demonstrated

sufficiency finding requires review by this court.”

the

(Opp. 33.) 18

Rivera overlooks the fact that the purpose of habeas review
is not to relitigate state trials, see Sanna, 265 F.3d at 15, or

18

The identification and photo pack issues were presented to
the Rhode Island Supreme Court. See Rivera I, 839 A.2d at 50001.
The recantations, although not raised as separate issues in
Rivera’s brief (State’s Ex. 4), were addressed by the court, see
Rivera I, 839 A.2d at 500, which made a specific credibility
finding as to one of the witnesses, see id. at 503-04. Also not
raised as a separate issue, but mentioned in a footnote in Rivera’s
brief on appeal, was the witness testifying under fear or duress.
(State’s Ex. 4 14 n.1.) As noted previously, the appellate court
found that Rivera had waived his argument regarding the trajectory
of the bullet. Rivera I, 839 A.2d at 501.
35

to serve as a substitute for direct appeals, see Winfield, 775
F.3d at 8.
limited.

Rather, the function of a federal habeas court is

Sanna, 265 F.3d at 15.

Thus, as noted above, this Court

does not weigh the sufficiency of the evidence; instead, its role
is to determine “whether the state courts’ ruling that the evidence
[was]

constitutionally

sufficient

was

itself

unreasonable.”

Winfield, 775 F.3d at 8 (internal quotation marks omitted).

The

Court concludes that the Rhode Island Supreme Court’s decision
affirming the lower court’s denial of Rivera’s motion for new trial
was not “objectively unreasonable.”

Williams, 529 U.S. at 409.

It is clear from the evidence summarized by the Rhode Island
Supreme Court that the state court’s determination of the facts
was not “unreasonable . . . in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(2).

It is also

clear from the foregoing that the state courts’ analysis did not
“result[] in a decision that . . . involved an unreasonable
clearly

established

Federal

law[.]”

Id.

§

application

of[]

2254(d)(1).

Accordingly, the Court rejects Rivera’s challenge to

the sufficiency of the evidence supporting his conviction.
2.

Application of standard of review to ineffective
assistance of counsel claims (Ground One)

Rivera claims that both the Superior Court on post-conviction
review and the Supreme Court in reviewing the denial of Rivera’s
36

post-conviction petition applied the wrong standard of review to
his

ineffective

assistance

of

counsel

claims.

(Pet.

6.)

Specifically, he contends that the state courts utilized a more
demanding “farce and mockery” standard instead of the standard
articulated by the Supreme Court in Strickland.

(Id.; Opp. 2-4.)

Rivera further asserts that the courts applied a higher standard
because he had privately retained, not appointed, counsel.

(Pet.

6; Opp. 3.)
Rivera argues that:
In Rhode Island the Rhode Island Supreme Court’s
jurisprudence on the standard to be applied in a case
claiming ineffective assistance of counsel has become a
distinct and more deman[d]ing standard, than that
articulated by the United Stat[e]s Supreme Court, and
especially so where the defendant is represented by
private cou[ns]el. Rhode Island jurisprudence continues
to apply a long-discarded pre-Strickland standard
formerly pronounced pursuant to The Due Process
c[la]use, namely the farce and mockery standard.
The
Rhode Island Supreme Court commingled the more demanding
standard, with the subsequent Sixth Amendment Strickland
standard, and thus unconstitutionally diminishes the
defendant’s
Sixth
Amendment
right
to
effective
assistance of counsel.
(Pet. 6.)
As Rivera recognizes, both the post-conviction court and the
Rhode Island Supreme Court correctly articulated the Strickland
standard.
court

also

(See Opp. 2, 4.)
mentioned

It is true that the post-conviction

“farce

and

mockery”

and

differential

treatment with respect to retained, as opposed to appointed,
37

counsel.

(Id., Ex. A 1-2.)

It is clear, however, from a close

reading of the courts’ opinions that they applied the proper
standard of review—that is, the Strickland standard— to Rivera’s
ineffective assistance of counsel claims.
The post-conviction court began its discussion of Rivera’s
ineffective assistance of counsel allegations by stating:
In matters such as these for postconviction relief, at
bottom on the claim of ineffective assistance of
counsel, certain general propositions obtain.
The
touchstone, of course, relates to the Strickland case
adopted by our Court as well.
In Powers [v]s. Rhode
Island (1999), reflecting on Strickland, our court said
“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. Secondly, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive defendant of a fair trial, a trial
whose result is reliable.”
(Id., Ex. A 1.)

The court also quoted the Court of Appeals for

the First Circuit’s decision in United States v. Theodore, 468
F.3d 52, 57 (1st Cir. 2006), which noted a “‘very forgiving’ Sixth
Amendment standard for ineffective assistance of counsel.”

(Opp.,

Ex. A 2.)
The court continued:
There exists a strong presumption in favor of competent
representation on behalf of a defendant. Indeed, with
respect to a defendant’s lawyer or lawyers who are
privately retained, our Supreme Court has said on more
than one occasion -- and I cite Vorgvongsa, 785 A.2d
38

542, page 549 (2001) as an example, where the Supreme
Court noted that a claim of ineffective assistance of
counsel against a privately retained defense attorney is
generally
not
viable
“unless
the
attorney’s
representation was so lacking that the trial had become
a farce and a mockery of justice,” quoting our Supreme
Court’s earlier case of Dunn, 726 A.2d 1142, 1146,
footnote 4, (1999 R.I.)[.]
(Id. at 1-2.)

That is the only reference to “farce and mockery”

in the trial court’s opinion.

Although Rivera relies heavily on

this statement, the mere mention of “farce and mockery” does not
equate to application of it.
For example, with reference to the motion to suppress issue,
after discussing counsel’s testimony regarding trial strategy, the
post-conviction court concluded: “So, with respect to the motion
to suppress, the first prong of Strickland clearly is not violated,
and there has been an utter failure to carry the burden of proof
with regard to that claim.”

(Id. at 4-5.)

Similarly, the court

addressed Rivera’s claim that his defense attorneys were “less
than diligent” by not pursuing a third-party culprit defense (id.
at 5), under the Strickland standard (id. at 8)(“[I]f counsel’s
strategy, given the evidence bearing on the defendant’s guilt,
satisfies
matter.”).
claim,

the

the

Strickland

standard,

that

is

the

end

of

the

Finally, turning to Rivera’s conflict of interest
post-conviction

court

cited

numerous

Rhode

Island

Supreme Court cases which accurately explained the U.S. Supreme
39

Court’s standard for demonstrating a conflict of interest.
at 9-10.)

(Id.

The court found that Rivera’s counsel did not “struggle

to serve two clients” (id. at 10), that Rivera had not carried his
burden of demonstrating that they did (id. at 11), and that “under
no circumstances were they in any way near the Strickland standard
of being ineffective” (id.).
On appeal, the Rhode Island Supreme Court also correctly
stated

the

Strickland

standard

assistance of counsel claims.

of

review

for

ineffective

Rivera II, 58 A.3d at 179 (“When

evaluating claims of ineffective assistance of counsel, this Court
employs the test set forth in Strickland v. Washington.”).

The

court described the Strickland test as the lower court did, id.,
indicated that “[u]nless a defendant makes both showings, it cannot
be said that the conviction * * * resulted from a breakdown in the
adversary

process

(quoting

Pelletier

that
v.

renders

the

result

State,

966

A.2d

unreliable,”
1237,

1241

id.

(R.I.

2009))(alteration in original), and noted the “strong presumption
* * * that an attorney’s performance falls within the range of
reasonable professional assistance and sound trial strategy. Id.
at 180 (alterations in original).
Rivera acknowledges that the Rhode Island Supreme Court did
not address the farce and mockery standard.

(Opp. 4)(“[T]he Court

does not speak to the erroneous standards that the trial court
40

applied . . . .”).

Rivera nonetheless faults the court for

“allow[ing] to stand the PCR court’s holding though it was arrived
at through the wrong standards, and went on to accept those
findings as its own under a completely different standard” 19 (id.
at 2), i.e., the Strickland standard.

Although the Rhode Island

Supreme Court afforded deference to the post-conviction court’s
findings, see Rivera II, 58 A.3d at 180-81, it applied the proper
standard in its evaluation of those conclusions, see, e.g., id. at
181 (agreeing with the trial justice’s finding, with respect to
the motion to suppress, that “the first prong of Strickland clearly
[was] not violated, and there [had] been an utter failure to carry
the burden of proof with regard to that claim.”)(alterations in
original).
The Rhode Island state courts did not apply an improper
standard to Rivera’s ineffective assistance of counsel claims.
Even if the post-conviction court had utilized the farce and
mockery standard, which it did not, the Rhode Island Supreme Court
applied the proper Strickland standard in evaluating the lower

19

Despite appearing to concede that the Rhode Island Supreme
Court utilized the Strickland standard (Opp. 2), Rivera states in
the Petition that the appellate court “commingled the more
demanding standard, with the subsequent Sixth Amendment Strickland
standard . . . .” (Pet. 6.) There is no indication in the Rhode
Island Supreme Court’s opinion, however, that it applied anything
other than the Strickland standard.
41

court’s findings.

See Cronin v.

Comm’r of Prob., 783 F.3d 47, 50

(1st Cir. 2015)(noting that, under AEDPA, the “last reasoned statecourt decision must be not only erroneous but also contrary to, or
infected by an unreasonable application of, clearly established
Federal law . . . .”)(internal quotation marks omitted).
Accordingly, Rivera’s first ground provides no basis for
relief.
3.

Conflict of interest (Grounds Two and Eight)

Rivera alleges that his trial counsel labored under an actual
conflict of interest, adversely affecting counsels’ performance,
undermining

the

adversarial

process,

effective assistance of counsel.
contends

that

counsel

“failed

and

depriving

him

of

(Pet., Att. 1 5-6.) He further
to

follow

proper

procedure

in

notifying the court” (id. 7), and that the court failed to inquire
into the claimed conflict (id.).

Rivera also argues that, as a

result of this alleged conflict, counsel failed to raise a “third
party culprit” defense.

(Pet. 8.)

Claims of attorney conflict of interest are evaluated under
the Strickland standard.

See Strickland, 466 U.S. at 692.

Rivera

argues that the decisions of the Rhode Island Superior and Supreme
Courts on post-conviction review and appeal of the denial thereof
were “contrary to, or involve[d] an unreasonable application, of
clearly established Federal Law, as determined by the Supreme Court
42

of the United States.”

(Opp. 26) (quoting 28 U.S.C. § 2254(d)(1))

(citation and internal quotation marks omitted). On habeas review,
however, this Court is “not actually tasked with deciding whether
[petitioner’s] counsel’s performance fell short of Strickland’s
requirements; rather, the ‘pivotal question is whether the state
court’s application of the Strickland standard was unreasonable.’”
Hensley

v.

Harrington

Roden,
v.

755

Richter,

F.3d

724,

736

(1st

562

U.S.

86,

101

Cir.

2014)(quoting

(2011));

see

also

Harrington, 562 U.S. at 101 (“This is different from asking whether
defense

counsel’s

performance

fell

below

Strickland’s

standard. . . . 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.”); Yarborough v. Gentry, 540
U.S. 1, 5 (2003) (“If a state court has already rejected an
ineffective-assistance claim, a federal court may grant habeas
relief if the decision was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States. Where, as here, the state
court’s application of governing federal law is challenged, it
must

be

shown

to

be

not

only

erroneous,

but

objectively

unreasonable.”)(internal citation and quotation marks omitted).
“In order to demonstrate a violation of his Sixth Amendment
rights, a defendant must establish that an actual conflict of
43

interest adversely affected his lawyer’s performance.”
Sullivan, 446 U.S. 335, 350 (1980).

Cuyler v.

In such situations, prejudice

under Strickland’s second prong is presumed.

Strickland, 446 U.S.

at 692; Sullivan, 466 U.S. at 349-50 (“Thus, a defendant who shows
that a conflict of interest actually affected the adequacy of his
representation need not demonstrate prejudice to obtain relief.”).
However, the mere “possibility of conflict is insufficient to
impugn a criminal conviction.” Sullivan, 466 U.S. at 350. Rather,
“until a defendant shows that his counsel actively represented
conflicting interests, he has not established the constitutional
predicate for his claim of ineffective assistance.”
“Defense

counsel

have

an

ethical

Id.

obligation

to

avoid

conflicting representations and to advise the court promptly when
a conflict of interest arises during the course of trial.”

Id.

However, the Supreme Court has “deferred to the judgment of counsel
regarding the existence of a disabling conflict, recognizing that
a defense attorney is in the best position to determine when a
conflict exists, that he has an ethical obligation to advise the
court of any problem, and that his declarations [as an officer of
the court] to the court are ‘virtually made under oath.’”
v.

Taylor,

535

U.S.

162,

167-68

(2002)(quoting

Mickens

Holloway

v.

Arkansas, 435 U.S. 475, 485-86 (1978)); see also Sullivan, 466

44

U.S. at 347 (noting that “trial courts necessarily rely in large
measure upon the good faith and good judgment of defense counsel”).
“Absent special circumstances, therefore, trial courts may
assume either that multiple representation entails no conflict or
that the lawyer and his clients knowingly accept such risk of
conflict as may exist.”

Sullivan, 466 U.S. at 346-47.

It follows

that “[u]nless the trial court knows or reasonably should know
that a particular conflict exists, the court need not initiate an
inquiry.”

Id. at 347; see also Mickens, 535 U.S. at 168-69

(“Sullivan addressed separately a trial court’s duty to inquire
into

the

propriety

of

a

multiple

representation,

construing

Holloway to require inquiry only when the trial court knows or
reasonably should know that a particular conflict exists—which is
not to be confused with when the trial court is aware of a vague,
unspecific possibility of conflict, such as that which inheres in
almost

every

instance

of

multiple

representation.”)(internal

citation and quotation marks omitted).
Rivera argues that:
Mr. Rivera was represented by attorneys Matthew Smith
and John Verdecchia.
Both attorneys also represented
Mr. Hector Vasquez, who was the initial suspect in the
murder investigation.
On the night of the murder,
November 23, 1997, Vasquez made a statement at
Woonsocket Police Department, with his attorney present,
Mr. Verdecchia. On January 7, 1998, Mr. Smith opened
his file of Mr. Rivera’s murder indictment and the
retainer was signed on that date. Both attorneys had
45

conflicts of interests, as they both represented Mr.
Rivera and Mr. Vasquez.[20]
(Pet., Att. 1 5; see also Opp., Ex. B).
attorney informed him of this issue.
Regarding

the

alleged

Rivera states that neither
(Pet., Att. 1 6.)

conflict

of

interest,

the

post-

conviction court first summarized caselaw from both the United
States and Rhode Island Supreme Courts and, in particular, noted
that the U.S. Supreme Court “has emphasized that an actual conflict
of interest is one that requires that an attorney struggle to serve
two masters . . . . Until a defendant shows that his counsel
actively represented conflicting interests, he has not established
the

constitutional

assistance.”

predicate

for

his

claim

of

ineffective

(Opp., Ex. A 9-10) (alteration in original)(internal

quotation marks omitted).
The court concluded:
It’s clear to me that by no elastic stretch of the most
fertile imagination did Matthew Smith or John Verdecchia
in any way struggle to serve two clients. Nor did they
actively represent conflicting interests.
Any prior
representation of Vazquez had concluded by resolution,
either plea or admission, long before the defendant’s
trial, in excess of a year.
(Id. 10.)

20

Rivera acknowledges that counsel represented Vasquez in
different cases (Pet., Att. 1 6), specifically an unrelated
probation violation proceeding (Opp., Ex. 2), and a federal
narcotics charge, see CR No. 98-01-L. Rivera and Vasquez were not
co-defendants in the instant matter.
46

The Rhode Island Supreme Court, in affirming the denial of
post-conviction relief, also discussed the relevant precedent for
conflict claims.

Rivera II, 58 A.3d at 180 (citing cases).

It

then quoted the lower court’s factual findings and determined that:
Our precedent requires us to presume that Smith and
Verdecchia were capable of correctly analyzing whether
a conflict might result from their representation of
both Rivera and Vasquez.
Affording the hearing
justice’s findings deference, as we must, we cannot say
that he erred in concluding that Rivera had not carried
his burden of proof in this regard.
Id.
Both state courts also addressed Rivera’s claim that counsel
failed to raise a “third party culprit” defense as a result of
their “representational relationship” with Vasquez.

(Pet. 8.)

According to Rivera:
Notwithstanding the fact that Mr. Vasquez was the
initial suspect in the murder investigation and was
identified in the photo array as being present at the
murder, Counsel never offered Mr. Vasquez or anyone else
as an alternative suspect at trial.
Defense Counsel
could not raise Mr. Vasquez as an alternative suspect
because they were also representing his interests at
trial and trying to protect him from prosecution.
(Id.); see also Holloway, 435 U.S. at 490 (emphasizing that “in a
case

of

joint

representation

of

conflicting

interests

the

evil . . . is in what the advocate finds himself compelled to
refrain from doing”).

The post-conviction court rejected the

claim, stating:
47

[I]t is uncontradicted that it was the defendant Rivera
who had the physical altercation with Mr. Wilson, not
Hector Vazquez.
Indeed, yesterday, Dwight Withee
indicated he and Hector ran away together when they heard
the gunshots. Several people looked at the photographs.
Not one person ever picked out Vazquez. The only one
who was selected was the defendant Rivera. To be sure,
two years later, at trial, the in-court identifications
were not as solid, but, as the Supreme Court indicated
in the direct appeal of Mr. Rivera, the passage of time
-- almost two years had gone by -- played a part in that
identification problem at trial.
. . . .
The defense counsel, as Mr. Verdecchia did testify
yesterday, considered a theory of a third-party culprit,
other than the defendant, who had killed Wilson, but he
and Mr. Smith abandoned that avenue in the face of the
evidence that they knew would confront them.
They
rightly decided that it was not a viable theory of
defense. That decision, I find from the evidence before
me, and from the record at trial, was a sound one. At
best, all they had with respect to Hector Vazquez was
his mere presence. And that, of course, was insufficient
to
mount
some
sort
of
third-party
culprit
defense. . . .
(Opp., Ex. A 6-7.)

The court subsequently added: “As set forth

earlier, Hector Vazquez was never a viable target to assign guilt
in this case as a so-called third-party culprit anyway.

Indeed,

Rivera himself, according to the record before me, never even
suggested that Vazquez should be blamed for the event.”

(Id. at

10.)
Addressing counsels’ tactical decisions, the Rhode Island
Supreme

Court

similarly

“defer[ed]

to

the

hearing

justice’s

findings of historical fact regarding trial counsels’ decision not
48

to mount a third-party perpetrator defense.”
at 181.

Rivera II, 58 A.3d

The court stated that, in the context of an ineffective

assistance of counsel allegation, the issue was “whether trial
counsel should have pursued such a defense.”

Id.

It noted that

“both attorneys testified—and the hearing justice agreed—that a
third-party

perpetrator

defense

was

not

supported

discovery or their own investigation of the case.”
quoting

the

post-conviction

court’s

finding

that

by

either

Id.

After

counsel

had

insufficient evidence to mount a third party culprit defense, the
court concluded that “[w]e discern no error with the hearing
justice’s findings on this issue, and therefore hold that Rivera’s
attorneys did not render ineffective assistance of counsel by
choosing not to mount a third-party perpetrator defense.”

Id. at

182.
The Supreme Court has emphasized the “wide latitude counsel
must have in making tactical decisions.”

Strickland, 466 U.S. at

689; see also Phoenix, 233 F.3d at 84 (“Defense counsel is allowed
to make strategic decisions, within the wide bounds of professional
competence, as to which leads to follow up, and on which areas to
focus his energies.”); Lema, 987 F.2d at 55 (“Counsel need not
chase wild factual geese when it appears, in light of informed
professional

judgment,

that

a

defense

is

implausible

or

insubstantial as a matter of law, or, as here, as a matter of fact
49

and

of

the

realities

of

proof,

procedure,

and

trial

tactics.”)(citation omitted); United States v. Natanel, 938 F.2d
302, 310 (1st Cir. 1991) (“That counsel’s selection of a stratagem
may, in retrospect, have proved unsuccessful, or even unwise, is
not the issue.”). Here, the state courts found that Rivera’s trial
counsel made a strategic decision not to raise a third-party
culprit defense.

Rivera has provided this Court with no basis to

disturb that conclusion.
“Surmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Establishing that
a state court’s application of Strickland was unreasonable under
§ 2254(d) is all the more difficult.

The standards created by

Strickland and § 2254 are both highly deferential, and when the
two apply in tandem, review is doubly so.”

Harrington, 562 U.S.

at 105 (internal citations and quotation marks omitted); see also
Hensley, 755 F.3d at 736 (“The defendant’s burden is a heavy one,
and an ineffective assistance of counsel showing is not an easy
one

to

make

review.”)(internal

given

[a

citation

habeas
omitted).

court’s]
Rivera

has

deferential
failed

to

demonstrate that the state courts’ conclusion that his attorneys
did not actively represent conflicting interests was an incorrect
or unreasonable application of clearly established federal law to
the facts of the case.

See 28 U.S.C. § 2254(d)(1).
50

Nor can the

Court fault the state courts’ finding that counsels’ decision not
to pursue a third-party culprit defense was based on strategy and
not on a purported conflict. Accordingly, Rivera’s claims of error
based on conflict of interest are rejected.
4.
Motion to Suppress Identification (Grounds Three,
Eleven, Fourteen)
Rivera’s

remaining

assistance

of

relate

a

to

claims

counsel—Grounds
motion

to

that
Three,

suppress

he

received

Eleven,

ineffective

and

Fourteen—all

identification,

specifically

through photo arrays presented to certain witnesses.
id., Att. 1 11, 16-17.)
counsel

for

failing

(Pet. 10;

In Ground Three, Rivera faults trial
to

litigate

a

motion

identification, which was filed but never argued. 21

to

suppress
(Pet. 10.)

Rivera also alleges in Ground Eleven that the Superior Court’s
failure

to

conduct

a

hearing

on

his

motion

to

suppress

identification evidence denied him a fair trial in violation of
his right to due process.

(Pet., Att. 1 11.)

Finally, in Ground

Fourteen, Rivera again contends that counsel were ineffective for
failing to argue the motion to suppress, or to attempt to schedule
a hearing on it, and the trial court’s failure to hold a hearing

21

To the extent Rivera alleges that the failure of counsel
to litigate the motion to suppress was the result of inadequate
pretrial investigation and preparation (Pet. 10), as noted above
the Rhode Island Supreme Court found that Rivera had waived that
issue, Rivera II, 58 A.3d at 178.
51

on the motion or to rule on it violated his due process rights.
(Id. at 16-17.) Because Rivera argued the motion to suppress issue
in the state courts solely as an ineffective assistance of counsel
claim, the Court addresses it from that perspective only.
According to Rivera, “[t]here were issues with the way the
photos were set up, procedural issues, and there were numbers on
the back of the photo packs, which did not match Mr. Rivera being
picked out in the photos.”

(Id. at 16.)

Thus, in Rivera’s view,

the evidence was tainted and should not have been admitted.

(Id.)

The post-conviction court stated:
We know that with respect to motions to suppress
identification, particularly through photo spreads,
first, the photo pack itself must be inherently
suggestive, and, even if it had not been, secondly, there
had to have been activity by the police that may have
suggested the selection of a photograph.
There was nothing suggestive about the photo spreads.
I’ve looked at them.
They were presented yesterday.
Nothing inherently suggestive. Then the question became
did the police officer do anything that was suggestive?
Nothing in the record supports that.
Both attorneys
yesterday testified that they inspected the photo packs
and that they were of the view that a motion to suppress
identification
would
not
be
successful.
I
wholeheartedly agree.
Furthermore, the decision not to pursue the motion to
suppress identification was clearly, as set forth
yesterday by counsel, a trial strategy.
Apparently,
during the course of inspecting the evidence and the
photo packs . . . defense counsel recognized prior to
trial that there was some irregularity with regard to
the photo spreads and that, had they pursued a motion to
suppress, they would have given the State, particularly
the Woonsocket Police, an opportunity to meet that kind
of inquiry at trial such that whatever mileage the
52

defense attorney might have been able to make of it would
have been diminished, watered down, defused, if you
will, at trial, because they would have tipped their
hand early on, and the Woonsocket Police witnesses would
have been able to counter, impairing that kind of
examination. So, defense counsel decided to keep it to
themselves and loose that arrow from their quiver during
trial, and they did so rather successfully. They made
hay out of that issue, and, frankly, it was not the best
day that the Woonsocket Police had when it came to that
particular moment.
They were, in all likelihood,
somewhat embarrassed.
So, with respect to the motion to suppress, the first
prong of Strickland clearly is not violated, and there
has been an utter failure to carry the burden of proof
with regard to that claim.
(Opp., Ex. A 3-5.) Accordingly, the court rejected Rivera’s claim.
(Id. at 11.)
On appeal of the denial of post-conviction relief, the Rhode
Island Supreme Court first summarized counsels’ testimony:
As for their decision not to pursue a motion to suppress
evidence, Smith and Verdecchia both testified that they
felt the motion would be futile for two reasons. First,
they agreed that there was nothing inherently suggestive
about the photo arrays that would provide grounds for a
motion to suppress. Second, they believed it would be
better to highlight some irregularities with the photo
arrays through cross-examination at trial rather than
“tip[] [their] hand” at a suppression hearing . . .
Rivera II, 58 A.3d at 177[22] (alterations in original).

The court

then turned to the decision below:

22

The appellate court also noted Verdecchia’s testimony that,
although counsel initially filed the motion to suppress “out of an
abundance of caution,” Rivera II, 58 A.3d at 177, they ultimately
concluded that such a motion would likely fail and that any
53

As for Rivera’s contention that his trial counsel were
ineffective in failing to pursue a motion to suppress,
the hearing justice noted that there was “nothing
suggestive” about the photo arrays that were introduced
into evidence at trial.
Crediting Smith’s and
Verdecchia’s testimony, the hearing justice concluded
that trial counsel had made a prudent tactical decision
not to pursue the motion to suppress.
He noted that
Rivera’s attorneys were “rather successful[]” in
exposing irregularities with the photo arrays at trial
and that the Woonsocket police probably were “somewhat
embarrassed” as a result.
Id. at 178 (alterations in original).

After noting “the deference

[it] must afford to the hearing justice’s findings of historical
fact,” id. at 181, the court concluded that the tactical decision
made by counsel did not constitute constitutionally deficient
representation, id.
First, concerning the motion to suppress, we discern no
error in the hearing justice’s finding that there was
“nothing
suggestive”
about
the
photo
arrays.
Furthermore, the hearing justice credited the testimony
of Smith and Verdecchia, who explained that they had
made a strategic choice to expose irregularities with
the photo arrays as they were presented at trial rather
than at a suppression hearing. The hearing justice found
that “the first prong of Strickland clearly [was] not
violated, and there [had] been an utter failure to carry
the burden of proof with regard to that claim.”
We
agree, and therefore hold that Rivera’s attorneys did
not render ineffective assistance of counsel in choosing
not to pursue a motion to suppress evidence.
Id. (alterations in original).

irregularities in the photo packs “would go to the weight, as
opposed to the admissibility” of the photo packs, id.
54

“[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment.”

Strickland, 466 U.S. at 690;

see also Phoenix, 233 F.3d at 84 (“The mere fact that [counsel’s]
cross-examination failed to persuade the jury of [defendant’s]
innocence is not enough to establish ineffective assistance.”).
“While

[counsels’]

trial

tactics

may

appear

dubious

to

the

petitioner in hindsight, especially in the grim reflection of the
intervening convictions, the reviewing court must be persuaded
that the failed trial strategy was not within the ‘wide range of
reasonable professional assistance’ contemplated by Strickland.”
Lema, 987 F.2d at 56; see also Strickland, 466 U.S. at 689 (noting
court’s obligation “to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time”). The state courts were not so persuaded.
This Court is not persuaded that the state courts’ determination
was objectively unreasonable.

See Hensley, 755 F.3d at 736; see

also Yarborough, 540 U.S. at 5.
Rivera has not demonstrated that the Rhode Island state
courts’ rejection of his ineffective assistance of counsel claim
based on counsels’ failure to pursue a motion to suppress was
objectively unreasonable.
precluded.

Therefore, federal habeas relief is

See Hensley, 755 F.3d at 731 (quoting Harrington, 562
55

U.S. at 101)(“A ‘state court’s determination that a claim lacks
merit precludes habeas federal habeas relief so long as ‘fairminded
jurists could disagree on the correctness of the state court’s
decision.’”).

Accordingly, Grounds Three, Eleven, and Fourteen

are baseless.
IV.

Summary
To summarize, the Court has ruled as follows: Grounds Twelve,

Thirteen, and Sixteen are dismissed as unexhausted.

Grounds Four,

Five, Six, Seven, Ten, and Fifteen have been procedurally defaulted
and are also dismissed.

Grounds One, Two, Three, Eight, Nine,

Eleven, and Fourteen are denied on the merits.

The Petition is,

therefore, denied and dismissed, and the Second Motion to dismiss
is granted.
V.

Conclusion
Based on the foregoing, the Second Motion to Dismiss (ECF No.

19)

is

GRANTED

and

the

Petition

(ECF

No.

1)

is

DENIED

and

DISMISSED. 23
RULING ON CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254
Proceedings in the United States District Courts, this Court hereby

23

Based on the Court’s ruling above, it need not revisit the
issue of timeliness or address Rivera’s equitable tolling
argument.
56

finds that this case is not appropriate for the issuance of a
certificate of appealability (COA) because Rivera has failed to
make a substantial showing of the denial of a constitutional right
as to any claim, as required by 28 U.S.C. § 2253(c)(2).
Rivera is advised that any motion to reconsider this ruling
will not extend the time to file a notice of appeal in this matter.
See Rule 11(a), Rules Governing Section 2254 Proceedings.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: August 10, 2018

57