Rivas v. Fischer

• Decision Date: 09 July 2012
• Docket Number: Docket No. 10–1300–pr.
• Citation: 687 F.3d 514
• Parties: Hector RIVAS, Petitioner–Appellant, v. Brian FISCHER, Superintendent, Sing Sing Correctional Facility, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

687 F.3d 514

Hector RIVAS, Petitioner–Appellant,

v.Brian FISCHER, Superintendent, Sing Sing Correctional Facility, Respondent–Appellee.

Docket No. 10–1300–pr.

United States Court of Appeals, Second Circuit.

Argued: Dec. 8, 2011.

Decided: July 9, 2012.

Richard M. Langone, Langone & Associates, PLLC, Levittown, NY, for Petitioner–Appellant.

Priscilla Steward, Assistant Attorney General (Barbara D. Underwood, Solicitor General, Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters, and Lea La Ferlita, Assistant Attorney General, on the brief), for Eric T. Schneiderman ^*, Attorney General of the State of New York, NY, for Respondent–Appellee.

Before: CABRANES, POOLER, and SACK, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

The issue in this appeal is whether petitioner-appellant Hector Rivas—who is currently serving an indeterminate life sentence for the second-degree murder of his former girlfriend, Valerie Hill—should be permitted to present in federal court his claim that constitutional error at his criminal trial renders his current confinement unlawful. The merits of Rivas's constitutional claims are not before us. Rather, we address only whether his petition for a writ of habeas corpus under 28 U.S.C. § 2254 was timely filed, or, if untimely, whether he should nevertheless be permitted to pursue those claims in federal court under the circumstances here presented.

When Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110 Stat. 1214 (1996), it imposed a one-year period of limitation on petitioners seeking federal collateral review of state convictions pursuant to 28 U.S.C. § 2254. See28 U.S.C. § 2244(d).¹ The Supreme Court has recognized that a “credible” and “compelling” claim of actual innocence may provide a “gateway” through other procedural barriers to habeas relief, see Schlup v. Delo, 513 U.S. 298, 324, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (successive petitions); House v. Bell, 547 U.S. 518, 521–22, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (state procedural default), but it remains an open question both in the Supreme Court and in this Circuit whether such a claim may allow a petitioner to circumvent AEDPA's limitation period. In the years since § 2244(d) went into effect, we have heard several appeals from prisoners who have asserted that their claims of actual innocence should provide an equitable ground for allowing them to pursue habeas corpus relief notwithstanding their failure to timely file a petition. See, e.g., Doe v. Menefee, 391 F.3d 147 (2d Cir.2004); Whitley v. Senkowski, 317 F.3d 223 (2d Cir.2003); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107 (2d Cir.2000). We have thus far resisted deciding whether equity demands such an exception, explaining that we would only do so “in a proper case,” Whitley, 317 F.3d at 225, “where a petitioner is able to make a credible showing of actual innocence based on new evidence,” Doe, 391 F.3d at 174.

In this case, which returns to us following a remand to the District Court for development of the record, see Rivas v. Fischer, 294 Fed.Appx. 677, 679 (2d Cir.2008) (“Rivas II ”), Rivas has raised a credible and compelling claim of actual innocence, as those concepts are understood in the relevant habeas jurisprudence. His claim is based on new information not presented to the jury that dramatically undermines the central forensic evidence linking him to the crime of which he was convicted. In sum and substance, Rivas has shown, through the essentially unchallenged testimony of a respected forensic pathologist, that the victim was almost certainly killed at a time when Rivas had an uncontested alibi, and not earlier, as the prosecution had contended at his trial. We are not here called to determine whether Rivas is in fact innocent. However, on the record before us, we “cannot have confidence in the outcome of [Rivas's] trial” unless we can be assured that “the trial was free of nonharmless constitutional error.” Schlup, 513 U.S. at 315, 115 S.Ct. 851.

Here presented with a “proper case,” we now conclude, as a matter of first impression in this Circuit, that a credible and compelling showing of actual innocence under the standard described by the Supreme Court in Schlup and House warrants an equitable exception to AEDPA's limitation period, allowing the petitioner to have his otherwise time-barred claims heard by a federal court. Because Rivas has made such a showing, we reverse the decision of the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge ) dismissing his petition for habeas relief and remand for full consideration of his underlying constitutional claims.

BACKGROUND

The following background is taken from the record of Rivas's criminal trial, his state collateral proceeding, and the evidentiary hearing held by the District Court on remand. Although we refer in the margins to relevant newspaper articles, we do not rely on them in the disposition of this appeal.

A. The Murder of Valerie Hill

At approximately 11:45 a.m. on Monday, March 30, 1987, Randall Hill (“Randall”) discovered the lifeless body of his twenty-eight-year-old daughter, Valerie Hill (“Hill”), on the living-room floor of her apartment on Hickok Avenue in Syracuse, New York. Transcript of the Trial of Hector Rivas (March 17, 1993) (“Trial Tr.”) at 103.

Randall had last seen his daughter on Friday night, March 27, when the two met for dinner at a nearby restaurant. He later recalled that Hill seemed upset during their meeting and did not eat anything. Id. at 96–98. During their conversation, Hill informed her father that she was planning to spend the weekend visiting a friend in the Albany area and would not return until Sunday evening. Id. at 99. Hill left the restaurant at approximately 8:15 p.m. on Friday. Id. at 97–98. The friend Hill planned to visit, Laura Adams, later testified that she called Hill “dozens of times” on Friday night and throughout the weekend, but never reached her, although she encountered at least one “busy” signal. Id. at 217–19, 221. Randall also had no success when he attempted to call Hill on Sunday night and again Monday morning. Id. at 99–100.

On Monday morning, Randall went to the hospital where Hill was employed as a pediatric nurse (and where Randall's wife was then admitted as a patient) and discovered that Hill had not reported to work. Id. at 101, 103. Concerned, he drove to Hill's apartment, where he found her car parked in the driveway. Randall let himself in through the unlocked side door and discovered Hill lying “face down on the carpet” in her living room. She was wearing a bathrobe, which was pulled “up around her shoulders,” and was otherwise naked. Id. at 100–03. The belt of the bathrobe was wrapped around her neck. Id. at 157.

Randall immediately called the police, as well as his son, David. Id. at 104. Arriving at the scene, police investigators found no signs of forced entry into Hill's apartment, which was on the bottom floor of a two-family house. Id. at 107, 228–29. The apartment was “very neat,” and nothing appeared to be out of order. Id. at 228. A number of cigarettes of the brand Rivas smoked were found in an ashtray in Hill's kitchen. Id. at 150–51, 638. Later testing revealed that fingerprints on the ashtray, as well as on a bottle of wine, belonged to Rivas. Id. at 591–93.² In addition to Rivas's and Hill's fingerprints, an unidentified set of prints was taken from the telephone. Id. at 588. Missing from the apartment was an airline ticket that Hill had collected from her travel agent on the afternoon of Friday, March 27.

After learning from Randall and David that Hill had recently broken up with Rivas, police officers went to Rivas's house in Cazenovia, a town about twenty miles southeast of Syracuse. Id. at 235. Rivas agreed to accompany the officers to the Syracuse police station. Sergeant John D. Brennan later testified that Rivas appeared nervous,³ but was cooperative and did not inquire as to why he was being questioned. Id. at 237–28. At the police station, Rivas was taken to an interrogation room where police proceeded to question him for approximately twelve hours. Despite the fact that he was interrogated at length regarding his activities the weekend of Hill's death, Rivas was never informed of his Miranda rights because, the police officers later insisted, he was not regarded as a suspect at that time. Trial Tr. at 239. At approximately 5:30 p.m., after over two hours of questioning, police informed Rivas that Hill had been killed. According to Brennan, Rivas exhibited no discernible reaction upon hearing this news. Id. at 247.

During the interview, Rivas told the police that he had last seen Hill four days earlier, on the evening of Thursday, March 26, 1987, when he had gone to her house and talked to her for half an hour. Id. at 240. He had also driven by Hill's apartment at 2:00 p.m. the following day, Friday, March 27, and again approximately four hours later, at 6:00 p.m. He claimed he did not linger on either occasion after discovering that Hill was not home. Id. at 240–41. Rivas said that he had spent most of Friday evening with friends at various bars in Syracuse and Cazenovia. See Trial Exh. 1. He stated that he was at Coleman's Bar (“Coleman's”) in Syracuse from about 6:00 to 11:00 p.m. He then went to Albert's Bar (“Albert's”) in Cazenovia and stayed there until 2:00 a.m., before returning to Syracuse to get breakfast at an all-night diner. He finally went home and fell asleep at 4:00 a.m. Rivas claimed that he awoke at 11:30 a.m. on Saturday and returned to Albert's to do some plumbing work. He remained for lunch and then went home to take care of some yard work. He then returned to Albert's to watch Syracuse compete in the “Final Four” of the NCAA Men's Basketball Tournament. He remained at Albert's untilapproximately 8:00 p.m., whereupon he went to a party at a...