Rivera v. Conway

• Decision Date: 28 December 2004
• Docket Number: No. 04 Civ. 347(DC).,04 Civ. 347(DC).
• Parties: Gilbert RIVERA, Petitioner, v. James CONWAY, Superintendent, Attica Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

350 F.Supp.2d 536

Gilbert RIVERA, Petitioner, v. James CONWAY, Superintendent, Attica Correctional Facility, Respondent.

No. 04 Civ. 347(DC).

United States District Court, S.D. New York.

December 28, 2004.

COPYRIGHT MATERIAL OMITTED

Gilbert Rivera, Attica Correctional Facility, Attica, NY, for Petitioner Pro Se Robert Morgenthau, Esq., District Attorney for New York County by Susan Gliner, Esq., Assistant District Attorney, New York, NY, for Respondent.

OPINION

CHIN, District Judge.

Pro se petitioner Gilbert Rivera brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted on July 19, 1996, after a jury trial in the Supreme Court of the State of New York, New York County, of murder in the second degree. He was sentenced on September 10, 1996 to a term of imprisonment of 25 years to life.

Petitioner contests his conviction on the following grounds: (1) the trial court gave an erroneous jury instruction regarding the hearsay statements of an unavailable witness, (2) appellate counsel was ineffective, and (3) trial counsel was ineffective. The Court has reviewed the parties' submissions and the record of the proceedings below. For the reasons that follow, the petition is denied.

BACKGROUND

I. The Facts

The following is a summary of facts adduced at Rivera's trial.¹

On April 7, 1987, Rivera shot and killed Nick Denoia at the behest of Augustine Colon, who was acting on behalf of Steve Banerjey. (Tr. 1108, 1134).² Banerjey and Denoia had become partners in "Chippendale's," a male exotic dance club, in the early 1980s, and the shooting was the culmination of years of feuding between them. (Tr. 553, 559-61, 564-68).

In 1986, Banerjey asked Colon to kill Denoia. (Tr. 1096). Colon was a former Chippendale's employee who had performed a variety of jobs for Banerjey, including the attempted arson of competing clubs. (Tr. 1057, 1341, 1062). Colon initially refused to agree to kill Denoia, but Banerjey offered him $25,000 and forgiveness of a $7,000 debt, and threatened him with physical harm. (Tr. 1104-05, 1108, 1097). Colon in turn recruited Rivera and the two traveled to New York to kill Denoia in April, 1987. (Tr. 1108, 1111).

About 3 P.M. on April 7, 1987, Colon drove Rivera to Denoia's Manhattan office building. (Tr. 278). Once inside, Rivera encountered Denoia's co-worker, William Mott, who gave him directions to Denoia's office. (Tr. 292). A few minutes later, Mott heard a loud cracking noise and rushed to the office to find Denoia dead with a gunshot wound in his left cheek. (Tr. 295).

In 1991, in the course of investigating an unrelated case, FBI Special Agent Andrew Stefanak met and interviewed Colon, who implicated Rivera in the Denoia murder. (Tr. 621). Colon agreed to cooperate. (Tr. 621, 1587).

At the instruction of the FBI, Colon attempted to contact Rivera in 1992. (Tr. 679-84, 751). The agents provided Colon with a cover story designed to elicit incriminating statements from Rivera. (Resp.'s Mem. at 33; Tr. 752-54). Colon eventually located Rivera, who was in prison in California on an unrelated matter. Colon proceeded to communicate with Rivera under the pretense that he wanted to hire Rivera to kill a witness to the Denoia murder. (Tr. 750-53, 1246). From June 1992 through December 1992, Colon and Rivera exchanged letters and participated in several telephone calls, with Rivera calling collect from prison. There were also three face-to-face conversations, as Colon visited Rivera in prison. Colon recorded these telephone conversations and face-to-face conversations using equipment provided by the agents. (Tr. 965, 1557). Rivera made additional telephone calls to Colon, which Colon recorded, in March and April 1993. (Tr. 892).

In the third and final prison visit on December 24, 1992, Rivera described to Colon what he saw as he shot Denoia. He said that Denoia "just looked up, he was surprised." He said that when Denoia "saw I meant business, ... his whole expression, his whole face just, just changed ... he got the fear." Rivera then told Colon that "I saw a little red dot on his face and I saw him going down." Rivera explained the "red dot": "Where the bullet went in." (See Resp. Mem. at 39-40 (quoting People's Exs. 24A, 24B)). This conversation was recorded by Colon, unbeknownst to Rivera, and played for the jury at trial.

At the end of the conversation, Rivera told Colon that he had to serve only 27 more days in prison and that he was going to be released on January 17, 1993. (Tr. 891). In fact, Rivera was not released in January 1993 as he was taken into custody by immigration authorities. (Id.).

In April, 1994, New York City police detective Richard Briecke and retired New York City police detective Michael Geddes interviewed Rivera in connection with the Denoia murder. Rivera was incarcerated in Texas, and Briecke and Geddes traveled to Texas to interview him in prison. (Tr. 1677-78, 1682-84, 1702, 1803). They read Rivera his Miranda rights and he waived his right to counsel. (Tr. 1683-84). Once Rivera discovered that Colon was cooperating with the FBI, he provided agents with both oral and written confessions. (Tr. 1678, 1800, 1802, 1814). He admitted that he had met Colon in 1987 and that he went with Colon to New York to do a job. In great detail, he admitted going with Colon to an office building where, with a gun provided by Colon, he shot Denoia in the face. He admitted running out of the office and down the stairs to the street, where Colon was waiting in a car. He admitted driving back with Colon to a hotel, spending the night, and returning to Los Angeles the next day.³ He admitted being paid a total of $25,000 by Colon for the murder. (Tr. 1689, 1693-96). At the end of the April 1994 interview, Rivera signed a written confession, which was received in evidence and published to the jury. (Tr. 1693-95).

II. Procedural History

A. The Proceedings in the Trial Court

Rivera was indicted in 1994 in the Supreme Court, New York County, for second-degree murder and first-degree possession of a firearm. Rivera moved to suppress the statements he had given to Detectives Briecke and Geddes, challenging the voluntariness of the statements. Justice Harold Beeler held a hearing on the motion on June 19, 1996. He denied the motion the same day, ruling from the bench. After jury selection, trial commenced on June 26, 1996. At the conclusion of the trial, only the murder count was submitted to the jury. (Tr. 2610). On July 19, 1996, the jury found Rivera guilty of second-degree murder. On September 10, 1996, Justice Harold Beeler sentenced him to a term of imprisonment of 25 years to life.

During the trial, certain events occurred that are the basis for Rivera's present claims. These matters are summarized as follows:

1. Rosario Material⁴

Detective John McPherrain testified during trial regarding the murder investigation. (Tr. 449). McPherrain requested the Denoia case folder from the Crime Scenes Unit before the trial; he received the final crime scene report, the lead detective's notes, and one page of his own notes. (Tr. 470-72). McPherrain testified that he thought there should have been additional notes, but could not be certain. (Tr. 467). These materials were never found and hence were not available to be turned over to the defense.⁵ (Tr. 467-68). During trial, defense counsel twice moved unsuccessfully for a missing evidence or adverse inference charge. (Tr. 532, 2299-300).

2. The Jury Instruction

One witness, Ali Akram, was unavailable to testify at trial. (Tr. 1758-60). Akram was an elevator operator in Denoia's office building who saw a man running from the elevator around the time of the murder. (Tr. 1676, 1712). Five weeks after the murder, he picked out another man, David Schrem, from a photo array. (Tr. 1714-15). Akram picked out the same man in a lineup a few months later.⁶ (Tr. 1716).

At trial, after the court conducted a hearing to determine the admissibility of the evidence, a detective testified regarding Akram's identification. (Tr. 1621, 1641). The court provided this jury instruction immediately after the detective's testimony and again during its charge-in-chief:

In this case you're at a real disadvantage in evaluating the accuracy of [Akram's] identification, you may be able to glean or obtain from Detective Geddes' testimony, much of it you cannot. Moreover, due to his absence, Mr. [Akram's] absence, you're not able to consider his credibility here in court; his general intelligence; his demeanor; his capacity for observation; his reasoning and his memory. Therefore, while I have permitted you to hear and consider this testimony; I must caution you that you are to approach it with great caution not only because it's eyewitness testimony, but because, and very importantly, because the witness himself was not available to have his perceptions tested here in court under direct and cross examination.

(Tr. 1758-59; see also id. 2630-31).

Defense counsel did not object to this instruction at any time during the trial.

3. Rivera's Testimony

After the prosecution rested, Rivera took the stand and testified in his own defense. In an effort to explain away the incriminating statements he had made in the conversations recorded by Colon and in his confessions, Rivera testified that, although he had not murdered Denoia, he agreed "to take the fall" for the murder in return for a payment of $250,000. He contended that he had memorized the details of the murder from information (or, in essence, a "script") given to him over time by Colon, and that he had pretended to be a killer who was being lulled by Colon into incriminating himself. The plan was for him to sound so convincing the FBI would believe that he was the murderer when he was not. (Tr.1906-30).

4. Jury Poll

On July 19, 1996, the jury returned a verdict. The transcript shows the following:

THE COURT CLERK: ... Has the jury reached a verdict?

THE...