Rivera v. Cuomo

• Citation: 649 F.3d 132
• Decision Date: 09 August 2011
• Docket Number: Docket No. 10–224–pr.
• Parties: John RIVERA, Petitioner/Appellant,v.Andrew CUOMO, New York State Attorney General and Joseph Smith, Superintendent, Shawangunk Correctional Facility, Respondents/Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

649 F.3d 132

John RIVERA, Petitioner/Appellant,

v.Andrew CUOMO, New York State Attorney General and Joseph Smith, Superintendent, Shawangunk Correctional Facility, Respondents/Appellees.

Docket No. 10–224–pr.

United States Court of Appeals, Second Circuit.

Argued: May 13, 2011.Decided: Aug. 9, 2011.

William Carney, The Legal Aid Society, Criminal Appeals Bureau, New York, New York, for Appellant.Charles J. Hynes (Leonard Joblove and Seth M. Lieberman, Assistant District Attorneys), District Attorney, Kings County, Brooklyn, New York, for Respondents–Appellees.Before: McLAUGHLIN, POOLER, B.D. PARKER, Circuit Judges.McLAUGHLIN, Circuit Judge:

Petitioner–Appellant John Rivera (“Rivera”) was convicted on September 19, 1997, of one count of depraved indifference murder in violation of New York Penal Law § 125.25(2) after his estranged wife died from a single gunshot wound to the head at point-blank range. In December 2003, the Appellate Division rejected Rivera's direct appeal, People v. Rivera, 2 A.D.3d 884, 769 N.Y.S.2d 738 (2d Dep't 2003), and, on April 14, 2004, the New York Court of Appeals denied Rivera leave to appeal to that court, People v. Rivera, 2 N.Y.3d 764, 778 N.Y.S.2d 783, 811 N.E.2d 45 (2004).

Rivera subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York (Townes, J.), arguing that the evidence was insufficient to support a conviction for depraved indifference murder. Applying the New York law of depraved indifference in existence at the time Rivera was convicted at trial in September 1997, the district court denied relief. See Rivera v. Cuomo, No. 05–CV–1699, 2009 WL 4929264, at *22–23, *25 (E.D.N.Y. Dec. 21, 2009). Rivera now appeals. In June 2010, this Court granted a certificate of appealability on the specific issue of “whether, under the law as it existed when appellant's conviction became final, the evidence was legally sufficient to support a conviction for depraved indifference murder.”

On appeal, Rivera raises two arguments. First, Rivera argues that the district court erred in applying the law in effect when he was convicted at trial on September 19, 1997 rather than the law in effect at the time his conviction became final on July 13, 2004. Second, Rivera argues that, under the law in effect at the time his conviction became final, the evidence was legally insufficient to support a conviction for depraved indifference murder.

For the reasons that follow, we agree with both of Rivera's contentions. Accordingly, Rivera's petition for a writ of habeas corpus must be granted.

BACKGROUND

In its Memorandum and Order of December 21, 2009, the district court provided a detailed account of the factual background of the instant petition. See Rivera, 2009 WL 4929264, at *1–15. We assume familiarity with the district court's order and repeat the facts herein only to the extent necessary to explain our ruling.

On the night of January 13, 1997, Kimberly Cassas Rivera (“Cassas”), Rivera's estranged wife, suffered a single, fatal gunshot wound to the head from a nine-millimeter Beretta handgun fired at point-blank range. Rivera was ultimately indicted in New York state court on two counts of murder in the second degree—intentional murder in violation of New York Penal Law § 125.25(1) and depraved indifference murder in violation of § 125.25(2)—as well as lesser charges not relevant to this appeal.

In the summer of 1997, Rivera was tried on these charges in the Supreme Court for the State of New York, Kings County. Despite the dual indictment, at trial, the prosecution pursued a single theory of intentional murder. Specifically, the prosecution argued that, after a short and tumultuous marriage, and angry that Cassas was filing for divorce and seeking primary custody of their infant son, Rivera, who had a history of violent outbursts and domestic abuse, lured Cassas to his apartment with the intention of killing her and then, while the two were standing on the sidewalk outside the apartment, “put a 9mm handgun to [her] head ... and pulled the trigger.” J.A. 28. All of the State's evidence at trial was calculated to support this theory of intentional murder, including evidence that Rivera was in possession of the nine-millimeter Beretta handgun used to kill Cassas immediately before the murder, testimony from Cassas's divorce lawyer that Rivera called her twice in the days and hours before the murder threatening to kill Cassas with her gun, and testimony from Rivera's former employer that the day before the shooting Rivera told his co-workers that he “couldn't take [Cassas], couldn't stand her,” and wished her dead. J.A. 1020.

Indeed, in summation, the prosecutor told the jury:

The people maintain it was an intentional act.... [E]veryone agrees that when you take this gun, which they call a deadly weapon for a good reason, and when it is pressed ... against the head and the trigger is pulled and the gun is discharged, there can be no question in any reasonable person's mind that whoever pulled that trigger intended to cause the death of the individual against whose head it was pressed. So I submit that is not an issue. This is an intent. An intent to kill. J.A. 1463 (emphasis added).

Throughout trial, Rivera's sole defense was that Cassas committed suicide. According to Rivera's version, Cassas, who had been depressed ever since their son's birth eight months earlier, showed up on the night of her death distraught and, threatening to kill herself, pulled the Beretta handgun from her car and put it to her head. Although Rivera attempted to take the gun away from her, while the gun was pressed near her temple, a distraught Cassas pulled the trigger, inflicting upon herself a single gunshot wound to the head. In support of this theory, Rivera presented, inter alia, both expert and eyewitness testimony suggesting that, at some point immediately before the gun went off, there had been a struggle between Rivera and Cassas for possession of the gun.

During the trial, defense counsel moved to dismiss the depraved indifference murder charge for lack of evidence. The court denied the motion and charged the jury on both intentional and depraved indifference murder, as well as on manslaughter in the first degree as a lesser included offense to intentional murder. Manslaughter as a lesser included offense to depraved indifference murder (i.e., “reckless manslaughter”) was not submitted to the jury.

The jury eventually found Rivera not guilty of intentional murder, but guilty of depraved indifference murder—and found Rivera guilty of the remaining misdemeanor charges not relevant to this appeal. The court then sentenced Rivera to 23 years to life in prison on the depraved indifference murder charge.

On direct appeal, Rivera challenged his conviction for depraved indifference murder on the ground that the evidence was insufficient to support a finding of recklessness since all of the evidence adduced at trial went to a theory of intentional conduct. The Appellate Division rejected this argument and upheld Rivera's conviction. See Rivera, 2 A.D.3d at 884, 769 N.Y.S.2d 738.

On April 14, 2004, the New York Court of Appeals denied Rivera leave to appeal to that court. See Rivera, 2 N.Y.3d at 764, 778 N.Y.S.2d 783, 811 N.E.2d 45.

In April 2005, Rivera filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of New York, on the sole ground that, by affirming Rivera's conviction for depraved indifference murder, the state courts unreasonably applied federal law. See 28 U.S.C. § 2254(d). Specifically, Rivera argued that the evidence was legally insufficient in his case to support a finding of reckless and depraved conduct since all of the evidence adduced at trial went to a theory of intentional conduct, and therefore his conviction violated the rule of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requiring proof beyond a reasonable doubt of every element of a crime to support a conviction. See Rivera, 2009 WL 4929264, at *15. The district court disagreed, holding that, under the law of depraved indifference in effect at the time of Rivera's trial in September 1997, the evidence was legally sufficient to support a conviction for depraved indifference murder. See id. at *22–23, *25. Rivera now appeals.

In June 2010, this Court granted a certificate of appealability on the specific issue of “whether, under the law as it existed when appellant's conviction became final, the evidence was legally sufficient to support a conviction for depraved indifference murder,” and this appeal ensued.

DISCUSSION

I. Standard of Review

We review the district court's denial of habeas relief de novo, Henry v. Ricks, 578 F.3d 134, 137 (2d Cir.2009), accepting the district court's factual findings unless clearly erroneous, Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir.2009).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we may grant habeas relief only if the challenged state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d); Acosta v. Artuz, 575 F.3d 177, 184 (2d Cir.2009). A state court decision involves an “unreasonable application of” federal law “if it correctly identifies the governing legal principle but unreasonably applies or unreasonably refuses to extend that principle to the facts of a particular case.” Richard S. v. Carpinello, 589 F.3d 75, 80 (2d Cir.2009).

II. Governing Federal Law

“Under the Due Process Clause of the Fifth and Fourteenth Amendments, no conviction may be sustained ‘except upon proof beyond reasonable doubt of every fact necessary to constitute the crime ... charged.’ ” Henry, 578 F.3d at 138(quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). A habeas petitione...