Rivera v. Warden

• Decision Date: 16 June 2016
• Docket Number: CV144005893,CV134005062S
• Court: Connecticut Superior Court
• Parties: Norberto Rivera (#114531) v. Warden

Norberto Rivera (#114531) v. Warden

Nos. CV134005062S, CV144005893

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

June 16, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Hon Vernon D. Oliver, J.

The petitioner, Norberto Rivera, initiated this consolidated second petition for a writ of habeas corpus, claiming that his first habeas counsel (and through this counsel underlying trial counsel) provided him ineffective legal representation. He further claims prosecutorial impropriety and actual innocence. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The respondent denies the claims and asserts the defense of procedural default to the prosecutorial impropriety claim. The court finds the issues for the respondent and denies the petition.

Procedural History

In the criminal matter State v. Norberto Rivera CR88-351403, in the Hartford Judicial District, the petitioner, on July 30, 1990, was convicted of Murder in violation of Connecticut General Statutes § 53a-54a(a); Attempted Murder in violation of Connecticut General Statutes § 53a-54a(a) and 53a-49(a)(2); and Assault first degree in violation of Connecticut General Statutes § 53a-59a(a)(1). Attorney Brian O'Connell represented the petitioner at trial.

On August 30, 1990, the trial court, Miano, J., sentenced the petitioner to a total effective sentence of seventy years to serve. The petitioner appealed the convictions directly to the Connecticut Supreme Court. State v. Rivera, 220 Conn. 408, 599 A.2d 1060 (1991). In his direct appeal, the petitioner was represented by attorney Richard Cramer. The following findings of that court are relevant to a disposition of the instant petition:

" The jury might reasonably have found the following facts. Javier Mautino, the assault victim, is the brother of the defendant's former girlfriend, Maria Ortiz. After Ortiz ended their relationship in 1984, the defendant remained angry at her and blamed her family for interfering with their romance. On February 3, 1987, in a taped telephone conversation with Ortiz, the defendant threatened to kill her brother, Mautino. In June 1988, shortly before the incident underlying the defendant's conviction, the defendant placed several calls to Ortiz' sister, Sonia Fraser telling her that he planned to kill Mautino.

" On the evening of July 1, 1988, Mautino and Fernando Fuentes the murder victim, were at the Peruvian Club in Hartford. The defendant, who was also present, argued with Mautino and challenged him to a fight outside. Mautino declined and the defendant, calling him a coward, departed. When Mautino and Fuentes left shortly thereafter, the defendant who had remained outside the club, shot both men. Fuentes died from his wounds and Mautino, although surviving the assault, died from cancer before the trial.

" The defendant next claims that statements he made subsequent to the shootings to sisters of Mautino, the assault victim were improperly admitted into evidence as admissions of a party opponent. After an offer of proof was made outside the presence of the jury, the trial court determined that the statements were admissions and allowed Laura Rosario and Sonia Fraser, sisters of Mautino, to testify as to the content of telephone conversations they had with the defendant after the shootings. Rosario testified that approximately two weeks after the July 2, 1988 incident, the defendant telephoned her and said, " You know me. I already killed one, and tonight, you are going to see the rest." After Rosario expressed confusion as to what he meant, the defendant explained, " I am going to blow up your business tonight." Fraser testified that the defendant telephoned her approximately twelve times after the incident saying, inter alia, " I shot your brother. I am going to kill your brother. I am going to finish with your brother. I am going to get your sister. I am going to get the whole family." He also told her that he had only " started what he planned to do." On another occasion the defendant told her that, next time, he would shoot her brother " in the head, " and that he had to do it because Mautino was the only witness

" It is clear that these statements are relevant and material to the issues in this case since the jury might reasonably have inferred from their content that they manifested the defendant's conscious and continuing resolve to do away with Mautino's entire family. It is reasonable to assume that the jury would find these statements highly probative as they tended to show the defendant's intent and motive at the time of the shootings. Moreover, while these statements tend to incriminate the defendant, that, in and of itself, does not imply that they are legally prejudicial. " Evidence is not prejudicial . . . merely because it tends to incriminate a defendant. See State v. DeMatteo, [ supra, 186 Conn. at] 702-03 [186 Conn. 696, 443 A.2d 915].

" Contrary to the defendant's assertion, the trial court did balance any prejudicial effect against the probative value when it determined that these statements should be admitted into evidence. In finding that the statements were not too prejudicial, the trial court stated that such threats were not " of such a heinous nature that it would prevent the jury from being objective, fair and impartial." In addition, the trial court, in explaining why this evidence was important to the issue at hand, stated that: (1) the death of the witness Mautino before trial rendered these statements even more probative because of the " paucity of any eyewitness identification"; and (2) in light of the defendant's previously admitted threats against Ortiz and Mautino, which occurred before the shootings, these postincident threats were highly relevant. We see these findings as fact specific, logical and relevant to the issue confronting the trial court. Accordingly, we find no abuse of discretion in the trial court's ultimate conclusion to admit the statements."

State v. Rivera, supra, 220 Conn. 409-17.

On or about June 2, 1992, the petitioner filed a pro se petition for a writ of habeas corpus, assigned docket number CV92-001467. Attorney Todd Edgington represented the petitioner at the habeas trial. The habeas court, Zarella, J., denied the petition, making the following relevant findings of fact and conclusions of law:

" The petitioner, Norberto Rivera, pursuant to General Statutes § 52-466, article 1, section 8 of the Connecticut constitution, and amendments VI and XIV to the United States constitution, has filed a petition with this court for a writ of habeas corpus. In his petition, Rivera claims that he received ineffective assistance of counsel from his trial attorney Brian O'Connell and from his appellate attorney Richard S. Cramer. Rivera also claims that he is actually innocent. For the reasons set forth below, the petition is dismissed.

" On May 20, 1992, the petitioner filed his petition for habeas corpus based on ineffective assistance of counsel. Then, with the assistance of Public Defender Todd Edgington, the petitioner, on October 8, 1996, filed an amended petition. On November 21, 1997, the petitioner filed a second amended petition which, with a second amended third count to the second amended petition filed on August 11, 1999, is before the court pursuant to State v. Leecan, 198 Conn 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986) (holding that the proper vehicle for raising an ineffective assistance of counsel claim is by a petition for a writ of habeas corpus). See also State v. Crespo, 246 Conn. 665, 718 A.2d 925 (1998); cert. denied, 525 U.S. 1125, 119 S.Ct. 911, 142 L.Ed.2d 909 (1999).

" The petition alleges in the first count that O'Connell's assistance " fell below the range of competence displayed by lawyers with ordinary training and skill in criminal law; and there is a reasonable probability that but for O'Connell's failures, the outcomes of the proceedings would have been different as the petitioner suffered actual prejudice to his defense and he remains burdened by an unreliable conviction." (Second Amended Petition, Count 1, ¶ 9, p. 5.) Specifically, the petitioner makes numerous claims of O'Connell's alleged failures to cross-examine witnesses, adequately and effectively cross-examine witnesses, adequately and effectively argue to the jury during summation, call witnesses, have evidence independently tested, investigate, and object to statements made by the state's attorney. (Second Amended Petition, Count 1, ¶ 8, pp. 2-5.) Many of the petitioner's claims focus on O'Connell's alleged failure to elicit and argue details of inconsistencies in the witnesses' testimony.

" In the second count, the petition alleges that on appeal Attorney Cramer's assistance also fell below the standard of competence for criminal lawyers and that Cramer's alleged failures prejudiced the petitioner. (Second Amended Petition, Count 2, ¶ 9, p. 6.) More specifically, the petitioner claims that Attorney Cramer " failed to raise evidentiary and constitutional issues for review in the petitioner's direct appeal." (Second Amended Petition, Count 2, ¶ 8, p. 6.)

" Finally, in count three, the petitioner alleges that he was " denied his state and federal constitutional rights to effective assistance of counsel and due process of law . . . [and that he] is actually innocent." (Citations omitted.) (Second Amended Third Count to Second Amended Petition, Count 3, ¶ 8, p. 1.)

" In connection with Rivera's petition for a writ of habeas corpus, a hearing was held before this court beginning on January 6, 1998 and continuing intermittently through November 20, 1998....