United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Talwani United States District Judge.
Eber Rivera’s Petition under 28 U.S.C. § 2254
for Writ of Habeas Corpus [#1] claims that he is being
held in violation of the United States Constitution because:
(1) trial counsel’s failure to introduce evidence of a
third-party culprit after promising to do so in opening
arguments violated Petitioner’s Sixth Amendment right
to effective assistance of counsel; (2) trial counsel’s
failure to suppress an incriminating pre-Miranda
custodial statement violated Petitioner’s Sixth
Amendment right to effective assistance of counsel; (3) trial
counsel’s failure to object to hearsay evidence
violated Petitioner’s Sixth Amendment right to
effective assistance of counsel; and (4) introduction of
incompetent evidence of motive and improper evidence of
Petitioner’s violent character at trial violated
Petitioner’s Sixth Amendment rights to a fair trial and
effective assistance of counsel. Respondent Michael Thompson
opposes the petition on the merits. For the reasons explained
below, the Petition for Writ of Habeas Corpus is DENIED.
injury indicted Petitioner Eber Rivera for armed assault with
intent to murder (“Count I”), assault and battery
by means of a dangerous weapon causing serious bodily injury
(“Count II”), and assault and battery upon a
public employee (“Count III”). Following a
six-day jury trial, Rivera was convicted on all three counts.
On March 30, 2009, a judge sentenced him to nine to ten years
in state prison on Count II, and five years’ supervised
probation on Counts I and III.
filed a motion for a new trial pursuant to Massachusetts Rule
of Criminal Procedure 30(b) on multiple ineffective
assistance of counsel grounds and one due process ground. SA
12. The motion was denied, SA 74, as was Rivera’s
subsequent motion to reconsider the denial. SA 306-07.
appealed the conviction, claiming that (1) trial counsel had
been ineffective for numerous reasons, (2) the trial court
erred in admitting alleged propensity evidence, (3) the
cumulative effect of the errors resulted in a substantial
risk of miscarriage of justice, (4) the trial court erred in
denying Rivera’s motion for new trial without a
hearing, (5) the trial court erred in denying Rivera’s
motion for a required finding of not guilty on the charge of
Armed Assault with Intent to Murder, and (6) the trial court
erred in denying Rivera’s pre-trial motion to suppress
physical evidence and identifications from photo arrays. SA
80-82. The Massachusetts Appeals Court affirmed the judgment.
See Commonwealth v. Rivera, 966 N.E.2d 867 (Table)
(Mass. App. Ct. 2012). Rivera then applied for further
appellate review with the Massachusetts Supreme Judicial
Court (“SJC”), which the SJC denied on August 1,
2012. See Commonwealth v. Rivera, 972 N.E.2d 23
(Table) (Mass. 2012). On July 26, 2013, Petitioner filed this
Petition under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody [#1].
very early morning hours of December 16, 2007, a fight
occurred outside Ana Reyes’ apartment in Framingham,
Massachusetts, during which Robert Williams was
stabbed.Petitioner Eber Rivera was arrested shortly
after the incident in the neighborhood near Reyes’
to Framingham Police Officer Gregory Reardon’s report,
he arrived at Reyes’ apartment at approximately 2:00
a.m. on December 16, and found Williams being taken out on a
stretcher. See Supplemental Answer
[“SA”] 212. Officer Reardon then separately
interviewed the three other individuals present. SA 213-14.
First Witness Interviews
Reardon first interviewed Josue Gonzalez. According to
Officer Reardon’s report, Gonzalez reported that he was
at Reyes’ apartment with Reyes, Robert Zonghi, and
“another male named Fernando Alvarez who he knew as
Luey” when Williams arrived. SA 214. Gonzalez’s
statement concerning the fight that subsequently occurred
included the claim that “Mr. Alvarez” hit the
suspect on the head with a baseball bat. SA 215. According to
Officer Reardon’s report, Gonzalez did not mention
Rivera’s name during the interview.
Reardon interviewed Zonghi next. When Officer Reardon asked
Zonghi about “Mr. Alvarez and whether [Zonghi] saw [Mr.
Alvarez] hit the suspect with a bat, ” Zonghi
“had no idea” what Officer Reardon was talking
about. SA 217. Zonghi claimed that “he did not know who
the suspect was and . . . that he did not get a good look at
him, ” nor did he know anyone who had any issues with
Williams. Id. Zonghi did not mention Rivera’s
name during the interview.
Reardon next interviewed Reyes. SA 218. Reyes did not mention
Rivera or “Mr. Alvarez” during the interview.
Second Witness Interviews
police officers re-interviewed all three witnesses over the
following two days, starting with Reyes. SA 226. Reyes again
said she did not know who “Fernando Alvarez” was
and did not see him during the fight. SA 226-27. Reyes
eventually told Officer Reardon, however, that she had lied
about not knowing “Alvarez.” SA 229.
Detective Hendry then conducted three photo arrays with
Reyes. In the third photo array, Reyes was asked to identify
the person known as Fernando Alvarez. SA 230. The array
included a driver’s license photo of someone with that
name, as well as a booking photo of an individual known as
Luis Diaz. SA 230-31. In addition, a second picture of Luis
Diaz was (apparently) inadvertently included in the photo
array. SA 231. Reyes identified both of the Luis Diaz photos
as the same man and as the man whom she knew as
“Fernando Alvarez.” Id.
Reardon and Sergeant Brown next conducted a second interview
with Gonzalez. SA 221. According to Officer Reardon, Gonzalez
stated that he, Zonghi, Reyes, and another friend
“Alvarez, Fernando (AKA Luis Diaz…)” had
watched the fight. SA 222-23. Gonzalez said that “it
was obvious that [Rivera] was stabbing [Williams]” but
that Gonzalez “could barely see the knife”
because the stabbing motions were so fast. SA 223. Gonzalez
claimed that he saw the knife after the fight, that it had a
black handle with a four to five inch blade, and that Rivera
tossed it in a snowbank right after Gonzalez pulled him off
Williams. Id. Gonzalez also stated that he
saw Diaz hit Rivera over the head with a “metal little
league baseball bat.” Id.
Crawford and Officer Reardon next interviewed Zonghi. SA 253.
Zonghi made no mention of “Mr. Alvarez” or Diaz.
Grand Jury Proceeding
and Zonghi, along with Officers Reardon and Sistrand,
testified in front of a grand jury on January 28, 2008,
approximately six weeks after the incident. SA 234.
Reyes’ testimony included the statement that Luis Diaz,
previously known to her as Fernando Alvarez, was at her house
the night of the incident. SA 236.
attorney told the jury during her opening statement that
“there were two other individuals involved in this
argument, ” including “another individual named
Mr. Ruiz [sic]… In fact, you’re going to hear
testimony that a Mr. Ruiz had a bat, and was also wielding a
knife, ” suggesting that she would introduce evidence
of a third-party culprit defense. SA 665. Ultimately,
however, no testimony whatsoever regarding a potential third
party’s presence was elicited at trial. Despite not
presenting this testimony, in her closing argument trial
counsel twice mentioned that “Mr. Ruiz” was
“present at the party” where the stabbing
occurred. SA 908-10.
trial, Framingham Police Officer Arthur Sistrand testified
that, around 2:00 a.m. on the night of the incident, he heard
a radio broadcast that “a situation was
occurring” at an address on Beaver Street,
approximately half to three-quarters of a mile away from
where he was. SA 704-05. Officer Sistrand testified that he
drove over to Beaver Street within 30 to 40 seconds and, as
he drove down the street, saw “the silhouette of a
subject coming across the road” at a “light
jog” from the direction of the house where the incident
had been reported. SA 705-09. Officer Sistrand testified that
he drove toward the person (who was later identified as Eber
Rivera), got out of the cruiser, identified himself and asked
the individual to stop, an order the individual did not
comply with. SA 709-13. Officer Sistrand testified that he
then ordered Rivera to the ground at gunpoint, and he
complied. SA 713. According to Officer Sistrand, while
waiting for backup to arrive, he asked Rivera what he was
doing. SA 716. Officer Sistrand testified that Rivera
responded that he “had a beef with a nigger, ” to
which Sistrand asked why. Id. To this, Sistrand
testified, Rivera replied that he had been
“disrespected.” Id. Sistrand testified
further that Rivera refused to answer when asked his name,
stating that he was “too out of breath and too cold to
respond.” SA 716-17. Sistrand testified that, prior to
backup arriving and prior to handcuffing and arresting
Rivera, Sistrand noticed blood on his hand. SA 714. Officer
Sistrand testified that when he asked Rivera how he cut his
hand, he said he cut it on a ring. SA 717. Officer Sistrand
testified that he was there for “a minute and a
quarter, minute and a half” between getting Rivera on
the ground and waiting for another officer to arrive. SA 716.
trial, Zonghi testified that he “barely
remember[ed]” who was at Reyes’ house the night
of the stabbing. SA 673. Zonghi further testified that
“I really don’t know. I didn’t know those
people” when asked who else was present that night
besides himself, Williams, and Gonzalez. SA 679. When asked
who else was in the room besides Reyes when they brought
Williams inside to the kitchen after the fight, Zonghi said,
“I’m pretty sure there was other people. I just
don’t know who.” SA 685. Zonghi answered in the
affirmative when the prosecution asked him if there were
people he didn’t know in the kitchen at that time.
Id. On cross, Zonghi said that he did not know an
individual named Luis Diaz. SA 691-92. Zonghi also denied
saying “he did it” when identifying Rivera in the
photo array two days after the incident. SA 689.
and Reyes also testified at trial. Gonzalez testified that he
was at Reyes’ house the night of December 15, 2007, and
that “[a]t some point something happened that kind of
triggered Eber and at that point, he just went outside,
” with Williams following him. SA 779. Gonzalez further
testified that “growing up… it only took a
little to trigger him off.” SA 780. Gonzalez testified
to seeing Williams on the ground outside after being told to
call the police because Williams was bleeding, and that he
saw Williams punching Rivera in the face. SA 781-82. Gonzalez
stated that he tried to separate the two men when he heard
Williams say, “I think he stabbed me.” SA 783.
Gonzalez went on to say that he did not “remember Eber
having a knife” so he did not “know what
[Williams] was talking about.” SA 785. On cross,
Gonzalez testified that he did not see a knife. SA 790. No
testimony from Reyes or Gonzalez was ever elicited about
“Fernando Alvarez” or Luis Diaz.
physical evidence was introduced at trial showing that
Williams’ DNA was on the clothing Rivera wore the night
he was arrested and Dr. Michael Calahane, who treated
Williams at Beth Israel Hospital, testified as to the extent
of his injuries. SA 843-44; 875-82. Dr. Calahane testified
that Williams was in shock with low blood pressure and
required surgery when he arrived at Beth Israel and that
Williams suffered from a laceration in his heart, a
laceration of the liver, significant internal bleeding, and
loss of 30 to 40% of his overall blood volume. SA 875-83. Dr.
Calahane also stated that the injury to Williams’ heart
was a “lethal injury” and that “if he
didn’t have access to care, he would have died…
he probably wouldn’t have lived maybe another half an
hour.” SA 882.