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Rivera v. Thompson

United States District Court, D. Massachusetts

August 12, 2016

EBER RIVERA, Petitioner,


          Indira Talwani United States District Judge.

         I. Introduction

         Petitioner 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.[1] Respondent Michael Thompson opposes the petition on the merits. For the reasons explained below, the Petition for Writ of Habeas Corpus is DENIED.

         II. Procedural History

         A grand 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.

         Rivera 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.

         Rivera 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].

         III. Background

         In the very early morning hours of December 16, 2007, a fight occurred outside Ana Reyes’ apartment in Framingham, Massachusetts, during which Robert Williams was stabbed.[2]Petitioner Eber Rivera was arrested shortly after the incident in the neighborhood near Reyes’ apartment.

         According 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.

         A. First Witness Interviews

         Officer 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.

         Officer 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.

         Officer Reardon next interviewed Reyes. SA 218. Reyes did not mention Rivera or “Mr. Alvarez” during the interview.

         B. Second Witness Interviews

         Framingham 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.

         A 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.

         Officer 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.[3] Id. Gonzalez also stated that he saw Diaz hit Rivera over the head with a “metal little league baseball bat.”[4] Id.

         Detective Crawford and Officer Reardon next interviewed Zonghi. SA 253. Zonghi made no mention of “Mr. Alvarez” or Diaz.

         C. Grand Jury Proceeding

         Reyes 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.

         D. Trial

         Rivera’s 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.[5]

         During 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.

         At 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.

         Gonzalez 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.

         Finally, 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.

         IV. Stand ...

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