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March 11, 2015
  Rivas v. Fischer - Second Circuit
Headline: After Serving 22 Years in Prison, Defendant Convicted of 1987 Murder Granted Writ of Habeas Corpus, citing Ineffective Counsel

Area of Law: Criminal Procedure; Habeas Corpus; Constitutional Law

Issue(s) Presented: Whether a writ of habeas corpus should be granted following the state court's denial of defendant's ineffective-assistance claim when the defense presented unchallenged expert testimony persuasively demonstrating that the victim could not have died on the day relied on by the prosecution.

Brief Summary: Petitioner Hector Rivas was convicted in 1993 of second degree murder for the 1987 killing of his ex-girlfriend Valerie Hill. The prosecution's case relied primarily on tying the murder to Rivas in a three-hour window on Friday, March 27, 1987 during which Rivas had no corroborated alibi. In 1999, Rivas petitioned for NYCPL § 440.10 relief, raising a claim of ineffective assistance and presenting unchallenged expert testimony persuasively demonstrating that Hill could not have died on March 27. The state court denied the claim.

In 2002, Rivas filed an amended petition for a writ of habeas corpus in the United States District Court for the Northern District of New York. After a lengthy battle, the petition was found by the Second Circuit not to be time-barred and was remanded to the District Court for Review. On review on the merits, the district court denied the petition in its entirety. The Second Circuit reversed and remanded, directing the district court to issue the writ. It concluded that the state court denial of Rivas's ineffective counsel claim was a rare "unreasonable application" of the United States Supreme Court's 1984 decision, Strickland v. Washington, because the defense demonstrated that Rivas's original defense counsel failed to satisfy his obligation to make reasonable investigations and that failure prejudiced Rivas's defense.

The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de...4b8a68d87ff/3/hilite/

Extended Summary: Rivas was convicted in Onondaga County of second-degree murder for the killing of his ex-girlfriend Valerie Hill. At trial, the prosecution argued that Rivas killed Hill on the night of March 27, 1987. Rivas's counsel primarily relied on an alibi strategy, though there was a three-and-a-half hour window on that night during which Rivas had no corroborated alibi. The prosecution argued that Rivas killed hill during that time frame.

The prosecution's case primarily relied on the testimony of medical examiner Dr. Erik Mitchell, who at the time of the murder had estimated that Hill's death occurred sometime between Saturday, March 28 and Sunday, March 29, and that death on Friday was highly unlikely. However, at trial six years later, Dr. Mitchell testified that Hill likely died on Friday evening, during Rivas's alibi-less window. Dr. Mitchell claimed that this new finding came after reviewing his notes and brain slides. Despite its critical importance to the defense, Rivas's counsel failed to investigate the basis for Dr. Mitchell's revised findings regarding time of death.

In 1999, with new counsel, Rivas filed a motion to vacate the judgment of conviction pursuant to NYCPL § 440.10. The defense suggested that Dr. Mitchell had been under investigation by the District Attorney's office at the time, and had altered his original estimate to satisfy the District Attorney in hopes of avoiding criminal prosecution. Rivas also claimed that the autopsy slides on which Dr. Mitchell purportedly relied did not actually exist in the medical examiner's file. He also produced an uncontested affidavit of an independent expert in forensic pathology attesting that Hill most likely died between 3:30 p.m. on Saturday and 3:30 a.m. on Sunday. The state court denied the motion.

On June 19, 2002, Rivas filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern of New York raising substantially the same claims. After several rulings and remands on timeliness, the Second Circuit held that a credible and compelling showing of actual innocence warrants an equitable exception to the limitations period under the Antiterrorism and Effective Death Penalty Act (AEDPA) and, therefore, remanded to the District Court to hear Rivas' petition. After hearing oral argument on the merits of the petition, the District Court denied the petition. It held that the state court's determination was a reasonable application of the United States Supreme Court's holding in Washington v. Strickland that a defendant must show both that a counsel's performance was so deficient as not to constitute counsel guaranteed by the Sixth Amendment, and that the deficient performance prejudiced the defense.

In its de novo review, the Second Circuit found that the state court had unreasonably applied "Federal law, as determined by the Supreme Court of the United States," and that a writ of habeas corpus should be granted pursuant to 28 U.S.C. § 2254(d)(1). Given the importance of time of death to Rivas's alibi defense, Dr. Mitchell's revised findings placing the murder during the gap in Revis's alibi would have driven any reasonable attorney to further investigate those findings. According to the Second Circuit, Rivas's counsel "relied on an alibi defense when, in fact, Rivas did not have an alibi for the precise time that the prosecution claimed Rivas had murdered Hill. In effect, [counsel]'s alibi defense amounted to no defense at all." The state court's conclusion to the contrary was thus objectively unreasonable.

Further, in earlier finding that Rivas had presented a credible and compelling claim of actual innocence entitling him to an equitable exception to the AEDPA's limitation period, the Second Circuit determined that "a reasonable juror, apprised of all the evidence in the record, would more likely than not vote to acquit." For those same reasons, counsel's failure prejudiced the defense.

The Second Circuit remanded to the District Court and directed it to issue the writ of habeas corpus some twenty-two years after Rivas's conviction, unless the state has taken substantial and concrete steps within sixty days to retry him.

The full text of the opinion may be found at: http://www.ca2.uscourts.gov/de...4b8a68d87ff/3/hilite/

Panel: Circuit Judges Cabranes, Pooler, and Sack.

Argument Date: 12/09/2014

Date of Issued Opinion: 03/11/2015

Docket Number: No. 13-2974-pr

Decided: Reversed and Remanded, with direction to issue Writ of Habeas Corpus

Case Alert Author: Justin J. Fung

Counsel: Richard M. Langone, Langone & Associates , PLLC, Levittown, NY, for Petitioner-appellant. Priscilla Stewart, Assistant Attorney General (Barbara D. Underwood, Solicitor General, Nikki Kowalski, Deputy Solicitor General, on the brief) for Eric T. Schneiderman, Attorney General for the State of New York, for Respondent-appellee.

Author of Opinion: Judge Cabranes

Circuit: 2nd Circuit

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 03/11/2015 06:49 PM     2nd Circuit  

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