Rivera v. Griffin

ENRIQUE RIVERA, Petitioner, v. THOMAS GRIFFIN, Respondent.

15-CV-2657(EK)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 30, 2020

MEMORANDUM & ORDER

I. Introduction ............................................... 2

II. Background ................................................. 3

A. Rivera's Arrest and Questioning ........................... 3

B. Suppression Hearing ....................................... 5

C. Petitioner's First Trial .................................. 7

D. Pretrial Hearings Before Petitioner's Second Trial ........ 7

E. The State's Case .......................................... 9

1. The State's Medical Evidence ............................ 9

2. The State's Eyewitness Testimony ....................... 10

3. Defense's Cross-Examination of Eyewitnesses ............ 14

4. Petitioner's Statement ................................. 15

5. Cross-Examination of Detective Darino .................. 16

F. Defense's Case ........................................... 16

1. Julio's Testimony ...................................... 16

2. State's Cross-Examination Regarding Julio's Statements to Ms. Serrano and Mr. Cordova ......................... 19

3. Defendant's Testimony .................................. 19

G. Cross Examination of Petitioner .......................... 23

H. The Charge Conference and Verdict ........................ 24

I. Sentencing ............................................... 24

J. Post-Conviction Proceedings .............................. 27

III. Legal Analysis ........................................... 28

A. Failure to Charge Lesser-Included Offense ................ 28

B. Petitioner's Miranda Claim ............................... 30

C. Petitioner's Brady/Giglio Claim .......................... 36

D. Excessive Sentence ....................................... 40

E. Actual Innocence ......................................... 44

IV. Conclusion ............................................... 45

ERIC KOMITEE, United States District Judge:

I. Introduction

Petitioner Enrique Rivera seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of first-degree manslaughter in New York Supreme Court, Kings County, for the stabbing death of Edgar Ojeda during a bar fight in Brooklyn on February 27, 2005. In June 2009, Petitioner was sentenced to twenty-five years in prison, to be followed by five years of supervised release. He has been incarcerated for over fifteen years, and is currently at the Green Haven Correctional Facility in Stormville, New York.

Petitioner raises five arguments in his petition: first, the trial court violated his due process rights by failing to charge the lesser-included offense of second-degree manslaughter; second, the prosecution committed a Brady/Giglio violation by delaying the disclosure that two witnesses recanted their testimony; third, the trial court should have suppressed his post-arrest statements because they were involuntary; fourth, his sentence is excessively long; and fifth, he is actually innocent. See Petition, ECF No. 1 (incorporating by reference Petitioner's state-court appellate briefs).II. Background

A. Rivera's Arrest and Questioning

At approximately 4:20 a.m. on February 28, 2005, two detectives — John Darino (72nd Precinct Detective Squad) and James Gaynor (Brooklyn South Homicide Squad) — located Petitioner at a friend's home in Flushing, New York. H1¹ 17:4-19:15² (Darino). Detectives Darino and Gaynor brought Petitioner to the 72nd Precinct in handcuffs. H1 20:3-6 (Darino). At roughly 5:00 a.m., the detectives placed Petitioner in an interview room, where they uncuffed him. H1 20:7-19 (Darino). Approximately fifteen minutes later, detectives Darino and Gaynor began speaking with Petitioner. H1 20:20-21:5; 25:7-15 (Darino).

During questioning, Petitioner, who was approximately thirty years old at the time, stated that he wielded a knife during a fight at the bar on the date of Mr. Ojeda's death. H1 24:10-25:2 (Darino). Petitioner then handwrote a document acknowledging that he had stabbed Mr. Ojeda, but claiming he had done so in self-defense:

On the night of February 27, 2005, I, Enrique Rivera, went out for a few drinks. The bar was located at39th Street and Third Avenue. While I was having a few drinks I had a small confrontation with a guy. It was just words, but as the night goes on, I'm getting these eyes . . . contacted but nothing to it. Now, as I go to the bar to get my second round, the guy is still looking at me and I happen to look back at him. So he said 'What's up?' and I asked him what seems to be the problem. And right away the crowd rose. Then I felt punches and grabbing. So I take out a knife, used it in self defense, swinging it at the crowd not knowing that I really hurt anyone. I got out of there, got in my car and went home. I didn't know someone was hurt. It was self defense. I didn't mean it. I was just scared. I know by saying sorry is not going to bring that person back, but I really didn't mean this to go down this way. I'm very sorry."

Darino³ 371:3-20 (reading Petitioner's statement into the trial record).

Several hours later, Petitioner spoke with Assistant District Attorney Jennifer Sipress at the police station, where he substantially repeated his written statement.

Petitioner was charged with murder in the second degree, N.Y. Penal Law § 125.25(1), and criminal possession of a weapon in the fourth degree, N.Y. Penal Law § 265.01(2). Kings County Indictment Number 1453/2005. Petitioner's case was assigned to Justice Robert J. Collini.

B. Suppression Hearing

On June 6, 2006, Justice Collini held a pre-trial suppression hearing. As relevant here, Petitioner sought to suppress his statements as involuntary.

The prosecution called Detective Darino, who testified that he read Petitioner his Miranda rights from a preprinted document at the police station before speaking with Petitioner in the interrogation room. H1 21:6-13 (Darino). Petitioner initialed the so-called Miranda rights form, responding "yes" (in writing and orally) to each question as Detective Darino read the document aloud to Petitioner. H1 21:19-22:25 (Darino). Petitioner signed the document. H1 24:5-6. This document was admitted into evidence. H1 22:4-13.

After completing the Miranda sheet, Petitioner agreed to speak to the detectives. H1 24:7-9 (Darino). Detective Darino informed Petitioner that "we are conducting an investigation of an incident that occurred at El Borinquen Bar on 39th and Third Avenue." H1 25:12-15 (Darino). He testified to Petitioner's oral statement, which was consistent with the written one. See H1 24:12-25:6 (Darino).

After Petitioner made this statement, Detective Darino gave Petitioner a pen and paper and asked him to write down the statement he had made. H1 25:22-26:1 (Darino). Petitioner and Detectives Darino and Gaynor signed the document afterPetitioner completed his written statement. H1 26:13-27:1 (Darino). This document was admitted into evidence. H1 27:5-14.

Following Petitioner's interview with the detectives, around 10:00 a.m., Petitioner spoke to ADA Sipress from the Kings County District Attorney's Office at the police station. H1 27:20-24. Detective Darino attended the interview and testified that the entire conversation was videotaped. H1 27:25-28:8. The videotape was admitted into evidence and played at the hearing. H1 28:14-30:2 (Darino). It showed that ADA Sipress read Petitioner's Miranda rights and then asked him whether he wished to answer her questions. H1 43:16-18. Petitioner replied, "We here." H1 44:26-4 (Darino). He then proceeded to answer the ADA's questions, giving a similar statement to his prior statement to the detectives. H1 44:25-45:4 (Darino); Sipress 448:15-18.

Justice Collini denied Petitioner's motion to suppress his statements. He concluded that Petitioner "willingly proceeded to make a statement and answer questions during interrogation." H1 109:8-10. Justice Collini also noted that the state "was absolutely correct that the Defendant indicated his acquiescence" to ADA Sipress' questioning by stating "we here." H1 46:2-9.

C. Petitioner's First Trial

On June 27, 2006, Petitioner's first trial resulted in a hung jury and dismissal (by the Judge) of the weapons charge. See Rivera v. Firetog, 11 N.Y.3d 501 (2008). On October 23, 2007, the Appellate Division, Second Department granted Petitioner's motion to prevent retrial on the same indictment, but the New York Court of Appeals reversed. Rivera v. Firetog, 44 A.D.3d 957 (N.Y. App. Term 2007), rev'd 11 N.Y.3d 501 (2008).

D. Pretrial Hearings Before Petitioner's Second Trial

Justice Alan Marrus presided over Petitioner's second trial. The same counsel (Mr. Joel Dranove) represented Petitioner throughout all aspects of his first and second trials. Petition at 12; H1 2:3-4 (Mr. Dranove entering his appearance at Petitioner's suppression hearing before the first trial).

On May 4, 2009, Justice Marrus held a pre-trial hearing before Petitioner's second trial. H2⁴ 2:1-20. The following day, immediately before jury selection, the prosecution disclosed that they no longer intended to call two witnesses on their witness list: Ms. Jahaira Serrano (Petitioner's cousin) and Mr. Rudy Cordova (Ms. Serrano'sboyfriend). H2 21:16-22:25. Neither of these witnesses testified at the prior trial, but Mr. Cordova testified before the grand jury prior to Petitioner's first trial. S.⁵ 11:12-12:4.

The state explained that these witnesses had previously made "oral sworn statements" to the DA's Office and detectives inculpating Petitioner. H2 22:6-13. But when the witnesses "were later interviewed" "in the middle of" the first trial, they "recant[ed]" their testimony, stating that they "didn't see what they said they saw" and "couldn't remember" what happened. H2 22:13-23:3.

In response, the defense noted that this revelation was occurring thirty-five months after the last trial, and that counsel "wrote to the prosecution and asked...