Rivera v. Cuomo, et al., No. 10-224 (2d Cir. 2011)
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Petitioner was convicted of murder in the second degree, arising out of the death of his estranged wife. Petitioner appealed from a judgment of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. 2254. Petitioner contended that by upholding his conviction for depraved indifference murder, the state courts unreasonably applied the rule of Jackson v. Virginia that a jury find each element of the crime beyond a reasonable doubt. Applying the law as it existed after defendant's conviction became final in July 2004, the court found that although the evidence of "significantly heightened recklessness," was slim at best, giving the state courts and the jury the utmost deference, the court could not find that the evidence was so completely lacking that no rational jury could have found defendant guilty of depraved indifference murder. Accordingly, the judgment was affirmed.
This opinion or order relates to an opinion or order originally issued on August 9, 2011.
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10-224-pr Rivera v. Cuomo 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 -------- 4 August Term, 2010 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 (Argued: May 13, 2011 Decided: December 16, 2011) Docket No. 10-224-pr ----------------------------------------------------------------X JOHN RIVERA, Petitioner/Appellant, - v. ANDREW CUOMO, NEW YORK STATE ATTORNEY GENERAL and JOSEPH SMITH, SUPERINTENDENT, SHAWANGUNK CORRECTIONAL FACILITY, Respondents/Appellees. ----------------------------------------------------------------X WILLIAM CARNEY, The Legal Aid Society, Criminal Appeals Bureau, New York, New York, for Petitioner-Appellant. CHARLES J. HYNES (Leonard Joblove and Seth M. Lieberman, Assistant District Attorneys), District Attorney, Kings County, Brooklyn, New York, for Respondents-Appellees. Before: McLAUGHLIN, POOLER, PARKER, Circuit Judges. PER CURIAM: The petitioner-appellant John Rivera appeals from a judgment 35 entered in the United States District Court for the Eastern 36 District of New York (Townes, J.) denying his petition for a writ 37 of habeas corpus pursuant to 28 U.S.C. § 2254. 1 Rivera was convicted after a jury trial of murder in the 2 second degree in violation of New York Penal Law § 125.25(2), 3 arising out of the death of his estranged wife, Kimberly Cassas, 4 from a single gunshot wound to her head at point-blank range. 5 Specifically, Rivera was convicted of depraved indifference 6 murder, but was acquitted of intentional murder. 7 Division affirmed his conviction on direct appeal, People v. 8 Rivera, 2 A.D.3d 884 (2d Dep t 2003), and, on April 14, 2004, 9 Rivera was denied leave to appeal to the N.Y. Court of Appeals, 10 11 The Appellate People v. Rivera, 2 N.Y.3d 764 (2004). Rivera subsequently filed a petition for a writ of habeas 12 corpus in the Eastern District of New York on the sole ground 13 that, by upholding his conviction for depraved indifference 14 murder, the state courts unreasonably applied the rule of Jackson 15 v. Virginia, 443 U.S. 307 (1979), that a jury find each element 16 of the crime beyond a reasonable doubt. 17 depraved indifference in existence at the time Rivera was 18 convicted in September 1997, the district court denied relief. 19 See Rivera v. Cuomo, No. 05-CV-1699, 2009 WL 4929264, at *23 20 (E.D.N.Y. Dec. 21, 2009). 21 Applying the law of On August 9, 2011, we issued a decision finding, in 22 pertinent part, that (1) the district court erred in applying the 23 law of depraved indifference murder in existence at the time 24 Rivera was convicted in September 1997, rather than at the time 2 1 Rivera s conviction became final in July 2004, and (2) under the 2 law of depraved indifference murder as it existed in July 2004, 3 no rational jury could have found Rivera guilty of depraved 4 indifference murder, rather than intentional murder or reckless 5 manslaughter, and therefore upholding Rivera s conviction for 6 depraved indifference murder constituted an unreasonable 7 application of clearly established federal law. 8 we reversed the judgment of the district court and remanded with 9 instructions to grant Rivera s petition for a writ of habeas 10 11 On this basis, corpus. Subsequent to our decision, Respondents filed a petition for 12 panel rehearing or rehearing en banc, and the United States 13 Supreme Court decided Cavazos v. Smith, which strongly reasserted 14 the necessity of deference to state courts in § 2254(d) habeas 15 cases. 16 petition and the Supreme Court s guidance in Cavazos, we have 17 revisited our original decision to ensure that we had afforded 18 the state courts and the jury the full extent of the deference 19 they are owed under the Antiterrorism and Effective Death Penalty 20 Act of 1996 ( AEDPA ), 112 Stat. 1214. 21 at 3 (emphasizing the double deference owed in § 2254(d) habeas 22 cases). 23 the law as it existed after Rivera s conviction became final in 24 July 2004, we find that although evidence of significantly 132 S. Ct. 2, 5 (2011). In light of Respondents See Cavazos, 132 S. Ct. After much reflection, we now reverse course. 3 Applying 1 heightened recklessness, People v. Sanchez, 98 N.Y.2d 373, 380 2 (2002), was slim, at best, giving the state courts and the jury 3 the utmost deference, we cannot find that the evidence was so 4 completely lacking that no rational jury could have found Rivera 5 guilty of depraved indifference murder. 6 at 1-5; Renico v. Lett, 130 S. Ct. 1855, 1862 (2010). 7 we have no choice but to uphold the decision of the state court. 8 See Renico, 130 S. Ct. at 1862 (explaining that an unreasonable 9 application of federal law is different from an incorrect See Cavazos, 132 S. Ct. Therefore, 10 application of federal law, and a federal habeas court may not 11 issue [a] writ simply because . . . the relevant state-court 12 decision applied clearly established federal law erroneously or 13 incorrectly (internal quotation marks and citations omitted)). 14 15 Accordingly, the judgment of the district court hereby is AFFIRMED. 16 17 18 19 20 21 22 4
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