10-224-pr Rivera v. Cuomo UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 -------- 3 August…

10-224-pr
Rivera v. Cuomo
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
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August Term, 2010 4
(Argued: May 13, 2011 Decided: December 16, 2011) 5
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Docket No. 10-224-pr 7
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JOHN RIVERA, 10
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Petitioner/Appellant, 12
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ANDREW CUOMO, NEW YORK STATE ATTORNEY 16
GENERAL and JOSEPH SMITH, SUPERINTENDENT, 17
SHAWANGUNK CORRECTIONAL FACILITY, 18
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Respondents/Appellees. 20
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WILLIAM CARNEY, The Legal Aid Society, Criminal Appeals Bureau, 24
New York, New York, for Petitioner-Appellant. 25
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CHARLES J. HYNES (Leonard Joblove and Seth M. Lieberman, 27
Assistant District Attorneys), District Attorney, Kings County, 28
Brooklyn, New York, for Respondents-Appellees. 29
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Before: McLAUGHLIN, POOLER, PARKER, Circuit Judges. 31
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PER CURIAM: 33
The petitioner-appellant John Rivera appeals from a judgment 34
entered in the United States District Court for the Eastern 35
District of New York (Townes, J.) denying his petition for a writ 36
of habeas corpus pursuant to 28 U.S.C. § 2254. 37

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Rivera was convicted after a jury trial of murder in the 1
second degree in violation of New York Penal Law § 125.25(2), 2
arising out of the death of his estranged wife, Kimberly Cassas, 3
from a single gunshot wound to her head at point-blank range. 4
Specifically, Rivera was convicted of depraved indifference 5
murder, but was acquitted of intentional murder. The Appellate 6
Division affirmed his conviction on direct appeal, People v. 7
Rivera, 2 A.D.3d 884 (2d Dep’t 2003), and, on April 14, 2004, 8
Rivera was denied leave to appeal to the N.Y. Court of Appeals, 9
People v. Rivera, 2 N.Y.3d 764 (2004). 10
Rivera subsequently filed a petition for a writ of habeas 11
corpus in the Eastern District of New York on the sole ground 12
that, by upholding his conviction for depraved indifference 13
murder, the state courts unreasonably applied the rule of Jackson 14
v. Virginia, 443 U.S. 307 (1979), that a jury find each element 15
of the crime beyond a reasonable doubt. Applying the law of 16
depraved indifference in existence at the time Rivera was 17
convicted in September 1997, the district court denied relief. 18
See Rivera v. Cuomo, No. 05-CV-1699, 2009 WL 4929264, at *23 19
(E.D.N.Y. Dec. 21, 2009). 20
On August 9, 2011, we issued a decision finding, in 21
pertinent part, that (1) the district court erred in applying the 22
law of depraved indifference murder in existence at the time 23
Rivera was convicted in September 1997, rather than at the time 24
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Rivera’s conviction became final in July 2004, and (2) under the 1
law of depraved indifference murder as it existed in July 2004, 2
no rational jury could have found Rivera guilty of depraved 3
indifference murder, rather than intentional murder or reckless 4
manslaughter, and therefore upholding Rivera’s conviction for 5
depraved indifference murder constituted an “unreasonable 6
application of clearly established federal law.” On this basis, 7
we reversed the judgment of the district court and remanded with 8
instructions to grant Rivera’s petition for a writ of habeas 9
corpus. 10
Subsequent to our decision, Respondents filed a petition for 11
panel rehearing or rehearing en banc, and the United States 12
Supreme Court decided Cavazos v. Smith, which strongly reasserted 13
“the necessity of deference to state courts in § 2254(d) habeas 14
cases.” 132 S. Ct. 2, 5 (2011). In light of Respondents’ 15
petition and the Supreme Court’s guidance in Cavazos, we have 16
revisited our original decision to ensure that we had afforded 17
the state courts and the jury the full extent of the deference 18
they are owed under the Antiterrorism and Effective Death Penalty 19
Act of 1996 (“AEDPA”), 112 Stat. 1214. See Cavazos, 132 S. Ct. 20
at 3 (emphasizing the double deference owed in § 2254(d) habeas 21
cases). After much reflection, we now reverse course. Applying 22
the law as it existed after Rivera’s conviction became final in 23
July 2004, we find that although evidence of “significantly 24
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heightened recklessness,” People v. Sanchez, 98 N.Y.2d 373, 380 1
(2002), was slim, at best, giving the state courts and the jury 2
the utmost deference, we cannot find that the evidence was so 3
completely lacking that no rational jury could have found Rivera 4
guilty of depraved indifference murder. See Cavazos, 132 S. Ct. 5
at 1-5; Renico v. Lett, 130 S. Ct. 1855, 1862 (2010). Therefore, 6
we have no choice but to uphold the decision of the state court. 7
See Renico, 130 S. Ct. at 1862 (explaining that “an unreasonable 8
application of federal law is different from an incorrect 9
application of federal law,” and “a federal habeas court may not 10
issue [a] writ simply because . . . the relevant state-court 11
decision applied clearly established federal law erroneously or 12
incorrectly” (internal quotation marks and citations omitted)). 13
Accordingly, the judgment of the district court hereby is 14
AFFIRMED. 15
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