Court: District Court, D. Rhode Island; August 10, 2018; Federal District Court
Firlando Rivera filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, which the State moved to dismiss. The Court determined a hearing was unnecessary and granted the motion to dismiss while denying and dismissing the petition. Rivera was convicted of first-degree murder and related charges in 1999, with a life sentence imposed in 2000. His conviction and subsequent motions for a new trial and sentence reduction were denied at various stages, with the Rhode Island Supreme Court affirming the lower court’s decisions. Rivera filed the current petition in 2014, leading to a prior motion to dismiss on timeliness grounds and subsequent responses from both parties. The legal framework references the exhaustion doctrine, emphasizing that a federal court will not entertain a habeas corpus application unless all state remedies have been exhausted, ensuring state courts have the opportunity to address potential constitutional violations first.
Federal habeas relief for state prisoners requires the exhaustion of state court claims. The Supreme Court, in O'Sullivan, emphasized the need for proper exhaustion, meaning claims must be fairly presented to state courts. Section 2254(c) mandates that state prisoners provide state courts an opportunity to resolve constitutional issues through a complete round of the state's appellate process. If a prisoner does not present claims in a discretionary review petition to the state’s highest court, these claims are considered procedurally defaulted.
The exhaustion doctrine hinges on available procedures under state law; federal courts must recognize state law provisions that render certain remedies unavailable. Additionally, the Supreme Court will not review federal law questions decided by state courts if those decisions rest on independent state law grounds that are adequate to support the judgment, whether substantive or procedural.
Federal habeas review is barred unless a prisoner shows cause for the procedural default and actual prejudice resulting from the federal law violation, or demonstrates that failing to consider the claims would lead to a fundamental miscarriage of justice. "Cause" refers to external factors that impeded compliance, while "prejudice" requires showing that trial errors substantially disadvantaged the petitioner. The fundamental miscarriage of justice exception applies in extraordinary cases of actual innocence, necessitating a demonstration that a reasonable juror would likely not have convicted the petitioner, supported by new reliable evidence not presented at trial.
The Sixth Amendment ensures defendants the right to effective assistance of counsel, but does not guarantee a flawless or victorious defense. The standard for evaluation is whether counsel's performance was reasonably effective under the circumstances. A defendant asserting ineffective assistance must demonstrate two key elements: (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, absent counsel’s errors, the outcome would have been different.
In assessing counsel's adequacy, specific acts or omissions must be identified as not resulting from reasonable professional judgment, and courts will determine if such conduct was outside the bounds of competent assistance. The "reasonable probability" standard implies a likelihood sufficient to undermine confidence in the outcome, focusing on the fairness of the proceedings. Both prongs of this test must be met to claim that the conviction stemmed from a breakdown in the adversarial process.
Judicial scrutiny of counsel's performance is highly deferential, acknowledging the temptation to retrospectively critique counsel after an adverse outcome. There is a presumption that challenged actions constitute sound trial strategy, and errors by counsel do not warrant overturning a judgment if they did not affect the verdict. Fair assessments of attorney performance require efforts to minimize hindsight bias and evaluate conduct from counsel’s perspective at the time.
In Rivera's case, he presents sixteen grounds for review, including claims of ineffective assistance and due process violations. The State argues that some claims remain unexhausted, others have been procedurally defaulted, and the remainder lack merit.
Three of Rivera's claims—Grounds Twelve, Thirteen, and Sixteen—are deemed unexhausted by the State, as they were not previously raised in submissions to the Rhode Island Supreme Court, thus barring them from consideration in a § 2254 petition. Rivera argues he has exhausted his state court remedies, asserting that claims of actual innocence should prevail. Specifically, in Ground Twelve, he alleges ineffective assistance of post-conviction counsel for failing to present evidence and adequately argue his appeal. He claims his counsel neglected to introduce a recantation from Hector Rodriguez, which he argues constitutes a violation of his Sixth Amendment rights and due process under the Fifth Amendment. Rivera contends that the state post-conviction relief (PCR) proceedings were compromised due to improper standards applied to his counsel's performance, making the subsequent findings unreliable. The State counters that deficiencies alleged in Ground Twelve regarding the Rhode Island Supreme Court's review cannot be raised in a federal court for the first time. The court interprets Ground Twelve primarily as criticizing post-conviction counsel's performance, noting Rivera has not sought to address these issues in state courts. Moreover, he does not claim that state corrective processes are ineffective or unavailable. Thus, the claims related to post-conviction counsel are unexhausted and outside the Court's purview.
Rivera asserts in Ground Thirteen that both the Superior Court and his trial counsel violated his due process rights and failed to provide effective assistance of counsel. He claims the court should have excluded a witness's testimony, which was influenced by the prosecutor's suggestive question about her fear of testifying, arguing this compromised his right to a fair trial. Additionally, Rivera criticizes his counsel for not objecting to this testimony, which he claims constitutes ineffective assistance.
The State counters that Rivera did not raise these issues in his appeals to the Rhode Island Supreme Court during his direct appeal or post-conviction relief. Rivera did mention in his direct appeal that the witness testified "reluctantly," but he did not frame the witness's fear as a separate ground for relief or address it in his post-conviction filings.
In Ground Sixteen, Rivera contends he was denied due process due to prosecutorial misconduct related to the introduction of evidence from pre-trial photo arrays, which he asserts were presented inappropriately. He claims the prosecutor knew about issues affecting the reliability of these photo arrays and that witnesses had not identified him on the night of the murder. Rivera admits that he did not raise the issue of prosecutorial misconduct in his appeal from the conviction but states that concerns about the reliability of evidence were raised.
Rivera argues for the necessity of allowing his claims to be heard in light of his actual innocence, indicating that his allegations of prosecutorial misconduct and ineffective assistance of counsel remain unexhausted, as the state courts were not afforded the opportunity to evaluate whether his constitutional rights were violated.
Grounds Twelve, Thirteen, and Sixteen have not been fairly presented to state courts, preventing their consideration in this Court, as established in *Picard v. Connor* and *O'Sullivan*. Consequently, Rivera's unexhausted claims are dismissed. The State asserts that Grounds Four through Seven, Ten, and Fifteen are procedurally defaulted due to non-consideration by the Rhode Island Supreme Court based on independent state procedural grounds. Rivera argues these claims should not be barred, asserting that they were wrongly adjudicated in the post-conviction relief (PCR) case, thus necessitating review to protect his Sixth Amendment right to effective counsel. He contends that claims including Grounds Three, Four, Five, and Fifteen relate to failures in challenging pretrial identification evidence and other related issues.
Specifically, Grounds Four, Five, and Fifteen allege ineffective assistance due to lack of investigation and pretrial preparation. Grounds Six and Ten claim failure to preserve appeal issues and challenge evidence. Ground Seven alleges ineffective assistance related to a failure to argue for a speedy trial. Rivera initially presented seven grounds for post-conviction review but later abandoned some. The Rhode Island Supreme Court identified four grounds of alleged ineffective assistance, ultimately preserving only three for appellate review: conflict of interest, failure to pursue a motion to suppress, and failure to mount a third-party perpetrator defense. The court found that Rivera waived claims regarding the adequacy of pretrial investigation, failure to move for a speedy trial, and preservation of certain appeal issues.
Merely stating an issue for appellate review without substantial legal discussion or briefing leads to a waiver of that issue. In Rivera's case, while he provided testimony regarding his attorneys' pretrial investigation at a postconviction-relief hearing, he failed to address this issue in closing arguments or object when it was not discussed by the hearing justice, resulting in its waiver. Rivera's claims regarding trial counsel's failure to preserve issues for appeal, particularly concerning ballistics and the victim's body position, were not raised in the Superior Court, leading the appellate court to decline consideration of these arguments on appeal. Additionally, Rivera initially alleged ineffective assistance of counsel for failing to preserve issues at trial but later abandoned this ground, which the Rhode Island Supreme Court deemed waived. His claim that counsel's failure to obtain original photo arrays for pre-trial identification constituted ineffective assistance was not presented as a separate issue in state courts and was similarly found waived. The Supreme Court's ruling on these waivers is an independent and adequate state ground, distinct from Rivera's federal ineffective assistance claim. As Rivera has not shown inconsistency in the enforcement of the waiver rule, the court will not address several grounds in his appeal, as they were procedurally defaulted in state courts.
Section 2254(d) establishes that a federal court cannot grant a habeas corpus application for claims previously adjudicated on the merits in state court unless the state court's adjudication (1) was contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court, or (2) was based on an unreasonable determination of the facts considering the evidence presented in the state court. A state court decision is "contrary to" Supreme Court precedent if it reaches a conclusion opposite to that of the Supreme Court on a legal question or if it addresses materially indistinguishable facts and arrives at an opposing result. The "unreasonable application" clause allows for relief if the state court identified the correct legal principle but unreasonably applied it to the facts of the case. The evaluation of whether the application was unreasonable is objective, meaning it must be more than merely incorrect or erroneous. Additionally, § 2254 allows for relief when a state court's decision is based on an unreasonable factual determination, but such determinations are presumed correct unless rebutted by clear and convincing evidence. Factual issues are defined as primary or historical facts concerning external events and their credibility. The court will now assess the merits of Rivera's remaining claims.
Rivera asserts a claim of insufficient evidence to support his conviction for first-degree murder, arguing that this inadequacy denied him a fair trial. He references the U.S. Supreme Court's ruling in Jackson v. Virginia, which establishes that a habeas corpus applicant is entitled to relief if no rational trier of fact could find proof of guilt beyond a reasonable doubt, contingent upon meeting procedural prerequisites. The court clarified that the inquiry focuses on whether the evidence, viewed favorably toward the prosecution, could reasonably support a finding of guilt and does not require the court to personally believe in the evidence's sufficiency. Furthermore, a federal court cannot overturn a state court's sufficiency ruling unless it is deemed "objectively unreasonable." In Rivera's case, the Rhode Island Supreme Court noted that a trial justice can grant a new trial only if, after independently assessing the evidence's weight and credibility, they find the verdict against the preponderance of evidence. If the trial justice agrees with the jury's verdict, or if reasonable minds could differ, the new-trial motion must be denied. The court concluded that both direct and circumstantial evidence presented at trial was sufficient for a reasonable jury to find Rivera guilty beyond a reasonable doubt.
The Rhode Island Supreme Court did not reference the Jackson case. The First Circuit has established that a state court's decision based on state law may receive deference under section 2254(d)(1) if the state standard is at least as protective of the defendant's rights as federal law. Rivera does not argue that the Rhode Island Supreme Court's decision was contrary to established federal law but claims it made an unreasonable factual determination regarding the credibility of a witness, Evans, and the denial of relief. Rivera contends that the court's decision on his Motion for Acquittal and New Trial involved both an unreasonable application and interpretation of facts, implicating both subsections of § 2254(d).
The Rhode Island Supreme Court outlined the trial evidence: on November 23, 1997, the victim, Edward "Chipper" Wilson IV, and his friend Robert K. Rhoads visited the Weiner Palace. After an exchange of derogatory remarks with the defendant, identified as "Hippy," Wilson challenged him to step outside. A physical confrontation ensued, resulting in Wilson initially gaining the upper hand. Witnesses testified that during the scuffle, the defendant produced a metal object and struck Wilson. After Wilson fled, he was pursued by the defendant, who allegedly fired shots, fatally wounding him in the abdomen and head. Although no one witnessed the defendant fire the fatal shot, multiple witnesses testified to seeing him with a weapon and moving towards Wilson just before the gunshots. Testimonies from waitresses corroborated that they saw the defendant draw a gun and heard a series of sounds indicating violence.
John Muniz, a friend of the defendant, initially reported to police that he saw the defendant with a gun during a fight and that the defendant cocked it as the victim fled. However, he later recanted this statement in court, claiming he only implicated the defendant due to police threats. Rhoads, another witness, testified he saw the defendant pointing a gun at the victim, heard a gunshot, and witnessed the victim fall, followed by a second gunshot. Michael Cote, a bystander, did not see a weapon in the defendant's hands but confirmed a confrontation between the defendant and the victim, hearing two gunshots spaced about fifteen seconds apart.
Witnesses, including Cournoyer, Oliveira, and Rhoads, positively identified the defendant from photo packs shortly after the shooting. At trial, nearly two years later, only Oliveira could identify the defendant in court, while Rhoads and Cournoyer did not recognize him. However, all three witnesses expressed confidence in their earlier photo identifications. Notably, Cournoyer and three police sergeants noted that the defendant's appearance had significantly changed since the crime, including weight gain and a new hairstyle.
Additional evidence of the defendant's suspicious behavior post-murder was presented. Wanda Vasquez testified that the defendant asked her to care for a dog the morning after the murder, and Hector Rodriguez confirmed he drove the defendant to Providence to help him "get out of Woonsocket." Maribel Albino, the defendant's then-girlfriend's sister, reported that the defendant mentioned having fought a white man and contemplated going to a hotel, although she later recanted.
The Rhode Island Supreme Court concluded that the trial justice did not err in denying the defendant's motion for a new trial, having independently weighed the evidence and assessed witness credibility. The trial justice specifically noted that Oliveira and Cournoyer adequately identified the defendant as the gunman.
Rhoads's inability to identify the defendant in court did not negate his prior out-of-court identification from a photo pack. The trial justice found credible testimony from Oliveira and Cournoyer, who witnessed the defendant brandishing a handgun while pursuing the victim, Wilson. He deemed Muniz's initial police statement truthful but rejected his later trial testimony as dishonest. The trial justice concluded that the nature of the victim's wounds, as explained by the medical examiner, indicated the murder was premeditated and constituted first-degree murder. He affirmed that substantial evidence supported the jury's verdict, which he deemed correct after his own thorough analysis. The court upheld the trial justice's factual findings and judgment, agreeing with the Rhode Island Supreme Court that deference is owed to state courts on factual matters, including credibility determinations. Rivera failed to provide clear and convincing evidence to rebut the presumption of correctness regarding the state court's findings, relying instead on arguments previously rejected by that court. Thus, the petitioner's claims of error were dismissed, and the judgment of the Superior Court was affirmed.
The Court finds that the Rhode Island Supreme Court's adjudication of Rivera's claim did not result in an unreasonable factual determination under 28 U.S.C. § 2254(d)(2) and was not an unreasonable application of clearly established federal law under § 2254(d)(1). Rivera's argument, which relies on previously considered documents, fails to demonstrate that the state court's application of the Jackson standard for sufficiency of evidence was unreasonable. He cites issues such as witnesses' inability to identify him in court and recantations, but the Court emphasizes that habeas review is not intended to relitigate state trials or serve as a direct appeal substitute. Instead, it assesses whether the state court's conclusion on the evidence's constitutional sufficiency was unreasonable. The Court concludes that the Rhode Island Supreme Court's affirmation of the denial of Rivera's motion for a new trial was not objectively unreasonable, and the evidence considered by the state court was sufficient. Additionally, Rivera claims the state courts applied an incorrect standard of review regarding his ineffective assistance of counsel claims, arguing that a more rigorous "farce and mockery" standard was used instead of the Strickland standard, particularly because he had retained counsel.
Rivera contends that Rhode Island's standard for ineffective assistance of counsel claims has become more demanding than the federal standard established by the U.S. Supreme Court, particularly for defendants with private counsel. He argues that Rhode Island continues to reference an outdated "farce and mockery" standard, which undermines the Sixth Amendment right to effective counsel. Rivera acknowledges that both the post-conviction court and the Rhode Island Supreme Court articulated the Strickland standard correctly, although they also mentioned "farce and mockery" in the context of retained versus appointed counsel. The opinions indicate that the Strickland standard was applied to Rivera's claims, starting with the post-conviction court's affirmation of the necessity for demonstrating counsel's deficient performance and resultant prejudice. The court cited precedent emphasizing a strong presumption of competent representation and stated that claims against privately retained attorneys are typically not valid unless the representation was egregiously inadequate. Rivera's reliance on the "farce and mockery" reference is deemed misplaced, as its mere mention does not reflect its application, particularly since the court concluded that the first prong of Strickland was not violated in assessing the motion to suppress.
Rivera's claim of ineffective assistance of counsel was examined under the Strickland standard, which assesses whether counsel's strategy was reasonable given the evidence of guilt. The court found that Rivera's attorneys were not ineffective for failing to pursue a third-party culprit defense, as their strategy met the Strickland criteria. Regarding Rivera's conflict of interest claim, the post-conviction court referenced multiple Rhode Island Supreme Court cases, concluding that Rivera's counsel did not have conflicting interests that adversely impacted their performance. Rivera failed to meet the burden of proof necessary to demonstrate any conflict of interest. The Rhode Island Supreme Court affirmed the application of the Strickland standard in reviewing the lower court's findings, maintaining a presumption that attorneys perform within reasonable professional standards. Rivera's criticism that the state courts misapplied standards was dismissed, as the appellate court applied the correct Strickland standard. Additionally, Rivera's allegations concerning his counsel's conflict of interest were noted, but he claimed that proper notification procedures were not followed. Ultimately, the court determined that there was no basis for relief on either ground presented by Rivera.
The court did not adequately investigate the alleged conflict of interest claimed by Rivera, which he argues resulted in his counsel's failure to present a "third party culprit" defense. Claims of attorney conflict are assessed under the Strickland standard, where the primary focus is on whether the state court's application of this standard was unreasonable, rather than on evaluating whether the counsel's performance itself fell short. If a state court previously rejected an ineffective-assistance claim, federal habeas relief can be granted if the decision was contrary to or involved an unreasonable application of clearly established federal law, requiring proof of objective unreasonableness.
To establish a violation of Sixth Amendment rights due to a conflict of interest, a defendant must show that the conflict adversely affected the lawyer's performance; mere possibility of conflict is inadequate to challenge a conviction. A defendant demonstrating that a conflict influenced the adequacy of representation does not need to show prejudice. Defense attorneys are ethically bound to avoid conflicts and must inform the court of any arising conflicts, but the Supreme Court defers to counsel's judgment regarding the existence of conflicts, recognizing their unique position to assess such matters and their duty as officers of the court.
Trial courts may presume that multiple representation does not present conflicts unless they are aware or should reasonably be aware of a specific conflict. This presumption applies even when a vague possibility of conflict exists, as highlighted in Sullivan and Mickens cases. Rivera was represented by attorneys Matthew Smith and John Verdecchia, who also represented Hector Vasquez, the initial suspect in Rivera's murder case. Vasquez provided a statement to the police with Verdecchia present before Rivera's indictment, which was retainer signed on January 7, 1998. Rivera claimed neither attorney notified him of the potential conflict of interest arising from their dual representation.
The post-conviction court reviewed relevant case law and defined an actual conflict of interest as requiring an attorney to balance conflicting interests actively. It concluded that Rivera did not demonstrate that his attorneys struggled to serve both clients. The court noted the prior representation of Vasquez had concluded well before Rivera's trial. The Rhode Island Supreme Court affirmed the denial of post-conviction relief, stating that Smith and Verdecchia could appropriately assess potential conflicts and that Rivera had not met the burden of proof regarding this issue. The courts also considered Rivera's claim that his counsel's relationship with Vasquez hindered his ability to present a "third-party culprit" defense.
Mr. Vasquez was initially identified as a suspect in a murder investigation but was not presented as an alternative suspect at trial due to conflicts of interest faced by the defense counsel, who were also representing him. The post-conviction court rejected claims that the defense failed to adequately represent Mr. Vasquez, highlighting that it was Rivera, not Vasquez, who had a physical altercation with the victim. Witnesses failed to identify Vasquez in the photo array, and only Rivera was selected in court. Although defense counsel considered a theory involving a third-party culprit, they ultimately deemed this strategy untenable based on the evidence available. The court affirmed that Vasquez was not a viable suspect in the case, and Rivera himself did not suggest blaming him. The Rhode Island Supreme Court supported the hearing justice's findings, reinforcing that the decision not to pursue a third-party perpetrator defense was reasonable given the lack of supporting evidence. The Supreme Court's precedent allows for considerable discretion in counsel's tactical decisions, emphasizing the importance of professional judgment in legal strategy.
Counsel is not required to pursue implausible or insubstantial defenses based on informed professional judgment regarding law and factual realities. In Rivera's case, state courts determined that his trial counsel strategically declined to pursue a third-party culprit defense, a conclusion that Rivera failed to challenge effectively. Overcoming the high standard set by Strickland v. Washington is particularly difficult, especially given the deference afforded to state court decisions under 28 U.S.C. § 2254(d). Rivera could not demonstrate that the state courts erroneously applied federal law concerning his claim of conflicting interests involving his attorneys.
Rivera's remaining claims of ineffective assistance of counsel, specifically related to a motion to suppress identification evidence (Grounds Three, Eleven, and Fourteen), revolve around the failure to litigate this motion effectively. He argues that trial counsel did not argue the motion, which was filed but never presented, and that the Superior Court's failure to hold a hearing on the motion denied him a fair trial, violating due process. Rivera contends that the photo arrays used for identification were flawed and inherently suggestive, arguing that evidence from these arrays was tainted. However, the post-conviction court found no suggestiveness in the photo spreads presented, dismissing Rivera's claims regarding procedural issues and mismatched identification numbers.
The court evaluated whether the police officer's actions were suggestive in a case involving photo arrays used for identification. Both defense attorneys, Smith and Verdecchia, concluded that a motion to suppress would likely fail, as there was nothing inherently suggestive about the photo arrays. They decided against filing the motion as a tactical strategy, believing it would allow them to later highlight irregularities during trial cross-examination without revealing their strategy early. The defense was ultimately successful in challenging the police's credibility, leading to embarrassment for the Woonsocket Police. The court found no evidence of ineffective assistance of counsel based on the Strickland standard, affirming that the decision not to pursue suppression was a prudent tactical choice. The Rhode Island Supreme Court upheld the lower court's findings, agreeing that the defense attorneys did not provide constitutionally deficient representation.
Counsel is presumed to have provided adequate assistance and made decisions based on reasonable professional judgment, as established in Strickland v. Washington. The failure of cross-examination to persuade the jury does not alone indicate ineffective assistance of counsel. The reviewing court must evaluate counsel's strategy from their perspective at the time of trial. The state courts found no objectively unreasonable determination regarding the failure to pursue a motion to suppress, thus precluding federal habeas relief. The Court dismissed several grounds, including Grounds Twelve, Thirteen, and Sixteen as unexhausted, and Grounds Four, Five, Six, Seven, Ten, and Fifteen as procedurally defaulted. Grounds One, Two, Three, Eight, Nine, Eleven, and Fourteen were denied on their merits. Consequently, the Petition was denied and dismissed, and the Second Motion to Dismiss was granted. The Court ruled that a certificate of appealability is not warranted as Rivera did not demonstrate a substantial showing of a constitutional rights violation. Additionally, any motion to reconsider this ruling will not extend the time for filing an appeal. The Petition includes the main document along with two attachments, and the relevant legal provisions under 28 U.S.C. § 2254 regarding exhaustion of state remedies are noted.
Rivera's claim of "actual innocence" lacks clarity as to whether it serves as a gateway for the court to consider a defaulted claim or stands alone. He has failed to meet the necessary criteria to show that refusing to consider his claim would result in a fundamental miscarriage of justice, as established in Schlup v. Delo. Rivera's post-conviction petition is absent from the court's records, and there is no mention of new evidence regarding Hector Rodriguez in the trial court's oral decision. His initial appellate brief references a statement by Hector Vasquez, which he cites in relation to a conflict of interest argument. Additionally, Rivera details a trial incident involving witness Heather Cournoyer, who expressed fear about testifying due to threats, yet was compelled to do so by the court. Rivera contends that his claims regarding the photo pack and pre-trial identification issues stem from ineffective assistance of counsel, citing multiple alleged failings, including attorney conflict of interest and failure to investigate. These claims are presented in conjunction with the Antiterrorism and Effective Death Penalty Act framework. The document notes that Rivera's assertion of wrongful identification is insufficient to establish actual innocence. There is also a reference to a discrepancy regarding an individual named "Evans," which lacks context in the Rhode Island Supreme Court's opinion. Finally, the Rhode Island Supreme Court's footnote indicates that the trial justice referenced medical testimony to address premeditation related to the victim's condition after being shot.
Medical testimony regarding the defendant's ability to fire shots while pursuing the victim from behind was not considered, as the defendant waived this issue by failing to raise it initially (Rivera I, 839 A.2d at 504 n.7). The Rhode Island Supreme Court addressed issues related to identification and photo packs (Rivera I, 839 A.2d at 500-01). Although recantations were not presented as separate issues in Rivera's brief, the court addressed them and made a credibility determination about one witness (Rivera I, 839 A.2d at 503-04). A footnote in Rivera's brief mentioned a witness testifying under fear or duress, but this was not raised as a distinct issue. The appellate court found that Rivera had waived his argument regarding bullet trajectory (Rivera I, 839 A.2d at 501). Rivera contended that the Rhode Island Supreme Court conflated standards, but there was no indication that it deviated from the Strickland standard. Rivera acknowledged that his counsel also represented Vasquez in unrelated matters, and they were not co-defendants in this case. Rivera claimed ineffective assistance due to the counsel's failure to litigate a motion to suppress, but the Rhode Island Supreme Court determined he had waived this issue (Rivera II, 58 A.3d at 178). The appellate court noted that counsel filed the motion to suppress cautiously but ultimately believed it would fail, as any irregularities in the photo packs affected weight rather than admissibility. Consequently, the court did not need to address the timeliness or Rivera's equitable tolling argument.
