Rivera v. Kelly

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

HERIBERTO RIVERA, )

) CIVIL ACTION

Petitioner, ) No. 23-12046-WGY

)

v. )

)

SHEILA KELLY, )

)

Respondent. )

___________________________________)

YOUNG, D.J. January 22, 2025

MEMORANDUM AND ORDER

Pursuant to 28 U.S.C. § 2254 (“Section 2254”), Petitioner

Heriberto Rivera (“Rivera”) seeks a writ of habeas corpus on

four grounds, claiming: (1) his Fourth Amendment rights were

violated by the search and seizure of an apartment resulting in

the improper admission of evidence at his trial; (2) the

imposition of the Massachusetts Armed Career Criminal Act (the

“ACCA”) enhancement on Rivera’s sentence based on two prior

state convictions was error; (3) the sentence on his conviction

of unlawful possession with intent to distribute cocaine is

illegal; and (4) the Trial Justice’s acceptance of Rivera’s plea

to enhancement convictions on the factual record was error. See

Pet. (“the Petition”), ECF No.1. Rivera requests this Court

discharge him from the custody of Respondent Sheila Kelly (“the

Commonwealth”). Id. For the reasons stated below, the Petition

is hereby DENIED and the action is DISMISSED.

I. BACKGROUND

On May 14, 2015, the Worcester police obtained a warrant to

search a certain third-floor apartment that officers had

surveilled Rivera exiting. Commonwealth v. Rivera, 99 Mass.

App. Ct. 1131, 2021 WL 2692416, at *1 (2021) (unpublished)

(“Rivera I”); see Search Warrant, Suppl. App’x (“S.A.”) 136, ECF

No. 14.1 The search of the apartment revealed “a firearm,

ammunition, [7.89 grams of] cocaine, and personal papers of the

defendant.” Rivera I, 2021 WL 2692416, at *1-2, *2 n.2.

Rivera was subsequently indicted on July 23, 2015 in the

Superior Court for the following offenses: (1) possession of a

firearm without a Firearms Identification (“FID”) card, pursuant

to Mass. Gen. Laws ch. 269, § 10(h); (2) possession of

ammunition without a FID card, pursuant to Mass. Gen. Laws ch.

269, § 10(h)(1); (3) possession of cocaine with intent to

1 This Memorandum and Order incorporates the factual

findings of the Superior Court and the Appeals Court with

respect to Rivera’s underlying trial, sentencing, and appeal.

See 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an

application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court, a determination of a

factual issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.”).

distribute, pursuant to Mass. Gen. Laws ch. 94C, § 32A(c). See

Indictments, S.A. 125-27.

Prior to trial, Rivera filed a motion to suppress the

evidence that was obtained in the search of the apartment.

Rivera I, 2021 WL 2692416, at *1. The Trial Justice held an

evidentiary hearing on Rivera’s motion to suppress evidence,

which was denied. Id.; S.A., Ex. 2, Mot. Suppress Tr., ECF No.

14-2; Findings of Fact, Rulings of Law and Order Def.’s Mot.

Suppress Evid., S.A. 138-143.

Rivera proceeded to a jury trial, where he was convicted on

all three counts on May 3, 2017. Rivera I, 2021 WL 2692416, at

*1; S.A., Ex. 5, Tr. Jury Trial - Day 3 3-131 – 3-132, ECF No.

14-5. Prior to sentencing, Rivera pleaded guilty to facts

concerning a prior conviction for a predicate offense under the

Massachusetts ACCA, Mass. Gen. Laws ch. 269, § 10G, subjecting

him to sentencing enhancements. Rivera I, 2021 WL 2692416, at

*4; see generally Robert Barnhart, Meet the New Chief, Same as

the Old Chief: A Coherent Solution to the Problem of Prior

Conviction Proof Procedures, 126 W. Va. L. Rev. 515 (2024).

Rivera was sentenced to 9-10 years on each count, to run

concurrently. Rivera I, 2021 WL 2692416, at *1; S.A., Ex. 6,

Tr. Enhancement and Sentencing (“Sentencing Tr.”) 4-35 - 4-36,

ECF No. 14-6.

On appeal, the Massachusetts Appeals Court affirmed.

Rivera I, 2021 WL 2692416, at *4-5. The Supreme Judicial Court

of Massachusetts thereafter denied Rivera’s application for

further appellate review without prejudice, and remanded the

case to the Appeals Court “for consideration of the question

whether [Rivera’s] plea to the [ACCA] sentencing enhancement . .

. was supported by ‘sufficient facts on the record to establish

each element of the offense.’” Commonwealth v. Rivera, 100

Mass. App. Ct. 1124, 2022 WL 414146, at *1 (2022) (unpublished)

(“Rivera II”).

On remand, the Appeals Court confirmed its prior ruling,

“answer[ed] that question ‘yes’” and stated that it had not

changed its decision. Rivera II, 2022 WL 414146, at *1. On

June 3, 2022, the Supreme Judicial Court denied Rivera’s

application for further appellate review. Commonwealth v.

Rivera, 489 Mass. 1108 (2022).

On September 1, 2023, Rivera filed this Petition. See Pet.

The Commonwealth answered the petition and provided relevant

portions of the record. Resp’t’s Answer Pet., ECF No. 13; S.A.,

ECF No. 14.

The Petition has been fully briefed. See Mem. Law Supp.

Pet. Writ Habeas Corpus (“Pet’r’s Mem.”), ECF No. 19; Resp’t’s

Mem. Opp’n Pet. Writ Habeas Corpus (“Resp’t’s Opp’n”), ECF No.

21; Pet’r’s Reply Opp’n (“Reply”), ECF No. 24.

This Court held a non-evidentiary hearing on September 17,

2024. Elec. Clerk’s Notes, ECF No. 30. The Court took the

matter under advisement. Id.

II. ANALYSIS

For the reasons set forth below, the Petition is denied on

the merits because Rivera fails to meet his high burden to

obtain habeas corpus relief. As an initial matter, Rivera does

not tie his arguments directly to the grounds in the Petition,

but rather posits three main arguments attacking: (1) the

suppression motion denial; (2) the sentencing enhancement under

the ACCA; and (3) the sentence on Count 3.2 The Court has

nevertheless attempted to connect the arguments to address the

four grounds raised in the Petition.

A. Standard of Review

Rivera proceeds under Section 2254, which provides the

habeas corpus standard applicable to state prisoners as codified

by Congress under the Antiterrorism and Effective Death Penalty

2 It is apparent that the Petition was filed close to, or

perhaps on the last day of, the statute of limitations; here

apparently September 1, 2023, which may be why the memorandum

differs somewhat from the contours of the Petition. See 28

U.S.C. § 2244(d)(1) (one-year statute of limitation); Pet. 14.

Further, in the Assented-to Motion for Scheduling Order,

Rivera’s counsel sought more “time to review the state-court

record and to prepare a memorandum addressing the merits of the

petition under the standards of 28 U.S.C. § 2254(d), and any

affirmative defenses that were listed in the respondent’s

answer.” Assented-to Mot. Scheduling Order ¶ 6, ECF No. 12.

Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214

(1996). That statute “unambiguously provides that a federal

court may issue a writ of habeas corpus to a state prisoner only

on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.”

Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citation and

internal quotation marks omitted); 28 U.S.C. § 2254(a). As a

corollary to Section 2254(a), “federal habeas corpus relief does

not lie for errors of state law.” Id. (quoting Estelle v.

McGuire, 502 U.S. 62, 67 (1991)).

“To respect our system of dual sovereignty . . . the

availability of habeas relief is narrowly circumscribed.” Shinn

v. Ramirez, 596 U.S. 366, 375 (2022). “Indeed, it is not a

second appeal, and the Supreme Court has ‘recognized that

federal habeas review cannot serve as a substitute for ordinary

error correction through appeal . . . [Rather,] . . . [t]he writ

of habeas corpus is an extraordinary remedy that guards only

against extreme malfunctions in the state criminal justice

systems.’” Lees v. Alves, 695 F. Supp. 3d 139, 152 (D. Mass.

2023) (alterations in original) (quoting Shinn, 596 U.S. at

377).3

3 In addition to the exhaustion requirement, AEDPA also

imposes a one-year statute of limitation. 28 U.S.C. § 2244

(d)(1); Sena v. Kenneway, 997 F.3d 378, 384 (1st Cir. 2021).

Before proceeding to the merits of a habeas petition, a

petitioner -- here, Rivera -- ordinarily must demonstrate that

he has taken all steps to exhaust his claims before the highest

state court, and demonstrate that he has not procedurally

defaulted those claims. Shinn, 596 U.S. at 378. The Court may

deny a petition “on the merits, notwithstanding the failure of

[the petitioner] to exhaust the remedies available in the courts

of the State.” 28 U.S.C § 2254(b)(2).

When assessing the merits of a petition, “AEDPA ‘demands

that a federal habeas court measure a state court’s decision on

the merits against a series of peculiarly deferential

standards.’” Etienne v. Edmark, 119 F. 4th 194, 198 (1st Cir.

2024) (quoting Ayala v. Alves, 85 F. 4th 36, 54 (1st Cir.

2023)). Specifically:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment

of a State court shall not be granted . . . unless the

adjudication of the claim--

(1) resulted in a decision that was contrary

to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (“Section 2254(d)”).

As for subpart one of Section 2254(d), “[t]he ‘contrary to’

clause applies when ‘the state court arrives at a conclusion

opposite to that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than [the

Supreme] Court has on a set of materially indistinguishable

facts.’” St. Jean v. Marchilli, 116 F. 4th 71, 78 (1st Cir.

2024) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)).

“‘[C]learly established Federal law, as determined by the

Supreme Court of the United States,’ means ‘the holdings, as

opposed to the dicta, of [the Supreme] Court’s decisions as of

the time of the relevant state-court decision.’” Id. at 78-79

(quoting Williams, 529 U.S. at 412).

The “unreasonable application” clause is applicable where

the state court identified the correct legal principal but

applied it unreasonably to the facts in the case at hand.

Williams, 529 U.S. at 407-08. The clause applies “if, and only

if, it is so obvious that a clearly established rule applies to

a given set of facts that there could be no ‘fairminded

disagreement’ on the question.” St. Jean, 116 F. 4th at 79

(quoting White v. Woodall, 572 U.S. 415, 426-27 (2014)).

A habeas court reviewing a decision under this prong must

ask if the state court’s decision was “objectively

unreasonable.” Williams, 529 U.S. at 409. Said another way,

“[t]o meet [this] standard, a [petitioner] must show far more

than that the state court’s decision was merely wrong or even

clear error; rather, the [petitioner] must show that the state

court’s decision is so obviously wrong that its error lies

beyond any possibility for fairminded disagreement.” Etienne,

119 F. 4th at 198 (cleaned up).

As for subpart two of Section 2254(d), an unreasonable

determination of the facts occurs when a state court’s

determination of facts is “objectively unreasonable in light of

the evidence presented in the state-court proceeding.” Miller–

El v. Cockrell, 537 U.S. 322, 340 (2003). Substantial deference

is accorded to the state trial court’s factual determination

under this standard. Brumfield v. Cain, 576 U.S. 305, 314

(2015). Factual determinations are not unreasonable “merely

because [this Court] would have reached a different conclusion

in the first instance.” Id. at 313-14 (quoting Wood v. Allen,

558 U.S. 290, 301 (2010)). Even where “‘[r]easonable minds

reviewing the record might disagree’ about the finding in

question, ‘on habeas review that does not suffice to supersede

the trial court’s . . . determination.’” Wood, 558 U.S. at 301

(quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006)); see St.

Jean, 116 F. 4th at 79. As for this subpart, the Court proceeds

under this standard, and not 28 U.S.C. § 2254(e)(1).4

4 The First Circuit recognizes that the Supreme Court has

left open the question of whether 28 U.S.C. § 2254(d)(2) is

subject to the rebuttable presumption under 28 U.S.C. §

2254(e)(1):

“If [§ 2254(d)’s] standard is difficult to meet, that is

because it was meant to be.” Harrington v. Richter, 562 U.S.

86, 102 (2011). “Section 2254(d) is part of the basic structure

of federal habeas jurisdiction, designed to confirm that state

Under AEDPA, a federal court may issue the writ

if the state court decision “was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d)(2). Curiously, the next provision

of the statute adds that “a determination of a factual

issue made by a State court shall be presumed to be

correct” unless rebutted “by clear and convincing

evidence.” Id. § 2254(e)(1).

Because these two provisions seem to address

essentially the same scenario, some tension is

apparent. Courts long have grappled with “the

question of how §§ 2254(d)(2) and (e)(1) fit

together.” Wood, 558 U.S. at 300. The Supreme Court

has carefully left that question open. See id. We

have emulated the Court's example. See Lucien v.

Spencer, 871 F.3d 117, 127 n.4 (1st Cir. 2017).

Nevertheless, “this circuit has routinely held

petitioners to the § 2254(e)(1) ‘clear and convincing’

standard” -- although we have never done so “in a case

in which resolving the fit between the two sections

would appear to have made any difference.” Smith v.

Dickhaut, 836 F.3d 97, 101 (1st Cir. 2016); see, e.g.,

Hollis v. Magnusson, 32 F. 4th 1, 8 (1st Cir. 2022).

In all events, the question remains open in this

circuit -- and we need not decide it today.

Porter v. Coyne-Fague, 35 F. 4th 68, 79 (1st Cir. 2022). The

Court need not decide the issue in this case either because, as

in Porter, “all roads lead to Rome: the outcome of [the Court’s]

inquiry would be the same whether [Rivera] only has to show that

the state court decision ‘was based on an unreasonable

determination of the facts,’ 28 U.S.C. § 2254(d)(2), or whether

he also has to satisfy subsection (e)(1)’s ‘clear and

convincing’ standard.” Id.

courts are the principal forum for asserting constitutional

challenges to state convictions.” Id. at 103. Although Section

2254(d) “stops short of imposing a complete bar on federal court

relitigation of claims already rejected in state proceedings,”

it “reflects the view that habeas corpus is a ‘guard against

extreme malfunctions in the state criminal justice systems,’ not

a substitute for ordinary error correction through appeal.” Id.

at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5

(1979) (Stevens, J., concurring in judgment)); see Watkins v.

Medeiros, 36 F. 4th 373, 384 (1st Cir. 2022) (quoting Shinn, 596

U.S. at 377).

In sum, Congress has placed an extraordinarily high burden

on Rivera to obtain habeas corpus relief under AEDPA. He has

not met that burden.

B. Rivera’s Fourth Amendment Claim (Ground One) Is Barred

Because Rivera Had an Opportunity for Full and Fair

Litigation of His Fourth Amendment Claim in State

Court.

Rivera’s first ground is that the Superior Court erred in

denying his motion to suppress evidence on Fourth Amendment

grounds. This claim is barred under well-settled Supreme Court

precedent that “where the State has provided an opportunity for

full and fair litigation of a Fourth Amendment claim, the

Constitution does not require that a state prisoner be granted

federal habeas corpus relief on the ground that evidence

obtained in an unconstitutional search or seizure was introduced

at his trial.”5 Stone v. Powell, 428 U.S. 465, 481-82 (1976).

As this Court has written, “[t]he First Circuit has observed

that Stone ‘stands for the proposition that a federal habeas

court ordinarily cannot revisit a state court’s disposition of a

prisoner’s Fourth Amendment claims,’ while also finding ‘an

exception for instances in which a habeas petitioner had no

realistic opportunity to litigate his Fourth Amendment claim

fully and fairly in the state system.’” Cavitt v. Saba, 57 F.

Supp. 3d 81, 90 (D. Mass. 2014) (quoting Sanna v. Dipaolo, 265

F.3d 1, 8 (1st Cir. 2001)).

Here, Rivera addresses neither Stone’s general rule, nor

its narrow exception, but instead goes right to the merits,

claiming that the circumstances surrounding the police officers’

entry of an apartment violated his Fourth Amendment rights.

Pet’r’s Mem. 32-35. The Court cannot reach the merits under

Stone, and Rivera’s “failure to address the issue is a

sufficient reason for the Court to deny relief on this ground.”

Cavitt, 57 F. Supp. 3d at 91. Nevertheless, even reviewing the

matter under Stone, as the Respondent persuasively argues,

Resp’t’s Opp’n. 20, Rivera’s claim on this ground fails because

5 The Court need and does not reach the exhaustion issue

presented by the Commonwealth, Resp’t’s Opp’n 20 n.12, because

the Court denies the requested relief on the merits. 28 U.S.C.

§ 2254(b)(2).

Rivera had ample “opportunity to litigate his Fourth Amendment

claim fully and fairly in the state system,” Sanna, 265 F.3d at

8, and did so. As in Cavitt, “even if this Court believed that

the state court had decided the issue wrongly -- which this

Court does not -- habeas relief could not follow on this

ground.” Cavitt, 57 F. Supp. 3d at 91. Rivera’s claim for

habeas relief on Fourth Amendment grounds and the denial of his

suppression motion (Ground One) is therefore denied.

C. The Massachusetts Appeals Court’s Determination that

Rivera’s Prior Convictions Were Predicate “Violent

Crimes” Under the ACCA Sentencing Enhancement (Ground

Two) Is Not Reviewable in Habeas Corpus.

Rivera argues that the Massachusetts Appeals Court

erroneously and unreasonably applied Supreme Court precedent

when imposing the ACCA enhancement, claiming that neither of his

prior cited offenses -- for Assault and Battery with a Deadly

Weapon and Assault with Intent to Kill -- were predicate

“violent crimes.” Pet’r’s Mem. 6–24. The claims fails.

The three cases cited as applicable Supreme Court precedent

-- Mathis v. United States, 579 U.S. 500 (2016), Descamps v.

United States, 570 U.S. 254 (2013), and Borden v. United States,

593 U.S. 420 (2021) -- address the federal Armed Career Criminal

Act, 18 U.S.C. § 924, and are not an applicable basis to bring a

Section 2254(d) claim based on the Massachusetts ACCA. See

Haynie v. Cates, No. 19-CV-1967, 2024 WL 3718270, at *5 (E.D.

Cal. Aug. 8, 2024) (“Descamps and Mathis provide no support for

petitioner's claim because those are ACCA cases decided on

federal statutory grounds.”). While it is true that, because

the federal ACCA and Massachusetts ACCA are virtually identical,

the Commonwealth’s courts often “look to the to the Federal

courts for guidance” as to the Massachusetts ACCA, Commonwealth

v. Beal, 474 Mass. 341, 349 (2016), federal decisions

interpreting the application of the federal ACCA are merely

persuasive.

Furthermore, as the Commonwealth correctly argues, Resp’t’s

Opp’n 15, whether Rivera’s prior crimes of conviction qualified

as predicates under the Massachusetts ACCA is an issue of state

law that is not reviewable in federal habeas corpus. See Ware

v. Dickhaut, 439 Fed. App’x 14, 15 (1st Cir. 2011) (per curiam)

(unpublished) (“Given that Ware’s prior drug dealing conviction

did qualify as a predicate offense under the state armed career

criminal statute -- a conclusion which the federal courts must

respect -- the evidence clearly was sufficient to support Ware's

conviction as an armed career criminal.”); Widener v. Cowen, No.

18-10780, 2019 WL 330864, at *4 (D. Mass. Jan. 25, 2019)

(Casper, J.) (“At bottom, the ruling on Widener’s

[Massachusetts] ACCA claim was a matter of a state court’s

interpretation of state law and as such is not appropriate for

this Court’s review. . . . Deciding which crimes qualify as

violent under the Massachusetts ACCA is a realm reserved for the

Massachusetts courts and thus is not an appropriate ground for

habeas relief.”); see also Bradshaw v. Richey, 546 U.S. 74, 76

(2005) (“[A] state court’s interpretation of state law,

including one announced on direct appeal of the challenged

conviction, binds a federal court sitting in habeas corpus.”).

As a result, Rivera’s argument fails in this aspect as this

Court is bound by the decisions of the Superior Court and

Massachusetts Appeals Court regarding the Massachusetts ACCA

sentence enhancement. Ground Two therefore fails.6

D. The Massachusetts Appeals Court’s Determination

Regarding the Factual Basis of the Plea to Rivera’s

Enhancements Was Based Upon Sufficient Evidence.

In his reply, Rivera argues that he is not asking this

Court to examine and apply state law. Reply 7. Rather, Rivera

argues that there was insufficient evidence to uphold the ACCA

enhancement, which he argues is a federal constitutional

question. Id. In support of this argument, Rivera cites a

Nevada federal district court case, Chrisman v. Howell, No. 19-

CV-01219, 2020 WL 5367330 (D. Nev. Sept. 8, 2020). In Chrisman,

the court ruled that the habeas petitioner was not alleging a

6 Rivera’s petition recites in Ground Two, subpart (a)(3) as

supporting facts that “State courts violated equal protection by

not applying new rule to direct appeal that clarified that ABDW

is not a crime of violence, when applied to similarly situated

persons.” See Pet. 8. This claim is not argued in Rivera’s

memorandum, and even if it is exhausted, it is meritless.

violation of state law, rather he was “alleging as a federal

constitutional matter that the evidence presented at trial was

insufficient to prove one of the elements as defined by state

law.” Chrisman, 2020 WL 5367330, at *3 (emphasis added). Under

Jackson, Chrisman is distinguishable because it does not relate

to enhancements under a state-armed career criminal act and

relates to sufficiency of evidence admitted at trial, as opposed

to here where Rivera pleaded guilty to the ACCA enhancements.

Rivera I, 2021 WL 2692416, at *1. Nevertheless, under a Jackson

analysis, such a claim fails.

“When reviewing a challenge to the sufficiency of the

evidence, a habeas court asks ‘[w]hether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.’” Rodrigues v.

Rodrigues, 701 F. Supp. 3d 89, 101 (D. Mass. 2023) (Mastroianni,

J.) (quoting Jackson, 443 U.S. at 319).

Here, Rivera admitted that he had pleaded guilty not just

to assault with intent to commit a felony, but also to assault

with “intent to kill” and assault with a dangerous weapon during

his sentencing enhancement plea colloquy. Rivera II, 2022 WL

414146, at *1. The Massachusetts Appeals Court ruled that

Rivera’s prior conviction for “assault with intent to kill” was

sufficiently proved to be a predicate “violent crime” given

that:

the prosecutor submitted additional evidence when she

specified during the plea colloquy that the defendant

shot the victim with the intent “to kill.” That

sufficed to prove that the defendant’s prior offense

of assault with intent to kill was a violent crime as

defined in the ACCA . . . because it involved the

intentional use of physical force against the victim.

Id. The underlying criminal statute does not describe intent to

“kill,” but rather only to “commit a felony.” Mass. Gen. Laws

ch. 265, § 29.7 The Commonwealth supplied the factual intent in

its brief summary, to which characterization Rivera agreed:

“intent to kill.” The Judge confirmed this characterization

with Rivera. More was not needed.

Further, with intent to kill established, the Massachusetts

Appeals Court ruled that Rivera’s prior conviction of Assault

and Battery with a Deadly Weapon, based on the same incident,

was sufficiently proved to be a predicate “violent crime”:

7 Chapter 265, Section 29 of Massachusetts General Laws

provides:

Assault; intent to commit felony; punishment

Section 29. Whoever assaults another with intent to

commit a felony shall, if the punishment of such

assault is not hereinbefore provided, be punished by

imprisonment in the state prison for not more than ten

years or by a fine of not more than one thousand

dollars and imprisonment in jail for not more than two

and one half years.

Mass. Gen. Laws ch. 265, § 29.

[T]he prosecutor specified during the plea colloquy

that the defendant committed the [Assault and Battery

with a Deadly Weapon] by means of a “gun” with which

he “shot” the victim with intent “to kill.”

[Commonwealth v. Ashford, 486 Mass. 450, 460 (2020)].

A firearm “clearly qualif[ies]” as a deadly weapon

within the meaning of the ACCA definition of violent

crime, G. L. c. 140, § 121. Commonwealth v. Rezendes,

88 Mass. App. Ct. 369, 375 n.7 (2015). In these

circumstances, the [Assault and Battery with a Deadly

Weapon] did amount to the “paradigmatic” version of

the offense: “intentionally shooting a person without

killing the individual,” which is “undoubtedly a crime

of violence” as defined in the ACCA. [Ashford, 486

Mass at 467].

Rivera II, 2022 WL 414146, at *2. In sum, Rivera “admitted that

he had previously been convicted of assault with intent to kill

and assault and battery by means of a dangerous weapon” based on

the facts that the Commonwealth had presented to the Court. Id.

at *1.

The above-stated facts are confirmed from a plain reading

of the transcript of the sentencing:

THE COURT: At this point, I’m going to ask the

prosecutor to recite the facts regarding the enhanced

portion of the indictments which the Commonwealth

would be prepared to prove at trial.

Please listen carefully to the prosecutor's

statement of the facts so that you can then respond to

the follow-up questions I will put to you when she's

done.

[THE DEFENDANT:] [sic] Yes, ma'am.

MS. KARCASINAS: Thank you, your Honor. Had the

Commonwealth proceeded to trial on the armed career

criminal enhancement, it would have offered evidence

that on June 21st of 2007, Worcester police officers

were dispatched to 85 Chatham Street for a shooting.

Upon their arrival, officers found an Edwin Valentin

motionless in the street. Officer Bill Pero of the

Worcester Police Department located an entrance wound

in Mr. Valentin’s upper right arm and his chest area.

As the officers tried to speak with him, they noted he

was going in and out of consciousness.

The police spoke to the hospital that indicated

Mr. Valentin suffered a single gunshot wound to his

bicep which entered the right lateral side of his

chest, and the caliber projectile became lodged into

his spinal cord.

Through an investigation, police then spoke to

Mr. Valentin on June 5, 2007, when he had been moved

out of the intensive care unit. He told police that

the person who shot him is a male that goes by the

name of Macho and that he drives a gray BMW. He also

identified Macho out of a photo array.

He told police that Macho had been partying with

him and his group of friends earlier when Macho left.

Mr. Valentin then went outside and saw Macho. Macho

said something to him which he could not understand,

raised a gun, and shot him. Mr. Valentin told police

that the two have never had any problems with one

another.

The person who was identified by Mr. Valentin as

being Macho was later identified by the Worcester

Police Department as the defendant before the Court

today, Heriberto Rivera.

The defendant was convicted on Docket No. -- out

of the Worcester Superior Court, Indictment Number --

excuse me -- 07-2023-1. He was convicted of assault

to kill and assault and battery with a dangerous

weapon. That occurred on October 27th of 2009.

And that would have been the evidence that the

Commonwealth would have offered at trial.

THE COURT: And after conviction, what was the

sentence he received?

MS. KARCASINAS: Your Honor, on the assault to kill,

the defendant received a three- to five-year State

Prison sentence. On the assault and battery with a

dangerous weapon, he did receive five years'

probation. He did violate probation and he was given

a two- to two-year-and-one-day State Prison sentence.

THE COURT: Okay. Thank you.

MS. KARCASINAS: Thank you, your Honor.

THE COURT: Did you hear the statement that the

prosecutor read to me, Mr. Rivera?

THE DEFENDANT: Yes, your Honor.

THE COURT: And is it true that you not only committed

the acts that were described to me, but that you were

found guilty and sentenced to a State Prison sentence

on the assault with intent to kill and five years’

probation on the assault and battery with a dangerous

weapon, and ultimately violated that probation and

received a two-year sentence. Is all that true?

THE DEFENDANT: Yes, your Honor.

THE COURT: You understand that by pleading guilty to

those things or admitting to those things, you are

pleading guilty?

THE DEFENDANT: Yes, your Honor.

THE COURT: So it is your request formally to plead

guilty to these armed career criminal offenses.

Is that true?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand that by doing this, by

pleading guilty, you’re giving up the right to a

trial, with or without a jury, to determine your guilt

or innocence as to this portion of the indictments?

THE DEFENDANT: Yes, your Honor.

Sentencing Tr. 4-18 – 4-21 (emphasis added). Rivera has not met

his burden on this issue: there were sufficient facts presented

to the sentencing court. As a result, Rivera’s habeas claims as

to factual sufficiency concerning the factual underpinnings of

ACCA enhancements (Ground Four) fails.8

E. The Massachusetts Appeals Court’s Affirmance of the 9-

10 Year Sentence on Rivera’s Third Count for

Possession of Cocaine with Intent to Distribute Was

Neither an Unreasonable Application of Supreme Court

Precedent, nor an Unreasonable Determination of Facts

(Ground Three).

Rivera argues that the Appeals Court’s affirmance of the

Superior Court’s sentence of 9-10 years on his conviction for

possession of cocaine with intent to distribute was “imposed

contrary to” and based on an “unreasonabl[e] appl[ication of]

Supreme Court precedent,” entitling him to relief under Section

2254(d)(1). Pet’r’s Mem. 24-25. Specifically, Rivera points to

United States v. Booker, 543 U.S. 220 (2005) and Gall v. United

States, 552 U.S. 38 (2007). Id. Rivera claims that the

erroneous application of these precedents resulted in “a

decision that was an erroneous determination of facts, pursuant

to 28 U.S.C. § 2254(d)(2) when sentencing [] Rivera for a term

of [9-10]9 years for Count 3.” Id.

8 In addition, to the extent that Rivera attempts to bring

a Due Process claim under the Fourteenth Amendment, there is no

basis for any due process violation based upon the record before

this Court.

9 Rivera mistakenly asserts that Rivera was sentenced to 10-

12 years on this Count.

Again, the Commonwealth correctly argues that Booker and

Gall’s holdings, as applied here, are relevant to a federal

district court, sentencing federal defendants for violations of

federal law. Resp’t’s Opp’n 5-6. Rivera’s reliance on these

cases is therefore misplaced; rather, Rivera’s “sentencing is a

question of state law and this Court does not reexamine the

Massachusetts Appeals Court’s determination that the Superior

Court used proper factors in sentencing.” Gaines v. Vidal, 224

F. Supp. 3d 79, 92 (D. Mass. 2016) (Casper, J.) (first citing

Estelle, 502 U.S. at 67–68; and then citing Kater v. Maloney,

459 F.3d 56, 61 (1st Cir. 2006) (noting that federal courts do

not review errors of state law on habeas)); see Swarthout, 562

U.S. at 219. The claim under Section 2254(d)(1) fails.

Rivera’s claim fares no better under the factual prong of

Section 2254(d)(2). That provision “requires that the state

court’s decision be ‘based on an unreasonable determination of

the facts’ on the record before that court.” St. Jean, 116 F.

4th at 79 (quoting Section 2254(d)(2)).

Rivera presses that his sentence on Count 3 was imposed by

a “mistake” that went unnoticed, and that the sentence was

unexplained and based upon improper factors or an ambiguous

record. Pet’r’s Mem. 25-30. Rivera adds in his reply that “due

process imbedded in the Fourteenth Amendment and Fifth Amendment

requires a trial court to ‘adequately explain the chosen

sentence.’”10 Reply 4 (quoting Gall, 552 U.S. at 50). As the

Commonwealth correctly argues, however, the over-arching factual

premise of all Rivera’s arguments is meritless. Resp’t’s Opp’n

10-14.

A review of the sentencing transcript reveals that the

Trial Justice carefully considered the sentencing recommendation

of the prosecutor at the sentencing hearing, and Rivera’s

counsel’s sentencing recommendation, and then sentenced Rivera.

The Court provides the relevant portions of the transcript here:

THE COURT: So what do you say, then, Ms. Karcasinas?

What does the Commonwealth recommend?

MS. KARCASINAS: Your Honor, in regard to the

Commonwealth's recommendation, it’s based largely in

part on the defendant's Board of Probation record.

When the defendant was 18 years old, he entered the

criminal justice system.

In looking at his Board of Probation record, at

just the age of 18, he picked up his first firearms

offense. And I suggest that’s where the defendant was

given his first break. He was given a suspended

sentence. He violated it and was sentenced to six

months in the House of Corrections.

THE COURT: Beg your pardon. As you’re speaking, I'd

like to look at the Board of Probation record, which I

know I have seen before, but I'd like to review it

again, please.

(Document handed to the Court.)

10 It is not clear that the constitutional claims relating

to the purported mistake have been exhausted. The Court need

and does not reach the exhaustion issue presented by the

Commonwealth, because the Court is denying relief on the merits

of such claims. See 28 U.S.C. § 2254(b)(2).

THE COURT: Thank you. Okay. So at age 18, he got a

conviction for --

MS. KARCASINAS: For a firearms offense, your Honor.

That was out of the Worcester District Court. It’s

for two counts of possession of a firearm.

He was given a break. He was given a suspended

sentence. He violated it. He did six months in the

House of Corrections. Instead of attempting to better

his life, he continued down the wrong path.

Shortly thereafter that, your Honor, in 2007, he

was involved in a shooting. He shot a man who claims

that they had no -- you know, no problems with one

another. The man was critical. The man almost died.

I’d suggest to the Court that’s where he was

given break number two. He was given a three- to

five-year State Prison sentence, and he was given the

opportunity at probation from and after.

Once again, the defendant gets out of State

Prison. He’s on probation. He violated it not once,

but twice, and was sent back and did another State

Prison sentence of two years to two years and one day.

Now, we have heard from the defendant during the

plea that while he was in State Prison, he got his

GED. Upon getting out of his second State Prison

sentence, he could have done something with that. He

could have looked for a job. He could have gone back

to school. But no. He then engages in criminal

behavior even more. He’s once again, for a third

time, caught with a firearm, has since been convicted

of drugs.

I suggest to the Court that the defendant is

averaging one firearm conviction for every ten years

of his life.

This is a man who doesn’t listen to what the

Courts tell him to do. He doesn't adhere to any rules

set by the Court. He does not care.

I point out to the Court that while your Honor

was the sitting judge for the trial, this was an

apartment that his sister rented. And I would point

out she did provide statements to the Commonwealth,

and in her statements, mentions how she had two young

children living in this apartment.

So you have this man right here, who has a child

of his own, still playing with guns, dealing drugs,

bringing a loaded firearm into an apartment where

there’s two young kids.

And he then involves a -- at the time, a

19-year-old girl in helping him cover up his firearm

charge and his drug charges.

I suggest to the Court that based on his previous

record that he be sentenced to ten to twelve years in

State Prison.

Sentencing Tr. 4-26 - 4-29. Ten-to-twelve years is consistent

with a total aggregate sentence for the offenses at issue.

After hearing from Rivera’s counsel, the Trial Justice observed:

THE COURT: Well, I have to note that it is a sad

state of affairs that the defendant did not seek

professional help that he maybe needed at an earlier

age, and that led him, potentially, along with other

factors, not to realize his potential.

At the age of 30, I’m witnessing basically, as I

do often in court, a wasted life that affects not only

him, but his family, an innocent eleven-year-old girl.

He’s got to face punishment for his past and his

present misdeeds.

I have to take into account the public safety

component. This man has shown himself to be

consistently and repeatedly, as the prosecution said,

a threat to other members of society by the possession

of guns, and now drugs with the intent to distribute.

They’re very serious offenses. And then in

conjunction with his prior record, it’s an extremely

serious situation. Therefore, it merits a serious

sentence.

Id. at 4-31 – 4-32. Rivera gave a short allocution:

THE DEFENDANT: Your Honor, I just wanted to say

that I’m not no criminal. And I know I’ve done a lot

of mistakes and I have struggled with myself mentally,

you know, and I am willing to seek help, you know, and

I’ve been trying to. I just have a problem trusting

people. The only person I have spoke to is my mother,

you know.

And I give you my word that if you give me this

one last chance, then you will not ever hear from me

again. I will leave Massachusetts. I will go with my

father in Puerto Rico.

Id. at 4-33. The Court then explained:

THE COURT: I believe people deserve chances,

second chances, even third chances and fourth chances.

But by the age of 30, with a long history of not

having taken advantage of those chances and committing

serious crimes, I can only guess at what the future

holds will be consistent with what the past showed.

And therefore -- I take no pleasure in the

sentence I’m going to give you. It’s going to be

significant. It’s not going to be as much as the

Commonwealth's looking for.

But you’re still going to come out of

incarceration at whatever age it is. You’re still

going to be a father and you’re still going to have

the chance to be a productive member of society.

That’s up to you, if you take that road, just as

you’ve promised that you would if I give you a short

sentence.

What you make of your life going forward is up to

you, and that’s entirely on you. I am imposing a

sentence which I think is merited under all the

circumstances, based on your past and present

convictions.

And I truly hope that you find a way not to

define yourself on the basis of these convictions

going forward, but to figure out a way in which you

can be a productive member of society and a

responsible father to your daughter. That’s what I

hope, anyway.

Id. at 4-34 – 4-35. After the Court explained the necessity of

a serious sentence, the Clerk clearly announced that sentence:

THE CLERK: Judge, may the sentence be imposed?11

THE COURT: Yes.

THE CLERK: Mr. Rivera, all sentences are to run

concurrent with each other. The Court, having

considered the offenses of which you stand convicted,

on Count 1, possession of firearm without FID card as

a career criminal 1; Count 2, possession of ammunition

without an ID card as a career criminal 1; and

possession of cocaine with intent to distribute, the

Court, having considered the offenses of which you

stand convicted, orders you be sentenced to the Mass.

Correctional Institute at Cedar Junction for a period

of not less than nine, no more than ten years. All

these sentences, as stated, will run concurrent with

each other.

Id. at 4-35 (emphasis added).

Rivera provides conjectural arguments as to the Trial

Justice’s exercise of discretion in imposing the sentence.

Rivera’s narrow reading of the transcript ignores the

Commonwealth’s detailed recitation of Rivera’s failed

rehabilitation, increasing recidivism, and dangerousness.

11 The practice in Massachusetts, unlike in the federal

court, appears to be for the Clerk to announce the sentence.

See Commonwealth v. Grundman, 479 Mass. 204, 206 n.2 (2018)

(“Given that clerks are authorized to announce a defendant’s

sentence in court, in the presence of the sentencing judge, the

clerk’s announcement of the defendant’s sentence would

constitute actual notice of the terms that were announced.”).

To the extent that Rivera argues that a factor was

considered in his sentencing in violation of federal law, the

claim is meritless. The Commonwealth’s statements in support of

the sentencing recommendation, and the Trial Justice’s

observations cannot be read to suggest, as argued by Rivera,

that he was somehow being punished for “not go[ing] to college

and [because he] did not get a well-paying job.” Pet’r’s Mem.

29. Rather, the Trial Justice apparently disagreed with the

Commonwealth’s recommendation of a 10-to-12-year aggregate

sentence, and after considering a number of factors, instead

sentenced Rivera to a term of 9-to-10 years concurrent on all

counts of conviction, which was at or below the statutory

maximum on all three counts. The sentence indicates that the

Trial Justice was fully cognizant of the sentencing options

available to him.12

The record before this Court demonstrates that the Trial

Justice made no mistake: in the sentencing of a recidivist

engaging in dangerous criminal activities, the Trial Justice

issued a serious sentence and explained his reasoning. Even if

reasonable minds might differ as to the facts, a reasonable

12 It is undisputed that Rivera’s 9-to-10-year sentence for

possession of cocaine with intent to distribute adheres to the

state maximum sentence of 10 years. See Mass. Gen. Laws ch.

94C, § 32A(c); Resp’t’s Opp’n 8 n.4.

disagreement about the interpretation of the facts compels a

ruling that Rivera has not met his substantial AEDPA burden.

See Wood, 558 U.S. at 293; St. Jean, 116 F. 4th at 79 (“This

showing cannot be made when ‘[r]easonable minds reviewing the

record might disagree’ about the finding in question.”

(alteration in original) (quoting Brumfield, 576 U.S. at 314)).

III. CONCLUSION

“The writ of habeas corpus is an extraordinary remedy that

guards only against extreme malfunctions in the state criminal

justice systems.” Watkins, 36 F. 4th at 384 (quoting Shinn, 36

F. 4th at 384). Rivera has failed to meet his high burden under

either prong of Section 2254(d) to obtain this extraordinary

relief. Rivera’s petition for writ of habeas corpus, ECF No. 1,

is therefore DENIED and this action is DISMISSED. The Clerk

shall enter a separate order of dismissal.

Pursuant to 28 U.S.C. § 2253(c)(2) and Rule 11(a) of the

Rules Governing Section 2254 Cases in the United States District

Courts, a certificate of appealability is hereby issued as to

all issues decided by the Court in this Memorandum and Order

because Rivera has made a substantial showing of the denial of a

constitutional right inasmuch as “reasonable jurists could

debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were ‘adequate to

deserve encouragement to proceed further.’” Slack v. McDaniel,

529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)).

SO ORDERED.

_/s/ William G. Young

WILLIAM G. YOUNG

JUDGE

of the

UNITED STATES13

13 This is how my predecessor, Peleg Sprague (D. Mass. 1841-

1865), would sign official documents. Now that I’m a Senior

District Judge I adopt this format in honor of all the judicial

colleagues, state and federal, with whom I have had the

privilege to serve over the past 46 years.