Rivera v. Thompson , 888 F.3d 548 ( 2018 )


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  • United States Court of Appeals
    For the First Circuit
    _____________________
    No. 16-2167
    EBER RIVERA,
    Petitioner, Appellant,
    v.
    MICHAEL A. THOMPSON, Superintendent,
    Respondent, Appellee.
    __________________
    Before
    Howard, Chief Judge,
    Torruella, Selya, Lynch, Lipez, Thompson, Kayatta, and Barron, Circuit Judges.
    __________________
    ORDER OF COURT
    Entered: April 26, 2018
    The petition for rehearing having been denied by the panel of judges who decided the case,
    and the petition for rehearing en banc having been submitted to the active judges of this court and
    a majority of the judges not having voted that the case be heard en banc, it is ordered that the
    petition for rehearing and the petition for rehearing en banc be denied.
    Barron, Circuit Judge, concurring in the denial of rehearing en banc. The panel
    applied the deferential standard of review established by the Antiterrorism and Effective Death
    Penalty Act (AEDPA), 28 U.S.C. § 2254, only to the Massachusetts Appeals Court's analysis of
    the performance prong of the ineffective assistance of counsel inquiry. See Rivera v. Thompson,
    
    879 F.3d 7
    , 16-17 (1st Cir. 2018). The Commonwealth in its petition for panel rehearing or
    rehearing en banc challenges that ruling on a number of grounds. Those grounds include the
    contention that the Massachusetts Appeals Court's reference to the reasons set forth in certain
    pages of the Commonwealth's brief that included a discussion of the prejudice prong constituted
    an adjudication of that prong, see Commonwealth v. Rivera, 
    2012 WL 1623373
    at *1 (Mass. App.
    Ct. May 10, 2012) ("For these reasons, and for the reasons included in the Commonwealth's brief
    at 13-39, the defendant was not deprived of the effective assistance of counsel."), and thus requires
    the application of deferential AEDPA review to that prong under Magraw v. Roden, 
    743 F.3d 1
    ,
    10 (1st Cir. 2014) and Johnson v. Williams, 
    568 U.S. 289
    , 301 (2013). Without suggesting that
    those precedents would dictate the outcome here, I note that the Commonwealth makes this
    incorporation argument for the first time in its petition and hence the argument is waived. See
    United States v. Tavares, 
    849 F.3d 529
    , 530 (1st Cir. 2017) (stating that "new arguments raised for
    the first time in a petition for rehearing are waived").
    By the Court:
    /s/ Margaret Carter, Clerk
    cc:
    Hon. Indira Talwani
    Robert Farrell, Clerk, United States District Court for the District of Massachusetts
    Benjamin Brooks
    Randall E. Ravitz
    Jessica V. Barnett
    Todd Michael Blume
    -2-
    

Document Info

Docket Number: 16-2167O

Citation Numbers: 888 F.3d 548

Filed Date: 4/26/2018

Precedential Status: Precedential

Modified Date: 1/12/2023