United States District Court, S.D. Georgia, Statesboro Division
J. RANDAL HALL, District Judge.
Now before the Court is Petitioner Reinaldo Javier Rivera's Motion for Discovery (Doc. 56) and Motion for an Evidentiary Hearing (Doc. 57). As to discovery, Mr. Rivera seeks to subpoena incident files and any other documentation within the possession of St. John's Abbey - an Order of the Catholic Church - to support the claim that his trial counsel was ineffective in failing to conduct adequate investigation into his background, particularly whether he was a victim of sexual abuse as a child. With his request for an evidentiary hearing, Mr. Rivera wishes to present the testimony of Dr. David Lisak ("Dr. Lisak"), a psychologist. Mr. Rivera contends that the state habeas court unreasonably refused to accommodate Dr. Lisak's limited availability and would not allow him to testify live. Upon due consideration, Mr. Rivera's Motion for Discovery and Motion for an Evidentiary Hearing are hereby DENIED.
Following a jury trial in the Superior Court of Richmond County, Georgia, Mr. Rivera was convicted of one count of malice murder, three counts of rape, four counts of aggravated sodomy, four counts of aggravated assault, one count of possession of a knife during the commission of a crime, and one count of burglary. (Doc. 29, Ex. II at 27; Id., Ex. 1A at 12-19.) Because Mr. Rivera's pending motions address only the testimony of Dr. Lisak and any evidence regarding Mr. Rivera's alleged childhood sexual abuse as they pertain to his ineffective assistance of counsel claim, the Court limits its recitation of facts to those issues only. For a more detailed description of Mr. Rivera's crimes, see Rivera v. State, 647 S.E.2d 70, 73-74 (Ga. 2007).
A. Mr. Rivera's Trial and Direct Appeal
At trial, Mr. Rivera was represented by Peter Johnson and Jacque Hawk (collectively, "defense counsel"). Prior to trial, defense counsel had Mr. Rivera evaluated by Dr. Lisak, a professor at the University of Massachusetts who specialized in childhood abuse, violence in men, sexual aggression, and homicide. (Doc. 31, Ex. 78 at 137, 140.) Dr. Lisak evaluated Mr. Rivera on three occasions and also met with Mr. Rivera's wife, mother, and sister. (Id. at 141-42.) Dr. Lisak's report to trial counsel concluded that
[m]any aspects of Mr. Rivera's sexual history, most notably his extremely sexually compulsive behavior, represents classic symptoms of childhood sexual abuse. However, Mr. Rivera has no memory of any sexual abuse and I uncovered no other evidence of such abuse. It is certainly possible that Mr. Rivera was abused but currently has no conscious access to the memories of that abuse. If Mr. Rivera was, in fact, sexually abused, one of the more likely places where this might have occurred would be at the private, religious schools he attended as a child. His sister recalled that there were whisperings of sexual misconduct at these schools; however, Mr. Rivera adamantly denied that any abuse occurred there.
(Id. at 142 (testimony of Mr. Johnson reading a portion of Dr. Lisak's report following his evaluation of Mr. Rivera).) Mr. Johnson testified that he never considered traveling to Puerto Rico, where Mr. Rivera attended school as a child, because he "didn't know what [he] was looking for." (Id. at 186.) And while Mr. Johnson testified that he "actually believed that there was some sort of unnatural relationship between [Mr. Rivera] and his father[, ]" Mr. Rivera did not "act like a victim" and "at that point... it was all speculation and [he] just did not go there." (Id.) For trial, defense counsel decided against calling Dr. Lisak as a witness because Dr. Lisak told Mr. Johnson "that [defense counsel] did not want him in the state of Georgia when this case comes to trial" and "that [Mr. Rivera] was a... classic psychopath with no redeeming values." (Id. at 144.) Indeed, Mr. Johnson recalled "fighting with" the judge and district attorney because he did not want to reveal Dr. Lisak's identity because he imagined the prosecution "wanted [defense counsel] to tell them that there was an expert who decided that [Mr.] Rivera was a psychopath...." (Id. at 145.) At that point, defense counsel sought additional funds to hire a new expert, because they "came to realize... that [Dr. Lisak] believed [Mr. Rivera] was a psychopath" and "did not accept the idea that [Mr. Rivera's] very apparent sexual addiction could be seen as mitigating evidence, " and Dr. Lisak was simply "not a good fit for this case." (Doc. 35, Ex. 107A at 110-11.)
At the guilt/innocence phase of the trial, defense counsel presented the testimony of Dr. Thomas Sachy, a neuropsychiatrist who diagnosed Mr. Rivera with psychopathy or antisocial personality disorder with significant sadistic sexual behavior that was "significantly influenced by  brain dysfunction." (Doc. 30, Ex. 20 at 4, 72-74.) Dr. Sachy also opined that Mr. Rivera suffered from obsessive-compulsive disorder, in that he had an "obsession with violent deviate sexual acts committed on women." (Id. at 74.) Defense counsel also called Dr. Marc Einhorn, a psychologist specializing in neuropsychology, whose examinations of Mr. Rivera resulted in a finding that he was "a psychopathic sexual sadist[.]" (Id. at 141, 152-58.) As a third witness, defense counsel called Mr. Geral Blanchard, a counselor specializing in sexual violence. (Doc. 30, Ex. 21 at 40-42.) Mr. Blanchard testified about Mr. Rivera's exposure to violent pornography as a child and Mr. Rivera's addictive sexual behavior. (Id. at 46-52.) Mr. Blanchard opined that Mr. Rivera was a "level four sex addict, " which is characterized by lust murder and serial killing. (Id. at 54.) At this phase of the trial, Mr. Rivera also testified very candidly regarding his past childhood and sexual experiences. (Id. at 102-16.) In particular, Mr. Rivera recognized with hindsight that his experiences with patrons of a porn theater in Puerto Rico as a young teenager would qualify as sexual abuse. (Id. at 116.)
During the sentencing phase, Mr. Rivera's defense counsel presented the testimony of Mr. Rivera's sister, Gloria Rivera (Doc. 30, Ex. 24 at 48); Dr. Amy Blanchard, a physician at the Medical College of Georgia who treated Mr. Rivera following a Tylenol overdose (Id. at 130-32); Investigator Greg Newsome (Id. at 137-44); Dr. Matthew Ciechan, from whom Mr. Rivera sought treatment for sexual addiction (Id. at 147-50); Pastor Steve Hartman, who testified that Mr. Rivera admitted his sexual addiction and was "seeking some type of forgiveness" (Id. at 152-55); and Dr. Nathan Pino, a sociology and anthropology professor who testified that Mr. Rivera offered himself up for research to try and explain his behavior (Id. at 162-65).
Following the testimony at the sentencing phase, the jury found the following statutory aggravating circumstances existed to impose the death penalty: the murder of Marni Glista (1) was committed while Mr. Rivera was engaged in the commission of another capital felony; (2) was committed while Mr. Rivera was engaged in the commission of aggravated battery; and (3) was "outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." (Doc. 29, Ex. II at 28.) With these findings, the jury recommended a sentence of death. (Id. at 29.)
Mr. Rivera appealed his conviction to the Supreme Court of Georgia, which affirmed the conviction and sentence on June 25, 2007. Rivera, 647 S.E.2d 70. A motion for reconsideration filed by Mr. Rivera was also denied. (Doc. 30, Ex. 34.)
B. State Habeas Proceedings and the Georgia Supreme Court's Denial of Mr. Rivera's Certificate of Probable Cause
Mr. Rivera filed, a state habeas corpus petition in the Superior Court of Butts County (the "state habeas court" or "habeas court") on November 7, 2008. Once the discovery period on Mr. Rivera's petition concluded, the Honorable William A. Fears wrote a letter to the parties' counsel dated December 10, 2009 suggesting dates for an evidentiary hearing. (Doc. 31, Ex. 70 at 15.) Judge Fears initially suggested several dates in February 2010. (Id.) Upon a reminder that Petitioner's counsel would be on maternity leave at that time, the habeas court suggested dates in May 2010. (Id. at 17.) Mr. Rivera's counsel responded that ...