Telegraph file photo by DEAN SHALHOUP Ernesto Rivera gives a thumbs-up as he leaves his sentencing hearing in 2015 after receiving a 33-year term in prison. He continues to seek a new trial.

NASHUA – A Latino serving a 33-year prison sentence now claims he should get a new trial because, he alleges, some involved in his cases may be racists.

Ernesto Rivera, who has been charged with numerous offenses during a span of several years, was convicted on some of them and sent to prison for 33 years. He continues his crusade for a new trial, this time because he believes his trial attorney failed to thoroughly investigate whether race may have played a role in jurors’ decision to convict him.

In the latest development, Judge Charles Temple this week gave prosecutors until April 25 to respond to a March 25 motion by attorney Carl Olsen, Rivera’s current lawyer.

In the motion, Olsen objects to a February motion by prosecutors seeking to “exclude expert testimony/opinion” as to whether Rivera’s trial attorney didn’t go far enough in addressing potential race-bias, thereby contributing to Rivera’s assertion his trial attorney provided “constitutionally ineffective assistance of counsel.”

Rivera, 53, whose last known address is 6 Derry Lane in Hudson, has been transported back and forth from State Prison in Concord to Hillsborough County Superior Court-South in Nashua numerous times for hearings on an assortment of motions he and his attorneys filed as his cases proceeded in court.

He has amassed a criminal record involving numerous arrests – including in July 2013 on one felony drug charge and 12 misdemeanor assaults. This led to a series of felony indictments accusing him of domstic assaults, criminal threating of witnesses, illegal possession of firearms and possession and distribution of narcotic drugs, according to court records.

He was also charged as an armed career criminal, which was described at his December 2015 sentencing hearing as based in large part on his series of arrests and convictions in Massachusetts, many of them for assaults, including on police officers, and on drug sales and battery with a dangerous weapon.

The new set of motions isn’t the first time Rivera has argued for a new trial, nor is it the first time he’s invoked racism in his argument.

A little more than a year after his 2013 arrest, Rivera filed a civil suit that accused Nashua and Hudson police officers of racism by “abusing their authority while acting under the ‘color of law'” and engaging in “selective and vindictive” enforcement of the law, the suit states.

He was in jail awaiting trial when he filed the suit at U.S. District Court in Concord. He sought roughly $1.76 million in “compensational and punitive damages,” naming as defendants the “Nashua Police Department et al,” and its “Domestic Violence Unit and Crime Investigation Division,” according to the document.

The status of that case, which is separate from the criminal cases, isn’t known.

When a judge denied those earlier motions for a new trial, Rivera appealed the decision to the NEw Hampshire Supreme Court. He filed the appeal in early January 2016, and the court accepted it about a month later. The court has stayed the appeal, meaning put it on hold, pending the outcome of Rivera’s motion for a new trial.

Olson, meanwhile, cited in his objection to the state’s motion to exclude expert testimony a case in which the state Supreme Court decided in favor of the defendant, ruling that the defendant “was prejudiced as a result of trial counsel’s deficiency,” according to the motion.

However, prosecutors rejected Rivera’s argument that the failure of the trial attorney to examine the alleged race issue more closely “was sufficient to undermine confidence in the outcome” of the trial.

Any such testimony would be “neither relevant, nor admissable,” prosecutors stated.

Dean Shalhoup may be reached at 594-1256, dshalhoup@nashuatelegraph.com, or @Telegraph_DeanS.

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