Opinion
Civil Action No. 03-11638-DPW.
July 12, 2005
MEMORANDUM AND ORDER
Alphonso Cowell petitions this court for habeas corpus relief pursuant to 28 U.S.C. § 2254 from his Massachusetts state court convictions for possession of heroin and for possession of heroin with intent to distribute. He presses six grounds: The convictions were obtained (1) "pursuant to an unlawful arrest"; (2) "by violation of the protection against double jeopardy, collateral estoppel, [and] res judicata"; (3) "by the use at trial of false, perjured, and inaccurate testimony"; (4) "by the use of confidential informant information and the failure of the prosecution to disclose to the defendant the identity of the informant as is required by the Constitution and case law"; (5) "by the Commonwealth's impairment of the grand jury process on 3/11/99 and on 10/20/99, by the unconstitutional presentment of false and perjured evidence"; and (6) by the denial of effective assistance of counsel. For the reasons stated below, I will deny the petition and direct dismissal of the case.
I. Background
In March 1999, the Commonwealth brought a set of five indictments against petitioner: "two indictments of possession of heroin with intent to distribute, second or subsequent offense; two indictments of committing said violation within a school zone; and one indictment of conspiracy to possess heroin with intent to distribute." Commonwealth v. Cowell, Nos. 99-327, 99-1335, Consolidated Order on Defendant's Pending Motions, April, 4, 2000, (Gants, J.), at 114 of Ex. 7 to Resp.'s Supp. Answer. Judge Chernoff, of the Massachusetts Superior Court, in deciding the petitioner's motion to dismiss, summarized the "facts heard by the Grand Jury." Commonwealth v. Cowell, No. 99-327, slip op., Sep. 30, 1999.
On January 25, 1999, Cambridge police officers received information from a confidential source that led the police to suspect that a sale of heroin would occur between 8 p.m. and 8:30 p.m. at an Upton Street address and that a light skinned black male and heavy set black female would be bringing the drugs in a green car. At 8:15 p.m. the police observed the defendant existing [sic] the passenger side of a green car. The defendant proceeded to enter the Upton Street address. A heavy-set black female waited in the car. This activity occurred within 1000 feet of an elementary school. Approximately five minutes later the defendant left the address and went to the glove compartment area of the vehicle and then returned to the address. The defendant returned to the vehicle and the vehicle drove off. The green car was stopped by police in an area that was not within 1000 feet from a school. The police recovered two quantities of drugs from the vehicle, one from the glove compartment and the other from the floor of the car near the defendant. The female admitted to the police that the defendant had delivered heroin at the Upton Street address.
(Ex. 7 to Resp. Supp. Answer at 87.) The grand jury indicted Mr. Cowell on two substantive drug offenses, but Judge Chernoff identified an issue regarding whether it "heard evidence ofthree distinct incidents of possession with intent to distribute heroin." (Id.) Judge Chernoff dismissed part of the indictment, finding there was ambiguity about the events upon which the indictment rested. The conspiracy count survived, however, because conspiracy "by its nature can involve continuing events." (Ex. 7 to Resp. Supp. Answer at 89.)
Mr. Cowell was then re-indicted in October 1999. During the grand jury proceedings, the district attorney made it clear that the Commonwealth was not seeking indictments for delivery of drugs to the Upton Street house, but rather only for the drugs found in his car when later stopped by the police. (Ex. 7 to Resp. Supp. Answer at 104.) The grand jury returned two bills of indictment against petitioner for separate offenses of possession with intent to distribute heroin, as well as two related bills of indictment for second or subsequent drug offenses. (Ex. 7 to Resp. Supp. Answer at 110-13.) Mr. Cowell filed a motion requesting that the earlier dismissal of the first set of indictments be with prejudice and claiming that the second set of indictments were barred by double jeopardy and collateral estoppel. Judge Chernoff denied the petitioner's motion on December 28, 1999.
Mr. Cowell thereafter filed six motions heard by Judge Gants in the Superior Court: (1) motion to dismiss on grounds of collateral estoppel; (2) motion to dismiss on grounds of substantive amendment; (3) motion to dismiss on grounds of false testimony; (4) motion to dismiss on grounds of tainted evidence; (5) motion to dismiss on grounds of insufficiency of evidence; and (6) motion for relief from non-disclosure. (Ex. 7 to Resp. Supp. Answer at 114-117.) Judge Gants denied all petitioner's motions. He concluded collateral estoppel did not apply because there had "been, as of yet, no adjudication or final findings of fact. . . ." (Ex. 7 to Resp. Supp. Answer at 115.) There had been no substantive amendment to the indictments he found; "[r]ather, the defendant has been re-indicted after the earlier indictments were dismissed without prejudice." (Id.) Judge Gants rejected petitioner's contention that the Commonwealth proffered false testimony before the grand jury: "[T]he court has reviewed both the grand jury and suppression transcripts to determine whether the defendant has made `a substantial preliminary showing that false testimony was knowingly presented,' and finds that he has failed to make such a showing." (Ex. 7 to Resp. Supp. Answer at 115 (citation omitted).) The reliability of the informant's testimony, the issue undergirding the tainted evidence motion, spoke more to the admissibility of the evidence according to Judge Gants, who noted that defendant's motion to suppress had been denied. See infra. Judge Gants found that there was "abundant probable cause," vitiating any argument that the evidence presented to the grand jury was insufficient. Finally, Judge Gants — contingent upon the Commonwealth's agreement not to present evidence regarding the events on Upton Street — denied petitioner's request to disclose the identity of that informant.
Before trial, Mr. Cowell also filed a motion to suppress the evidence that was the fruit of the automobile stop. Judge Fabricant of the Superior Court made the following findings of fact in an opinion denying that motion on March 16, 2000:
Based on information received from a confidential informant, officers of the Cambridge Police Department anticipated a drug delivery to a house at 18 Upton Street at approximately 8:00 P.M. on January 25, 1999. Detective Gerald Baptist, a twenty-five year veteran of the Cambridge Police Department with extensive training and experience in narcotics investigations, headed the investigation. Baptist had worked with the same informant on past occasions, and on such occasions had received from that person information that led to seizures of heroin. On one such prior occasion the informant provided information that resulted in Baptist's arrest of one Donna Daly on or about November 1, 1996 for distribution of heroin, seizure of heroin from her, and her subsequent conviction of that offense.
In the weeks prior to January 25, 1999, the informant told Baptist that he or she had purchased heroin from a certain dealer. On January 25, 1999, the informant told Detective Baptist that the dealer would arrive at 18 Upton Street at about 8:00 P.M. that evening to deliver heroin to a person at that address named "Gene." The informant described the dealer as an African-American male with green eyes, and indicated that he would arrive in a green car, accompanied by a heavy-set African-American female.
Based on that information, Baptist set up surveillance with a team of fellow officers, all of whom had been informed of the information received. Baptist parked his unmarked car on Pleasant Street, just before it intersects with Upton Street. He then conducted his surveillance partly from his vehicle and partly on foot. During some or all of his surveillance of the Upton Street location, he communicated with the informant through a police telephone line. Detective Edward Liberacki, also experienced in narcotics investigations, and his partner, Detective Cherubino, parked their unmarked car on Fairmont Street, also just off of Upton Street, in a position from which they were able to observe the area outside 18 Upton Street. Sergeant Ames was also in the vicinity in a separate car.
At approximately 8:00 P.M., a green Mazda turned onto Upton Street from Magazine Street and parked in front of 18 Upton Street. The defendant Scott drove the car, with the defendant Cowell in the front passenger seat. Baptist saw the car turn onto Upton Street, and observed it during some but not all of the time it spent on Upton Street. Liberacki was able to see the car throughout its time on Upton Street, and communicated his observations to Baptist by radio. He saw Defendant Cowell, whom he observed to fit the description the informant had given, get out of the front passenger side and go to the door of 18 Upton Street. The door opened and Cowell went inside. Several minutes later Cowell came out of the house, went to the passenger side of the green car, opened the door, leaned in toward the area of the glove compartment for several seconds, stood up, leaned into the car again, then stood again, closed the door, and went back inside 18 Upton Street. Defendant Scott, whom Liberacki could see only as a "silhouette," waited in the driver's seat. After approximately three minutes, Cowell came out of the house, got back into the car, and the car began to drive away. Baptist, from his position, saw the car turn from Upton Street onto Pleasant Street. During the period of surveillance, while the car was on Upton Street, the informant reported to Baptist that he saw defendant Cowell with the heroin in his hand; Baptist shared that information with other members of the surveillance team.
Detectives Liberacki and Cherubino and Sergeant Ames followed the green Mazda. The car took a circuitous route, proceeding first towards Harvard Square, then turning back towards Inman Square. At one point, the green car pulled over on Massachusetts Avenue, let several other cars go by, and started out again. Detective Liberacki formed the opinion that this manner of driving was consistent with what he had been trained to recognize as counter-surveillance techniques — that is, driving methods designed to detect or to foil pursuers.
After approximately fifteen minutes of pursuit, a marked patrol care arrived in response to the Detective's request, and positioned itself behind the green Mazda as it traveled on Cambridge Street. When the green car stopped in a line of cars at a red light at the intersection of Cambridge and Anthem Streets, the patrol car activated its blue lights. Liberacki then got out of his car, which was in front of the green car, and walked back toward the passenger side of the green car. As he did so, he saw defendant Cowell lean forward and put his hands toward the floor area of the car. When Detective Liberacki reached the door, Cowell was sitting up with his hands in front of him, fists clenched. Liberacki shined his flashlight toward the floor area of the car and saw a hammer and a screwdriver on the floor.
Detective Liberacki opened the passenger side door, identified himself as a police officer, and directed Cowell to open his hands. Cowell opened his right hand, but not his left. Liberacki then saw Cowell move his left hand toward the console area between the seats and drop a white packet into the space between the seat and the console. Liberacki then again directed Cowell to open his left hand. This time Cowell complied, revealing a twenty dollar bill. Liberacki then ordered Cowell out of the car, and arrested, handcuffed, and searched him, recovering from a jacket pocket eight dollars and a box top razor. Liberacki then returned to the car, shined his flashlight into the space between the seat and the console, and found five packets of white powder that later testing identified as heroin. Liberacki then searched the rest of the car, recovering the hammer and screwdriver from the floor, 190 packets of heroin found from the glove compartment, and a purse, identified as belonging to defendant Scott, containing $226 in a black, fish-net stocking, and $634 in a Crown Royal bag.
[Footnote in original: "The testimony does not expressly indicate whether the purchase or purchases referred to occurred within the weeks specified, or whether the information provided in that time period referred to a purchases [sic] or purchases that had occurred earlier. In context, the former inference is the more reasonable."]
[Footnote in original: "The evidence leaves unclear whether Baptist was speaking with the informant by telephone directly during the surveillance, or whether another officer was speaking with the informant and relaying the information to Baptist. The distinction is not material to the issues presented in this motion."]
[Footnote in original: "The testimony does not expressly indicate whether the purchase or purchases referred to occurred within the weeks specified, or whether the information provided in that time period referred to a purchases [sic] or purchases that had occurred earlier. In context, the former inference is the more reasonable."]
[Footnote in original: "The evidence leaves unclear whether Baptist was speaking with the informant by telephone directly during the surveillance, or whether another officer was speaking with the informant and relaying the information to Baptist. The distinction is not material to the issues presented in this motion."]
After Mr. Cowell's motion to suppress was denied, he was convicted at a jury trial before Judge Butler of the Superior Court, where he defended himself pro se with stand-by counsel, on one count of the lesser included offense of possession of heroin and one count of possession with intent to distribute heroin. At the conclusion of that trial, he was arraigned by the judge on the second or subsequent offense relative to possession with intent to distribute and a second jury trial began on October 2, 2000 before Judge Thayer Fremont-Smith of the Superior Court, where Mr. Cowell continued to represent himself with the assistance of stand-by counsel. Once again, the jury returned a guilty verdict. Mr. Cowell appealed, but the Massachusetts Appeals Court ("MAC") affirmed his conviction on March 31, 2003. Commonwealth v. Cowell, 57 Mass. App. Ct. 1115 (2003).
The second or subsequent indictment for the conviction of possession of heroin was later placed on file and the surviving conspiracy charge from the first set of indictments was nol prossed.
On May 7, 2001, before the MAC's March 31, 2003 decision, Mr. Cowell filed a petition for a writ of habeas corpus in federal district court, raising numerous grounds. On September 14, 2001, Judge Lasker granted respondent's motion to dismiss the petition for failure to exhaust state court remedies. Mr. Cowell unsuccessfully sought relief from that ruling from both the First Circuit and the United States Supreme Court.
Mr. Cowell returned to the state courts to exhaust his claims, by filing an Application for Leave to Obtain Further Appellate Review ("ALOFAR") in the Supreme Judicial Court ("SJC"). On July 23, 2003, the SJC denied petitioner's request for further appellate review. Commonwealth v. Cowell, 439 Mass. 1109 (2003). Thereafter, on August 11, 2003, petitioner filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254, raising eight grounds. Respondent moved to dismiss the petition for failure to exhaust available state remedies as to four of the averred grounds. I found that two were unexhausted.See Cowell v. Gillen, 2004 U.S. Dist. LEXIS 17185 (D. Mass., Aug. 26, 2004). Petitioner agreed to drop any unexhausted claims. Consequently, six of the eight grounds originally pressed by Mr. Cowell are addressed here.
II. Standard of Review
Congress altered the standard of federal habeas corpus review of state court decisions in 1996 when it passed the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254;see Williams v. Taylor, 529 U.S. 362, 404 (2000). The AEDPA restricts a district court's power to grant the writ of habeas corpus with respect to claims previously adjudicated by the state courts:
An application for writ of habeas corpus . . . shall not be granted with respect to any claim . . . unless the adjudication of the claim 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.28 U.S.C. § 2254(d)(1). The Supreme Court, in Williams v. Taylor, 529 U.S. 362 (1999), identified two questions a court should ask in determining whether a writ of habeas corpus is warranted under 28 U.S.C. § 2254(d)(1). See id. at 412-13;see also McCambridge v. Hall, 303 F.3d 24, 35-36 (1st Cir. 2002).
First, the court must ask whether the decision was "contrary to" established federal law, i.e., whether the law applied was "substantially different from the relevant precedent of [the Supreme] Court." Williams, 529 U.S. at 405. This question is answered in the affirmative when the state court applied a rule that is contrary to the governing law set forth in the cases or where the state court faced facts that were materially indistinguishable from a decision of the Supreme Court but came to a different result. Id. at 405-06.
The court then inquires whether "the state court identifie[d] the correct governing legal principle from this Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case." Id. at 413. This may occur
"if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply."Kibbe v. Dubois, 269 F.3d 26, 36 (1st Cir. 2001) (quoting Williams, 529 U.S. at 408). The Court's definition of "unreasonable application" represented a compromise, rejecting (1) as excessively deferential a subjective test asking whether there exists a "reasonable jurist" who would decide the case as the state court did and (2) as overly strict a test asking whether the underlying application of federal law was objectively correct. Williams, 529 U.S. at 409-11. Instead, the federal habeas court determines whether the application by the state court was an "objectively reasonable" application of clearly established federal law. Id. at 409.
In Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002) the First Circuit held that, while the AEDPA "requires that the relevant legal rule be clearly established in a Supreme Court holding, rather than in dictum or in holdings of lower federal courts," lower federal court decisions are not "wholly irrelevant to the reasonableness determination":
To the extent that inferior federal courts have decided factually similar cases, reference to those decisions is appropriate in assessing the reasonableness vel non of the state court's treatment of the contested issue. Reference to such cases may be especially helpful when the governing Supreme Court precedent articulates a broad principle that applies to a wide variety of factual patterns.Id. at 26 (citations omitted).
In the First Circuit, "`if it is a close question whether the state decision is in error, then the state decision cannot be an unreasonable application.'" L'Abbe v. DiPaolo, 311 F.3d 93, 98 (1st Cir. 2002) (quoting McCambridge, 303 F.3d at 36). While it is still the sole domain of the federal courts to interpret and apply federal law, section 2254(d)(1) requires deference to the state court's application of that law to a set of facts. Cf. Price v. Vincent, 538 U.S. 634, 643 (2003) (even if the federal courts — including the Supreme Court — were to agree upon a different conclusion, a contrary state court conclusion must be upheld so long as "it was at least reasonable for the state court to [so] conclude.").
III. Discussion
A. Ground One: Unlawful Arrest
Mr. Cowell contends that his arrest was unlawful and, consequently, his subsequent conviction based on evidence obtained during the arrest is tainted. In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court concluded 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 trial.Stone v. Powell, 428 U.S. 465, 489-90 (1976). The First Circuit has read Stone to "stand for the proposition that a federal habeas court ordinarily cannot revisit a state court's disposition of a prisoner's Fourth Amendment claims." Sanna v. DiPaolo, 265 F.3d 1, 8 (1st Cir. 2001).
For the bar to habeas review to be triggered, however, the petitioner must have been afforded "a realistic opportunity to litigate his Fourth Amendment claim fully and fairly in the state system." Id. There can be no disputing that procedural mechanisms existed to challenge the Commonwealth's evidence and that petitioner took advantage of them. That normally ends the inquiry.
Although a federal habeas court may inquire into the adequacy and fairness of available state court procedures for the adjudication of Fourth Amendment claims, its inquiry ordinarily ends upon a determination that those procedures pass muster. Put another way, "a full and fair opportunity" to litigate means that the state has made available to defendants a set of procedures suitably crafted to test for possible Fourth Amendment violations. So long as a state prisoner has had an opportunity to litigate his Fourth Amendment claims by means of such a set of procedures, a federal habeas court lacks the authority, under Stone, to second-guess the accuracy of the state court's resolution of those claims. Hence, the mistaken outcome of a state court suppression hearing, standing alone, cannot be treated as a denial of the opportunity fully and fairly to litigate a Fourth Amendment claim (and, thus, cannot open the door to federal habeas review).Id. at 8-9 (citations omitted). Here, petitioner took advantage of the Massachusetts procedures for seeking suppression of evidence and sought an appeal of the judge's decision denying his motion to suppress.
Nonetheless, "Stone notwithstanding, there is some authority permitting a federal habeas court to hear a state prisoner's Fourth Amendment claim if the petitioner can show an irretrievable breakdown in the process provided by the state."Sanna, 265 F.3d at 9 (citing Sweet v. Delo, 125 F.3d 1144, 1152 (8th Cir. 1997) (en banc); Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)); id. ("This is a sound rule — but it is a rule of last resort, to be applied sparingly.").
There was no such "irretrievable breakdown" established in this case. Mr. Cowell, in the context of an abandoned claim, argued that the prosecution withheld information that would have aided him in arguing his motion to suppress. Reading the pro se petitioner's claims generously, I will take notice of those arguments not as a basis for the previously abandoned ground but rather as arguments attempting to establish that he was not provided a full and fair opportunity to raise his Fourth Amendment arguments in state court.
Petitioner's original second ground was that his "conviction was obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant." (Habeas Pet. at 26).
The averments of Mr. Cowell on this score focus on the government's failure to provide information to the defendant regarding the testimony police officers would give concerning the events leading up to his arrest. However, Mr. Cowell had the opportunity to cross-examine these witnesses during his suppression hearing. Moreover, there was an interim of three weeks between the introduction of evidence and the closing arguments. Upon returning to argue his motion, defendant was permitted to file an additional brief with the court. He describes nothing that would permit a finding that the state court procedure for addressing his Fourth Amendment claim was "irretrievably" broken and, thereby, that he was denied a "full and fair opportunity" to present his Fourth Amendment arguments. Cf. Sanna, 265 F.3d at 9-10 ("[T]he petitioner's insufficiency of the evidence claim, even on the dubious assumption that it has merit, surely does not constitute the type of egregious and unconscionable collapse in the machinery of adjudication which might warrant a federal habeas court in invoking the narrow irretrievable breakdown exception."); Velez v. New York, 941 F. Supp. 300, 314 (E.D.N.Y. 1996) ("In sum, Petitioner was provided by the state courts with a `reasoned method of inquiry into relevant questions of fact and law' with respect to his Fourth Amendment claim. It necessarily follows that [he] was not victim to an unconscionable breakdown in state procedure.").
As for the identity of the confidential informant, that issue was fully presented and resolved by the trial court and the MAC. Moreover, it constitutes a separate ground for relief, one which I address and reject below.
For these reasons, I "lack the authority, under Stone, to second-guess the accuracy of the state court's resolution" of Mr. Cowell's Fourth Amendment claim. Sanna, 265 F.3d at 8-9.
I will note, however, that, in my review of the testimony at the motion to suppress hearing and the resolution of that motion, I found no conspicuous error in the state courts' analysis of the Fourth Amendment issues presented by this case.Cf. Tart v. Massachusetts, 949 F.2d 490, 497 n. 6 (1st Cir. 1991) ("Even in those cases where the federal court might not have reached the same decision on the merits as the state court, federal courts generally should refuse habeas review where the petitioner does not allege or prove the State's denial of a full and fair opportunity to present the claim. . . . Since we are in complete agreement with the SJC's analysis on the merits of the fourth amendment claim, we need not rest our decision on Tart's failure to satisfy the requirements of Stone v. Powell.") (citation omitted).
B. Ground Two: Double Jeopardy
Respondent observes that the Massachusetts Appeals Court, in rendering its decision on this ground, relied only upon state law, and, consequently, "this Court should review the petitioner's double jeopardy claim de novo." (Resp.'s Mem. at 12 (citing Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001)). As Fortini held,
AEDPA's strict standard of review only applies to a "claim that was adjudicated on the merits in state court proceedings." Here, the federal claim was never addressed by the state courts. All of the cases that have touched on this problem (none is directly on point) assume that the statute applies only when the state court decided the federal issue. After all, AEDPA imposes a requirement of deference to state court decisions, but we can hardly defer to the state court on an issue that the state court did not address.Fortini, 257 F.3d at 47 (footnote and citations omitted). Nonetheless, Mr. Cowell's arguments on this ground are unavailing.
The Fifth Amendment to the United States Constitution provides that no person "shall . . . be subject for the same offense to be twice put in jeopardy of life and limb." U.S. Const., amend. V;see Benton v. Maryland, 395 U.S. 784, 794 (1968) (holding that "the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.") Here, Mr. Cowell contends that the Commonwealth should have been barred from prosecuting him after the dismissal of his first indictment. The prohibition against double jeopardy, however, does not protect him from the subsequent indictment and trial in his case.
Jeopardy had not attached prior to the dismissal of the first indictment. "In a jury trial, jeopardy attaches when the jury is sworn." United States v. Toribio-Lugo, 376 F.3d 33, 37 (1st Cir. 2004) (citing Crist v. Bretz, 437 U.S. 28, 35 (1977));id. ("That jeopardy attaches at this early stage, rather than at final judgment, is a recognition of the defendant's prized right to have his trial, once under way, completed by a particular trier.") (citing Arizona v. Washington, 434 U.S. 497, 503 (1978)). No jury was ever empaneled in Mr. Cowell's case before the dismissal of the first indictment.
Mr. Cowell seems to argue that the dismissal of his indictment should constitute an acquittal. While it is true that an acquittal by a judge, rather than a jury, triggers the protection against double jeopardy, Smith v. Massachusetts, 125 S. Ct. 1129, 1133 (2005), Judge Chernoff never entered a judgment of acquittal in this case, but rather simply dismissed a grand jury indictment where there was uncertainty over the bases upon which that indictment were grounded. Because no jeopardy attached, Mr. Cowell's constitutional right to be free from twice being put in jeopardy for the same offense was not violated.
See Smith, 125 S. Ct. at 1133 ("Although the common-law protection against double jeopardy historically applied only to charges on which a jury had rendered a verdict, we have long held that the Double Jeopardy Clause of the Fifth Amendment prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury verdict.") (internal citation omitted and collecting cases).
Similarly, the requirements of collateral estoppel and res judicata have not been met.
C. Ground Three: False Evidence at Trial
As respondent points out, "the Appeals Court did not address the petitioner's assertion that the allegedly false and perjured evidence was presented in violation of his due process rights pursuant to Napue v. Illinois, 360 U.S. 264 (1959)," and, "[f]or this reason, this Court . . . should review the petitioner's false and perjured trial evidence de novo." (Resp.'s Mem. at 12 (citing Fortini, 257 F.3d at 47)) Even with a lack of deference to the state court's ultimate resolution, petitioner's claim still fails.
In Napue, the Supreme Court made clear that
it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.
The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only the credibility of the witness.Napue, 360 U.S. at 269 (citations omitted).
Petitioner begins by highlighting the absence in the arrest report of certain aspects of the detectives' testimony, but does not explain how such gaps establish that more detailed testimony at trial was false. For instance, petitioner points out that during his trial "Det. Baptist admitted there is no informer's future prediction information on his arrest report." (Habeas Pet. at 45) That, however, is not the same as admitting that the information was not received, only that it was not found in his report.
Moreover, assuming the detective admitted that there had been no such information provided, petitioner would have successfully revealed the inconsistency and could not claim that his conviction was based on a falsity left uncorrected.
Petitioner also contends that Det. Baptist provided false testimony at trial regarding corroboration of the information provided by the informant. He specifically alleges that the government, prior to trial, informed him that the informant was not present during the drug sale at Upton Street. First, the government told petitioner that the informant was not a percipient witness to the crimes charged — possession with intent to distribute heroin as established by the motor vehicle stop. Moreover, the testimony by the detectives at the motion to suppress hearing, as I read it, was that the informant saw the petitioner with heroin, not that he witnessed a drug sale inside 18 Upton Street. In any event, petitioner was not charged with anything that occurred at 18 Upton Street and, as already noted, was provided a full and fair opportunity to challenge the admission of the evidence ultimately discovered by the police.
It should be remembered that the events at 18 Upton Street were not the basis for the charges against Mr. Cowell. The testimony regarding such matters was invited by Mr. Cowell's questions on cross-examination.
Mr. Cowell further argues that the detectives testified falsely in regard to the events after the car was stopped. First, he focuses on Det. Baptist's lack of specific knowledge about the sequence of events as Det. Liberacki approached the car. Such lack of knowledge does not constitute a knowing false statement. In addition, petitioner emphasizes insufficiencies in the arrest report. Again, an arrest report based on an incomplete recounting of events by officers to the author of the report does not establish that a later, more complete recounting is perjurious to the extent it provides greater detail than the report. Moreover, any insufficiencies in the reasonable suspicion or probable cause necessary to permit the police officers' intrusion on petitioner's privacy were the subject of motion to suppress hearing in state court. Petitioner's contentions appear to be largely a back-door attempt to reopen the Fourth Amendment claim.
Finally, all the inconsistencies noted by petitioner involve comparing testimony at the different stages of the proceedings. Petitioner, therefore, had the opportunity, which he apparently took advantage of, to cross-examine the witnesses regarding these prior statements and argue to the jury the inferences to be drawn from any inconsistencies elicited. There is no more that need be done to protect his interests in this regard. Without any evidence that the prosecutor knew certain statements to be false, petitioner was equally aware of any potential inconsistencies in testimony as was the government.
For these reasons, this ground lacks merit.
D. Ground Four: Confidential Informant's Identity
Petitioner avers that the state courts abused their discretion by not reversing his conviction because of the
prosecution's failure to disclose the identity of the informant where the informant was a paid, participant, percipient and the only non-government witness to events inside of the house at 18 Upton Street that gave rise to the defendant's arrest and where the informant was the only non-government witness to the alleged heroin on the defendant's person and inside of the motor vehicle before the motor vehicle was stopped. . . .
(Habeas Pet. at 58).
The Supreme Court, in Rovario v. United States, 353 U.S. 53 (1957), recognized the government's qualified privilege to withhold the identity of informers: "What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law." Id. at 59. The privilege extends only so far as is necessary to protect the identity of the informer.See id. at 60 ("[W]here the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.") (footnotes omitted). Furthermore, the purpose of the privilege must be balanced against the important interests and rights of the defendant. "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. at 60-61.
The balance is struck case-by case. Id. at 62 ("We believe that no fixed-rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense.") Accordingly, when addressing a federal district court's "decision not to force the prosecution to divulge the identity of a confidential informant," the First Circuit applies an abuse of discretion standard. United States v. Robinson, 144 F.3d 104, 106 (1st Cir. 1998). In striking that balance, the trial court "must take into account the full panoply of relevant circumstances (including the nature of the crime charged, the contours of the defenses asserted, the available means of proving the charges and defenses, and the significance of the informant's role)." Id. There is a presumption in favor of confidentiality, placing the burden on the defendant to persuade the court that revealing the informant's identity is required. Id. "This burden is heavy, but not intractable. If for example, the informant is the sole participant, other than the accused, in the transaction charged, or if the informant is the only person who is in a position to amplify or contradict crucial testimony of government witnesses, then the court may order disclosure." Id. On the other hand, "[i]f the informant is merely a source — one who does little more than put a flea in an officer's ear — the court almost always will deny disclosure."Id.
In Mr. Cowell's case, the MAC ruled as followed on his request for reversal of his conviction based on the government's withholding of the informant's identity:
The defendant argues that the motion and trial judges erred in refusing to order the prosecution to reveal the identity of its confidential informant. The defendant contends that the informant's identity should have been disclosed because the CI was a percipient witness and an employee of the Commonwealth. Neither contention is correct.
As noted above, none of the charges related to the Upton Street incident. In addition, the Commonwealth agreed not to elicit any evidence related to this incident, in exchange for keeping the informant's identity confidential. As a result, the CI's role was that of a mere tipster rather than a percipient witness, and as such, the Commonwealth was permitted to keep the CI's identity confidential. See Commonwealth v. Brzezinski, 405 Mass. 401, 408 (1989). Furthermore, the defendant was not without means to challenge the existence or veracity of the informant. the defendant could have attempted to determine if the CI had been credible in the past by attempting to locate Donna Daly, or her lawyer, and inquiring about the accuracy of the CI's information in that case. In addition the CI was not the only witness to the crime. Elizabeth Scott, the driver of the green car, was with the defendant at all times material to the charges at bar. She was theoretically available to bolster the defendant's claim of fabrication.
The defendant also argues that the informant's identity was required to be disclosed because the informant was an "employee" of the State. The argument is grounded on Detective Baptist's trial testimony that he paid the informant $20 after the defendant's arrest. The decisional law cited by the defendant in support of his argument is not applicable to the situation presented here.
Also, the jury, having been informed of the cash payment to the CI, could evaluate its potential influence. Disclosure of the CI's identity would have added nothing to this consideration. See Commonwealth v. Clarke, 44 Mass. App. Ct. 502, 510, 511 (1998).
[Footnote in original: "We are mindful that she possessed certain Fifth Amendment rights, which she might have asserted."]
[Footnote in original: "We are mindful that she possessed certain Fifth Amendment rights, which she might have asserted."]
(Ex. 11 to Resp. Supp. Answer.)
In coming to its conclusion regarding the role of the informant in this case and applying the rule as set forth in Commonwealth v. Brzezinski, 405 Mass. 401, 408 (1989), the MAC effectively applied the analytical framework set forth in Rovario andRobinson. In Brzezinski, the SJC recognized that the "`government's privilege not to disclose the identity of an informant has long been recognized in this Commonwealth.'" Brzezinski, 405 Mass. at 408 (quoting Commonwealth v. Douzanis, 384 Mass. 434, 441 (1981), and citing Rovario, 353 U.S. 53);see Douzanis, 384 Mass. at 441 ("That privilege serves a substantial, worthwhile purpose in assisting the police in obtaining evidence of criminal activity. The privilege, which is not absolute, should be respected as far as reasonably possible consistent with fairness to a defendant.") (citations omitted). The Brzezinski court found that "[t]he informant did not participate in the crime charged, and was not present during the execution of the search warrant or seizure of the cocaine and cocaine paraphernalia," and, therefore, the government was not required to reveal the identity of the "mere tipster."Brzezinski, 405 Mass. at 408 (citing United States v. Bourbon, 819 F.2d 856, 860 (8th Cir. 1987); United States v. Skramstad, 649 F.2d 1259, 1265 (8th Cir. 1981), and quotingUnited States v. Alonzo, 571 F.2d 1384, 1387 (5th Cir.), cert. denied, 439 U.S. 847 (1978)); see Robinson, 144 F.3d at 107 ("[W]e have held with a regularity bordering on the echolalic that tipsters, as opposed to informants who are active participants in the crimes charged, generally deserve anonymity.") (citing United States v. Martinez, 922 F.2d 914, 920-21 (1st Cir. 1991); United States v. Giry, 818 F.2d 120, 130 (1st Cir. 1987); and United States v. Hemmer, 729 F.2d 10, 15 (1st Cir. 1984)).
The MAC, applying the Massachusetts cases tracking the relevant Supreme Court precedent, did not render a decision that was "contrary to" established federal law. Moreover, its application of that law to the facts of Mr. Cowell's case was not objectively unreasonable. As noted above, in the First Circuit, "`if it is a close question whether the state decision is in error, then the state decision cannot be an unreasonable application.'" L'Abbe, 311 F.3d at 98 (quoting McCambridge, 303 F.3d at 36). Here, it is not a close question: the MAC's affirmation of the lower court's determination was, without doubt, objectively reasonable.
To the extent petitioner seeks disclosure of the informant for purposes of attacking the admittance of testimony in contravention of the Fourth Amendment — by contending that the police lacked the requisite basis to stop, search, and arrest him — this court, as discussed above, is not empowered to review the state court's determination. In any event, the record provides no reason to question the adequacy of the police officer's reasonable suspicion to stop and search the petitioner, nor that probable cause existed by the time they arrested him. I see no error in the MAC's decision not to require the government to reveal the identity of the confidential informant at the motion to suppress stage, seeing as the government did not attempt to establish its reasonable suspicion to stop, and probable cause to arrest, based on the informant's statements alone. Cf. Rovario, 353 U.S. at 61 ("Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communications.")
The informant's identity became even more attenuated to the facts of the case once defendant reached trial. The state court required the government to avoid introduction of any evidence regarding the events at 18 Upton Street in exchange for permission to withhold the informant's identity. By so limiting the evidence, the case was focused on the events that transpired upon the stopping of the vehicle in which defendant was traveling. The informant was not a witness to or participant in those events.
The events at 18 Upton Street were discussed at trial, but the topic was introduced by defendant on cross-examination of a government witness.
Defendant nevertheless insists the informant "was the only non-government witness to the alleged heroin on the defendant's person and inside of the motor vehicle before the motor vehicle was stopped." First, it should be noted that this somewhat vitiates his contentions regarding the informant's and, by extension, the police officers' insufficient basis of knowledge about the events at 18 Upton Street. For purposes of the analysis here, however, it is sufficient to observe that the informant was not a witness to the crime charged and tried against the defendant. Petitioner was convicted of possession with intent to distribute arising out of the stop of the car and the evidence found therein. The informant was apparently not a witness to those precise events. Whether Mr. Cowell possessed the drugs at 18 Upton Street was not at issue in the case; and, defendant does not press an argument that no drugs were found in his possession upon being stopped by the police. In light of those facts, I cannot find the state courts' decision to permit the government to protect the anonymity of the informant to be in contravention of federal law.
E. Ground Five: Impairment of the Grand Jury Process
The fifth ground before me is petitioner's claim that his "conviction was obtained by the Commonwealth's impairment of the grand jury process on 3/11/99 and on 10/20/99, by the unconstitutional presentment of false and perjured evidence." (Habeas Pet. at 64.) As the Supreme Court has long held, however, there is no federally protected right to indictment by a grand jury in state criminal proceedings. Hurtado v. California, 110 U.S. 516 (1884); see Campiti v. Matesanz, 186 F. Supp. 3d 29, 53 (D. Mass. 2002) (concluding that, because "the Supreme Court `has never held that federal concepts of a "grand jury," binding on the federal courts under the Fifth Amendment, are obligatory for the States'", the petitioner who was "indicted, tried, and convicted in state court" may not obtain habeas relief "under the Grand Jury Clause of the Fifth Amendment") (quoting Alexander v. Louisiana, 405 U.S. 625, 633 (1972)). Therefore, where, as here, petitioner has been convicted in a state court criminal trial, there is no cognizable federal right to effectuate on habeas review arising out of the grand jury proceedings. See Pitts v. New York, 2001 U.S. Dist. LEXIS 4868, at *3-4 (S.D.N.Y., April 23, 2001) ("Since [petitioner], who was found guilty beyond a reasonable doubt at trial, had no federally-guaranteed right to have his case presented to a grand jury at all, any alleged errors in the state grand jury proceedings are not cognizable on habeas corpus.").Cf. Hutchings v. Herbert, 260 F. Supp. 2d 571, 577 (W.D.N.Y. 2003) (finding petitioner's claim "not cognizable on federal habeas review because the right to present testimony before the grand jury is purely a matter of New York state law.")
Mr. Cowell bases most of his argument in this regard on comparing testimony by the police officers to the substance of the arrest report. He attempts to draw out discrepancies between the two, but primarily emphasizes where there are gaps in the recounting of events in the arrest report. In short, much of his argument appears to attack the adequacy of the arrest report and of the underlying facts supporting probable cause. The averments do not establish, however, that the testimony provided by the officers at the two grand juries was perjured.
Cf. Smith v. Hall, 874 F. Supp. 441, 445-46 (D. Mass.) (Woodlock, J.), aff'd without op., 62 F.3d 1411 (1st Cir. 1995):
The petitioner does not present a discrimination challenge to grand jury selection, the one area in which the federal courts have taken an active role in policing state grand jury practice. Rather he seeks to have read into one of the few portions of the Bill of Rights — the grand jury clause — not specifically incorporated into the Fourteenth Amendment and thereby made obligatory on the states, a further obligation without any textual support in the Constitution: that the grand jury deliberate and vote without the prosecuting attorney present. The Supreme Court has been less than eager to use of the Due Process Clause to enlarge the language of the Constitution by indirection. Such textual support as can be found for the obligation the petitioner seeks to impose is located in a federal rule of procedure which has not been viewed to be of constitutional dimension. And even in the federal courts, violation of this rule does not give rise to the relief petitioner seeks unless there has been a demonstration that the violation substantially influenced the decision to indict, a demonstration petitioner does not even attempt to undertake.
Finally, and most fundamentally, to the degree that the fully considered and plainly authorized departure from federal practice made by the state grand jury in reliance on Mass. R. Crim. P. 5(g) can conceivably be considered constitutional error, it is rendered harmless by the subsequent verdict of the petit jury. That verdict cannot by any ordinary construction of the word be said to have been the result of any "influence," injurious or otherwise, by the state grand jury's request for the prosecutor's presence during its deliberations and voting.
In an event, even assuming the federal right to a grand jury had been extended to the states, a federal court's power to dismiss indictments after a conviction is limited:
The fact that the defendant was convicted by a petit jury acts as a cure for any error which may have resulted during grand jury proceedings. An indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for trial of the charge on its merits. A court should not inquire into the sufficiency of the evidence before the indicting grand jury, because the grand jury proceeding is merely a preliminary phase and all constitutional protections are afforded at trial. Once a defendant has been convicted by a petit jury, the petit jury's verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendants with the offenses for which they were convicted. At that point, our review is limited to determining if the district court abused its discretion in failing to dismiss the indictments.United States v. Valencia-Lucena, 925 F.2d 506, 511 (1st Cir. 1991); see United States v. Mechanik, 475 U.S. 66, 70 (1986) (finding that a violation of Fed.R.Crim.P. 6(d) amounted to harmless error once the defendant had been convicted by a petit jury); United State v. Colon-Munoz, 192 F.3d 210, 219 (1st Cir. 1999).
To be sure, such a rule does not foreclose all supervisory power over the grand jury proceedings after a defendant has been convicted. The court in United States v. The Larouche Campaign, 829 F.2d 250 (1st Cir. 1987) observed that
it is not a foregone conclusion beyond debate that if the abuse defendants claim were established, Mechanik would preclude relief after a judgment of conviction. The grand jury abuses alleged in the present case — violation of Rule 6's secrecy provisions, the presentation of misleading hearsay evidence, the government's trying of its case in the press — are different from the somewhat technical violation at issue in Mechanik. Consequently, the balancing of societal costs of retrial against the societal interest in deterring the type of abuses alleged here may be different, and, conceivably, Mechanik may not foreclose relief after a judgment of conviction.Id. at 253. In this vein, the Tenth Circuit has found that the analysis of a court determining "whether an indictment should be dismissed due to prosecutorial misconduct before a grand jury" includes a determination of whether the "claimed errors should be characterized as `technical' or `procedural' errors affecting only the grand jury's finding of probable cause, or whether the alleged errors are more properly characterized as threatening the defendant's `right to fundamental fairness in the criminal process.'" United States v. Lopez-Gutierrez, 83 F.3d 1235, 1244 (10th Cir. 1996). Likewise, the Third Circuit, differentiating between a violation of Fed.R.Crim.P. 6(d) and 6(e), found that the latter is not cured by a guilty verdict, because it implicates the "fundamental fairness" of the criminal proceedings. United States v. Johns, 858 F.2d 154, 158-59 (3d Cir. 1988).
The Seventh Circuit has observed a distinction between the First and Tenth Circuit approaches in this regard.
We recognize that as least one court, United States v. Taylor, 798 F.2d 1337 (10th Cir. 1986), had held that Mechanik is limited to "technical violations" before the grand jury. . . . [W]e respectfully disagree with Taylor and instead follow [LaRouche Campaign]; United States v. Dederich, 825 F.2d 1317 (9th Cir. 1987); and United States v. Benjamin, 812 F.2d 548 (9th Cir. 1987), which apply Mechanik to rules that are designed to prevent the indictment of innocent persons.United States v. Fountain, 840 F.2d 509, 515 (7th Cir. 1988) (Easterbrook, J.).
Here, however, even under the most limited reading ofValencia-Lucena and Mechanik, Mr. Cowell's claim would lack merit. First, as already noted, petitioner offers no basis for finding that the testimony at the grand jury was perjurious. Furthermore, there is nothing in the record upon which I could find that the prosecution acted in a reprehensible manner warranting concern for proper "deterr[ence] [of] the type of abuses alleged here." Larouche Campaign, 829 F.2d at 253.
As the MAC pointed out, "[d]espite the defendant's contention to the contrary, there was no material difference, much less a material misrepresentation, between the accounts given by Detectives Liberacki and Baptist regarding the observations they recorded concerning the contents of defendant's clenched left fist." (Ex. 11 to Resp. Supp. Answer at 7.)
Even assuming the validity of his claims, there is no indication that the ramifications of such violations potentially tainted the petit jury's determination of guilt at trial. His arguments regarding the allegedly false testimony before the grand jury all go to the probable cause necessary to legitimize the police intrusion on his privacy rights. The grand jury was not charged with determining whether the police lawfully seized the evidence, but rather considered whether the evidence established probable cause that Mr. Cowell committed the crimes for which he was charged. The relevant evidence — the drugs in his hand and in the glove compartment of the vehicle — is not implicated by Mr. Cowell's arguments. He simply contests the police's authority to search for such evidence. In any event, the question of adequate probable cause of criminal activity was resolved definitively by the jury verdict at trial. See Mechanik, 475 U.S. at 70 ("[T]he petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt.");United States v. Sanders, 341 F.3d 809, 818-19 (8th Cir. 2003) ("Even if we were to assume there was prosecutorial misconduct during the grand jury proceedings, the petit jury's guilty verdict rendered those errors harmless.") (citing United States v. Kouba, 822 F.2d 768, 774 (8th Cir. 1987)).
An example of an error not rendered harmless or excused by a later verdict at trial is one "involving racial discrimination in the composition of the grand jury." Kouba, 822 F.2d at 774.
In United States v. Flores-Rivera, 56 F.3d 319 (1st Cir. 1995), the First Circuit, presented with the question of a postverdict attack on an indictment based on alleged perjurious statements by a witness at the grand jury, emphasized that the defendant had the opportunity to cross-examine the witness at trial. The court found that the defendant had "not demonstrated that the alleged misconduct in fact occurred, much less that it was prejudicial or outrageous." Id. at 328. The same can be said here. Therefore, even under the hypothetical where the federal grand jury right is extended to state proceedings, there is no basis for issuing a writ of habeas corpus on this ground.
F. Ground Six: Ineffectiveness of Counsel
To establish ineffective assistance of counsel, the petitioner here would have to demonstrate
that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687 (1984); see North v. McDonough, 2004 U.S. App. LEXIS 26762, at *5-6 (1st Cir., Dec. 23, 2004) (noting that Strickland "`requires that [defendant] show (1) that [defense counsel's] performance fell below an objective standard of reasonableness and (2) that prejudice resulted.'") (quoting Tejeda v. Dubois, 142 F.3d 18, 22 (1st Cir. 1998)). To establish prejudice under Strickland, the petitioner
must demonstrate that there was a reasonable probability that but for [his attorney's] errors, the outcome of the trial would have been different. For that purpose a reasonable probability is defined as "a probability sufficient to undermine confidence in the outcome." And in that respect our analysis is not limited to outcome determination — we must also contemplate "whether the result of the proceeding was fundamentally unfair or unreliable."Tejeda, 142 F.3d at 22 (quoting Strickland, 466 U.S. at 694, 700). Here, the MAC concluded that "there is no showing by the defendant that his attorney's performance, prior to discharge, fell measurably below that of an ordinary fallible lawyer," citing Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The Massachusetts ineffectiveness analysis, as reflected inSaferian, "is functionally identical to the federal standard."Scarpa v. Dubois, 38 F.3d 1, 7 n. 4 (1st Cir. 1994); see Ouber v. Guarino, 293 F.3d 19, 32 (1st Cir. 2002).
The burden of establishing ineffective assistance rests with the petitioner here: "A defendant who alleges ineffective assistance of counsel must carry the devoir of persuasion on both tiers of the Strickland test. The same holds true of a habeas petitioner who claims that counsel mishandled his case in the state courts." Scarpa v. Dubois, 38 F.3d 1, 8-9 (1st Cir. 1994) (citations omitted).
Petitioner's ineffective assistance of counsel claim restates the bases for the previous five grounds. In essence, petitioner argues that the alleged violations by the Commonwealth prevented him from receiving effective assistance of counsel. He does not, however, contend that counsel acting on his behalf was deficient in performing his duties within the context he worked. Rather, petitioner simply argues that his counsel was denied access to materials wrongfully. That is a separate ground telling us little, if anything, about counsel's performance.
Moreover, after the indictments in this case — and his counsel's motion resulting in the dismissal of the substantive counts of his first indictment — petitioner proceeded pro se, filing numerous motions on his own behalf and representing himself at both trials. Upon waiving his right to counsel, he also waived his right to later press an ineffective assistance of counsel claim, as the MAC concluded. (See Ex. 11 to Resp. Supp. Answer at 9.) That finding is not in contravention of federal law, but rather is wholly consistent with the Supreme Court's rulings on the subject. "[W]hatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel.'"Faretta v. California, 422 U.S. 806, 834 (1975). Plaintiff has failed to raise any serious questions about the adequacy of his counsel and waived any such claims arising after he began representing himself. Consequently, this claim also fails.
I add that Mr. Cowell makes no claim that he did not knowingly and voluntarily waive his right to counsel. It would be difficult for him to do so, considering the lengthy colloquy conducted by Judge Fabricant with Mr. Cowell at the outset of the suppression hearing. Moreover, there are indications in the record that this was the second inquiry by a judge regarding petitioner's waiver of counsel.
IV. Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED and the Clerk is directed to DISMISS the action.