Manisy v. Maloney

Full title: SINETHONE MANISY v. MICHAEL T. MALONEY

Court: United States District Court, D. Massachusetts

Date published: Sep 4, 2003

CIVIL ACTION NO. 01-11849-RGS (D. Mass. Sep. 4, 2003)

Opinion

CIVIL ACTION NO. 01-11849-RGS

September 4, 2003

Annette C. Benedetto, Department of Attorney General, Boston, MA For Michael Maloney (Respondent)

MEMORANDUM AND ORDER ON REPORT AND RECOMMENDATION ON PETITIONER'S RENEWED MOTION FOR APPOINTMENT OF COUNSEL AND RESPONDENT'S MOTION TO DISMISS

RICHARD STEARNS, District Judge

On December 7, 1995, petitioner Sinethone Manisy was convicted by a jury in the Superior Court jury of being an accessory before and after the fact of an armed robbery. On November 7, 2001, Manisy filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ As grounds for his petition, Manisy asserted: (1) that juror misconduct denied him the right to a fair and impartial verdict; (2) that his conviction was obtained "by the use of improper non-probative prejudicial evidence of prior bad acts and bad character;" and (3) that he was denied the right to effective assistance of counsel because of his lawyer's mishandling of various evidentiary issues. The respondent, in due course, moved to dismiss the petition in its entirety, and the proceeding was referred to Magistrate Judge Dein. In her Report, the Magistrate Judge recommended that the motion to dismiss be allowed as to the second and third claims, but denied as to the claim of juror misconduct.² While I agree with the Magistrate Judge's recommendation that the second and third claims be dismissed, I am of the view that the juror misconduct claim is barred by a procedural default and must therefore be dismissed as well.

1 Manisy's conviction was affirmed by the Massachusetts Appeals Court on December 24, 1997. The Supreme Judicial Court denied his petition for further appellate review on February 20, 1998. See Commonwealth v. Manisey [sic], 427 Mass. 1101 (1998). On January 5, 1999, Manisy filed apro se motion for post-conviction relief, which was denied by the trial judge on August 12, 1999. In an unpublished opinion issued on May 18, 2001, the Appeals Court affirmed the denial of the motion for post-conviction relief. See Commonwealth v. Manisy, 51 Mass. App. Ct. 1109 (2001). Manisy's application for further appellate review was denied by the Supreme Judicial Court on September 27, 2001.

2 The Magistrate Judge also recommended that Manisy be appointed counsel to assist in any further proceedings involving the juror misconduct claim.

BACKGROUND

Manisy was indicted by a state grand jury as a principal in a December 29, 1994 armed robbery, and as an accessory before and after the fact of the same crime. In November of 1995, the case proceeded to trial before a petit jury. At the close of the evidence, the court granted Manisy's motion for a required finding of not guilty on the armed robbery charge. On December 7, 1995, the jury returned guilty verdicts on the accessory counts.

At trial, Gregory Dame was a principal witness for the Commonwealth. Dame testified that he owed money to Manisy for cocaine and had agreed to participate in the robbery as a means of repaying the debt. According to Dame, Manisy planned the robbery, supplied the guns, and received the proceeds. Another Commonwealth witness, Rotha Chhay, corroborated Manisy's involvement in the robbery and testified that Manisy had used the proceeds to buy cocaine which he then directed his confederates to sell.

On the second day of jury deliberations, the jury sent the court a note stating that "We feel that we are a hung jury." The court gave further instructions and asked the jury to resume deliberations. On the third and final day of deliberations, the jury sent the court the following note.

The juror in seat twelve mentioned yesterday in deliberations that her son had a confrontation with Gregory Dame at some point in the past. She was not aware of this when she was impaneled. Does this disqualify her?

The court found that there was "extraneous matter coming into the jury room that one of the jurors had a relative who had a confrontation with Mr. Dame which [sic] is the central Commonwealth witness." After conferring with counsel, the court summoned the jurors and read back the question. The judge then instructed as follows:

My response to this is not the answer to that question, and except to tell you as strongly as I can, your deliberations in this case must be based upon the evidence you heard in this trial, in the courtroom and upon no other basis. You are limited to the evidence in the case which is the testimony of the witnesses and the exhibits in the case, and you must confine your deliberations to those two areas. Thank you, ladies and gentlemen. Please resume your deliberations.

Neither counsel objected. Approximately six hours later, the jury found Manisy guilty of the accessory charges. A state prison sentence ensued.

In Manisy's direct appeal, new counsel argued that the trial judge had erred in not undertaking to make further inquiry of the jurors in response to their question. Addressing this issue, the Appeals Court held that

[t]he trial judge's decision, in response to the jury's inquiry, not to make further inquiry and, instead, to emphatically instruct the jurors to decide the matter based only on the evidence in the case did not create a substantial risk of a miscarriage of justice. Here, the information did not "concern[ ] one of the parties or the matter in the litigation," Commonwealth v. Fidler, 377 Mass. 192, 200 (1979), and the judge was not required to conduct a hearing. Id. at 203. See also Commonwealth v. Gilchrist, 413 Mass. 216, 219 (1992). In the present case, the judge acted well within his discretion in refusing to make further inquiry. See Commonwealth v. Dixon, 395 Mass. 149, 151-52 (1985).

The Procedural Default Rule

A federal court will not undertake habeas corpus review of a state court decision that rests on an independent and adequate state ground.Phoenix v. Matesanz, 189 F.3d 20, 24 (1st Cir. 1999). Failure to comply with a state procedural requirement is such a ground. See Wainwright v. Sykes, 433 U.S. 72, 82 (1977) (the failure to timely object at trial to an alleged error as required by a state contemporaneous objection rule constitutes an `independent and adequate state ground' sufficient to foreclose federal habeas corpus review of the alleged error."). A procedurally defaulted claim may, however, be resurrected if the last state court granting review addresses a federal claim on its merits, thereby waiving the default. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991).

To this point, the Magistrate Judge's Report accurately tracks the case law.

"A finding by a state court that a defendant procedurally defaulted a claim bars federal habeas corpus relief on that claim unless the defendant as a petitioner shows either cause for the default and prejudice from the claimed violation of federal law, or that a fundamental miscarriage of justice will result if the claim is not considered." Gunter v. Maloney, 291 F.3d 74, 78 (1st Cir. 2002) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). The doctrine of procedural default arises out of "the long-standing rule that federal courts do not review state court decisions which rest on `independent and adequate state grounds.' Such independent and adequate state grounds exist where `the state court declined to hear the federal claims because the prisoner failed to meet a state procedural requirement.' In such a case, `considerations of comity and federalism bar the federal court's review.'" Simpson v. Matesanz, 175 F.3d 200, 205-06 (1st Cir. 1999) (internal citations and punctuation omitted), cert. denied, 528 U.S. 1082 (2000).

Report, at 10-11.

The Magistrate Judge also recognized that "[i]n Massachusetts, the rule that `a claim not raised is waived' is regularly enforced and `firmly established,'" and "[t]he fact that following a failure to object, [a] state appellate court goes on to review a case under a miscarriage of justice standard does not waive the need for a contemporaneous objection, and does not `create independent rights in habeas petitioners.'" Id. at 11, quoting Gunter, 291 F.3d at 79-80. The Magistrate Judge, however, determined that the procedural default rule did not preclude federal review of Manisy's juror misconduct claim. In so concluding, the Magistrate Judge reasoned that because the Appeals Court had failed to specifically mention Manisy's failure to object to the trial court's decision not to pursue a further inquiry of the jurors, it had waived the default. "Rather, the court addressed the merits of Manisy's claim, and concluded that the trial judge had acted within his discretion." Report at 12. Finally, the Magistrate Judge determined that "[t]he Appeals Court did not analyze the case under a miscarriage of justice standard." Id. (emphasis added). It is not clear what the Magistrate Judge meant by this last statement, as the Appeals Court clearly indicated that it had considered whether the judge's handling of the alleged juror misconduct issue had posed a potential risk of a miscarriage of justice. It is likely that the "not" is a transcription error and that the Magistrate Judge meant to cite the Appeals Court's reference to the miscarriage of justice standard as further evidence of a waiver.³ But,

3 It is possible that the Appeals Court reference to the risk of a miscarriage of justice "should be read to mean only that, as a matter of state law, the case did not pose a substantial risk of a miscarriage of justice." Gibson v. Butterworth, 693 F.2d 16, 18 (1st Cir. 1982).

[a]s the First Circuit has repeatedly held, the mere fact that a state appellate court engages in a discretionary, and necessarily cursory, review under a "miscarriage of justice" analysis does not in itself indicate that the court has determined to waive an independent state procedural ground for affirming the conviction. Tart v. Massachusetts, 949 F.2d 490, 496-497 (1st Cir. 1991). See Puleio [v. Vose, 830 F.2d 1197, 1200 (1st Cir. 1987)]; McGown v. Callahan, 726 F.2d 1, 3 (1st Cir. 1984); Gibson v. Butterworth, 693 F.2d 16, 17-18 (1st Cir. 1982).

Respondent's Objection, at 9.

Even assuming that the Appeals Court had intended (deliberately or not) to waive the default, the waiver would only be effective if its decision "`fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.'"Coleman, 501 U.S. 722, 735 (1990), quoting Michigan v. Long, 463 U.S. 1032, 1040-1041 (1983). See also Burks v. Dubois, 55 F.3d 712, 716 n. 2 (1st Cir. 1995). That is not the case here. In concluding that the judge's actions had posed no substantial risk of a miscarriage of justice, the Appeals Court cited three Massachusetts Supreme Judicial Court cases explaining the procedures that trial judges are expected to follow when faced with allegations of extraneous influence on a jury. The holdings in these three cases are not based upon federal constitutional principles, but rather upon the Supreme Judicial Court's superintendence power.⁴ See Brewer v. Marshall, 119 F.3d 993, 999-1000 (1st Cir. 1997).⁵ As the First Circuit has stated

4 The cases cited by the Appeals Court were Fidler, 377 Mass. 192 (1979); Gilchrist, 413 Mass. 216 (1992); and Dixon, 395 Mass. 149 (1985). Fidler, which held that under appropriate circumstances a defendant is entitled to a hearing on possible juror misconduct, is based squarely on a prior Massachusetts common-law decision, Woodward v. Leavitt, 107 Mass. 453, 466 (1871). See Fidler, 377 Mass. at 201.Gilchrist, which held that under the circumstances relevant to that case the judge was not required to hold a hearing, was in turn based onFidler. Gilchrist, 413 Mass. at 220. Dixon, while citing Remmer v. United States, 347 U.S. 227 (1954), in dicta, also based its holding on Fidler.Dixon, 395 Mass. at 151, 153. (Remmer, in any event, is itself a superintendence power case. Remmer's principle citation is to Mattox v. United States, 146 U.S. 150, 148-150 (1892), which in turn cites Justice Gray's decision in Woodward v. Leavitt, supra, as persuasive authority).

5 While Harris v. Reed, 489 U.S. 255, 263 (1990), requires that a state court "clearly and expressly" state that its decision rests on a state procedural bar, the Harris rule applies only when "the decision of the last state court to which the petitioner presented his federal claims . . . fairly appear[s] to rest primarily upon federal law or to be interwoven with federal law." Coleman, 501 U.S. at 735.

[n]ot every passing reference to substance dispels the onus of noncompliance with a contemporaneous objection rule. Waiver in such circumstances must entail the state court reaching the gist of the federal constitutional question. The test "is the extent to which the state court relies upon federal rights, cases and legal principles in conducting its review. . . . The greater the reliance on federal doctrine, the more likely we are to find waiver. Jackson v. Amaral, 729 F.2d 41, 45 (1st Cir. 1984).

Puleio, 830 F.2d at 1200. From the cases it chose to cite, it is manifestly clear that the Appeals Court had Massachusetts, and not federal law in mind, when it concluded that no miscarriage of justice had occurred. Under the circumstances, the determination that the procedural default rule was waived cannot be supported.

As the Magistrate Judge pointed out in her Report, in order to escape from the preclusive effect of a procedural default, a petitioner is obligated to show both "cause" for, and "prejudice" from, his noncompliance with the contemporaneous objection rule.⁶ Murray v. Carrier, 477 U.S. 478, 485-489 (1986). The Magistrate Judge correctly concluded that "Manisy cannot demonstrate `cause' for the default, as that requires `that some objective factor external to the defense' interfered with counsel's ability to object," quoting Magee v. Harshbarger, 16 F.3d 469, 471 (1st Cir. 1994), and that "[n]o such external factor existed in the instant case."⁷ Report at 13. However, even

6 Cause and prejudice are mutually dependent requirements. The failure to s how the first dispenses with the need to inquire as to the second. Puleio, 830 F.2d at 1202.

7 As the Magistrate Judge recognized, Manisy may not rely on his ineffective assistance claim as "cause" for the default, as he failed to raise the issue in the context of any alleged mishandling of the jury question either on his direct appeal or in his motion for a new trial.Report, at 13 n. 5. Moreover, a substantive claim that is procedurally defaulted cannot be revived by being repackaged in a collateral proceeding as a claim of ineffective assistance of counsel. Levasseur v. Pepe, 70 F.3d 187, 191-192 (1st Cir. 1995).

[a]bsent a showing of "cause" and "prejudice," a procedural default may still be excused where failure to hear the claim would result in a "fundamental miscarriage of justice." Murray, 477 U.S. at 495-96. This exception may be invoked where "a constitutional violation has probably resulted in the conviction of one who is actually innocent. . . . " Id., at 496. In order to satisfy the actual innocence requirement and enable an otherwise barred constitutional claim to be considered on the merits, a petitioner "must show by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner [guilty]." Sawyer v. Whitley, 505 U.S. 333 (1992).

Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir. 1994). See also Bousley v. United States, 523 U.S. 614, 622-623 (1998). The fundamental miscarriage of justice standard, as its description implies, "is a narrow exception to the cause-and-prejudice imperative, seldom to be used, and explicitly tied to a showing of actual innocence." Burks, 55 F.3d at 718 n. 5 (1st Cir. 1995) (questioning whether the showing of actual innocence must be clear and convincing or merely probable). But see Williams v. Taylor, 529 U.S. 420, 430-434 (2000) (a petitioner must present "clear and convincing" evidence of actual innocence). The Magistrate Judge correctly held that Manisy cannot benefit from the "fundamental miscarriage of justice" exception. As she observed in her Report, the evidence against Manisy was "quite strong" and "substantial," see Report, at 14, 23, and therefore inferentially insufficient to support a claim of innocence.⁸ Consequently, the recommendation that even if this court finds a procedural default (as it has), it should nonetheless deny the motion to dismiss the juror misconduct claim and appoint counsel to assist Manisy in addressing "whether the miscarriage of justice exception to the procedural default bar is [nonetheless] applicable," is inconsistent with the findings of the Report itself.

8 The alleged violation in this case, that is, the failure to further inquire of the juror whose son had been involved in an altercation with the Commonwealth's chief witness simply underscores the point. If this supposed extraneous influence could have been expected to work to anyone's advantage, it would have been Manisy himself, which likely explains the tactical decision of his counsel not to pursue the matter further with the trial judge.

ORDER

For the foregoing reasons, the court adopts the Magistrate Judges's Recommendation with respect to claims two and three, ⁹ rejects the Recommendation with respect to claim one, declines to appoint counsel, and dismisses the petition in its entirety.

9 Whether claims two and three should be dismissed on grounds of procedural default (as respondent contends) or on their merits, as the Magistrate Judge recommends, need not be decided, as either ground is sufficient to support dismissal.

SO ORDERED.