Opinion
CIVIL ACTION NO. 99-10478-GAO.
January 28, 2002
MEMORANDUM and ORDER
The petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that (1) the judge's jury instruction on armed assault with attempt to murder relieved the Commonwealth of the burden to prove malice beyond a reasonable doubt, in violation of his Fourteenth Amendment due process rights; (2) his trial counsel's failure to object to that jury instruction constituted ineffective assistance of counsel in violation of the Sixth Amendment; (3) his appellate counsel's failure to appeal the jury instruction constituted ineffective assistance of counsel in violation of the Sixth Amendment; and (4) the prosecutor's improper cross-examination infringed his Fifth Amendment right against self-incrimination. For the reasons that follow, the petition is DENIED.
A. Background
On March 23, 1995, the petitioner was convicted in the Massachusetts Superior Court of one count of armed assault with intent to murder and two counts of assault with a dangerous weapon, as well as counts charging him with unlicensed possession of a firearm, unlicensed possession of ammunition, and discharging a firearm within 500 feet of a dwelling.Commonwealth v. Marshall, No. 95-P-1749, Def.'s Brief and Record App. on Appeal from Middlesex Super. Ct. ("R.") (Mass.App.Ct., Apr., 1996); R. at R.6, No. MICR93-01560 (Super.Ct., March 23, 1995) (verdict slip docket entries); R. at D.S.A.-1 — D.S.A.-4, No. 97-P-2224 (Mass.App.Ct., Dec. 18, 1998) (order denying post-appeal motion for release from unlawful restraint and for new trial affirmed). On direct appeal, the petitioner argued (1) that the prosecutor's cross-examination was improper and (2) that the trial judge erred in refusing to give the jury a self-defense instruction. The Appeals Court affirmed the judgment of conviction, and the petitioner's application for further review was denied. See R., No. 95-P-1749 (Mass.App.Ct., Sept. 24, 1996) (order affirming the judgments of conviction); Commonwealth v. Marshall, 670 N.E.2d 213 (Mass.App.Ct. 1996); see also No. FAR-08797 (Sup. Jud. Ct., Nov. 21, 1996) (notice denying application for further appellate review); Commonwealth v. Marshall, 674 N.E.2d 245 (Mass. 1996).
In November, 1997, the petitioner filed in the Superior Court a Motion for Release from Unlawful Restraint and for a New Trial. R. at S.A. 5 — S.A. 7, Nos. 93-1560-002, -003, -004, -005, -006, -008 (Super.Ct., Nov. 4, 1997). He based his motion on the two claims rejected by the Appeals Court and also newly argued (1) that the jury instruction on the malice element of armed assault with intent to murder was improper; (2) that trial counsel furnished ineffective assistance by failing to object to the jury instruction on malice; (3) that appellate counsel was ineffective in failing to appeal the allegedly erroneous jury instruction on malice; and (4) that the prosecutor made improper remarks during the closing argument. The trial judge refused to act on the motion on the ground that it raised no legitimate questions which could not have been raised on direct appeal. R. at S.A. 5, Nos. 93-1560-002, -003, -004, -005, -006, -008 (Super.Ct., Nov. 14, 1997) (endorsement by the Court, denying motion for release from unlawful restraint and for new trial). On appeal from the denial of the motion, the Appeals Court did not review the claims already rejected on direct appeal and did not address the claim of impropriety in the prosecutor's closing argument because it concluded that presentation of the point did not rise to the level of appellate argument required by Mass.R.App.P. 16(a)(4). The Appeals Court reviewed the jury instruction claim under the state "miscarriage of justice" standard, and held that there had been no error in the instruction. The court further concluded that because the instruction was not improper, there had been no ineffective assistance of counsel in failing to object to it. R. at D.S.A.-1, No. 97-P-2224 (Mass.App. Ct., Dec. 18, 1998) (order denying motion for release from unlawful restraint and for new trial affirmed). The petitioner's application for further appellate review was subsequently denied. R., No. FAR-10324 (Sup. Jud. Ct., Feb. 22, 1999) (notice denying application for further appellate review).
The court also noted that the petitioner did not address these claims in his brief. R. at D.S.A.-1, No. 97-P-2224 (Mass.App.Ct., Dec. 18, 1998) (order denying motion for release from unlawful restraint and for new trial affirmed).
B. Claims One and Two
Claim One, that the malice instruction was erroneous, and Claim Two, that the trial counsel was ineffective for failing to object to the malice instruction, were resolved by the state courts on the basis of adequate and independent state grounds. The petitioner first raised these claims in his motion for a new trial, not in his direct appeal. The motion judge declined to act on the motion for a new trial, noting that it raised "no legitimate question which could not have been raised in [the] original appeal . . . ." R. at S.A.5, Nos. 93-1560-002, -003, -004, -005, -006, -008 (Super.Ct., Nov.14, 1997) (endorsement by the Court denying motion for release from unlawful restraint and for new trial). This was, in effect, a ruling that the claims had been procedurally defaulted. See Commonwealth v. Graham, 727 N.E.2d 51, 55-56 n. 11 (Mass. 2000). The Appeals Court reviewed the claims under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Hallet, 694 N.E.2d 845, 846 (Mass. 1998) ("If a motion judge has denied a motion for a new trial without considering the substantive merits of an issue that could have been, but was not, preserved for full appellate review, the standard of appellate review of that issue . . . is whether there was an error that created a substantial risk of a miscarriage of justice."). The court affirmed the trial judge's denial of the motion, finding that the malice instruction was not erroneous, and therefore the ineffective assistance of trial counsel claim failed. R. at D.S.A.-1, No. 97-P-2224 (Mass.App.Ct., Dec. 18, 1998) (order denying motion for release from unlawful restraint and for new trial affirmed). The Supreme Judicial Court denied further appellate review. R., No. FAR-10324 (Sup. Jud. Ct., Feb. 22, 1999) (notice denying application for further appellate review).
Massachusetts law requires defendants to present all generally known and available claims of error upon initial direct appeal, and any issues not raised on direct appeal are deemed waived. See Mass.R.Crim.P. 30(c)(2); Commonwealth v. Pisa, 425 N.E.2d 290 (Mass. 1981). The Commonwealth has routinely enforced the Rule 30 waiver rule. See Rodwell v. Commonwealth, 732 N.E.2d 287 (Mass. 2000); Commonwealth v. Watson, 565 N.E.2d 408 (Mass. 1991). "[W]here . . . the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). By relying on Hallet for the "substantial risk of a miscarriage of justice standard" the Appeals Court indicated its recognition that the claims had been procedurally defaulted. 694 N.E.2d at 846. The First Circuit has "consistently held that such `miscarriage of justice' review . . . where there has been procedural waiver below, does not mean . . . that the procedural waiver is not an independent and adequate state ground." Simpson v. Matesanz, 175 F.3d 200, 209 (1st Cir. 1999).
Procedural defaults that form the basis of a state court's denial of relief constitute an adequate and independent state ground to which federal courts must defer. See Wainwright v. Sykes, 433 U.S. 72-73 (1977); Puleio v. Vose, 830 F.2d 1197, 1199-1200 (1st Cir. 1987). When a state court decision is based on procedural default, federal habeas review is foreclosed unless (1) the petitioner can demonstrate cause for the default and prejudice stemming from it or (2) the petitioner can show actual innocence. See Simpson, 175 F.3d at 209-10.
"The federal `fundamental miscarriage of justice' standard means that the petitioner must establish actual innocence." Simpson, 175 F.3d at 210. The Massachusetts "miscarriage of justice" standard is determined under state law and does not address actual innocence in habeas cases.Id.
The petitioner does not satisfy the cause and prejudice standard. To show cause, the petitioner must prove that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). The petitioner has not offered any objective or external factors that prevented him from raising challenges to the jury instructions or the assistance of his trial counsel in his direct appeal, and it is therefore not necessary to consider the prejudice analysis.
Nor does the petitioner satisfy the actual innocence standard. The narrow "actual innocence" exception requires the petitioner to "show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt" of the offenses charged.Simpson, 175 F.3d at 210 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). The trial judge instructed the jury that the elements of armed assault with intent to murder are (1) that the defendant was armed with a dangerous weapon; (2) that there was an assault by the defendant; (3) that the assault was done with the specific intent to kill; and (4) that the assault was done with malice. Trial Tr. Vol. VII, March 23, 1995, at 67. The judge explained that "[m]alice means the absence of mitigation. In this case, if the Commonwealth has proved, beyond a reasonable doubt, specific intent to kill, the requisite finding of malice necessarily exists." Trial Tr. Vol. VII, March 23, 1995, at 71. The jury found the defendant guilty of one of the two charged counts of armed assault with intent to murder.
The petitioner was acquitted on the charge of armed assault with intent to murder Officer Raymond LaFortune, but was found guilty of armed assault with intent to murder Officer Christopher Coviello. See R. at R.6, No. MICR93-01560 (Super.Ct., March 23, 1995) (verdict slip docket entries); R.9, R.15, Nos. 93-1560-001, -008 (Super.Ct., Sept. 19, 1993) (indictments).
At trial, the Commonwealth's evidence included testimony from the two Tewksbury police officers who responded to the incident. Officer LaFortune testified that the petitioner fired several rounds at him and also fired at Officer Coviello. Trial Tr. Vol. IV, March 20, 1995, at 51, 55-56. Officer Coviello testified that the petitioner aimed a gun at his head and fired approximately three times. Coviello testified that he witnessed the exchange of gunfire between the petitioner and Officer LaFortune. Trial Tr. Vol. IV, March 20, 1995, at 234, 238. In contrast, the defendant testified that he fired shots "into the air" to create a diversion so that he could escape the police officers and hide his unregistered gun. Trial Tr. Vol. V, March 21, 1995, at 183. A reasonable juror surely could have credited the testimony of the police officers over the defendant's and concluded that the petitioner was guilty of armed assault with intent to murder.
C. Claim Three
The petitioner's third claim, that his appellate counsel was ineffective for failing to appeal the malice instruction, is properly before the Court because it could not have been raised in the direct appeal. The claim is subject to review under 28 U.S.C. § 2254(d).
Section 2254(d)(1) provides "two possible pathways to habeas relief."Sanna v. DiPaolo, 265 F.3d 1, 6 (1st Cir. 2001). One path allows this Court to grant relief from the state court judgment if it finds "an established Supreme Court precedent . . . that the state court's decision contravened." Id. at 7 (citing Williams v. Taylor, 529 U.S. 362, 376-78 (2000)). The second path allows the Court to grant relief even if "there is no Supreme Court case on point or if there is one and the state court correctly characterized it" if the Court determines "that the state tribunal applied the Supreme Court precedent in an unreasonable manner."Sanna, 265 F.3d at 7.
The petitioner contends that his appellate counsel's failure to appeal the jury instruction on malice infringes his Sixth Amendment right to counsel. The Supreme Court has "held that appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000) (citingJones v. Barnes, 463 U.S. 745 (1983)). The Court noted in Smith that "[g]enerally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Robbins, 528 U.S. at 288 (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).
Putting aside the state courts' determination that there was no error in the instruction, it is clear that the petitioner's appellate counsel was diligent and attentive. The petitioner's appellate counsel submitted a 41-page brief comprehensively arguing that the prosecutor improperly cross-examined the petitioner and that the judge erroneously refused to instruct the jury on self-defense. R. at 1 — 31 . . . R. at 32 — 41, No. 95-P-1749 (Mass.App.Ct., Apr, 1996). The appellate counsel also submitted a 19-page application for further appellate review with the Supreme Judicial Court. R., Appeals Ct. No. 95-P-1749, Supreme Jud. Ct. No. ___ (Sup. Jud. Ct., Oct. 15, 1996) (application and memo in support of application for further appellate review). Appellate counsel's omission to include a claim with respect to the jury instruction on malice does not rise to the level of a constitutional violation where the appellate counsel competently presented two claims that were not clearly weaker than the challenge to the malice instruction. The state court's denial of this claim does not contravene established Supreme Court precedent nor is it an unreasonable application of Supreme Court precedent.
D. Claim Four
The petitioner's fourth claim, that the prosecutor's cross-examination was improper, was properly raised in the state courts and is subject to review under 28 U.S.C. § 2254(d). The petitioner contends that the prosecutor violated his Fifth Amendment right against self-incrimination in two separate lines of questioning during his cross-examination. In the first line of questioning, the petitioner claims that the prosecutor improperly implied that the petitioner based his testimony on police reports and minutes from the Grand Jury proceedings. Trial Tr. Vol V, March 21, 1995, at 225-227. The petitioner's second objection to the cross-examination is based on the prosecutor's inquiry into why the petitioner had not shown the police the location of the gun the petitioner used during the incident and later hid in the woods. Trial Tr. Vol. V., March 21, 1995, at 246-47.
The relevant exchange is as follows:
Q: Sir, you've had the opportunity over the last 18 months to review their police reports; correct?
A: Yes, I have.
Q: And you've read both of them very carefully, haven't you?
A: Yes, certainly.
Q: And every statement that they made at the Grand Jury, you've reviewed rather carefully over the last 18 months; correct?
A: I've reviewed it, yes.
Q: Over and over, haven't you?
A: I've reviewed it many times.
Q: In preparation for this trial and your testimony; correct?
A: In preparation to see the inconsistencies, sir.
Q: And your testimony is based, today, on having read their testimony previously in their police reports, isn't that right?
Mr Hassett: Objection, Your Honor.
The Court: He can answer the question. Objection overruled.
A: Would you say it again, please?
Q: You've testified today based on reading their police reports, as well as their Grand Jury Minutes, and you know what they said at those times; correct?
A: I have not based my testimony on what they said.
Q: You've read the documents, have you not?
A: Yes.The Court: Mr. Foreman, ladies and gentlemen of the Jury, the Defendant has an absolute right in Discovery to obtain all police reports, all Grand Jury Minutes, and there's absolutely nothing improper about he and his lawyer sitting down and reviewing all of those documents.
Let's move along, sir.
The exchange went as follows:
Q: Sir, isn't it true that you buried [the gun] there so that there wouldn't be any landmarks around, so it would be difficult to find?
A: If you want, I will — and you take me out there, I'll try and find it, to the best of my ability.
Q: And you haven't done so up to now?
Mr. Hassett: Objection, Your Honor.
The petitioner contends that this questioning violated his right to confer with counsel and prepare his testimony for trial and his right to remain silent under Doyle v. Ohio, 426 U.S. 610 (1976). The petitioner also could have argued that the cross-examination constituted prosecutorial misconduct and thus violated his right to due process. However, both arguments fail. In Doyle, the Supreme Court held that impeaching a defendant with post-Miranda silence violates the Due Process Clause of the Fourteenth Amendment. Doyle, 426 U.S. at 619. However, habeas relief may not be granted unless the Doyle error "had [a] substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotingKotteakos v. United States, 328 U.S. 750, 776 (1946)). A Doyle error is "amenable to harmless-error analysis because it may be `quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].'" Brecht, 507 U.S. at 629 (quotingArizona v. Fulminante, 499 U.S. 279, 307-08 (1991)). Even if the prosecutor's questions rose to the level of constitutional violations, which the Court need not decide, the errors were harmless. Both lines of questions addressed collateral matters and any possible errors were cured by the trial judge's immediate, comprehensive, and forceful instructions to the jury.
The Court: Mr. Foreman, ladies and gentlemen of the Jury, that is an improper question from the District Attorney. The Defendant is presumed innocent. After he's arrested, there is absolutely no burden on the Defendant to say anything or do anything, and you can draw no unfavorable inferences or impressions against him because he says nothing and does nothing. That's his actual right.
Don't you ever ask a question like that again, sir. Next question.
E. Conclusion
For the foregoing reasons, the petition lacks merit, and the relief requested is DENIED.
IT IS SO ORDERED.