Opinion
CIVIL ACTION NO. 05-10719-GAO.
April 13, 2007
ORDER ADOPTING REPORT AND RECOMMENDATION
The Magistrate Judge to whom this matter had been referred has filed a report and recommendation (dkt. no. 15) that the petition for a writ of habeas corpus be denied. No objection to the report and recommendation has been received, and the time for making any objection has expired.
After review of the report and other relevant pleadings and memoranda submitted by the parties, I conclude that the Magistrate Judge's resolution of the issues presented is correct, and therefore I ADOPT the report and its recommendation.
The petition is DENIED.
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS March 7, 2007
SOROKIN, M.J.On April 13, 2005, Joseph McLaughlin ("Petitioner") petitioned for writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Before the Court are the petition (Docket # 1) and the parties' briefs supporting and opposing the petition. In addition, Respondent submitted a two volume supplemental answer containing excerpts of some trial testimony and relevant pleadings from state court. Neither party submitted the entire trial transcript.
BACKGROUND
The following summary of facts is taken from the Massachusetts Supreme Judicial Court's ("SJC") decision in Commonwealth v. McLaughlin, 431 Mass. 241, 242-46 (2000). The facts set forth by the SJC are presumed to be correct, pursuant to 28 U.S.C. § 2254(e)(1).
On April 19, 1989, as a birthday present, Petitioner gave his wife Marianne a bracelet and tickets to see "Dream Girls" at Boston's Wang Theater on April 21, 1989. On that evening, Marianne wore her hair down and wore a white mink coat, as Petitioner had requested. After they parked at the 57 Park Plaza Hotel parking garage, Marianne was struck by a car. The tissue of her scalp had been pulled forward, exposing the soft tissue and bone of her face. Marianne suffered other extreme injuries, but survived the accident.
The car that struck Marianne was registered to a Stephen Mogan. At trial, Mogan testified that some time before April 21, 1989, he received a telephone call from co-defendant Brian McNeil, asking that he come to McNeil's house to meet with McNeil and his father, William McNeil. William asked Mogan for the use of his car for the purpose of "ram[ming] down Marianne Lewis" at the garage. Mogan testified that he spoke again with the McNeils on April 21, 1989, and was given instructions to leave his car behind the building with the keys in the ashtray, and then go bowling and out to dinner at places where he would be seen in order to establish an alibi. Mogan was then supposed to report the car stolen.
Later that night, as per William's instructions, Mogan, Brian McNeil, and two friends went bowling, then ate at a Chinese restaurant. They returned to Mogan's home at approximately 11:45 P.M. Mogan called a few towing companies and asked if his car had been towed, and then reported the car stolen. When Mogan spoke with William the next day, William described how he drove down the ramp and hit Marianne head on. William reported that she had the frozen look of "a deer in the night."
Another witness, James Short, testified that in January of 1988, while he was working as a paid informant for the Drug Enforcement Administration ("DEA"), William McNeil told him that he had a contract of a husband on a wife. Short also testified that he recorded the conversation on an electronic recording device he was wearing. A DEA agent testified that she listened to the recording of the meeting, and that she had prepared a written report of the incident.
On May 5, 1998, a Suffolk County jury convicted Petitioner on three counts: (1) armed assault with intent to murder; (2) conspiracy to commit murder; and (3) conspiracy to commit armed assault with intent to murder. (S.A. Vol. I/1, 8; Pet. 1.) The trial judge dismissed the indictment of conspiracy to commit murder before sentencing, because the statute of limitations had run. (S.A. Vol. I/1, 9.) Petitioner was sentenced to a minimum of eighteen years and a maximum of twenty years on the conviction for armed assault with intent to murder, with a concurrent term of a minimum of eight years and a maximum of ten years on the conviction for conspiracy to commit armed assault with intent to murder. (Id. at 8-9.)
On May 14, 2000, the SJC affirmed Petitioner's convictions on direct appeal, after transferring the case sua sponte from the Massachusetts Appeals Court ("Appeals Court"). Commonwealth v. McLaughlin, 431 Mass. at 242. On May 9, 2001, Petitioner filed a pro se motion for a new trial, asserting numerous grounds, which was denied by the trial judge on November 20, 2001. Thereafter, Petitioner filed several motions for reconsideration, all of which were denied. Subsequent to the denials, Petitioner, represented by counsel, filed an appeal.
On December 17, 2004, in an unpublished memorandum and order, the Appeals Court affirmed the denial of Petitioner's motion for new trial and motions for reconsideration. Commonwealth v. McLaughlin, 2004 WL 2924875 (Mass.App.Ct. Dec. 17, 2004). On March 2, 2005, the SJC denied Petitioner's application for further appellate review ("ALOFAR"). Commonwealth v. McLaughlin, 443 Mass. 1105 (2005).
In the instant petition, Petitioner asserts the following three grounds for relief: (1) that he was denied due process pursuant to the 5th and 14th Amendments to the United States Constitution where the prosecutor failed to disclose that a witness, William Mogan, was testifying pursuant to an immunity agreement; (2) that he did not receive a fair trial because the prosecutor withheld evidence that another witness, James Short, was a federally paid informant and in the witness protection program; and (3) that the Commonwealth failed to establish beyond a reasonable doubt by evidence independent of hearsay statements that Petitioner was involved in a criminal conspiracy to kill his wife, and that it was error to admit said hearsay statements under the co-conspirator exception to the hearsay rule.
DISCUSSION
1. Failure to Disclose Immunity Agreement
Petitioner claims that he was denied due process pursuant to the Fifth and Fourteenth Amendments where the prosecutor failed to disclose that a witness, William Mogan, was testifying pursuant to an immunity agreement. William Mogan is the brother of Stephen Mogan. (S.A. Vol. II/2, 54.) The Commonwealth called William as a witness to counter the defense's attempt to implicate William Mogan (as opposed to William McNeil) as the driver of the car that struck Marianne by displaying William Mogan to the jury. (S.A. Vol II?2, 40-41) The Commonwealth did not examine William Mogan concerning the defendant, the conspiracy or the events in the parking garage. (S.A. Vol II/2, 40-41). The entire direct examination consisted of a page and one half of transcript. (Id.) Petitioner claims that the knowledge that William was granted immunity would have impeached William's credibility and been devastating to the Commonwealth's case. Standard of Review
A federal court is precluded from granting a petition for a writ of habeas corpus unless the state court decision on the merits of the claim(s) was "contrary to" or an "unreasonable application of" Supreme Court precedent, or an "unreasonable determination" of the facts. See 28 U.S.C. §§ 2254(d)-(e)(1). The deference required by AEDPA applies only to claims that were adjudicated on the merits in state court proceedings; otherwise, a federal court must apply de novo review. See Norton v. Spencer, 351 F.2d 1, 4-5 (1st Cir. 2003), cert. denied, 542 U.S. 933 (2004). If the state court did not decide the federal constitutional claim, even by reference to state court decisions addressing federal constitutional issues, then the federal court cannot say that the constitution claim was adjudicated on the merits. See Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001), cert. denied, 535 U.S. 1018 (2002). It is important to note that in order for a state court to adjudicate a claim on the merits, it is not necessary for the court to make specific references to federal law. Rather, the Supreme Court instructs that
[a] state-court decision is `contrary to' our clearly established precedents if it `applies a rule that contradicts the governing law set forth in our cases' or if it `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'" Williams v. Taylor, 529 U.S. 362, 405-406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Avoiding these pitfalls does not require citation of our cases-indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.Early v. Packer, 537 U.S. 3, 8 (2002) (emphasis added).
The only case cited by the Appeals Court is a state court decision, Commonwealth v. Healy, 438 Mass. 672 (2003). In Healy, the SJC articulated and applied a standard of review under state law more favorable to the defendant than the federal standard, for those cases in which the defendant has made a specific request for exculpatory information. See id. By applying a state law standard derived from federal law that is more favorable to the defendant than the federal standard, the Appeals Court appears to have considered the federal issue within its resolution of the parallel state law claim. Accordingly, the claim must be reviewed under AEDPA's deferential standard. See Early v. Packer, 537 U.S. at 8 (finding that AEDPA's standard of review should apply where, as here, a state court cited decisions from state court that provide greater protections for a defendant.).
Under this standard of review, Petitioner's argument plainly fails. Having found no abuse of discretion on the part of the motion judge, the Appeals Court affirmed, stating:
We discern no misstep in the judge's conclusion that timely disclosure of this agreement could not have influenced the jury . . . were the jury — as a result of learning about the agreement between the Commonwealth and William Mogan — not to believe William Mogan on the topic of who was driving, this would not constitute evidence that William Mogan was the driver such that, by reason of it, Stephen Mogan would be shown to have lied when he testified otherwise.Commonwealth v. McLaughlin, 2004 WL 2924875, at *1.
The Appeals Court's decision was neither contrary to, nor an unreasonable application of, clearly established federal law. Nondisclosure of evidence rises to the level of constitutional error when three components are met: (1) the evidence is favorable to the defendant because it is either exculpatory or impeaching; (2) the evidence was willfully or inadvertently suppressed by the State; and (3) the suppression resulted in prejudice. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). See also Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that "suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution"). While the fact of the immunity agreement would presumably favor the defendant, the failure to disclose was found by the Superior Court Judge to be inadvertent. That factual finding governs. Moreover, in order for the nondisclosure to be prejudicial to the defendant, there must be the "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985).
The Appeals Court applied the federal standard and determined that the Petitioner was not prejudiced by the non-disclosure because the result would not have been different if the immunity agreement had been disclosed. This result is neither contrary to nor an unreasonable application of existing Supreme Court precedent in light of William Mogan's testimony. Therefore, I recommend that Petitioner's first claim be DENIED.
2. Failure to Disclose the Federal Informant
In the second ground, Petitioner claims that he was denied a fair trial because the prosecutor withheld exculpatory evidence that another witness, James Short, was a federally paid informant who had previously lied under oath and who was in the witness protection program. Petitioner does not argue before this Court that he suffered a constitutional violation. Petitioner's argument heading for this claim states that "[t]he prosecution also withheld from the defense highly exculpatory evidence that another key witness was a federally-paid informant and in the witness protection program." Petitioner's Memorandum at 23. His two-page discussion does not refer to constitutional principles, nor does it contain citations to federal case law to support any claims of a constitutional violation. This is in stark contrast to the argument heading and discussion for his first claim, in which Petitioner makes it a bundantly clear that he is claiming a constitutional violation. For example, the argument heading for the first claim states that "[t]he defendant was denied due process under the Fifth and Fourteenth Amendments where the Commonwealth failed to reveal to the defendant and the jury that its witness . . . was testifying pursuant to an immunity agreement." Id. at 16. Petitioner proceeds to a through discussion in which he applies the facts of his first claim to constitutional case law. He does not do so with regard to his second claim.
The manner in which Petitioner, represented by counsel, chose to present his second claim to this Court is strikingly similar to his presentation of the claim to the Supreme Judicial Court. Petitioner did not raise the constitutional dimension of this claim "within the four corners" of his ALOFAR. Mele v. Fitchburg District Court, 850 F.2d 817, 823 (1st Cir. 1988).
For example, nowhere in Petitioner's ALOFAR filed with the SJC did he identify this claim as a federal one. Petitioner referenced the claim only on the last page of his ALOFAR, where he stated that he "also raises for Further Appellate Review the other issues relative to the withholding of exculpatory evidence," referring back to his "Points on Which Further Appellate Review is Sought," and to the Appeals Court decision. (S.A. Vol. II/7, 29). Petitioner listed as his third point "[w]hether the withholding of exculpatory evidence that the other key Commonwealth witness was a paid government informant denied the defendant a fair trial." (Id. at 2).
Notably, the Appeals Court decision did not address, expressly, the constitutional dimensions of the claim. Supra at page 5. Therefore, by referring the SJC to the Appeals Court decision, Petitioner did not highlight the federal nature of his claim.
This is insufficient to alert the SJC to a federal claim, particularly where Petitioner made specific constitutional arguments with regard to his first claim. See Baldwin v. Reese, 541 U.S. 27, 33 (2004) (noting that "[t]he petition refers to provisions of the Federal Constitution in respect to other claims but not in respect to this one," in support for its finding that the petitioner's federal claim was not fairly presented to the state court) (emphasis in original); see also Duncan v. Henry, 513 U.S. 364, 366 (1995) (finding that the habeas petitioner's failure to label his claim a federal due process violation was "especially pronounced in that [he] did specifically raise a due process objection before the state court based on a different claim").
The same logic set forth in Baldwin and Duncan apply here; Petitioner has not presented a federal claim to this Court for habeas review. It is not the role of the Court to assume that Petitioner intended to assert a particular constitutional argument when he, through counsel, has not done so. The Appeals Court considered Petitioner's claim and suggested that it had been waived due to his failure to raise it in his motion for a new trial. See Commonwealth v. McLaughlin, 2004 WL 2924875 at * * 2. However, the Court reviewed the claim and found that there was no abuse of discretion. Id. This Court may not re-examine state court determinations of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Therefore, I recommend that Petitioner's second claim be DENIED.
I note that the Appeals Court did not make a specific finding of waiver.
3. Failure to Establish That Petitioner Was Involved in a Conspiracy
The Court notes that Petitioner lists one additional claim in his original petition: that the Commonwealth failed to establish beyond a reasonable doubt by evidence independent of hearsay statements that Petitioner was involved in a criminal conspiracy to kill his wife, and that it was error to admit said hearsay statements under the co-conspirator exception to the hearsay rule. Petitioner does not address this ground in his Memorandum. Moreover, in his conclusion, Petitioner only lists the first two claims as grounds in support of his argument. Accordingly, I recommend that the Court DENY this ground as waived.
CONCLUSION
For the foregoing reasons, this Court recommends to the District Judge to whom this case is assigned that the Petition be DENIED.
The parties are hereby advised that any party who objects to these proposed findings and recommendations must file a written objection thereto within 10 days of receipt of this Report and Recommendation. The written objections must identify with specificity the portion of the proposed findings, recommendations, or report to which objection is made, and the basis for such objections. See Fed.R.Civ.P. 72 and Habeas Corpus Rule 8(b). The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b) will preclude further appellate review of the District Court's order based on this Report and Recommendation. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Yalencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980);United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982);Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985).