Opinion
CIVIL NO. 17-1101 (CCC)
2020-04-03
Alejandro ALICEA MONTALVO, Plaintiff, v. Nelson MERCADO-QUIÑONEZ, et al., Defendants.
Octavio M. Rivera-Bujosa, Rivera Bujosa Law Office, Mercedita, PR, Thomas Trebilcock-Horan, Trebilcock LLC, San Juan, PR, for Plaintiff. Melissa Massheder-Torres, Department of Justice of Puerto Rico, San Juan, PR, for Defendants Nelson Mercado-Quiñonez, Carolyn Arcelay, John Doe. Melissa Massheder-Torres, Rafael B. Fernandez Castaner, Department of Justice of Puerto Rico, San Juan, PR, for Defendants Erik Y. Rolon-Suarez, Wanda Vazquez-Garced. Nelson Mercado-Quiñonez, Ponce, PR, pro se. Carolyn Arcelay, Santurce, PR, pro se. John Doe, pro se.
Octavio M. Rivera-Bujosa, Rivera Bujosa Law Office, Mercedita, PR, Thomas Trebilcock-Horan, Trebilcock LLC, San Juan, PR, for Plaintiff.
Melissa Massheder-Torres, Department of Justice of Puerto Rico, San Juan, PR, for Defendants Nelson Mercado-Quiñonez, Carolyn Arcelay, John Doe.
Melissa Massheder-Torres, Rafael B. Fernandez Castaner, Department of Justice of Puerto Rico, San Juan, PR, for Defendants Erik Y. Rolon-Suarez, Wanda Vazquez-Garced.
Nelson Mercado-Quiñonez, Ponce, PR, pro se.
Carolyn Arcelay, Santurce, PR, pro se.
John Doe, pro se.
OPINION AND ORDER
GUSTAVO A. GELPI, Chief United States District Judge Pending before the Court is defendants’ motion to dismiss petitioner Alejandro Alicea-Montalvo's ("Mr. Alicea-Montalvo") request for habeas corpus under 28 U.S.C. § 2254. (Docket No. 15). Defendants attached as exhibits the relevant translated Puerto Rico state courts’ opinions. See Docket No. 22. The exhibits remain unopposed and the Court will proceed to use them for its analysis. Mr. Alicea-Montalvo responded with a motion in opposition (Docket No. 35) and defendants subsequently filed a reply brief. (Docket No. 38). After considering the parties’ briefs the Court DENIES petitioner's request for habeas corpus.
I. BACKGROUND
Mr. Alicea-Montalvo was arrested on November 30, 2006, for the murder of prison guard Kenneth Castro Muñiz ("Mr. Castro-Muñiz"). (Docket No. 22-2 at 1). The murder took place in a local bar at Guanica, Puerto Rico. Id. A unanimous jury found Mr. Alicea-Montalvo guilty of murder in the first-degree. Id. at 2. The evidence presented at trial stated that after an argument and a physical fight with a cue stick at the bar, Mr. Alicea-Montalvo managed to remove Mr. Castro-Muñiz's weapon from his waistline and shoot him six times in the chest area. See id. at 21; Docket No. 2-1 at 2.
After trial and before filing an appeal Mr. Alicea-Montalvo received a recorded murder confession from Alexander Quiros ("Mr. Quiros"), the only other suspect in the case. Id. at 3. He subsequently filed a motion for new trial, which was denied by the Trial Court. Id. Upon the denial, petitioner appealed his conviction and the denial of a motion for new trial up to the Supreme Court of Puerto Rico to no avail. Id.
On January 24, 2017, Mr. Alicea-Montalvo filed a pro se petition for federal habeas corpus under 28 U.S.C. § 2254. See id. at 3-5. In his request petitioner alleges that the true murderer of Mr. Castro-Muñiz is Mr. Quiros. Id. at 2. He also alleges that as a result of a hand-to-hand combat Mr. Castro-Muñiz had significant "human tissue" under his fingernails from his killer. Id. The State Prosecutor presented this DNA evidence at trial using a DNA expert witness. Id. Petitioner clarifies that the government did not perform any test to see if the tissue belonged to Mr. Alicea-Montalvo or Mr. Quiros. Id. During the new trial stage a DNA test was performed on that "human tissue". Id. Results revealed that the tissue did not belong to Mr. Alicea-Montalvo or to the victim. Id. As petitioner allege he is not guilty he seeks to vacate his judgment on three constitutional grounds. See id. at 4.
Petitioner's first ground for relief alleges that the state prosecutor failed to conduct DNA testing on Mr. Alicea-Montalvo and Mr. Quiros. Id. Which is "necessary to determine the true culprit of the murder[.]" Id. Second, that the prosecutor withheld exculpatory evidence by not conducting DNA testing on him and Mr. Quiros. Id. Third, that his attorney provided ineffective assistance of counsel by failing to conduct DNA tests on him prior to trial. Id.
Originally, the Court dismissed this case after granting defendants’ present motion to dismiss. (Docket No. 25). At that time the Court did not have the benefit of a response brief from Mr. Alicea-Montalvo. After granting petitioner's motion for reconsideration this Court vacated its judgment (Docket No. 31) and therefore proceeds to consider defendants’ motion to dismiss anew, and with the benefit of a response brief from petitioner. (Docket No. 35).
II. STANDARD OF REVIEW
Rule 12(b) permits a party to assert defenses against claims for relief. Fed. R. Civ. P. 12. A court, nonetheless, "must construe the complaint liberally," Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996), and a complaint that adequately states a claim may still proceed even if "recovery is very remote and unlikely." Ocasio-Hernández v. Fortuno-Burset, 640 F.3d 1, 13 (1st Cir. 2011) (internal quotation marks and citations omitted); see Katz v. Pershing, LLC., 672 F.3d 64, 70 (1st Cir. 2012) ("In considering the pre-discovery grant of a motion to dismiss for lack of standing, [courts] accept as true all well-pleaded factual averments in the plaintiff's ... complaint and indulge all reasonable inferences therefrom in his favor.") (internal citation omitted).
A defendant may move to dismiss an action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A court must decide whether the complaint alleges sufficient facts to "raise a right to relief above the speculative level." Id. at 555, 127 S.Ct. 1955.
When considering a motion to dismiss pursuant to FRCP 12(b)(6), the Court must first "isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements." Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). Then, the Court must accept all non-conclusory factual allegations in the Complaint as true and draw any reasonable inferences in favor of the plaintiff. Ocasio-Hernandez, 640 F.3d at 12. Finally, the courts may affirm a motion to dismiss "only if the facts lend themselves to no viable theories of recovery." Phoung Luc v. Wyndham Management Corp., 496 F.3d 85, 88 (1st Cir. 2007).
III. BRADY VIOLATION
A. Relevant law
In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S.Ct. 1194. The Supreme Court in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), stated that there are situations in which the defendant does not have to request the ‘Brady material’ because the "evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request." Id. at 110, 96 S.Ct. 2392. But, the Supreme Court clarified that the state has "no duty to provide defense counsel with unlimited discovery of everything known by the prosecutor[.]" Id. at 106, 96 S.Ct. 2392. "To establish a Brady violation, a habeas petitioner must demonstrate: (1) the evidence at issue is favorable to him because it is exculpatory or impeaching; (2) the Government suppressed the evidence; and (3) prejudice ensued from the suppression (i.e., the suppressed evidence was material to guilt or punishment)." Conley v. United States, 415 F.3d 183, 188 (1st Cir. 2005) (citing Strickler v. Greene, 527 U.S. 263, 281-282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ); see also Bucci v. United States, 662 F.3d 18, 38 (1st Cir. 2011).
"The suppression of impeachment evidence is ‘material’ when a reasonable probability exists ‘that the result of the trial would have been different if the suppressed documents had been disclosed to the defense.’ " Conley, 415 F.3d at 188 (citing Strickler, 527 U.S. at 289, 119 S.Ct. 1936 ); see also Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ("The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence"). Also, "[a] ‘reasonable probability’ exists if the Government's evidentiary suppression undermines confidence in the verdict." Id. (citing Kyles, 514 U.S. at 434, 115 S.Ct. 1555 ).
The Court evaluates "the strength of the impeachment evidence and the effect of its suppression in the context of the entire record to determine its materiality." Id. at 189 (citing United States v. Bagley, 473 U.S. 667, 683, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ). Therefore, suppression of impeachment evidence "can warrant a new trial ‘where the evidence is highly impeaching or when the witness' testimony is uncorroborated and essential to the conviction.’ " Id. (citing United States v. Martinez-Medina, 279 F.3d 105, 126 (1st Cir. 2002) ). Finally, "suppressed impeachment evidence, if cumulative of similar impeachment evidence used at trial (or available to the petitioner but not used) is superfluous and therefore has little, if any, probative value." Id. (citing United States v. Boyd, 55 F.3d 239, 246 (7th Cir. 1995) ).
B. Analysis
In regards to the DNA testing, petitioner's first request for relief alleges that in violation of his Fifth and Fourteenth Amendment of the United States Constitution the State Prosecutor failed to conduct DNA testing on him and Mr. Quiros. (Docket No. 2-1 at 4). Similarly, petitioner's second ground for relief alleges that in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), "the prosecutor knowingly withheld exculpatory information from the court and the defense, by way of not conducting DNA testing on [him] or Mr. Quiros." Id. Petitioner states that the excluded DNA evidence is important to his defense because it has impeachment value. (Docket No. 35 at 5).
The Court is unable to distinguish petitioner's first claim, which alleges that the failure to test the DNA evidence constituted a violation of the Fifth and Fourteenth Amendments, from the second claim, which alleges that the failure to test DNA evidence amounted to withholding of exculpatory evidence in violation of Brady. See Docket No. 2-1 at 4. Further, each parties’ briefs address both the first and second claim under Brady. See Docket No. 15 at 2; Docket No. 35 at 4-5. Given the vague and uncertain nature of petitioner's first claim the Court will proceed to analyze the claim as a Brady violation.
Defendants seek dismissal of petitioner's claims because "there are no underlying facts showing that the DNA results would have changed the verdict." (Docket No. 15 at 16). Specifically, they contend that petitioner fails to comply with the components of a Brady violation. Id. They further allege that "[i]n this particular case, the theory of the prosecutor did not include the existence of any struggle between the deceased and the accused." Id. The Court agrees.
"[T]he term ‘Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence—that is, to any suppression of so-called ‘Brady material’[.]" Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).
There is no doubt that the evidence at issue is favorable to petitioner. With the DNA test results petitioner could have impeached in some way key witnesses, such as Elis Rodríguez ("Elis"), and Madeline Antonsanti ("Madeline"). See Docket No. 22-2 at 4-8. However, for a Brady claim to be successful the government had to suppress the material evidence. See Conley, 415 F.3d at 188 ("(2) the Government suppressed the evidence"). Petitioner failed to meet this second requirement. In this case, the government cannot suppress evidence they never possessed. See Strickler v. Greene, 527 U.S. 263, 282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (stating that the Government suppressed some impeaching notes taken by a detective in its initial interview with a witness); see also Conley, 415 F.3d at 191 (stating that "the Government wisely conceded it improperly suppressed [an] FBI memorandum" that the defense could have used to impeach a key witness at trial). As no DNA test was performed, the government did not possess DNA test results that might have been exculpatory. Further, petitioner has cited no precedent that the government's failure to conduct a test constitutes constructive suppression.
Moreover, as part of the discovery process, the government served petitioner with a Forensic DNA Analysis Report (Docket No. 22-2 at 2) which contained the information about the human tissue under Mr. Castro-Muñiz’ fingernails. Id. at 18. Petitioner could have sought DNA testing at that point, but did not. The Puerto Rico Court of Appeals noted this failure by stating: "[d]espite having had enough time to evaluate same, the defense did not request that any additional scientific study or test be performed." Id. Petitioner sought for the first time to perform the comparative DNA test after the State Prosecutor’ last witness testified. Id. Petitioner's failure to demonstrate the Government's suppression of the DNA test results warrants dismissal of the Brady claim.
The Court stresses that petitioner asked the trial court to reschedule a hearing because he needed "30 days to study and analyze [the DNA] evidence in order to be in a position to challenge it if necessary." Docket No. 22-2 at 2.
However, even assuming that petitioner showed the second requirement of suppression, his claim would fail at the third stage: materiality. See Conley, 415 F.3d at 188 ("(3) prejudice ensued from the suppression (i.e., the suppressed evidence was material to guilt or punishment"). To determine materiality the Court must examine if Government's suppression of the DNA evidence, viewed in the context of the entire record, undermines confidence in the outcome of petitioner's trial. See id. at 190. Therefore, the Court will proceed to examine the evidence presented at trial to see if the suppressed DNA evidence is material and its absence undermines the confidence of the verdict.
Elis is the only witness who directly saw petitioner kill the victim. She testified that at the day of the accident she went alone to the bar to see her friends. ( Docket No. 22-2 at 9). While with her friends at the bar, Mr. Castro-Muñiz arrived and greeted her. See id. After greeting her, she then saw how Mr. Castro-Muñiz ‘smacked’ Jayson, petitioner's friend, three times in the head. Id. A woman saw the accident and admonished Mr. Castro-Muñiz for his actions. Id. Madeline, the owner of the bar, said, "that she was going to close up the establishment." Id. "When that happened, Mr. Alicea-Montalvo, his wife, and Jayson moved over to the balcony." Id. She explained that after the accident with Jayson she began playing pool with Mr. Quiros. Id.
It is not clear whether petitioner's companion is his wife or girlfriend. The witnesses refer to her differently.
Elis continued to explain that when Mr. Castro Muñiz went outside of the bar "she heard and saw the wife of [Mr.] Alicea Montalvo curse at [Mr. Castro-Muñiz]. Then [she] and Alex Quirós Lugo went outside to see what was going on." Id. Madeline, instructed her to close once again the doors of the establishment because she was closing for the night. See id. Elis closed the front doors and stayed inside the bar. Id. She later exited the bar through the kitchen's door and headed to her car. Id. While walking to her car, she saw Mr. Castro-Muñiz driving his car slowly while talking with Marisabel Lugo ("Marisabel"). Id. She also saw petitioner, his girlfriend, and Jayson walking quickly towards Mr. Castro-Muñiz and Madeline. Id. Petitioner's girlfriend "continued to argue with [Mr. Castro-Muñiz], cursing at him." Id. at 9-10. While heading to her car she ran into Mr. Quiros who was holding a cue stick, which she asked him to give it to her so she can return it to the bar. Id. at 9. Petitioner then came and violently took the cue stick, as she arrived to her car. Id. at 10.
Finally, Elis testified that she "felt a very loud noise coming from the area where [Mr. Castro-Muñiz's] car was located, as if something had been hit, and she went over to see what was going on. Halfway up the street, Marisabel was coming holding onto her shoulder." Id. When Elis got to Mr. Castro-Muñiz's car she saw that "[Mr. Castro-Muñiz] was on the ground motionless, lying on his back, next to the driver's side door. In that moment, she saw that [Mr. Alicea-Montalvo] took [Mr. Castro-Muñiz's] gun from his waistband and began to shoot him in the chest." Id. She testified that six shot were fired. Id. Petitioner then "aimed the weapon at her and told her and Marisabel to keep their mouths ‘shut’. Then she saw him throw the weapon towards the balcony. She mentioned that after Alex Quirós Lugo gave her the cue stick, she did not see him again." Id.
Mr. Edwin Agosto, a firearm examiner with the Forensic Science Institute ("FSI"), testified "that he analyzed 3 bullets that the investigative officer had submitted to him and another 3 that were recovered during the autopsy." Id. at. 9. He concluded that the same firearm shot the six bullets. Id. Dr. Fernando Mercedes, a DNA specialist from the FSI, explained the DNA evidence that was handed to him. He testified that the fingernail scrapings reflected the DNA profile of more than one person. Id. "According to him, one was the genetic profile of the victim himself, and it is unknown who the other genetic profile belongs to, because no additional reference sample was submitted in order to perform a comparative analysis." Id. Forensic Pathologist Dr. Francisco Cortés testified that the victim's body had contusions, caused by a cylindrical object, which could have been a cue stick. Id. at 8. He also stated that the victim had six bullets wound entries. Id.
Madeline testified that she owned the establishment where the accident took place. Id. at 4. Her daughter, Marisabel, was Mr. Castro-Muñiz's friend. Id. She explained that she also knew petitioner because he frequented her bar. Id. Madeline continued to explain that she saw Mr. Castro-Muniz arrive at her bar and greet everyone including her daughter and Elis. Id. She testified how Mr. Castro-Muñiz got into an argument with Jason and how Linda admonished Mr. Castro-Muñiz for intimidating Jayson. Id. She explained that after seeing the argument she decided to close the bar, but as Linda left she decided not to. Id.
Madeline then explained that Mr. Castro-Muñiz went outside the establishment where petitioner, his girlfriend, and Jayson were. Id. Mr. Castro-Muñiz then began talking to Marisabel outside, but petitioner's girlfriend intervened "because of how he was treating Marisabel." Id. Mr. Castro-Muñiz told petitioner's girlfriend that Marisabel was her friend, however, she kept cursing and yelling to Mr. Castro-Muñiz. Id. at 5. In that moment, Madeline decided to close the establishment. Id. While she was inside, Madeline could not see what was happening, but she could hear that the argument continued until it "was no longer taking place in front of the establishment, but by the kitchen." Id. Since the bar was closed nobody was inside the establishment except for Elis who later exited through the kitchen's back door. See id. When Elis exited the bar Madeline saw that Mr. Castro Muñiz was in his car and that the argument still continued. Id.
While the argument continued outside, Madeline explained that Mr. Castro-Muñiz told something to petitioner's girlfriend, in which petitioner demanded and apology. Id. "[Mr. Castro-Muñiz] got out of the car upset and said, ‘For me to what? You want me to do what?’. Ms. Madeline explained that when she saw how angry [Mr. Castro-Muñiz] was, she thought that something bad was going to happen and she thought she should call the police." Id. When Madeline was on her way to call the Police she heard shots. Id.
Forensic Investigator Pedro Bonilla testified that he arrived at the scene at 6:40am. Id. at 3. He found Mr. Castro-Muñiz's body lying under the left side of his white car. Id. Pedro Bonilla examined the victim's body and stated it contained six bullet wounds and possible hematomas. See id. He also, noticed that the victim's gun holster was empty. Id. Another officer called Filiberto Rodríguez testified that he was the first to arrive at the scene and that when he arrived he found the victim under his car. Id. at 4.
Finally, Officer José Torres testified that he interviewed Marisabel at the police station. Id. at 6. Marisabel told the officer that petitioner, his girlfriend, and Jayson were at the bar that night, as also Elis, her Mom, Madeline, and Mr. Castro-Muñiz. See id. She also told the Officer that while Mr. Castro-Muñiz was outside in his car she went to lower his music volume because it was too loud. See id. Mr. Castro-Muñiz got mad and talked harshly to her. Id. Petitioner's girlfriend did not know how Marisabel and Mr. Castro-Muñiz treated each other and decided to defend Marisabel. Id. Marisabel explained that as the argument continued Mr. Castro-Muñiz started to drive his car to the street where she now was. Id. She then decided to cross the road where Elis was "and then heard a female voice say, ‘Jayson no, Jayson no’, immediately followed by several detonations." Id.
After examining the relevant witnesses’ testimonies in the Court of Appeals’ opinion, the Court rules that the DNA test are not material because the results would not undermine the confidence of the verdict. All the testimonies, except for petitioner's own testimony, described how a sequence of clashes between petitioner, his wife, and Mr. Castro-Muñiz, led into an argument that ended the life of the latter. (Docket No. 22-2 at 21).
Petitioner could have used the suppressed DNA evidence to impeach the testimonies of Elis, Madeline, and Dr. Fernando Mercedes. Most importantly he could have used the evidence to impeach Elis as she was the government's key witness and was the only one who saw petitioner kill the victim. However, that would not have made a difference in the outcome of the trial because there was overwhelming, direct, and corroborating evidence that stated that it was petitioner who killed the victim. That overwhelming evidence includes what other witnesses testified at trial and the physical evidence found at the scene, which corroborates what Elis testified. See Docket No. 22-2 at 21; see also Conley, 415 F.3d at 189 ("suppressed impeachment evidence has little probative value if additional evidence strongly corroborates the witness's testimony the suppressed evidence might have impeached").
Additionally, petitioner's guilt does not depend on proof that he entered into a hand-to-hand fight with the victim, as the theory of the State Prosecutor did not rely on such struggle. See Docket No. 22-2 at 20. This is proven by the fact that Elis’ and other testimonies at trial mostly showed that petitioner shot the victim when he was unconscious on the floor. Further, the Jury did not find necessary to compare the DNA test result presented at trial with petitioner's own DNA, as they found him guilty beyond reasonable doubt.
Petitioner relies on Wade v. Brady, 460 F. Supp.2d 226, 231 (D. Mass. 2006), to state that a Due Process right to DNA testing in post-conviction under Brady exist. In that case, Wade was charged with rape. Id. at 232. "[A]t the hospital, police collected vaginal swabs and slides, and a semen and blood-stained cutting from the crotch of [the victim's] pants." Id. at 231. "No DNA testing was performed on any of the samples, either at trial or afterwards." Id. at 232. It was not until five years later that Wade sought to perform DNA testing on the sample. Id. at 229. The State courts denied his petition. Id. at 220-230.
In federal habeas corpus Wade alleged "that the State violated his Due Process rights by denying him access to potentially favorable evidence." Id. at 243. The court concluded that the Due Process principle underlying Brady "support a DNA testing right in both the pre-trial and post-conviction settings." Id. at 244. However, contrary to what this Court has stated about petitioner's DNA evidence, the court in Wade had no doubt of Wade's DNA evidence materiality. Id. at 245. Here, since petitioner failed to meet the materiality standards, the rationale of Wade v. Brady does not apply.
In sum, petitioner failed to show suppression and the materiality of the DNA test results. Therefore, petitioner's first and second claims for reliefs are without merit and must be dismissed.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
A. Relevant law
To succeed on a claim that counsel was constitutionally ineffective, "[p]etitioner must first show that his counsel's ‘performance was deficient,’ and he must then show that ‘the deficient performance prejudiced the defense.’ " Williams v. United States, 858 F.3d 708, 715 (1st Cir. 2017) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). "The first requirement necessitates a demonstration that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." Id. (citation and internal quotation marks omitted). Nonetheless, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. (citations and internal quotation marks omitted).
Regarding the second requirement, the First Circuit has stated that "to establish prejudice, a defendant must demonstrate ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ " Rossetti v. United States, 773 F.3d 322, 327 (1st Cir. 2014) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ). "Further, that probability must be substantial, not just conceivable, or, stated differently, a probability sufficient to undermine confidence in the outcome[.]" Williams, 858 F.3d at 715-716 (citation and internal quotation marks omitted).
B. Analysis
Defendants seek dismissal of petitioner's third and last claim for ineffective assistance of counsel. (Docket No. 15 at 17-22). Petitioner's habeas corpus states that his attorney "provided ineffective assistance of counsel by failing to properly investigate the case, since he failed to conduct DNA testing on [him] prior to trial." (Docket No. 2-1 at 4).
The Court does not need to entail in a detailed analysis of ineffective assistance for petitioner's claim. That is because even if the Court concedes that petitioner's attorney did not provide effective assistance, petitioner cannot meet the higher standard of reasonable probability in Strickland, as he did not meet the lower standard of reasonable probability in Brady.
V. CONCLUSION
For the reasons stated above defendants’ motion to dismiss is GRANTED ( Docket No. 15) and petitioner's habeas corpus is DENIED . (Docket No. 2). All of defendants’ claims are DISMISSED with PREJUDICE . No certificate of appealability shall be issued as petitioner failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). Judgment shall be entered by separate order.