Opinion
C.A. No. 02-10460-MLW.
August 31, 2007
MEMORANDUM AND ORDER
I. INTRODUCTION
Pro se petitioner Robert Perkins seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He raises six grounds for relief: (1) denial of right to confront witnesses; (2) improper limitation on closing arguments; (3) ineffective assistance of trial counsel; (4) ineffective assistance of appellate counsel; (5) the prosecutor's failure to disclose exculpatory evidence; (6) the prosecutor's suborning of perjury. For the reasons stated in this Memorandum, the petition is being denied.
II. BACKGROUND
The petitioner was found guilty by a Massachusetts Superior Court jury of fourteen charges arising from a violent armed robbery and kidnapping of James Martin. See Commonwealth v. Perkins, No. 95-P-1915, 1 (Mass.App.Ct. Sept. 19, 1997) ("Perkins I"). The petitioner appealed and raised grounds one and two of the instant petition, which contend that he was denied his right to confront Martin, who served as a government witness, and that his closing arguments were improperly limited. Id. at 1-5. The Massachusetts Appeals Court affirmed the conviction. Id. at 1.
The petitioner then filed a motion for a new trial in the Superior Court raising grounds three and four of the instant petition, which allege that counsel should have objected to Martin's identification of the petitioner as a drug dealer and sought from the judge limiting instructions about that identification. The motion was denied along with a motion for reconsideration of the denial. See Commonwealth v. Perkins, No. 00-P-1502, 1 (Mass.App.Ct. Jan 11, 2002) ("Perkins II"). The Appeals Court affirmed. Id. The Massachusetts Supreme Judicial Court ("SJC") denied the petitioner's application for leave to obtain further appellate review. See Commonwealth v. Perkins, 436 Mass. 1102 (2002) (table).
The petitioner then filed a second motion for a new trial, raising two claims of prosecutorial misconduct that are grounds five and six of the instant petition, contending that the prosecution should have disclosed that Martin was induced to testify by the police. The motion was denied as was the motion for reconsideration. See Commonwealth v. Perkins, No. 03-P-1248, 1 (Mass.App.Ct. Jan. 31, 2005). The Appeals Court affirmed. Id. The SJC denied further appellate review. See Commonwealth v. Perkins, 443 Mass. 1106 (2005) (table).
III. DISCUSSION
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), 110 Stat. 1214 (1996), establishes the deferential standard of review applied by a habeas court for the review of a state court judgment that is rendered "on the merits." See 28 U.S.C. § 2254(d). On review of such judgments, the court may issue a writ of habeas corpus only if the judgment was "contrary to clearly established law as established by the Supreme Court," or where the judgment provided an "unreasonable application of Supreme Court precedent." 28 U.S.C. § 2254(d)(1).
Section 2254 states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
A state court decision is "contrary to" clearly established law in only two circumstances: (1) where "the state court applies a rule that contradicts the governing law set forth [in United States Supreme Court] cases;" or (2) where "the state court confronts a set of facts that are materially indistinguishable from a decision of [the Court] and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
An application is unreasonable only "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407-09, 413. The fact that the state court merely may have reached an incorrect result is not sufficient; the result must be unreasonable. See McCambridge v. Hall, 303 F.3d 24, 36-37 (1st Cir. 2002) (en banc). Where, for example, the state court reaches a result that is "devoid of record support for its conclusion or is arbitrary," the unreasonable application prong likely will be satisfied. See id. at 37. Under these standards, the petitioner's claims fail.
A. Right to Confront Witnesses
The trial court permitted the petitioner's counsel to cross-examine Martin regarding the cocaine trafficking and unlawful firearm possession charges pending against him. See Perkins I, No. 95-P-1915, at 3. It also permitted counsel to ask whether Martin hoped to obtain favorable treatment from the government by testifying against the defendant. Id. However, counsel was not permitted to show that the trafficking charge carried a mandatory minimum sentence of ten years. Id. The petitioner contends that this restriction denied him the right to confront witnesses as guaranteed by the Sixth Amendment. Rejecting the claim, the Appeals Court held that the trial court did not abuse its discretion because the jury had been adequately exposed to the issue of bias. Id.
The petitioner contends that this court must review his Confrontation Clause claim de novo because the Appeals Court failed to apply federal law. He is mistaken. De novo review is available only where the state court fails to decide a petitioner's federal claims on the merits of federal law. See Norton v. Spencer, 351 F.3d 1, 5 (1st Cir. 2003). Moreover, a state court's indirect reliance on federal law to decide a federal claim is sufficient to decide it on the merits. See Petrillo v. O'Neill, 428 F.3d 41, 45 (1st Cir. 2005). The indirect reliance rule applies to the decision of the Appeals Court.
The court relied indirectly on Davis v. Alaska, 415 U.S. 308, 318 (1974), and other federal cases for the federal Confrontation Clause standard. See Perkins I, No. 95-P-1915, at 3 (citing Commonwealth v. Dougan, 377 Mass. 303 (1977), which cites Davis). Although the petitioner contends that Davis does not apply the Confrontation Clause, Davis held that under the Clause defendants have the right to ask questions necessary to impeach a witness' credibility. 415 U.S. at 16. Accordingly, the Appeals Court's indirect citation to Davis demonstrates that it decided the petitioner's Confrontation Clause claim on the merits.
As the Confrontation Clause claim was decided on the merits, the court can grant relief only if the decision is contrary to or an unreasonable application of Supreme Court precedent. It is neither. Citing Davis, the Appeals Court applied the correct legal standard: whether the petitioner had an adequate opportunity to elicit facts necessary for the jury to appraise the witness' potential bias. See Davis, 415 U.S. at 317. Moreover, the Appeals Court's holding that the petitioner had an adequate opportunity is not unreasonable. The Supreme Court instructs that:
trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant. *** [T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (quotation marks omitted). Applying this standard in a case similar to this one, the First Circuit held that a trial court did not abuse its discretion when the court allowed questions regarding the witness plea agreement but refused to allow questions about the sentence that the witness would have faced absent a plea agreement. See United States v. Luciano-Mosquera, 63 F.3d 1142, 1152 (1st Cir. 1995). The Appeals Court reached a comparable conclusion in the instant case. The petitioner's counsel was able to ask question regarding a potential conviction that established a possible motive to lie and made further questions unnecessary. As the court's conclusion is similar to one reached by the First Circuit in Luciano-Mosquera, it is not unreasonable.
B. Limitation on Closing Arguments
The petitioner presents no arguments in support of this claim. Accordingly, it is waived. See D. Mass. R. 7.1(b)(1) ("A party filing a motion shall at the same time file a memorandum of reasons, including citation of supporting authorities, why the motion should be granted."); D. Mass. R. 1.3. ("Failure to comply with any of the directions or obligations set forth in . . . these Local Rules may result in dismissal, default, or the imposition of other sanctions as deemed appropriate by the judicial officer.").
C. Assistance of Trial Counsel
To succeed on an ineffective assistance of counsel claim, a petitioner must demonstrate: (1) that counsel's performance fell below an objective standard of reasonable effectiveness; and (2) that counsel's deficient performance was so prejudicial as to undermine confidence in the outcome of the trial. See Strickland v. Washington, 466 U.S. 668, 699-689 (1984); Argencourt v. United States, 78 F.3d 14, 16 (1st Cir. 1996).
When reviewing counsel's performance, "judicial scrutiny of counsel's performance must be highly deferential," and "every effort [should] be made to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. Moreover, the court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689.
The "prejudice" element of an ineffective assistance claim also presents a high hurdle. To show prejudice, a claimant must affirmatively prove "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."Id. at 694.
The petitioner contends that trial counsel was ineffective for failing to object to testimony accusing the petitioner of buying and selling drugs, failing to request a limiting instruction regarding the evidence of alleged drug dealing, and failing to object to the trial court's instructions regarding the alleged drug dealing. He further contends that appellate counsel was ineffective for not raising the ineffectiveness of trial counsel.
As explained by the Appeals Court:
The defendant's claims . . . focus on a brief series of questions in which the prosecutor elicited from the victim testimony that the victim has known the defendant for two months; that their relationship was built around drug dealing; that the victim had sold drugs to the defendant on about three occasions; and that the defendant had told the victim that he was selling the drugs he purchased from the victim.Perkins II, No. 00-P-1502, at 1. The Appeals Court rejected the petitioner's claim under a miscarriage of justice standard, reasoning that "[m]ost of the testimony was relevant to the victim's identification of the defendant as the perpetrator of the robbery, which was the only live issue at trial." Id. Conceding that "the final portion of the challenged testimony, in which the victim testified regarding the defendant's sale of drugs, should not have been allowed[,]" the court nonetheless found that "there is very little chance, let alone a substantial risk, that this testimony resulted in a miscarriage of justice." Id.
The court explained why there was no prejudice to the petitioner:
The statement came in the course of a lengthy trial. There was little question that the defendant was involved in the drug trade. Indeed, this was basis of the relationship with the victim. Finally, the sale of drugs is conceptually unrelated to the crimes of armed assault and robbery, a fact which tends to reduce the danger of a jury using the testimony to infer the defendant's propensity to commit the charged crime. ***
Finally, defense counsel made use of the victim's and defendants' status as drug dealers on cross-examination and in his closing, in which he argued that the victim was accusing the defendant because the defendant was a rival drug dealer. Trial counsel's use of the challenged testimony, coupled with the ample evidence against the defendant, makes apparent there is no substantial risk of a miscarriage of justice.Id. at 1-2.
The petitioner contends that the Appeals Court failed to reach the merits of the ineffective assistance claim because it relied on the state miscarriage of justice standard rather than federal law. However, "[t]he SJC has explained that the "substantial likelihood of a miscarriage of justice" standard is "more favorable to a defendant than is the constitutional standard for determining the ineffectiveness of counsel." Mello v. Dipaulo, 295 F.3d 137, 144 (1st Cir. 2002) (citing Commonwealth v. Wright, 411 Mass. 678, 681 (1992)). As such, denial of a claim under the former is effectively a denial under the latter. Id. For the same reason, the miscarriage of justice standard is not contrary to Supreme Court precedent.Id.
The Appeals Court conclusion was also not an unreasonable application of Supreme Court precedent. Defense counsel used the petitioner's drug dealing as part of his effort to impeach Martin. Therefore, it is reasonable to conclude that the petitioner was not prejudiced by the witness' testimony about that drug dealing. Moreover, the Appeals Court could have reasonably concluded that trial counsel's strategy was within the range of effective assistance because the issue explained Martin's motive to lie.
The petitioner states to this court that counsel did not rely on the petitioner's drug dealing in its arguments. However, before the Appeals court "[t]he defendant concede[d] that trial counsel cross-examined on the drug-dealing testimony, and raised it in his closing[.]" Id. at 2 n. 2. The petitioner cannot change his position in habeas because all claims must be exhausted before the State courts. Regardless, the transcript reveals that defense counsel raised the petitioner's drug dealing, argued that Martin's implication of the petitioner in the shooting lacked support and that"[t]he only thing is that [Martin] has a motive to want these guys[, including the petitioner,] off the street and that he hesitated when he had a chance to tell the police right there when they pulled up, and you'd better believe he hesitated." February 8, 1995 Trial Tr. v. X at 120, 122.
The Appeals Court did not explain why the petitioner was not prejudiced by trial counsel's failure to request a limiting instruction regarding the petitioner's drug dealing. However, it is not required to do so. AEDPA requires that a deferential standard of review for claims "adjudicated on the merits." It does not require that the state courts explain their reasoning.See, e.g., Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001);see also Early v. Packer, 537 U.S. 3, 8 (2002) (the State Court need not cite or even be aware of Supreme Court precedent). The Appeals Court might have reasoned that trial counsel did not seek a limiting instruction for strategic reasons — to avoid drawing additional attention to the fact of the petitioner's drug dealing. Thus, its judgment was not an unreasonable application of Supreme Court precedent.
D. Assistance of Appellate Counsel
Appellate counsel was not ineffective for failing to raise the alleged ineffectiveness of trial counsel because the trial counsel was not ineffective.
E. Exculpatory Evidence
The petitioner argues that the prosecution failed to satisfy its obligation to reveal that the police induced Martin to testify. Under Brady v. Maryland, 373 U.S. 83 (1963), the prosecution is obligated to disclose all material, exculpatory information to the defendant, including promises and inducements reflecting on a witness' bias. Here:
Martin avers that at the time of his own arrest for drug trafficking, the arresting officer, "stated to me that my testimony in the Perkins' armed robbery case would make things a lot easier for me in my drug case." Martin's affidavit also stated, however, that he was "robbed and shot by Robert Perkins and Michael Perkins" and that "at no time in my [trial] testimony against the Perkins did I lie or fabricate about the events that took place."Perkins III, 03-P-1248 at 1. The police inducement was not revealed to the petitioner.
Rejecting the petitioner's claim, the Appeals Court reasoned that the evidence was not material and, therefore, the failure to disclose it did not prejudice the petitioner. It explained:
As is evident from the briefs and record, Martin identified the Perkins brother as his assailant long before his own arrest. Martin's affidavit also confirms his trial testimony regarding the defendant's criminal acts. Finally, the issue whether Martin expected favorable treatment on his pending drug charges in return for his trial testimony had been presented to the jury, and [when considering the motion for a new trial] the trial judge was in the best position to judge whether she needed an evidentiary hearing to further evaluate Martin's credibility. We therefore affirm the trial judge's denials for substantially the reasons stated in the Commonwealth's brief at pages nineteen through twenty-six.Id.
The petitioner contends that review of the Appeals Court's judgment should be de novo because the it failed to apply federal law. However, the Appeals Court relied expressly upon the Commonwealth's brief, which in turn discussed Commonwealth v. Tucceri, 412 Mass 401, 407 (1992), a state court decision dealing with Brady. See Resp. Br. to the Appeals Court at 25. Accordingly, it is clear that the Appeals Court addressed the petitioner's claim as a matter of federal law.
Moreover, the Appeals Court's judgment was not contrary to Supreme Court precedent. To establish a Brady violation, the petitioner must establish three things:
The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.Strickler v. Greene, 527 U.S. 263, 281-282 (1999). Here, the Appeals Court rejected the plaintiff's claim based on lack of prejudice — the third element of a Brady violation. Therefore, its judgment applied the correct Supreme Court precedent.
Further, that conclusion was not an unreasonable application of that precedent. To establish prejudice, the petitioner must show:
that "there is a reasonable probability" that the result of the trial would have been different if the suppressed documents had been disclosed to the defense. As we stressed in [Kyles v. Whitley, 514 U.S. 419, 434 (1995)]: "The adjective is important. 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."Strickler, 527 U.S. at 289-290 (quoting Kyles, 514 U.S. at 434). The Appeals Court concluded that Martin accused the petitioner repeatedly long before the police encouraged Martin to testify, Martin never wavered from that accusation, and the potential for Martin's bias was exposed to the jury on cross-examination. Id. Given these facts, the Appeals Court reasonably concluded that Martin's testimony was sufficiently credible to assure that the defendant's knowledge of the police inducement would have had no effect on the verdict.
These findings are not contested and are, therefore, presumed true. See 28 U.S.C. § 2254(e)(1); Coombs v. Maine, 202 F.3d 14, 18 (1st Cir. 2000).
F. Suborning of Perjury
In his final claim, the petitioner alleges that the prosecution suborned Martin's perjury because Martin failed to testify that he hoped to gain favor with the police through his testimony. He argues that review is de novo because Appeals Court failed to address his claim. However, the Appeals Court considered and rejected both the Brady and suborned testimony claims together. It addressed "the denial of the defendant's second motion for a new trial and motion for reconsideration of that denial" which included both of the petitioner's prosecutorial misconduct claims. Perkins III, 03-P-1248 at 1. Thus, the lack of prejudice finding, discussed above, applied equally to petitioner's Brady claim — that the prosecution should have disclosed the police inducement of Martin's testimony — and to his subornation of perjury claim — that the prosecution knew or should have known that Martin lied about his wish to incur police favor.
The Appeals Court's judgment was not contrary to Supreme Court precedent. Although the Supreme Court has not established the exact standard of review where the government suborns perjury, the First Circuit treats such actions like a Brady violation and as subject to an identical prejudice inquiry. See United States v. Gonzalez-Gonzalez, 258 F.3d 16, 21 (1st Cir. 2001). The Appeals Court may do the same.
Moreover, it was reasonable to conclude that the verdict would have been identical if Martin had not omitted his desire to curry favor through testimony. As discussed in connection with theBrady claim, Martin's testimony had sufficient indicia of reliability for the Appeals Court to reasonably conclude that the testimony's credibility would have been unaffected if the additional impeachment information had been disclosed and presented to the jury.
IV. ORDER
For the reasons discussed in this Memorandum, it is hereby ORDERED that the Petition For Habeas Corpus (Docket No. 1) is DENIED.