Opinion
Civil Action No. 00-12187-RWZ
July 25, 2002
MEMORANDUM OF DECISION
On October 30, 1985, petitioner's first trial ended in a mistrial, as a result of the jury's inability to return a unanimous verdict Almost a year later, a subsequent jury found petitioner guilty of Murder in the First Degree and Armed Robbery, for which he was sentenced to life imprisonment and eight to ten years, respectively. Pursuant to Massachusetts General Laws chapter 278, § 33, he appealed directly to the Massachusetts Supreme Judicial Court ("SJC"), which affirmed both convictions on February 8, 1990. See Commonwealth v. Pope, 406 Mass. 581 (1990). He later filed a motion for a new trial, which was denied on December 8, 1997.
Pursuant to 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), "[a] 1-year grace period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court." Section 2244(d)(2) states that "the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." Thus, although Petitioner's conviction became final in 1990, the AEDPA afforded petitioner a one-year grace period until April 24, 1997, in which to file his petition for habeas relief. Rogers v. United States, 180 F.3d 349, 351-52 (1st Cir. 1999) (one-year grace period is retroactive to convictions that became final before the 1996 AEDPA amendment). In addition, as set forth above, the one-year grace period may be tolled under 28 U.S.C. § 2244(d)(2) while a properly filed post-conviction application is pending in state courts. Because petitioner's motion for a new trial under Massachusetts Rule of Criminal Procedure 30(b) was pending in state court as of the date of the AEDPA's enactment, the statute of limitations was tolled until the state matter was resolved.
Petitioner's motion for a new trial was denied, and he filed a motion for leave to appeal the denial pursuant to G.L. c. 275, § 33E (providing the procedure for such appeals in capital cases). On August 4, 1999, the Single Justice of the SJC denied petitioner's application for leave to appeal. Therefore, petitioner had until August 4, 2000 to file his habeas corpus petition. He waited, however, until October of 2000 to do so, because he thought the time began to run from the time he received the denial of his appeal of the Single Justice opinion. According to case law, however, petitioner was not entitled to further state review; and, therefore, his appeal from the Single Justice's 1999 decision was not "properly filed" under section 2244(d)(2). Even though his petition did not technically fall within the one-year grace period, I allowed petitioner to proceed with his substantive claims based on the application of equitable tolling. See Memorandum and Order, dated August 9, 2001. However, even though the petition is not subject to dismissal for procedural infirmities, all of the substantive claims fail as a matter of law.
Petitioner raises a laundry list of issues in his request for habeas relief. The following constitutional claims were exhausted in state court: (1) error by the trial judge in denying petitioner's Motion for a Required Finding of Not Guilty, in violation of his right to Due Process, (2) violation of petitioner's right against Double Jeopardy, (3) improper references in the prosecutor's closing, in violation of his rights under the Confrontation and Due Process Clauses, (4) improper jury instructions on petitioner's right not to testify, in violation of his Fifth Amendment right, and on proof beyond a reasonable doubt, in violation of his right to Due Process, (5) application of the felony murder rule in violation of his right to Due Process, (6) trial counsel's deprivation of petitioner's right to testify on his own behalf, in violation of his Fifth and Fourteenth Amendment rights, and (7) ineffective assistance of trial and appellate counsel, in violation of his Sixth Amendment rights.
Several of petitioner's claims were deemed waived by the Court in Commonwealth v. Pope, Findings of Fact, Rulings of Law and Order on Defendant's Motion for a New Trial, Superior Court Criminal Action Nos. 048699-048700 (December 8, 1997), because they were raised for the first time in petitioner's motion for a new trial. See Commonwealth v. Gagliardi, 418 Mass. 562, 565 (1994) (defendant may not raise an issue in a motion for new trial that could have been raised on appeal).
The Court reviews this petition under 28 U.S.C. § 2254, as amended by the AEDPA. In relevant part, the AEDPA precludes a federal court from granting habeas corpus relief, unless the state court adjudication "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," 28 U.S.C. § 2254(d)(1), or 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)(2). The AEDPA further provides that "a determination of a factual issue made by a state court shall be presumed to be correct," unless petitioner is able to "rebut the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Therefore, I rely on the facts as set forth in Pope, 406 Mass. at 582-84, and Commonwealth v. Pope, Findings of Fact, Rulings of Law and Order on Defendant's Motion for a New Trial, Superior Court Criminal Action Nos. 048699-048700 (December 8, 1997), unless otherwise rebutted by clear and convincing evidence.
Briefly, the facts are as follows. On the evening of May 23, 1984, petitioner, accompanied by Floyd Hamilton ("Hamilton"), went to the Dorchester home of Bienvenido DeJesus ("Bienvenido") and his brother, Efrian DeJesus ("Efrian"). Bienvenido, who knew petitioner as a work acquaintance, saw him leaving a van across the street from the house. The petitioner asked Bienvenido the whereabouts of his brother, presumably to buy cocaine from Efrian. Bienvenido told petitioner that his brother was upstairs and then proceeded to tell Efrian that the petitioner was downstairs. Within minutes, Bienvenido observed Efrian, petitioner and Hamilton walking toward the room in which Efrian did "whatever he had to do with cocaine."
Then Bienvenido heard his brother shout "Oh, no, not this. You'll have to shoot." After a scuffle, Bienvenido heard a gun shot and then a shout from his brother. When he went to his brother's assistance, petitioner put a gun to Bienvenido's head and pulled him into the "cocaine room." In the room, Bienvenido noticed cocaine on the table. Petitioner then told him to "[g]ive me everything you got." Bienvenido took all the money from his pocket and placed it on the table beside the cocaine. Hamilton then appeared, with shotgun in hand, and told the petitioner it was time to leave. Petitioner took all the money and cocaine from the table and fled the scene with Hamilton. Efrian later died from the gunshot wound. The Commonwealth proceeded on the theory that petitioner had entered into to a joint venture with Hamilton to commit armed robbery, that during the course of the robbery the victim was killed by the co-venturer, and that petitioner was therefore guilty of felony-murder. The jury agreed. I address petitioner's claims seriatim.
I. MOTION FOR A REQUIRED FINDING OF NOT GUILTY
Petitioner argues that his Motion for a Required Finding of Not Guilty should have been allowed because the Commonwealth failed to prove beyond a reasonable doubt "that the murder was a natural and probable consequence of the robbery," Commonwealth v. Burrell, 389 Mass. 804, 808 (1983). The SJC set forth the essential analysis in evaluating the denial of petitioner's motion. See Pope, 406 Mass. at 584. That is, whether viewed in a light most favorable to the Commonwealth, the evidence "is sufficient so that a jury might properly draw inferences, not too remote in the ordinary course of events, or forbidden by any rule of law . . . that the guilt of the defendant was proved beyond a reasonable doubt." Id. (quoting Commonwealth v. Clary, 388 Mass. 583, 588 (1983). Petitioner does not dispute the facts as they were presented at trial. Rather, he argues that these facts do not support a finding that he was involved in any preconceived scheme to commit robbery, or that he even knew Hamilton had a shotgun. The SJC held that the evidence at trial was sufficient to support both petitioner's involvement in a joint venture and a reasonable inference that petitioner knew about Hamilton's gun. After all, petitioner himself had a gun, which he used to rob Bienvenido. Although, as petitioner points out, other inferences may have been possible from the evidence presented at trial, "[t]he inferences drawn by a jury need only be reasonable and possible." Commonwealth v. Giang, 402 Mass. 604, 609 (1988). Based on this standard, the SJC's decision was not contrary to, or an unreasonable application of Federal law. See 28 U.S.C. § 2254(d)(1). Nor was it based on an unreasonable determination of the facts in light of the evidence presented at trial. See 28 U.S.C. § 2254(d)(2).
II. DOUBLE JEOPARDY
Petitioner's first trial resulted in a deadlocked jury. Although petitioner does not seem to dispute the rule of law that "[a] deadlocked jury . . . does not result in an acquittal barring retrial under the Double Jeopardy Clause," Pope, 406 Mass. at 587 (quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982)), he nonetheless claims that there was insufficient evidence in the first trial to proceed with a second trial. In that respect, petitioner seems to argue that the evidence in the first trial was insufficient to find him guilty, and that the failure of the judge to acquit him of all charges was an error that vitiates the conviction in the second trial. Giving deference to the SJC's determination that the evidence in the second trial, sufficient to find petitioner guilty of felony-murder, did not differ materially from evidence presented in the first trial, it must follow that the trial judge did not err in allowing the government to proceed with a second trial.
III. PROSECUTOR'S CLOSING ARGUMENT
Petitioner asserts that the prosecution's closing argument, which contained a reference to a hypothetical conversation between the petitioner and Hamilton, and tape recorded conversations that were not a part of the record at trial, resulted in a miscarriage of justice. It is well established that improper prosecutorial comments constitute constitutional error only if those comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Huenfield v. Maloney, 2001 WL 273111 (1st Cir.) (quoting Donnellt v. DeChristoforo, 416 U.S. 637, 643 (1974)). Although the SJC agreed the prosecution should have been more careful with its comments on facts not in evidence, its conclusion that there was no reversible error "where the prosecutor's remarks were fairly inferable from the evidence presented," Pope, 406 Mass. at 587, violates no constitutional strictures.
IV. JURY INSTRUCTIONS
Petitioner claims that the trial judge's charge to the jury on petitioner's right not to testify and on the definition of proof beyond a reasonable doubt constituted a substantial miscarriage of justice. Jury instructions in a state trial are a matter of state law to which substantial deference is owed, and generally will not form the basis for federal habeas corpus relief. Niziolek v. Ashe, 694 F.2d 282, 290 (1st Cir. 1982) (citing Cupp v. Naughten, 414 U.S. 141, 146 (1973)). As the Supreme Court has stated, "[t]he burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (footnote omitted). In Cupp, the Supreme Court held that "it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp, 414 U.S. at 146. There is no need to regurgitate the judge's instructions here. It suffices to say, that an evaluation of the disputed charges by themselves, and within the context of the jury instructions in their entirety, supports the SJC determination that there was no substantial likelihood of a miscarriage of justice. See Cupp, 414 U.S. at 146-47 ("a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge").
V. FELONY-MURDER RULE
Petitioner argues that the felony-murder rule relieves the Commonwealth from proving beyond a reasonable doubt an essential element of the crime of first degree murder, malice aforethought. Courts repeatedly reject this argument. Pope, 406 Mass. at 591 (citations omitted). For a complete explanation of the felony-murder rule and its constitutional underpinnings, see Hicks v. Callahan, 859 F.2d 1054 (1st Cir. 1988). Therefore, the SJC's decision to uphold the conviction based on a felony-murder theory, was not contrary to, or an unreasonable application of Federal law. See 28 U.S.C. § 2254(d)(1).
VI. TRIAL COUNSEL'S DEPRIVATION OF PETITIONER'S RIGHT TO TESTIFY ON HIS OWN BEHALF
Petitioner claims that, by allowing a conviction to stand in the face of a clear deprivation of his right to testify on his own behalf, the trial judge deprived him of his liberty, without due process of law, in violation of the Fifth and Fourteenth Amendments. See Harris v. New York, 401 U.S. 222, 225 (1971) ("[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so.")). Petitioner, unlike many similarly situated criminal defendants, was afforded a full evidentiary hearing on the matter on October of 1997. Compare Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir. 1987) (denial of evidentiary hearing). After this hearing, the Judge issued an Order, denying petitioner's request for a new trial. The Order sets forth, in part, the details of the dispute between petitioner and his attorney, Frank Kelleher ("Kelleher"), with regard to petitioner's right to testify. See Commonwealth v. Pope, Findings of Fact, Rulings of Law and Order on Defendant's Motion for a New Trial, Superior Court Criminal Action Nos. 048699-048700, (December 8, 1997), pp. 6-10.
The Judge found that Kelleher, an experienced trial attorney, understood at all times that the decision whether or not to testify rested with the petitioner. Kelleher merely advised petitioner that it would be unwise to do so and explained his concerns. Essentially, he repeated the advice he had given to petitioner at the first trial. Tellingly, petitioner raised no concerns about not testifying during his first trial; and, in fact, appeared satisfied enough with Kelleher's representation to request his assistance with the second trial. Petitioner claimed, however, that during the second trial Kelleher threatened that if he chose to testify, Kelleher would abandon petitioner's defense and force him to proceed pro se. Kelleher submitted an affidavit to petitioner the day before closing arguments in his second trial. The affidavit stated that "[d]efendant has always felt he wanted to testify," but "I advised him not to testify because cross-examination could hurt him immeasurably in the eyes of the jury." It went on to describe, in detail, all of the possible pitfalls associated with petitioner testifying on his own behalf. The Judge found that petitioner was aware of the relevant consequences and likely outcome if he did testify. She also found that petitioner knowingly and intelligently chose to waive this right, based on his attorney's recommendation. Only after he was convicted did the petitioner claim that he had been coerced into giving up his right to testify. Based on these facts, reasonably determined after a full evidentiary hearing, it is clear that the Judge's denial of petitioner's request for a new trial did not violate petitioner's constitutional rights.
VII. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner's ineffective assistance claims were raised on appeal to the SJC and in his 1997 Motion for a New Trial. He contends that both trial and appellate counsel prejudiced his right to a fair trial and created a substantial risk of a miscarriage of justice, in violation of his Sixth Amendment right. His appellate brief raises myriad examples of trial counsel's deficient performance, including the failure of counsel to object to either the prosecutor's closing argument or the Judge's instructions on petitioner's right not to testify and burdens of proof. Under Strickland v. Washington, 466 U.S. 668, 688 (1984), petitioner must establish that (1) "counsel's representation fell below an objective standard of reasonableness," and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. In light of all the evidence presented at trial, including testimony from an eye witness present at the scene of the shooting, it is impossible to conclude that, even if petitioner's respective counsel made professional errors, the result would have been any different. The decisions of both trial judges to reject petitioner's ineffective assistance arguments were, therefore, not contrary to Federal law, 28 U.S.C. § 2254(d)(1), or based on an unreasonable interpretation of the facts presented at trial, 28 U.S.C. § 2254(d)(2).
Accordingly, the petition for Writ of Habeas Corpus is denied as to all claims. Judgment may be entered for the respondent.