Lattimore v. Dubois

• Decision Date: 14 November 2002
• Docket Number: No. 01-2056.,01-2056.
• Citation: 311 F.3d 46
• Parties: James LATTIMORE, Petitioner, Appellee, v. Larry DUBOIS, Respondent, Appellant.
• Court: U.S. Court of Appeals — First Circuit

311 F.3d 46

James LATTIMORE, Petitioner, Appellee, v. Larry DUBOIS, Respondent, Appellant.

No. 01-2056.

United States Court of Appeals, First Circuit.

Heard May 10, 2002.

Decided November 14, 2002.

Linda A. Wagner, Assistant Attorney General, Commonwealth of Massachusetts, with whom Thomas F. Reilly, Attorney General, was on brief, for appellant.

Elizabeth Prevett, Federal Defender Office, for appellee.

Before LYNCH, Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.

LEVIN H. CAMPBELL, Senior Circuit Judge.

This is an appeal brought by the Commonwealth of Massachusetts ("Commonwealth") from the district court's grant of a writ of habeas corpus to appellee James Lattimore ("Lattimore"). On April 28, 1997, Lattimore brought a petition for habeas corpus pursuant to 28 U.S.C. § 2254 (1994 & Supp. II 2002), in the United States District Court for the District of Massachusetts. He asserted that his 1983 murder conviction in the Massachusetts Superior Court violated the federal constitution because his appellate counsel had been ineffective by not complaining, on direct appeal to the Massachusetts Supreme Judicial Court ("SJC"), of the trial judge's refusal to instruct on manslaughter.¹ Rejecting the Commonwealth's contentions that Lattimore's habeas claim was time-barred and that Lattimore had not shown sufficient cause and prejudice to overcome his procedural default in not preserving the ineffective assistance issue in the Massachusetts courts, the district court granted the writ. However, the district court stayed the writ's execution so as to allow this court to determine first the Commonwealth's appeal.

We reverse, on the ground that Lattimore did not file his habeas petition within the one-year grace period for defendants whose convictions occurred prior to the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). We also conclude that there is no basis for equitable tolling of the grace period, given the many years available to Lattimore for filing a habeas petition, his failure to show sufficient cause for his state procedural default, and, in the end, the lack of merit of his ineffective assistance of counsel claim.

I. Procedural Background

A. State Proceedings

Lattimore was indicted by a grand jury for the first-degree murder of Robert E. Phillips ("Phillips"), armed assault with intent to murder Glen Smith, and assault and battery with a dangerous weapon upon Glen Smith ("Smith"). On June 30, 1983, after a five-day jury trial in the Massachusetts Superior Court, Lattimore was found guilty as charged on each of the counts. He was sentenced to life imprisonment for first degree murder. He was also sentenced concurrently to nine to ten years imprisonment for the armed assault with intent to murder and the assault and battery with a dangerous weapon.

The facts presented below are taken from the opinion of the SJC in Commonwealth v. Lattimore, 396 Mass. 446, 486 N.E.2d 723, 727-28 (1985), with supplementation from the state trial record.² The shooting for which Lattimore was convicted arose from what the SJC described as a "neighborhood brawl." Id. at 727. Smith was the divorced husband of Linda Smith ("Linda") whom Lattimore had been dating for several weeks prior to the murder. Testimony at trial revealed that Smith had physically abused Linda over a period of years, both during their marriage and after their divorce. There was evidence that during the week prior to the homicide Smith sometimes surveilled his ex-wife's apartment from his parked car and had spoken with Lattimore about the latter's relationship with Linda. In the early afternoon on October 3, 1981, Smith went to Linda's apartment and broke down the door. Linda was struck and apparently bruised by the door. Diane Smith, Smith's sister-in-law, and Brenda Lucas, a friend who lived in the same building as Linda, were in Linda's apartment when Smith forced his way in. Both women witnessed and testified to the incident. Lattimore was not present. Diane Smith called the police. Linda went to the Boston City Hospital emergency room where she was treated and released later that afternoon. Smith, after leaving, made a telephone call to Brenda Lucas castigating her for sheltering Linda and also threatening her husband and Diane Smith's husband for their roles in assisting Linda. Linda, meanwhile, had returned from the hospital and was present with the others through the early evening but left several hours prior to the homicide.

Later that evening, Smith returned in his car with Phillips as a passenger. He circled Diane Smith's apartment building and the nearby building where Linda and the Lucases lived, shouting threats and obscenities reflecting his anger at those who had been helping Linda. At 11 p.m., Brenda Lucas called her husband, James Lucas, at work to alert him to Smith's conduct, specifically that Smith had threatened Brenda for becoming involved in the dispute between him and Linda earlier that afternoon. Shortly after 11 p.m., when James Lucas returned from work, his wife pointed out Smith who was sitting in his parked car with Phillips in a location near Diane Smith's apartment. Lucas drove over to Smith's car where Smith sat, and demanded to know why Smith was harassing the Lucases. Meanwhile Brenda Lucas (who was in Diane Smith's apartment at the time) raced downstairs and ran to the Smith vehicle carrying a baseball bat. No physical fight erupted, however, and James Lucas's testimony suggests he felt the altercation was calming down.

Suddenly, shots were fired. According to Smith's trial testimony, Lattimore had approached Smith's car from behind, on the driver's side and, without warning, shot several times through the back driver's-side window. Two bullets struck Smith, one lodged in his back and the other passed through his hand. Another bullet struck Phillips behind his ear, wounding him critically. Phillips died several days later of the gunshot wound. Smith, to the police and in his trial testimony, identified Lattimore positively as the shooter of both men. Both Brenda Lucas and her husband James testified to seeing Lattimore at the time they heard the shots; according to them, he was standing behind James Lucas on the driver's side. Neither saw a gun nor saw Lattimore shoot, but the shots came from where he was standing. Brenda Lucas testified to also seeing Linda Smith standing close to Lattimore at this moment. Her husband said that he did not see Linda at the scene; it was dark at the time. No witnesses testified that Lattimore had been present at any of the day's events prior to his appearance at the shooting, nor was there evidence of any conversation between him and the victims before he shot.

Lattimore's theory of defense, as argued by his counsel to the jury (Lattimore himself did not testify), was that Linda Smith, and not Lattimore, must have pulled the trigger (although no witness testified to having seen Linda do so). Lattimore presented no witnesses of his own other than an investigator who testified to being earlier told by James Lucas that Lucas had seen Linda at the homicide scene. Lattimore's counsel, however, cross-examined the government's witnesses intensively, in particular the two Lucases, Diane Smith and Smith. All witnesses, except Smith, emphasized Glen Smith's violent behavior towards Linda for many years, and Smith himself testified to his frequent surveillance of his ex-wife's apartment. Only Brenda Lucas testified to seeing Linda standing in the dark next to Lattimore at the shooting. Lattimore's counsel also brought out that his investigator had sought to interview Linda prior to the trial but had been told by her that, on advice of counsel, she would not talk about the shooting. The prosecution sought to secure Linda's presence at trial but could not locate her.

Although counsel urged, therefore, that Lattimore was not guilty of having committed the homicide, defense counsel also requested the trial judge to give a manslaughter instruction. The following dialogue between the trial judge and defense counsel ensued:

COURT: I am only going to send this case to the jury on either first-degree or second-degree murder or not guilty. I am not going to charge on manslaughter. There's no evidence of manslaughter here. I think you agree to that, won't you sir?

COUNSEL: Well, Your Honor, most respectfully, I would suggest to the court that, based on the testimony of the feelings between Glen Smith and his wife that day and the relationship that seems to have been established with Mr. Lattimore, this could have been done — and obviously it is the position of the defense that it was not done by Mr. Lattimore — it could have been done in the heat of passion.

COURT: I don't think there is any evidence that, of heat of passion, here. Even if Linda Smith were on trial, based on the present evidence, a judge couldn't charge on manslaughter with respect to her, even if she were on trial.

COUNSEL: Is it the Court's position that, because of the time factor, it's too far removed.

COURT: Oh, certainly. I just don't see any evidence here of adequate —

COUNSEL: All right. I would respectfully request my rights be preserved.

Lattimore appealed directly from his conviction to the SJC. He was represented on his appeal by a new attorney who raised four issues: the misuse of peremptory challenges to systematically exclude members of a discrete group; the court's failure to exclude two jurors challenged for cause; the denial of Lattimore's motion for additional peremptory challenges; and ineffective assistance of counsel based on defense counsel's failure at trial to articulate a basis for the admissibility of certain evidence. Appellate counsel did not claim as error on direct appeal that the trial judge had erred by rejecting the defense counsel's request that, besides instructing on first and second degree murder as was...