Tevlin v. Spencer

• Citation: 621 F.3d 59
• Decision Date: 08 October 2010
• Docket Number: No. 09-1894.,09-1894.
• Parties: Scott TEVLIN, Petitioner, Appellant, v. Luis SPENCER, Superintendent, Massachusetts Correctional Institution-Norfolk, Respondent, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

621 F.3d 59

Scott TEVLIN, Petitioner, Appellant,

v.Luis SPENCER, Superintendent, Massachusetts Correctional Institution-Norfolk, Respondent, Appellee.

No. 09-1894.

United States Court of Appeals,First Circuit.

Heard July 28, 2010.

Decided Oct. 8, 2010.

COPYRIGHT MATERIAL OMITTED.

Victoria L. Nadel, for appellant.

James J. Arguin, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General, was on brief for appellee.

Before THOMPSON, SELYA, and DYK, ^* Circuit Judges.

DYK, Circuit Judge.

In 1997, Scott Tevlin (“Tevlin”) was convicted in a Massachusetts state court of murder in the first-degree (felony murder), armed robbery, and assault and battery by means of a dangerous weapon. He was sentenced to life imprisonment without the possibility of parole for the felony murder and a concurrent term of nine to ten years for the assault and battery. His convictions were affirmed on direct appeal, and postconviction relief was also denied by the Massachusetts state courts. In 2006, Tevlin petitioned for a writ of habeas corpus in the United States District Court for the District of Massachusetts pursuant to 28 U.S.C. § 2254. The court denied the petition on June 10, 2009. On appeal Tevlin argues, first, that he received ineffective assistance of counsel due to trial counsel's failure to challenge or investigate certain evidence, and second, that he was denied due process by the Commonwealth's refusal to grant him postconviction access to fingerprint evidence. We hold that Tevlin has failed to establish any constitutional violation, and we therefore affirm the denial of habeas corpus relief.

I.

In habeas cases, we presume that factual determinations by state courts are correct. 28 U.S.C. § 2254(e)(1); Teti v. Bender, 507 F.3d 50, 58-59 (1st Cir.2007). In any event, the facts as presented at trial and as set forth by the Supreme Judicial Court of Massachusetts are not herein contested. See Commonwealth v. Tevlin, 433 Mass. 305, 741 N.E.2d 827, 830-32 (2001). In light of Tevlin's convictions, those decisions correctly recited the version of the facts at trial most favorable to the Commonwealth. Tevlin, 741 N.E.2d at 830. Thus, we describe the facts of this case as they appear in the decisions of the Massachusetts courts. See Teti, 507 F.3d at 53.

On the morning of March 2, 1996, just before 7:30 a.m., the evidence showed that Tevlin assaulted seventy-four-year-old Angela Lyons (“Lyons”) while attempting to steal her purse in a Shaw's supermarket parking lot in Brockton, Massachusetts. Lyons resisted, and Tevlin responded by knocking her down and dragging her across the pavement. He then stomped on her stomach. Upon wrestling the purse free, Tevlin fled the scene in a white car.

Cecelia Peterson (“Peterson”) was an eyewitness to the attack and assisted Lyons immediately afterward. Lyons told Peterson that the assailant had stomped on her stomach; that she was upset and in pain; and that she was losing sensation in her legs.

Officer Steven Williamson (“Officer Williamson”) of the Brockton police department responded to the scene. Lyons told him that a young, white male had attacked her. Peterson described the assailant as approximately twenty-five years old, five feet ten inches tall, and 150 pounds, with black hair, a mustache, and a goatee. Peterson also told Officer Williamson that the assailant escaped in a white car with the license plate number “ZPF 214.” Another witness also described the assailant leaving in a white car with a license plate number beginning with “214.”

At the hospital, Lyons explained to Dr. John Steinmetz (“Dr. Steinmetz”) that a young man had tried to steal her purse and stomped twice on her stomach. An examination revealed that Lyons' aorta had been crushed just above her navel, and due to calcification of cholesterol plaque in the vessel, her aorta remained crushed, impairing blood flow to her spinal cord and lower extremities. Her condition deteriorated, and despite surgery to repair the damaged aorta, Lyons died on March 5, 1996. The cause of death was complications due to blunt abdominal trauma.

In the days following the attack, Peterson worked with State Trooper Scott Berna (“Trooper Berna”) to prepare composite sketches of the assailant. Peterson also reviewed photographs of possible suspects. None of the photographs was of Tevlin. Then on March 6, 1996, police found a white Pontiac Bonneville parked outside an apartment complex in Brockton. The car, with license plate number “214 ZPV,” had been stolen from the owner's home a few days earlier, sometime on the evening of March 1 or in the early morning of March 2. It was later identified by Peterson as the car in which she saw the assailant escape. A fingerprint analysis was conducted, and a fingerprint on the wiper control lever was found to match Tevlin's thumbprint.

On March 10, 1996, Trooper Berna showed Peterson a series of eighteen photographs, one of which was a three-year-old photograph of Tevlin, but Peterson could not make an identification. The following day, Tevlin was arrested, and Peterson reviewed eight more photographs, including one of Tevlin taken that morning. Peterson still failed to make a positive identification.

On March 12, 1996, Peterson saw Tevlin's picture in the newspaper. He was identified as the man arrested for the attack on Lyons. Peterson telephoned Trooper Berna to express her concern that the police may have arrested the wrong person, because she did not recognize Tevlin as the assailant. On March 13, Peterson met with Trooper Berna and asked if there were any more pictures of Tevlin she could review. Trooper Berna provided her with about a dozen photographs of Tevlin. She did not make, nor was she asked to make, an identification at that time. Instead, Peterson and Trooper Berna discussed the case, and Trooper Berna told Peterson that Tevlin's fingerprint had been found in the Pontiac. On March 15, 1996, Peterson called Trooper Berna and told him that she was now confident that Tevlin was in fact the assailant. She explained that previously she had been focused on the assailant's grin on the morning of the attack, and that once she removed that grin from her mind, she realized that the police had the right man. At trial, she identified Tevlin as the man who attacked Lyons.

At the time of the attack, Tevlin lived within a five-minute walk from where the Pontiac Bonneville had been stolen. On the morning of the attack, at about 6:00 a.m., Tevlin stopped at the Brockton home of his “surrogate” stepfather. Tevlin stayed for about forty-five minutes and smoked a piece of crack cocaine before leaving with the stated intention of getting more crack. The attack on Lyons occurred shortly before 7:30 a.m. Tevlin returned at about 8:00 a.m., where he told Dorothea Hustus (“Hustus”), who also lived at the apartment, that he and a friend had been involved in robberies at Shaw's supermarkets in the nearby towns of Easton and Abington. (He did not mention an attack in Brockton.) He also told Hustus that he had stolen a car. Hustus noted that Tevlin appeared very nervous and repeatedly looked out of the windows. When she told Tevlin to leave, he asked her to check outside for police. Hustus then observed Tevlin walk to a white car parked on the street, pace back and forth for about twenty minutes, and finally get in and drive off. Twenty minutes later, however, Tevlin was back at the apartment with the white car. He told Hustus that he had gotten into an accident and that he needed a place to stay because the police might be looking for him. Tevlin left for the final time at about 10:00 a.m. The following week, Hustus went to the Brockton police station and identified the Pontiac Bonneville as the car Tevlin had driven to her house on the morning of the attack on Lyons, March 2, 1996.

Tevlin was arrested on March 11, 1996. On the date of his arrest, which was nine days after the attack, Tevlin was five feet eleven inches tall, weighed 170 pounds, and had dark hair, a mustache, and a goatee. He thus matched Peterson's initial description with only minor variations. After his arrest, while incarcerated at the Plymouth County house of correction, Tevlin admitted his involvement in the robbery and attack in question to another inmate. This inmate later testified at the trial as to Tevlin's admission.

On March 25, 1996, Tevlin was indicted on four counts: (1) murder in the first degree, in violation of Mass. Gen. Laws ch. 265, § 1; (2) armed robbery, in violation of Mass. Gen. Laws ch. 265, § 17; (3) unarmed robbery on a victim sixty years of age or older, in violation of Mass. Gen. Laws ch. 265, § 19(a); and (4) assault and battery by means of a dangerous weapon on a victim sixty years of age or older, in violation of Mass. Gen. Laws ch. 265, § 15A(a).

On April 15, 1997, on the eve of trial, Tevlin's counsel filed a motion to suppress Peterson's identification, but the motion was withdrawn following a voir dire examination of Peterson. Tevlin's counsel explained to the trial judge that he had discussed the motion with Tevlin and concluded as a matter of judgment not to pursue it. Tevlin's jury trial began on April 17, 1997, and on May 1, 1997, the jury found him guilty of first-degree murder based on a felony murder theory (with armed robbery as the predicate felony), armed robbery, and assault and battery by means of a dangerous weapon. The Massachusetts Superior Court sentenced Tevlin to life imprisonment without the possibility of parole for the murder, and nine to ten years on the assault and battery conviction, to be served concurrently.

Tevlin appealed his conviction to the Supreme Judicial Court of Massachusetts. Among his arguments on direct appeal was that trial counsel was ineffective for failing to pursue the motion to suppress Peterson's identification. The Supreme Judicial Court rejected Tevlin's claims and affirmed his convictions on January 30, 2001. See T...