634 F.3d 67 (1st Cir. 2011), 09-2486, Jewett v. Brady

Docket Nº09-2486.
Citation634 F.3d 67
Opinion JudgeLYNCH, Chief Judge.
Party NameWilliam JEWETT, Jr., Petitioner, Appellant, v. Bernard F. BRADY, Superintendent, Respondent, Appellee.
AttorneyJohn H. Cunha, Jr., with whom Charles Allan Hope and Cunha & Holcomb, P.C. were on brief, for appellant. Eva M. Badway, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee.
Judge PanelBefore LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.
Case DateMarch 10, 2011
CourtUnited States Courts of Appeals, United States Court of Appeals (1st Circuit)

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634 F.3d 67 (1st Cir. 2011)

William JEWETT, Jr., Petitioner, Appellant,

v.

Bernard F. BRADY, Superintendent, Respondent, Appellee.

No. 09-2486.

United States Court of Appeals, First Circuit.

March 10, 2011

Heard Dec. 6, 2010.

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[Copyrighted Material Omitted]

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John H. Cunha, Jr., with whom Charles Allan Hope and Cunha & Holcomb, P.C. were on brief, for appellant.

Eva M. Badway, Assistant Attorney General, with whom Martha Coakley, Attorney General, was on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.

LYNCH, Chief Judge.

William Jewett, Jr., was convicted by a state court jury in November 1998 of the January 1993 rape and murder of a young woman to whom he offered a ride home after a party. That conviction and the denial of his new trial motion in 2003 were affirmed on appeal by the Massachusetts Supreme Judicial Court (" SJC" ). Commonwealth v. Jewett, 442 Mass. 356, 813 N.E.2d 452 (2004).

Jewett appeals the district court's denial of his petition for a writ of habeas corpus under 28 U.S. C. § 2254, in which he claimed ineffective assistance of both trial and appellate counsel. We affirm the district court, discussing the Supreme Court's recent opinion on claims of ineffective assistance

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of counsel in federal collateral attacks on state court convictions. See Harrington v. Richter, ---U.S. ----, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

I.

A. The Underlying Crime

In federal habeas proceedings, " a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S. C. § 2254(e)(1); see also Evans v. Thompson, 518 F.3d 1, 3 (1st Cir.2008). We summarize the facts as described by the SJC in its opinion affirming Jewett's conviction and denial of new trial. Jewett, 813 N.E.2d at 455-57. Jewett does not contest the pertinent facts.

Jewett and the victim 1 had known one another socially for years but were not involved romantically. They both attended a party in Weymouth at the apartment of a mutual friend on the evening of January 29, 1993. At the time, Jewett was nineteen; the victim was seventeen. Sometime before 1:00 A.M., Jewett offered to drive the victim home. His car, which was seventeen years old, would not start, so a friend jump-started it and then followed along for a short period in the friend's truck. The two vehicles parted ways in a parking lot after Jewett said his car was fine, though it was backfiring and running noisily.

The victim had a 12:30 A.M. curfew, and when she did not arrive home by 1:00 A.M., her mother called the apartment where the party took place. The next morning, the victim's parents and friends began looking for her; when someone told her parents that the victim had left the party with Jewett, her father called Jewett. Jewett told the victim's father he had dropped her off at the end of her street in Weymouth at about 12:30 A.M. because she wanted to finish the beer she was drinking before going home.

A resident of Turner Road in neighboring Rockland discovered the victim's dead body on his property that afternoon, partially hidden in pine needles, twigs, and leaves. The state medical examiner noted at the scene:

[T]he victim's lipstick was not smeared, but her blouse was pulled off her left shoulder, and two buttons in the middle of the blouse had been torn off. Her pants were buttoned, but the zipper was open and broken. One leg of her pantyhose had been torn completely off, and one of her boots was missing. Her underwear and pantyhose were rolled up, and she appeared to have been redressed.

Id. at 456. Her missing boot was later found in Weymouth, three-tenths of a mile from Jewett's home. Jewett was the last person known to have seen the victim alive.

The medical examiner determined that the victim had died at about 1:30 A.M., and that her body had probably been moved to Turner Road after her death. Autopsy results, based on observations of " scrapes, abrasions, and bruising to the victim's face and neck, as well as hemorrhages on the surface of her face and around her heart and upper airway," showed that the victim had been strangled to death by " a soft ligature, fingers, or a forearm." Id. at 456.

Semen recovered from the victim's underwear " revealed a high probability that it had come from [Jewett]," and Jewett could not be excluded as the source of the

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semen recovered from the victim's vagina, though analysis of that semen was inconclusive. Id.

Other evidence linked Jewett to the victim's rape and murder. Three residents of Turner Road testified at trial to seeing an automobile identical to Jewett's traveling down the road with a single male occupant between 2:00 and 3:00 A.M. Two other residents heard an automobile backfiring at around the same time.

Jewett's friends testified that on the morning after the party, Jewett told them he " hoped nothing had happened" to the victim because " he did not have an alibi." Id. Friends also testified that for two days after the party, the defendant was " nervous," " pacing," and " agitated," and denied to them, as he did to the police, that he had ever had sexual intercourse with the victim (even after newspapers revealed the DNA test results). Id.

Jewett was indicted for rape and murder four years later, and while imprisoned awaiting trial, he confessed to Mark Obershaw, a fellow inmate, that he had raped and murdered the victim. The jury heard Obershaw testify to Jewett's confession. Jewett told Obershaw that the victim " refused at the last minute" to have sex with Jewett, " that he had sexual intercourse with her anyway, and that when he finished, the victim started yelling that he had raped her and that she was going to tell her father." Id. at 457.

Obershaw also testified that Jewett, after first telling Obershaw that the strangulation was an accident, later told him he " had to" strangle the victim to prevent rape charges. Id. He told Obershaw he then " put the body in the trunk and drove to a street where ‘ one of his best friends lived’ because ‘ he knew a spot where he could put the body.’ " Id.

B. Jewett's Trial, Appeal, and Collateral Attack

Jewett did not testify at trial; his defense was that the victim had died of " positional asphyxiation" during consensual sex, and that he had disposed of her body in a panic after she died. Id. The defense at trial did not assert that there was anything more than this one sexual encounter between the two. The jury convicted Jewett of rape and first-degree murder by deliberate premeditation, and Jewett received a life sentence.

In May 2003, while his direct appeal to the SJC was pending, Jewett filed a motion in state court for a new trial raising, among other claims, three claims that are relevant to the present petition. First, he argued that certain evidence, described in greater detail below and provided to the defense before trial, showed that the sperm found in the victim's vagina was from twenty-four to thirty-six hours before death. This, he asserted, supported a theory that he and the victim had consensual sex. Jewett argued this evidence, which the defense did not use at trial, undermined the prosecution's theory that he committed the murder to cover up his rape of the victim. He argued the prosecution engaged in misconduct by depriving the jury of the evidence and presenting a state-employed chemist's testimony that he claimed the evidence impeached. Second, Jewett made a related argument that his trial counsel was ineffective in failing to develop and present to the jury this evidence that the sperm was deposited twenty-four to thirty-six hours before death. Third, he also argued that the trial court had erred in admitting physician opinion testimony that the victim had been sexually assaulted, an error not objected to at trial.

As to Jewett's two claims about the sperm age evidence, the SJC noted the

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testimony of the chemist, Mary McGilvray, regarding the two sperm samples recovered from the victim's body at about 11:00 P.M. on the day her body was found— one sample from her underwear, and one from her vagina. 2 The samples apparently were taken at least twenty-two hours after the estimated time of death.

[McGilvray] testified that none of the sperm cells in the two samples she examined " had tails." She explained that an intact sperm cell consists of a head, neck, and tail, and that the tails are quite fragile, the first part of the sperm cell to degrade after it is deposited in the vagina. She testified further that the presence of intact tails indicates that the sperm was deposited " more recently as opposed to a longer period of time," but that if no tails are present, she is unable to draw any conclusion about the age of the sperm. McGilvray testified that, in addition to degradation over time, sperm tails can be shed by certain extraction techniques, such as the process used to recover the sperm cells from the victim's underwear.

Id. at 457-58 (footnote omitted). The evidence that Jewett argued undermined McGilvray's testimony, thereby supporting his misconduct and ineffective assistance claims, consisted of two handwritten notes and a typed police report, all of which were hearsay. The first handwritten note, which State Trooper Scott Berna testified at a 2008 deposition he wrote after a conversation with McGilvray,3 reads in relevant part, " Fm chemist Mary Lumley [McGilvray's maiden name]— sexual contact of victim was approx. 24-30 hours prior to death (NOT LESS Than 24 hrs.)." Berna testified that the note recounted what McGilvray said to him.

The second note was written by Richard Craig, a detective involved in the case who testified at his own 2008 deposition that he wrote the note based on a conversation with Berna. The note reads, " Mary Lumley— old semen— (nite before, i.e., may have had sex Th— or Fri. afternoon.)" Craig testified he never spoke directly...

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52 practice notes
  • Hallums v. Divris, 022221 MADC, C. A. 16-11921-NMG
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • February 22, 2021
    ...the state regularly follows the rule and has not waived it by relying on some other ground.'” Id. (quoting Jewett v. Brady, 634 F.3d 67, 76 (1st Cir. 2011)) (emphasis added). The First Circuit routinely concludes “‘that the Massachusetts requirement for contemp......
  • Strickland v. Goguen, 063021 FED1, 19-2104
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (1st Circuit)
    • June 30, 2021
    ...court[] appli[ed] Strickland . . . unreasonabl[y] under [AEDPA] is [even] more difficult." Id.; see also Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011). As the Supreme Court has reminded us, "[t]he standards created by Strickland and [AEDPA] are both 'highly&......
  • Corbin v. Kenneway, 010821 MADC, C. A. 18-cv-12060-ADB
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • January 8, 2021
    ...is a very general one, so that state courts have considerable leeway in applying it to individual cases. Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011) (internal citations and quotation marks omitted). Additionally, when considering ineffective assistance of couns......
  • United States v. Saad, 011221 RIDC, Cr. 16-035-JJM-PAS
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Rhode Island
    • January 12, 2021
    ...choices fall within the “wide range of reasonable professional assistance” and “sound trial strategy.” Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011); see also Strickland, 466 U.S. at 689. Based on the foregoing, the Court rejects Mr. Saad's first ground for B.......
  • Request a trial to view additional results
50 cases
  • Hallums v. Divris, 022221 MADC, C. A. 16-11921-NMG
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • February 22, 2021
    ...the state regularly follows the rule and has not waived it by relying on some other ground.'” Id. (quoting Jewett v. Brady, 634 F.3d 67, 76 (1st Cir. 2011)) (emphasis added). The First Circuit routinely concludes “‘that the Massachusetts requirement for contemp......
  • Strickland v. Goguen, 063021 FED1, 19-2104
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (1st Circuit)
    • June 30, 2021
    ...court[] appli[ed] Strickland . . . unreasonabl[y] under [AEDPA] is [even] more difficult." Id.; see also Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011). As the Supreme Court has reminded us, "[t]he standards created by Strickland and [AEDPA] are both 'highly&......
  • Corbin v. Kenneway, 010821 MADC, C. A. 18-cv-12060-ADB
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Massachusetts
    • January 8, 2021
    ...is a very general one, so that state courts have considerable leeway in applying it to individual cases. Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011) (internal citations and quotation marks omitted). Additionally, when considering ineffective assistance of couns......
  • United States v. Saad, 011221 RIDC, Cr. 16-035-JJM-PAS
    • United States
    • Federal Cases United States District Courts 1st Circuit United States District Courts. 1st Circuit. District of Rhode Island
    • January 12, 2021
    ...choices fall within the “wide range of reasonable professional assistance” and “sound trial strategy.” Jewett v. Brady, 634 F.3d 67, 75 (1st Cir. 2011); see also Strickland, 466 U.S. at 689. Based on the foregoing, the Court rejects Mr. Saad's first ground for B.......
  • Request a trial to view additional results

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