812 F.3d 112 (1st Cir. 2016), 14-2110, Linton v. Saba

Docket Nº:14-2110
Citation:812 F.3d 112
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:DAMION LINTON, Petitioner, Appellant, v. JAMES J. SABA, Respondent, Appellee
Attorney:James M. Doyle, with whom Bassil, Klovee & Budreau, was on brief, for appellant. Todd M. Blume, Assistant Attorney General, Criminal Bureau, with whom Thomas E. Bocian, Assistant Attorney General, and Maura Healey, Attorney General, were on brief, for appellee.
Judge Panel:Before Torruella, Lynch, and Kayatta, Circuit Judges.
Case Date:February 01, 2016
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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812 F.3d 112 (1st Cir. 2016)

DAMION LINTON, Petitioner, Appellant,


JAMES J. SABA, Respondent, Appellee

No. 14-2110

United States Court of Appeals, First Circuit

February 1, 2016

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James M. Doyle, with whom Bassil, Klovee & Budreau, was on brief, for appellant.

Todd M. Blume, Assistant Attorney General, Criminal Bureau, with whom Thomas E. Bocian, Assistant Attorney General, and Maura Healey, Attorney General, were on brief, for appellee.

Before Torruella, Lynch, and Kayatta, Circuit Judges.


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TORRUELLA, Circuit Judge.

On February 23, 2005, Andrea Harvey's parents discovered her body in Harvey's Cambridge apartment. Her husband, Damien Linton, was subsequently arrested and convicted of first-degree murder by a jury in the Massachusetts Superior Court (" Superior Court" ). The Massachusetts Supreme Judicial Court (" SJC" ) affirmed the verdict as well as the Superior Court's denial of Linton's motion for a new trial on appeal. Commonwealth v. Linton, 456 Mass. 534, 924 N.E.2d 722, 727 (Mass. 2010).

Linton filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts on the grounds that (1) the evidence was insufficient to support his conviction and (2) the admission of statements Harvey made to her father violated his rights under the Confrontation Clause. The district court denied Linton's petition for habeas relief. Linton v. Saba, No. 11-40132-TSH, 2014 WL 4804746, at *11 (D. Mass. Sept. 25, 2014). After careful review utilizing the standards under the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ), we affirm the judgment of the district court.

I. Background

" We must 'accept the state court findings of fact unless . . . convince[d] . . . by clear and convincing evidence, that they are in error.'" Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006) (quoting McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir. 2002) (en banc)). Thus, we recount the facts as found by the SJC, and note supplementary facts from the record as such. O'Laughlin v. O'Brien, 568 F.3d 287, 290 (1st Cir. 2009).

Damion Linton lived with his wife, Andrea Harvey, at their apartment in Cambridge, Massachusetts (" Cambridge apartment" ). Linton met Latricia Carter in January 2005 and began a sexual relationship with her on February 14, 2005. He did not tell Carter he was married but claimed he had an " ex-girlfriend" who had threatened to buy " a bottle of pills to do something to herself and make everyone think that he did it to her" if he ended the relationship.

On the morning of February 23, Carter was scheduled to complete tests for work at a facility in Somerville, Massachusetts, near Linton's apartment. Linton and Carter made plans for Carter to visit him at the Cambridge apartment before her tests. When Carter arrived, however, she had to ring the doorbell twice and wait in the first-floor entryway. Carter was about to leave when Linton came downstairs, mid-cell phone conversation. After Linton finished the call, Carter asked Linton why he had finished the conversation in the entryway despite the cold. Then she heard a loud sound coming from upstairs. Linton told Carter, " Well you know that crazy, crazy girl I told you about, she's upstairs." Carter returned to her vehicle, which was parked on the street outside the apartment;

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Linton followed and got into the passenger seat. The pair began arguing in the truck -- Carter demanding explanations, Linton eventually admitting to living with the woman in the apartment -- and continued until a woman matching Harvey's description came outside and discovered them. The woman peered through the vehicle's open window.1 She exclaimed, " Oh, my gosh, another woman," and demanded Linton return her phone. He did so, then Carter drove away with Linton in the passenger seat. The pair circled the neighborhood, once passing Harvey walking on the street one block from the apartment, before Carter let Linton out and left. Carter arrived at the testing facility at some point before 8:45 a.m. She completed two tests, then went to work.

Carter next heard from Linton while at work, around 1:30 p.m. Linton claimed he had fought with Harvey over Carter and " had to pack a bag and leave" because Harvey was threatening to harm herself and frame him. Linton asked to stay with Carter. She refused. At 1:30 p.m., according to videotape and bank records, Linton withdrew $100 from a Cambridge Trust ATM that was a ten-minute walk from the Cambridge apartment. Linton subsequently traveled to New York City, making his way to the Port Authority bus terminal by 7:51 p.m., the time at which he telephoned Harvey's cell phone from a public phone " near a gate where a Greyhound bus was leaving for North Carolina."

On February 24, Linton arrived in North Carolina,2 where his brother lived, and applied for a job at the Wal-Mart where his brother worked, explaining to the manager that he was moving to Raleigh after a fight with his wife and seeking full-time employment. That day, Linton also spoke to Harvey's parents (" Mr. and Mrs. Harvey" ) by phone. He told Mrs. Harvey that he was calling from North Carolina, claiming that he had traveled there to retrieve items his mother had sent from Jamaica. Linton also told Mrs. Harvey that he had been trying to get in touch with her daughter but had not been able to do so and was worried because she had threatened to harm herself if he left her. He claimed that Harvey had previously attempted to harm herself by ingesting " some stuff" and that he had revived her using a " bush remedy."

Linton told Mrs. Harvey that he saw Harvey the night of February 22, close to midnight, when he returned to the apartment, and again the next morning before he left the Cambridge apartment for North Carolina at 10:00 a.m. He said Harvey " murmured something" when Linton spoke to her as he was leaving. Shortly thereafter, however, Linton told Mr. Harvey that he did not see Harvey on February 23 as she had " gone to the grocery store" before he woke at 8:00 a.m. and had not returned by the time he left for North Carolina at 10:00 a.m. Mrs. Harvey pointed out the contradiction and asked Linton if he had harmed Harvey; he denied doing so.

As a result of Linton's phone call, Mr. and Mrs. Harvey went to the Cambridge apartment. The front door was locked,

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but they were able to gain access with keys from the rental agent. At or around 2:00 p.m., Mr. and Mrs. Harvey discovered their daughter's body on a sheet on the floor of the apartment, her cell phone and a cup of water next to her. Harvey, who was stiff as a result of rigor mortis, was lying " somewhat on her side," in " something like a 'fetal' position," dressed in sweats and wrapped to the neck in blankets. The sheet and carpet were stained with body fluids. The temperature in the apartment was set to eighty-five degrees. Mr. Harvey called 911 from his cell phone; a Cambridge police officer arrived minutes later. Police found no evidence of forced entry through the front door and no means of entry through the back door, which was blocked.

On February 25, state police spoke with Linton by phone. He told the trooper with whom he spoke that on the evening of February 22 he had argued with Harvey in a phone conversation about money and some items he had taken from her. Linton claimed Harvey was asleep when he came home that evening and that he did not see her the next day before leaving for Florida at 12:00 p.m. to visit an aunt. He admitted he had not made plans with his aunt and was unable to offer any details about her or where in Florida she was living. Linton stated that Harvey had asked him to leave, that he locked the apartment, and that he had his keys. He also gave the trooper the first of several conflicting stories about how he got to North Carolina.3

On February 26, Linton telephoned a friend of Harvey's and told her that he and Harvey " got into a fight, and things went bad, and I left." He also called Carter and made plans to see her later in the day without mentioning his whereabouts. Linton was arrested that evening when he went to work at Wal-Mart. He waived his Miranda rights, and, during a two-hour interview with police, denied harming Harvey and claimed a former boyfriend may have killed her. He admitted that his relationship with Harvey had " problems," that they argued over bills, and that he had once had a physical fight with Harvey during which he " grabbed [Harvey] by the back of the neck." The next day, Linton called Carter, telling her that Harvey was dead and that he had been jailed but was not responsible. Carter did not hear from Linton again until months later, when he called to " t[ell] her not to go to court because if she [testified] he would go to jail for the rest of his life."

A. Proceedings in the Massachusetts Superior Court

The Commonwealth of Massachusetts proceeded against Linton in Superior Court under two first-degree murder theories: " deliberate premeditation and extreme atrocity or cruelty." The Commonwealth's medical examiner, Dr. Richard Evans (" Dr. Evans" ), testified that Harvey died as a result of manual strangulation. He noted " multiple abrasions to the right side of the victim's neck below her jaw, consistent with fingernail marks, and a larger bruise on the left side of the victim's rib cage that . . . could have been caused by the force of a knee on the victim's chest." The abrasions were inflicted while Harvey was still alive. Dr. Evans also testified that the force applied to Harvey's neck " was so strong that it had caused a separation of the hyoid bone . . . at the base of the victim's tongue, under the jaw"...

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