Akara v. Ryan

• Decision Date: 11 September 2017
• Docket Number: Civil Action No. 14–40070–TSH
• Citation: 270 F.Supp.3d 423
• Parties: Chimezie AKARA, Petitioner, v. Kelly RYAN, Respondent.
• Court: U.S. District Court — District of Massachusetts

270 F.Supp.3d 423

Chimezie AKARA, Petitioner,

v.Kelly RYAN, Respondent.

Civil Action No. 14–40070–TSH

United States District Court, D. Massachusetts.

Signed September 11, 2017

Robert L. Sheketoff, Boston, MA, for Petitioner.

Susanne G. Reardon, Office of the Attorney General, Boston, MA, for Respondent.

MEMORANDUM OF DECISION AND ORDER

HILLMAN, D.J.

Background

Chimezie Akara ("Petitioner" or "Akara") filed a Petition for a Writ of Habeas Corpus as a person in state custody in accordance with 28 U.S.C. § 2254. Following a jury trial in Massachusetts Superior Court, Akara was convicted on multiple charges, including murder in the first degree on a theory of extreme atrocity or cruelty, three counts of assault with intent to murder, assault with a dangerous weapon, two counts of assault and battery by means of a dangerous weapon, possession of a firearm without a license, and possession of ammunition without a firearm identification card. Akara was sentenced to life without parole and consecutive sentences aggregating between 66 and 80 years. The conviction was affirmed by the Massachusetts Supreme Judicial Court ("SJC") on May 21, 2013. Akara now seeks habeas relief on the following grounds:

Ground One: Petitioner's conviction on a joint venture theory was not supported by sufficient evidence and therefore violated Petitioner's constitutional right to due process;

Ground Two: Denial of severance motions in the circumstances of this case violated the Petitioner's due process rights; and

Ground Three: The closing arguments of the prosecutor and of co-defendant's counsel were improper and violated the Petitioner's due process rights.

Akara has exhausted state-court remedies with respect to all of the grounds for relief asserted in his Petition. For the reasons outlined below, his Petition is denied.

Facts

The Court lists the facts relevant to the petition as the SJC found them, "fleshed out by other facts contained in the record and consistent with the state court's findings." McCambridge v. Hill , 303 F.3d 24, 26 (1st Cir. 2002).

On February 5, 2003, the Petitioner and co-defendant in the proceedings below, Andre Green ("Green"), along with two other individuals, Sean Brown ("Brown") and Burrell Ramsey–White ("Ramsey–White"), spent time at the home of another individual, Kalif Christopher ("Christopher"). Sometime between 7:40 PM and 7:50 PM on February 5, 2003, the four men boarded Orange Line train car 1205 at the Forest Hills MBTA station. They stood in two groups, with Green and Akara standing near the rearmost door on the platform side of the car and Brown and Ramsey–White standing together across the aisle. Akara was the only one of the four men wearing a baseball cap. Philip Gadsden ("Gadsden") boarded the same train car and sat near the rear door, near where Akara and Green were standing.

As the train left the Ruggles station a few stops later, a passenger heard a "very loud, tense verbal exchange" between the men standing, Akara and Green, and the man sitting, Gadsden. At that time, Gadsden saw that one of the standing men was holding a gun at his side. Both Akara and Green were looking in Gadsden's direction, and another passenger saw one of the men raise his arm and point it in Gadsden's direction. The passenger's view was blocked, and he could not see what the man pointing held in his hand. Both Green and Akara were wearing hooded sweatshirts, and the one pointing was wearing a baseball cap.

Gadsden got up from his seat and started moving to the front of train, waving his arms and yelling, "there's a gun on the train" and "they have a gun," while pointing to Akara and Green. He told passengers to get down, to "stay back," to "move to the other side," and to "get off the train." As the doors opened at the Massachusetts Avenue MBTA station, passengers began running from the train car. Akara and Green also got off the train.

Multiple passengers, either on the train or on the platform, heard pops or gunshots coming from the rear of train car 1205. One passenger, in a car behind car 1205, heard several loud bangs coming from the front of the train followed by shouts and screams from the same direction. About ten seconds later, he saw a "pack" of four or five individuals running furiously away from the direction of the commotion. The passenger heard the men laughing or chuckling in a congratulatory manner. Another passenger also saw a group of four young males running toward the station exit. He observed the tallest member of the group (Akara) holding his waist as if gripping something near his belt. A security camera on a nearby parking garage captured images of four men running from the station and through a parking lot.

Two shell casings were found on the platform. One bullet ricocheted off the outside of car 1205 and pierced a guitar case carried by a music student, who was running from the train with the guitar case over his right shoulder.

The second bullet is the subject of this petition. A passenger heard a scream, turned, and saw a woman, Hawa Barry, bleeding profusely from the left side of her abdomen. Barry, a recent immigrant to the United States and unable to understand English, was thirty-six weeks pregnant at the time. She did not understand Gadsden's warnings and was shot through the stomach as she attempted to exit the train. She was rushed to the hospital; her son was born alive, but later died from serious internal injuries caused by the bullet. Barry survived after emergency surgery.

Akara and Green returned to the latter's apartment in the South End section of Boston. There, Akara showed Green's cousin a nine-millimeter Desert Eagle semiautomatic handgun, the same type of gun used in the shooting and a type rare in Boston at the time. Another of Green's cousins had seen Akara with same weapon a few weeks earlier. Akara explained that he and Green "had beef on the train."

The defendants left the apartment for approximately thirty minutes. When they returned, Akara was no longer wearing the jacket and hat he had been wearing on the train. Green was still wearing a black hooded sweatshirt with a distinctive pointed hood. He was not seen wearing that sweatshirt after the night of the shooting. One of Green's brothers informed them that a pregnant woman had been shot on the subway. Akara responded, "Oh shit," and Green responded, "Damn it."

Akara left and returned to Christopher's house. Green also left, going to the apartment of his girlfriend, Sheena Sanford, where he spent the night. Later that night and into the early morning hours, Akara and Green spoke with each other by telephone four times. On one occasion when Akara called, Sanford answered, and Akara asked her, "Did I get away with it?" According to Christopher, who overheard Akara speaking on the telephone, Akara sounded like he was "giving orders," saying something to the effect that the person on the telephone should "bring it back" or "bring it here," and calling the individual "stupid." After one call to Green, Akara told Christopher "things [were] getting hot."

In the ensuing days, Akara and Green both spoke to two of Green's relatives about the shooting. Akara called Green's brother six times to ask him if he had heard anything and to warn him, "Don't say anything. Don't snitch." Akara similarly instructed Green's cousin not to tell the police anything, not to "snitch," and mentioned his concern that there might be gunpowder on his gloves. Green also told his cousin not to talk to the police.

Police officers recovered videotape surveillance images that placed Akara, Green, Brown, and Ramsey–White inside the Forest Hills subway station at approximately 7:30 P.M. Based on the videotape surveillance images, officers went to Akara's home on February 9, 2003, to talk to him about his involvement in the shooting. Akara denied being at the Forest Hills or Massachusetts Avenue subway stations that evening, or being on an Orange Line train, denied wearing a baseball cap with the interlocking letters "TC," and denied knowing Green, Brown, and Ramsey–White. The next day, Green was interviewed at police headquarters. Green similarly denied being at those locations on February 5, and denied wearing a black hooded sweatshirt.

Procedural History

After a jury trial, Akara was convicted on March 26, 2007 on multiple charges, including murder in the first degree on a theory of extreme atrocity or cruelty, and was sentenced to life without parole and consecutive sentences aggregating between 66 and 80 years.

A motion for new trial prior to the direct appeal was filed on April 16, 2010 in light of a witness, Julian Green, recanting his testimony given in the Superior Court trial. That motion was denied on November 17, 2010. Commonwealth v. Akara , 27 Mass. L. Rep. 514 (Suffolk Sup. Ct. 2010).

Akara filed a direct appeal to the Supreme Judicial Court, contesting his conviction on multiple grounds: (1) the theory of joint venture should not have been submitted to the jury; (2) the defendants' multiple motions for severance should have been granted; (3) the jury instructions omitted the requirement that the jury find a joint venture existed; (4) the co-defendant's and prosecutor's closing arguments violated the right to a fair trial; (5) the jury instruction on punishment removed the co-defendant's family bias from the jury's considerations; (6) the jury instruction on the theory of extreme atrocity and cruelty improperly broadened the scope of liability by deviating from the model jury instructions; and (7) evidence of gang membership and affiliation was improperly admitted. The SJC denied Akara's appeal on all grounds. A petition for rehearing was filed on June 3, 2013 on the issue of the SJC's use of an insupportable inference to sustain the convictions. That petition was denied on July 2, 2013, though the SJC issued a modified opinion to amend factual errors.

Akara did not file for a writ of certiorari, and this petition for habeas corpus was timely filed on May...