Alix v. Marchilli
| Decision Date | 04 September 2019 |
| Docket Number | CIVIL ACTION NO. 17-10619-PBS |
| Citation | 406 F.Supp.3d 161 |
| Parties | Pedro Duran ALIX, Petitioner, v. Raymond MARCHILLI, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
I adopt the report and recommendation without objection and deny the petition.
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
August 7, 2019
In December 2013, the petitioner, Pedro Alix ("Alix" or "defendant" or "petitioner"), was convicted in Salem Superior Court of possession with intent to distribute heroin, subsequent offense, in violation of Mass. Gen. Laws ch. 94C, § 32(b), and of committing a drug violation within 300 feet of a school or park, in violation of Mass. Gen. Laws ch. 94C, § 32J. His conviction was affirmed by the Massachusetts Appeals Court ("MAC") in an unpublished decision dated December 1, 2015. Commonwealth v. Alix, No. 14-P-1602, 88 Mass. App. Ct. 1114, 41 N.E.3d 330, 2015 WL 7723421 (Dec. 1, 2015) (table) ( Alix I ). His application for leave to obtain further appellate review ("ALOFAR") was denied by the Massachusetts Supreme Judicial Court ("SJC") on January 27, 2016. Commonwealth v. Alix, 473 Mass. 1108, 44 N.E.3d 861 (Jan. 27, 2016) (table). Alix is now serving a state prison sentence of 5-7 years on count one and 2½-5 years on count two, to be served consecutively.
In April 2016, Alix filed a motion for a new trial in state court. The motion was denied and Alix appealed. During the pendency of his collateral appeal, on April 10, 2017, Alix filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging (1) ineffective assistance of suppression counsel for failing to investigate questionable facts within a search warrant affidavit; (2) ineffective assistance of appellate counsel for failing to pursue his suppression counsel's inaction on investigating the search warrant; and (3) error by the judge in denying his motion to suppress due to the inadequacy of the search warrant affidavit.
The Government moved to dismiss the habeas petition in its entirety. While the motion to dismiss the habeas petition was pending, the MAC affirmed the denial of Alix's motion for a new trial in an unpublished decision dated October 25, 2017. Commonwealth v. Alix, No. 16-P-1416, 92 Mass. App. Ct. 1110, 94 N.E.3d 438, 2017 WL 4803800 (Oct. 25, 2017) (table) ( Alix II ). His ALOFAR was denied by the SJC on December 21, 2017. Commonwealth v. Alix, 478 Mass. 1106, 94 N.E.3d 853 (Dec. 21, 2017) (table). Thereafter, this court issued a Report and Recommendation ("R & R") recommending that the Government's motion to dismiss be allowed as to Alix's motion to suppress claim, but be denied as to the ineffective assistance of counsel claims. Docket No. 14. The R & R was adopted by the District Judge to whom this case is assigned in its entirety. Docket No. 16. This matter is now presently before the court on the merits of the surviving ineffective assistance of counsel claims asserted in the habeas petition.
For the reasons detailed herein, this court recommends to the District Judge that Alix's petition for a writ of habeas corpus be DENIED. Although the defendant has exhausted his state court remedies on his ineffective assistance of counsel claims, the state court decision that neither the actions of his suppression counsel nor of his appellate counsel constituted ineffective assistance of counsel was not contrary to nor an unreasonable application of federal law as articulated by the United States Supreme Court.
The facts relevant to the petitioner's habeas claims are as follows.
Prior to the defendant being indicted on the charges at issue in the instant petition, on March 14, 2012, the Salem Police Department obtained a search warrant to search for drugs and drug paraphernalia in his apartment. SA 322. The affidavit in support of the search warrant provided the following information:
3.) During the middle of February 2012, this Detective, J. Dennis Gaudet, along with Detective Kevin St. Pierre and Brian St. Pierre spoke with a confidential informant (from here on in referred to as C/I), who related that a short, Hispanic male named "Pedro" was selling heroin in Salem, Ma. The C/I further related that "Pedro" drives a gray Saab. Additional information was that if you call (978) 210-8225 "Pedro" will answer and an order can be placed for heroin. This detective along with other detectives from the Salem Police Department are familiar with "Pedro" due to involvements with the Salem Police Department. The detectives are also aware that Pedro Alix operates Massachusetts registration 2NEW30, a 2001 Saab 95 registered to himself. The C/I reports that it would place a call to (978) 210-8225. After placing the call "Pedro" would answer and the C/I would make an arrangement to purchase heroin. The C/I states that it is willing to make controlled purchases of cocaine from "Pedro".
SA 326.2 The affidavit then explains that police arranged for the confidential informant to make a controlled buy of heroin from the defendant:
4.) Within 24 hours of February 15, 2012, the C/I agreed to make a controlled purchase of heroin from "Pedro" in Salem, Ma. The C/I met the detectives and was searched for money and controlled substances. In addition to this the motor vehicle that the C/I was operating was also searched for money and controlled substances. After finding no money or controlled substance on its person or in the motor vehicle the C/I was given an amount of documented Salem Police money to conduct the controlled purchase of heroin. A phone call was then placed to "Pedro", (978) 210-8225 for a request to purchase heroin. Immediately following, Detectives Brennan and Kevin St. Pierre set up surveillance. Detective Brennan conducted surveillance at 90-92 Congress St. and Detective Kevin St. Pierre at the transaction location. While at 90-92 Congress St. Detective Brennan observed Pedro Alix exit the residence on the left side of the structure and enter the gray Saab. Det. Brennan then followed the gray Saab to the arranged transaction location. This was done without making any stops along the way and without losing visual contact. Upon arrival to the location Detective Kevin St. Pierre observed Pedro Alix, operating the Saab. While this was going on Detective Gaudet had followed the C/I to the transaction location and remained a short distance from the C/I, this was done without making any stops along the way and without losing visual contact. Detective Gaudet observed the gray Saab being operated by Pedro Alix pull up to the C/I and the C/I entered the passenger side. The C/I remained in the vehicle with Pedro Alix for approximately one minute before exiting. The Saab then traveled back to 90-92 Congress St. and parked directly out front. This was done without making any stops along the way and under constant observation by Det. Kevin St. Pierre. Upon arrival at 90-92 Congress St. Pedro Alix was observed to exit the Saab and walk into the doorway on the left side of 90-92 Congress St. While this was going on Detective Gaudet followed the C/I to a predetermined location. This was done without making any stops along the way and under constant observation by Det. Gaudet. Upon arrival at the predetermined location the C/I handed Detective Gaudet a quantity of heroin. The C/I reports that after observing "Pedro" pull into the location it exited the vehicle and made contact with "Pedro". The C/I reports that it handed "Pedro" the money and "Pedro" handed it the heroin.
SA 326-27. The search warrant affidavit further details that a second controlled purchase was made on or around March 11, 2012. SA 327 at ¶ 5. Alix was observed driving to the location of the second controlled purchase directly from his building and meeting with the confidential informant. Id. Upon completion of the second controlled purchase, Alix left the area to an unknown location. SA 328 at ¶ 5.
In addition to these 2012 controlled buys, the affidavit further referenced 2010 events. Specifically, it was alleged:
6.) During the middle of June 2010, the Salem Police Criminal Investigation Division initiated an investigation into Pedro Alix. This investigation involved the illegal sales of heroin. After receiving several complaints about Pedro Alix dealing heroin along with a cooperating C/I multiple controlled purchases of heroin were conducted. During the course of this investigation Pedro Alix was observed leaving his residence, entering his motor vehicle, traveling to the deal location, conducting the controlled transaction then traveling back to his residence. This investigation was terminated abruptly after Pedro Alix was arrested by the Salem Police on domestic charges and incarcerated at the Middleton House of Corrections for a period of time.
Based on this affidavit, a search warrant was issued for Alix's residence, Apartment 2F, in a multi-apartment building. SA 322. Upon execution of the search warrant, Salem police seized six bags of heroin, drug paraphernalia, and other items from the defendant's apartment. SA 323. Alix was subsequently indicted by an Essex County grand jury on July 16, 2012 for one count of possession with intent to distribute heroin, subsequent offense, and one count of committing a drug violation within 300 feet of a school or park. SA 3, 320-21. The indictment was based on evidence gathered during the execution of the search warrant; the 2012 controlled buys were not charged. Alix II, 2017 WL 4803800, at *2.
On October 31, 2012, the defendant filed a motion to suppress the evidence seized at his apartment, arguing, inter alia, that the affidavit filed in support of the warrant failed to establish a nexus between the alleged criminal activity and his home, and that the affidavit did not explain how the police confirmed that the controlled buys involved heroin. SA 332; Alix II, 2017 WL 4803800, at *2. Co...
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