Allen v. Com. of Mass., 90-1247

• Decision Date: 01 August 1990
• Docket Number: No. 90-1247,90-1247
• Citation: 926 F.2d 74
• Parties: Alexander ALLEN, Jr., Petitioner, Appellant, v. COMMONWEALTH OF MASSACHUSETTS, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 74

926 F.2d 74

Alexander ALLEN, Jr., Petitioner, Appellant, v. COMMONWEALTH OF MASSACHUSETTS, Respondent, Appellee.

No. 90-1247.

United States Court of Appeals First Circuit.

Heard Aug. 1, 1990.

Decided Feb. 19, 1991.

William Shields (Court-appointed), with whom Day, Berry & Howard, was on brief, for petitioner, appellant.

Judy G. Zeprun, Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., was on brief, for respondent, appellee.

Before TORRUELLA and CYR, Circuit Judges, and RE, ^* Judge.

RE, Chief Judge:

Petitioner-appellant, Alexander Allen, Jr., appeals from an order of the United States District Court for the District of Massachusetts which denied his petition for a writ of habeas corpus.

Alleging that he was denied a fair trial in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and the effective assistance of counsel in violation of the sixth and fourteenth amendments, Allen contends that the district court erred in denying him a writ of habeas corpus. Specifically, Allen asserts that the instructions given to the jury "created a substantial risk of a miscarriage of justice," and that his counsel was ineffective since he failed to object to the erroneous jury instructions, and failed to move to suppress the initial out-of-court identification of Allen.

The first question presented on this appeal is whether Allen has procedurally defaulted on the issue of the jury instructions. Since we conclude that Allen has not procedurally defaulted, we must consider whether the trial court's jury instructions improperly shifted the burden of proof, thereby creating a substantial risk of a miscarriage of justice.

The second question presented is whether Allen's counsel's failure to object to the jury instructions, or his failure to move to suppress the initial out of court identification of Allen, constituted ineffective assistance of counsel.

We hold that the trial court's jury instructions did not shift the burden of proof, and did not create a substantial risk of a miscarriage of justice. We also hold that neither Allen's counsel's failure to object to the jury instructions, nor his counsel's failure to move to suppress the out of court identification of Allen, constituted ineffective assistance of counsel. Hence, we affirm the district court's denial of Allen's petition for a writ of habeas corpus.

BACKGROUND

Alexander Allen, Jr., a taxi driver, was indicted in the Superior Court of Suffolk County, in the Commonwealth of Massachusetts, for assault with intent to murder Lawrence White, a witness for the Commonwealth, testified that, in the early morning hours of May 31, 1983, he and Richard Rand were in a car driving through Boston, and that at approximately 4:30 A.M. they stopped their car on Tremont Street to look for prostitutes. White stated that Rand got out of the car, approached a woman standing on the street corner, and left with her.

and assault and battery, of Richard Rand. At trial, Allen pleaded not guilty.

White testified that, approximately fifteen minutes later, Rand returned to the car, "staggering and walking very laboredly." He further testified that Rand had blood on his chest and neck. White stated that Rand looked into White's eyes, "and then he just fell over backwards" onto the road. White testified that he pulled Rand out of the way of oncoming traffic and then noticed that there were three "large holes around the center of his chest."

The Commonwealth also presented the testimony of Stephen Pupek, a self-employed cleaner of stores and restaurants. Pupek testified that, at approximately 5:00 A.M. on May 31, 1983, he was driving in the Tremont Street area of Boston, on his way to a job. Pupek stated that, while stopped at a red light, he witnessed a fight between a black man and a white man. He stated that the fight occurred in an area lit by streetlights.

Pupek testified that, from a distance of approximately twenty feet, he observed a white man pull a black man from the driver's seat of a taxi. He stated that, once they were out of the taxi, "[t]hey started pushing and shoving each other." He then saw the black man throw the white man onto the ground and sit down on top of him. Pupek stated that from a distance of ten feet he observed the black man then raise his hand "into the air and come down into the white male's chest three times." He then saw the black man return to the taxi, and the white man stand up holding his chest. Pupek testified that he then drove away from the scene, and returned within the hour.

Pupek stated that when he returned he saw several police officers who were apparently investigating the fight. Pupek testified that after conversing with the officers he was taken to a police station. Pupek stated that while at the police station, he was shown a vehicle. Pupek identified the vehicle as the taxi in which Allen was seated prior to the incident. At the police station, Pupek also identified Allen, who had been taken into custody, as the black man involved in the fight.

Allen testified in his own defense. He stated that, on May 31, 1983, he was sleeping in his taxi when he was awakened and pulled out of the taxi by a white man. Allen added that he was afraid that he was being robbed, and he began struggling with the white man. Allen denied stabbing the white man. He testified that a prostitute intervened, and that she stabbed the white man. Allen's testimony was corroborated by that of Jeremiah Farrell, a fellow taxi driver, who stated that he had witnessed the incident.

The jury convicted Allen of assault with intent to murder, and assault and battery. The court entered a verdict of guilty, and Allen was sentenced to a term of 16 to 20 years for assault with intent to murder, and 7 to 10 years for assault and battery, the sentences to run concurrently.

Alleging that the trial court erred in denying his motion for a directed verdict on both counts, Allen appealed his convictions to the Massachusetts Appeals Court. He contended that the trial court erroneously instructed the jury on the assault and battery charge, on the defense of self-defense, and on the concepts of provocation and malice. Allen contended that the erroneous jury instructions created a substantial risk of a miscarriage of justice. See Commonwealth v. Allen, No. 85-82, slip op. at 1 (Mass.App.Ct. Aug. 1, 1985). Allen also contended that he had been denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

The Appeals Court reviewed the evidence presented at trial, and concluded that there was sufficient evidence for a reasonable The Appeals Court also rejected Allen's claims that the jury instructions on the assault and battery charge and on the defense of self-defense created a substantial risk of a miscarriage of justice by shifting the burden of proof to the defendant. The court noted that the trial court's instructions were proper, and that the court had given "clear and complete instructions on the presumption of innocence and proof beyond a reasonable doubt...." Id. at 4.

jury to conclude beyond a reasonable doubt that Allen was guilty of the crimes charged. Hence, the Appeals Court determined that the trial court did not err in denying Allen's motion for a directed verdict. See id. at 2-3.

The Appeals Court also rejected Allen's claim that the jury instructions on the concepts of "provocation" and "malice" were improper. The Appeals Court acknowledged that the trial court had erred in its instructions on the concept of malice, but nevertheless found that, from the evidence presented at trial, "the inference was overwhelming that the attacker intended to kill the victim, rather than merely to wound him." Id. at 6. Therefore, the Appeals Court, after considering the significant issues presented to the jury, concluded that "the erroneous instruction on malice and the absence of a clear instruction on the specific intent to kill could not have influenced the jury's verdict here." Id. at 7.

Finally, the court also concluded that Allen had not been denied effective assistance of counsel since, even if his counsel had objected, the objection would not have altered the result of the trial. See id. at 8.

Subsequently, the Supreme Judicial Court of Massachusetts denied Allen's application for further review. See Commonwealth v. Allen, 396 Mass. 1101, 484 N.E.2d 102 (1985).

Allen then filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts. The petition was referred to a magistrate, who granted a hearing.

In his petition, Allen contended that the jury instructions improperly defined the elements of the crime of assault with intent to murder, since the instructions failed to require the Commonwealth to prove intent to cause death, and improperly shifted to the defendant the burden of proof on mitigating circumstances. Allen also contended that he had been denied the effective assistance of counsel.

In a 27-page report and recommendation, the magistrate recommended denying Allen's petition. The magistrate concluded that Allen had failed to establish cause for and prejudice from his procedural default in the state courts, and, hence, was barred from raising a claim of erroneous jury instructions. The magistrate also concluded that Allen had failed to establish ineffective assistance of counsel.

Subsequently, the district court denied the petition for the reasons set forth in the magistrate's report.

DISCUSSION

1. Jury Instructions

The Commonwealth contends that "the district court correctly determined that Allen was not entitled to habeas relief because he was in procedural default and did not establish cause for or prejudice from his default."

The Supreme Court has noted that "it is a well-established principle of federalism that a state decision resting on an adequate foundation of...