Avellar v. Dubois, CIV.A. 97-12841-RGS.

• Decision Date: 04 December 1998
• Docket Number: No. CIV.A. 97-12841-RGS.,CIV.A. 97-12841-RGS.
• Citation: 30 F.Supp.2d 76
• Parties: Eric AVELLAR, Petitioner, v. Larry E. DUBOIS, Commissioner of Correction.
• Court: U.S. District Court — District of Massachusetts

30 F.Supp.2d 76

Eric AVELLAR, Petitioner, v.Larry E. DUBOIS, Commissioner of Correction.

No. CIV.A. 97-12841-RGS.

United States District Court, D. Massachusetts.

December 4, 1998.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Eric Avellar, Norfolk, MA, pro se.

Kenneth E. Steinfield, Assistant Attorney General, Boston, MA, for Respondent.

ADOPTION OF MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

STEARNS, District Judge.

I adopt the Magistrate Judge's Recommendation and consequently will order that the Petition for Writ of Habeas Corpus be DENIED.I also adopt the Report with the following comments.

I believe that Respondent is correct that the recitation of the underlying facts by the Supreme Judicial Court is entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(e)(1).SeeSumner v. Mata,449 U.S. 539, 545-546, 101 S.Ct. 764, 66 L.Ed.2d 722(1981)(discussing the presumption under predecessor § 2254(d)).It is unlikely that the Antiterrorism and Effective Death Penalty Act of 1996 was intended to diminish the deference traditionally accorded to a state appellate court's determination of the facts.See, e.g., Biskup v. McCaughtry,20 F.3d 245, 248-249(7th Cir.1994).Deference seems especially appropriate when a state appellate court has given the trial record the type of scrutiny mandated by G.L. c. 278, § 33E.Nonetheless, the issue has no material bearing on the Magistrate Judge's ultimate conclusions, and thus need not be formally decided.

A more substantial issue is raised by Respondent's objection that federal review is barred because the state court's decision rests "on a state law ground that is independent of the federal question and adequate to support the judgment."Lambrix v. Singletary,520 U.S. 518, 117 S.Ct. 1517, 137 L.Ed.2d 771(1997), quotingColeman v. Thompson,501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640(1991).The Single Justice's "gatekeeper" decision is a sufficient basis in and of itself to dismiss the petition.SeeBurks v. Dubois,55 F.3d 712, 716(1st Cir.1995).See alsoMoore v. Ponte,924 F.Supp. 1281, 1295-1296(D.Mass.1996).

Finally, the Magistrate Judge ably analyzed what he correctly determined was an erroneous instruction defining third prong malice to include acts that create a plain and strong likelihood of death or grievous bodily harm.I disagree, however, with his conclusion that the question whether the error might require a new trial is "close."First, as the Magistrate Judge recognized, this instruction was not erroneous when given and was modeled on language that can be found in Supreme Judicial Court opinions as late as 1994.See, e.g., Commonwealth v. Delaney,418 Mass. 658, 667, 639 N.E.2d 710(1994).¹But seeCommonwealth v. Sires,413 Mass. 292, 303-304 n. 14, 596 N.E.2d 1018(1992).The vice of the instruction is that it confuses third prong malice necessary for murder with the standard defining involuntary manslaughter.SeeCommonwealth v. Vizcarrondo,427 Mass. 392, 395, 693 N.E.2d 677(1998).Nonetheless, given the nature of the injury inflicted — a blow to the head of a six-month old infant severe enough to cause a massive skull fracture — no properly instructed juror, as the Magistrate Judge concluded, could perceive the Petitioner's conduct "as presenting something less than a plain and substantial likelihood of death."Report and Recommendation, at 37.The error was therefore harmless.SeeCommonwealth v. Murphy,426 Mass. 395, 401, 688 N.E.2d 966(1998);Commonwealth v. Sanna,424 Mass. 92, 105, 674 N.E.2d 1067(1997).See alsoCommonwealth v. Fitzmeyer,414 Mass. 540, 547-548, 609 N.E.2d 81(1993)(where it is obvious that the risk of harm created is a strong likelihood of death, an instruction on involuntary manslaughter is not required).

ORDER

The Recommendation of the Magistrate Judge is ADOPTED, and the Petition for Writ of Habeas Corpus is DENIED.

SO ORDERED.

REPORT AND RECOMMENDATION REGARDING RESPONDENT'S OPPOSITION TO THE PETITION FOR WRIT OF HABEAS CORPUS(DOCKETNO. 9)

KAROL, United States Magistrate Judge.

On December 6, 1991, a Bristol County Superior Court jury found PetitionerEric Avellar("Petitioner"), guilty of the first degree murder, by reason of extreme atrocity or cruelty, of his six-month old son, Shawn.The Supreme Judicial Court("SJC") reviewed the conviction pursuant to the special procedures applicable to appeals in capital cases, M.G.L. ch. 278, § 33E("Section 33E"), and affirmed.SeeCommonwealth v. Avellar,416 Mass. 409, 622 N.E.2d 625, 632(Mass.1993).Petitioner then moved for a new trial pursuant to Mass. R.Crim. P. 30(b), alleging, among other things, that his retained appellate counsel had provided ineffective assistance on direct appeal.The Superior Court(Brassard, J.) conducted an evidentiary hearing and, in a comprehensive written opinion, denied the motion.Commonwealth v. Avellar,Crim. No. 24485, Memorandum of Decision and Order on Defendant's Motion for New Trial,(Mass.Super.Ct. Dec. 16, 1996)(attached as Ex. 8 to Respondent's Supplemental Answer, Vol. 3, DocketNo. 11)(hereinafter "Brassard Opinion").Petitioner then sought leave from the Single Justice to appeal to the SJC from the denial of his motion for new trial, but the Single Justice (Lynch, J.) denied leave to appeal because the issues as to which Petitioner sought review were either not new or not substantial, or both.Commonwealth v. Avellar,No. 97-0038, Memorandum and Order(Mass. June 12, 1997).On December 19, 1997, having exhausted the remedies available to him in state court, Petitioner filed a Petition for Writ of Habeas Corpus(DocketNo. 1) in this court.The petition asserts only one ground for relief: ineffective assistance of appellate counsel on direct appeal, based on appellate counsel's failure to press several specific claims of trial error, none of which had been preserved by trial counsel.Pursuant to this court's procedural Order of March 16, 1997(DocketNo. 6), RespondentLarry E. DuBois("Respondent"), filed a memorandum in opposition to the Petition, accompanied by a comprehensive three-volume set of supplemental materials related to the various state court proceedings.SeeRespondent's Brief in Opposition to the Petition for Habeas Corpus, DocketNo. 9(hereinafter "Respondent's Opposition");Supplemental Answer,Vols. 1-3, DocketNo. 11(hereinafter "Supplemental Answer, Vol. n").Upon careful consideration of Respondent's Opposition and the supplemental materials that accompanied it, I conclude, for reasons set forth below, that the rejection by the Superior Court of Petitioner's claim that appellate counsel was ineffective was not "contrary to" and did not "involve[] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."28 U.S.C. § 2245(d)(1998) (inserted by Antiterroism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132,110 Stat. 1214(1996)("AEDPA");seeO'Brien v. Dubois,145 F.3d 16, 25(1st Cir.1998)("for the writ to issue, the state court decision must be so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes.").Accordingly, I recommend that the petition be DENIED.

I.BACKGROUND AND PRIOR PROCEEDINGS¹

A.Conviction and Direct Appeal

Petitioner's six-month old son, Shawn, died on October 6, 1989.The cause of death, as revealed by autopsy, was a massive skull fracture.On December 6, 1991, following a trial at which Petitioner, upon advice of counsel, did not testify, a jury convicted Petitioner of Shawn's murder in the first degree, by reason of extreme atrocity or cruelty.Avellar,622 N.E.2d at 626.The judge immediately sentenced Petitioner to life imprisonment without the possibility of parole.Following the verdict, Petitioner retained as appellate counselWendy Sibbison, an experienced attorney who specializes in the representation of defendants in criminal appeals in state and federal courts.In due course, Attorney Sibbison filed a 106-page brief with the SJC in which she assigned a number of errors requiring reversal of the conviction or a new trial.Among other things, Petitioner challenged the sufficiency of the evidence to support the verdict.Petitioner's Brief before the SJC on Direct Appeal, attached as Ex. 4(p) to Supplemental Answer, Vol. 2, at 29-53.In the course of affirming the conviction, the SJC summarized the evidence most favorable to the verdict as follows:²

Laura Courtney["Courtney"] became involved in an affair with defendant in July, 1988.Both were married but separated from their spouses.After Courtney became pregnant, the defendant told her he wanted her to abort the baby, explaining, among other things, that his divorce was not yet final and he was already paying support for his son.Courtney did not have an abortion, and for the remainder of her pregnancy saw little of the defendant.The baby, Shawn, was born April 11, 1989.Several weeks later, following Courtney's request, the defendant went to Courtney's house to see Shawn.A few weeks later the defendant again visited Shawn and then visited him "a couple times a month" during the next several months.The defendant babysat for Shawn three or four times.After one such occasion, Shawn had "a little mark on the side of his eye."The defendant explained that Shawn had rolled off the couch.

Shawn's pediatrician testified that, during three routine office visits, the child's physical examinations were normal, with proper growth and development.The doctor never detected any injuries or bruises on the child.In addition to the routine visits, the doctor also consulted once by telephone with Courtney in late August, when he prescribed over-the-counter medication for an upper respiratory infection.

Shawn was pronounced dead at the hospital October 6, 1989, at 7:23 A.M. Shawn had spent...