Avila v. Clarke, Civil Action No. 10–11800–RGS.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtORDER ON REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Citation938 F.Supp.2d 151
PartiesHector AVILA, Petitioner v. Harold CLARKE, Respondent.
Docket NumberCivil Action No. 10–11800–RGS.
Decision Date03 April 2013

938 F.Supp.2d 151

Hector AVILA, Petitioner
v.
Harold CLARKE, Respondent.

Civil Action No. 10–11800–RGS.

United States District Court,
D. Massachusetts.

April 3, 2013.


[938 F.Supp.2d 157]


John H. Cunha, Jr., Cunha & Holcomb, PC, Boston, MA, for Petitioner.

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


ORDER ON REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

STEARNS, District Judge.

To Magistrate Judge Dein's extremely thorough Report, there is little that I can add. Consequently, her Recommendation is ADOPTED and the petition is DISMISSED.1 Of the eight issues pressed before the Magistrate Judge, the most emphasis is given to the failure of the trial court to give a so-called Bowden instruction. See Commonwealth v. Bowden, 379 Mass. 472, 399 N.E.2d 482 (1980). It has always been the rule under Massachusetts law (as the Supreme Judicial Court has observed time and again) that a trial judge has no obligation to give such an instruction. “[T]he obligation of the authorities to investigate a crime does not translate into a jury instruction that the authorities have a duty to gather exculpatory evidence.” Commonwealth v. Martinez, 437 Mass. 84, 92, 769 N.E.2d 273 (2002). See also Commonwealth v. Daye, 411 Mass. 719, 741, 587 N.E.2d 194 (1992) (“We have never held, and decline to do so now, that a judge must give instructions on the claimed inadequacies of a police investigation.”). Whether the Massachusetts rule should be different on this score is, as Magistrate Judge Dein points out, not an issue appropriate for habeas review. See Waddington v. Sarausad, 555 U.S. 179, 192 n. 5, 129 S.Ct. 823, 172 L.Ed.2d 532 (2009). Putting aside the issue of whether Avila adequately preserved a Sixth Amendment objection to the allegedly missing instruction—Magistrate Judge Dein was satisfied that he had—I agree with her ultimate conclusion that Avila has failed to show that the State Court unreasonably applied Supreme Court precedent.2

Any request for the issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253 is DENIED, the court seeing no meritorious or substantial basis for an appeal. The Clerk is instructed to enter an order of dismissal an close the case.

SO ORDERED.

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
DEIN, United States Magistrate Judge.
I. INTRODUCTION

Petitioner, Hector Guerrero Avila (the “defendant”), has brought a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his conviction on January 26, 2006 for first degree murder and unlawful possession of a firearm. The Massachusetts Supreme Judicial Court

[938 F.Supp.2d 158]

(“SJC”) affirmed his convictions and the denial of his motion for a new trial in an opinion dated September 15, 2009. Commonwealth v. Avila, 454 Mass. 744, 912 N.E.2d 1014 (2009). In his habeas petition, Avila raised nine grounds for relief. The Respondent opposes the petition on the grounds that some of the claims contain issues of state evidentiary law which are not cognizable on habeas review, some claims are procedurally defaulted or unexhausted, and the state court's decision on the remaining claims was not contrary to or an unreasonable application of clearly established Supreme Court case law. The Petitioner, who is represented by counsel, has withdrawn Ground 8 as it was not raised as a federal issue in the state courts, but disagrees with the Respondent's other arguments and continues to pursue his other grounds for relief.

After careful consideration of the record, and for the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the habeas petition be DENIED.

II. STATEMENT OF FACTS1
The Underlying Crime

On February 25, 2004, an Essex County grand jury returned indictments charging Avila with first degree murder and unlawful possession of a firearm arising out of the death of Jose Crespo on November 6, 2003. SA 5, 77–79. He was convicted of murder in the first degree on the theories of premeditation and extreme atrocity or cruelty and possession of a firearm without a license. See Avila, 454 Mass. at 745, 912 N.E.2d at 1017. As described by the SJC, see id. at 746–50, 912 N.E.2d at 1018–21, the facts which the jury could have found are as follows.2

In the fall of 2003, Avila was good friends with Pedro Cruz, and the two lived two blocks apart in Lawrence, Massachusetts. Avila had access to Cruz's apartment even when Cruz was not there. Cruz drove a white Chevrolet Corsica that Avila had allowed him to register in Avila's name to obtain a lower insurance rate. Cruz sold drugs, and Avila loaned him money to be used for the purchase of cocaine. At some point in October, 2003, Avila introduced Cruz to the victim, Jose Crespo, who Avila knew as “Xavier.” The victim stayed with Cruz for a few days, and also rented a room or apartment from Felipa Marquez, a customer of Cruz. The victim also helped Cruz in his drug trafficking business.

Some days after Cruz met the victim, Cruz went to New York. Avila called him there and reported that $1,000 of cocaine was missing from Cruz's closet. Both Cruz and Avila suspected Crespo of the theft. When Cruz mentioned the theft to the victim, Crespo responded, “Oh well, you know, things happen.” Id. at 746, 912 N.E.2d at 1018.

On November 5, 2003, the day before the murder, Avila called Cruz and told him that while he was at Cruz's apartment, two men had attacked him with a knife. When Cruz arrived home from work he found the apartment “torn apart”; there was “blood all over”; and Avila had cuts and bruises

[938 F.Supp.2d 159]

on his hands and back. Id. at 747, 912 N.E.2d at 1018. Avila told Cruz that he had chased the two men out of the apartment and had seen them get into a car driven by a third man, who he believed was Crespo. Avila put a baseball bat in Cruz's car, and Avila and Cruz drove around looking for the victim, but were unsuccessful. Avila told Cruz that he would like Cruz's help to find the victim the next day.

The next day, Avila called Cruz and again asked for his help in looking for the victim, and indicated that he wanted to determine if the victim was the person who had attacked him. Cruz called his employer and told him he was not coming to work. Then Cruz received a call from the victim, who asked to set up a drug buy, which was promptly arranged. Crespo arrived at the meeting place with two customers, Miguel Perez and Ludim Pagan, got into Cruz's car where Crespo paid for and Cruz provided the drugs, and then delivered the drugs to the customers in their car. Crespo then drove away with Cruz, who had previously advised Avila that he was going to meet with Crespo.

While Cruz and Crespo were driving, Avila called Cruz and made arrangements to meet. At a location on Brook Street, Cruz pulled over and Avila pulled over behind him. Cruz told Crespo that Avila wanted to talk to him, and the victim got out of Cruz's car and walked toward Avila's car. Cruz got out of his car and stayed near his car, but close enough to Avila and the victim to hear them talking. Avila asked the victim if he had stolen money from him and whether he had been part of the attack on him. Although Crespo denied any involvement, Avila pulled a gun out of a bag, and shot him. “At the time of the first shot, the defendant and the victim were approximately five to six feet apart, facing one another. The victim fell to the ground and then struggled to get up. The defendant extended his arm out toward the victim and shot him a second time.” Id. at 748, 912 N.E.2d at 1019.

Cruz drove away in his car (which was registered to Avila), and passed a witness, Harry Milliken, who called in and reported the license plate to police. Id. According to Milliken, and Victor Ayala, another witness who saw a man with a gun, the shooter was not the driver of the white car; rather, the shooter left in another car. See id. at 758, 912 N.E.2d at 1026; SA 152–53.

Some time later, Avila called Cruz and made arrangements to meet him in Methuen. Avila arrived in a different car, and told Cruz that the police had already been to his house, having traced the license plate Milliken had reported, and that Cruz should tell the police that Avila had shot the victim because he was “scared for his life.” Avila, 454 Mass. at 748, 912 N.E.2d at 1019. Cruz went to the police station later that day where he made the first of what was to be three different statements.

The Investigation

In his first statement, Cruz said he had driven the victim to the scene of the shooting in the white Chevrolet Corsica, and claimed that the shooter was an unknown black man who had driven there in a black Honda Prelude. This statement made no mention of Avila. The police were not convinced, and asked Cruz to take a lie detector test. He agreed, and then “failed” the test. Id. at 749, 912 N.E.2d at 1020.

The police subpoenaed the telephone records for Cruz's and Avila's cell phones. As a result of a lead developed from these records, the police interviewed Marquez, the victim's landlord. She reported that she had received a call from a Spanish-speaking male the night before the shooting

[938 F.Supp.2d 160]

warning her to not “let [the victim] in anymore” because “a very dangerous person is looking for [him] to kill him, because they gave him some material that he didn't pay for.” Marquez used a feature on her phone to identify the caller's number, and it was the defendant's cell phone number. Id.

On November 20, 2003, the police interviewed Cruz at his workplace and at the station. He provided additional information, but did not name Avila. Later that night, he called the lead police investigator, Lawrence Detective Michael Laird, and told him that Avila was the shooter. The next day, November 21, 2003, Cruz went to the police station, met with Detective Laird and State Trooper Matthew Gravini, identified Avila as the shooter, and provided a statement consistent with his trial...

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7 practice notes
  • Carrington v. Massachusetts, CIVIL ACTION NO. 19-11552-RGS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 29, 2020
    ...2767091, at *2 (D. Mass. June 17, 2014) (denying habeas petition on ground of failure to give Bowden instruction); Avila v. Clarke , 938 F. Supp. 2d 151, 171 (D. Mass. 2013) (same). Moreover, there demonstrably was no error here because the trial judge did not instruct the jury to disregard......
  • Carrington v. Massachusetts, No. 19-cv-11552-RGS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 3, 2020
    ...WL 2767091, at *2 (D. Mass. June 17, 2014) (denying habeas petition on ground of failure to give Bowden instruction); Avila v. Clarke, 938 F. Supp. 2d 151, 171 (D. Mass. 2013) (same). Moreover, there demonstrably was no error here because the trial judge did not instruct the jury to disrega......
  • Hardy v. Maloney, Civil Action No. 01-cv-10794-PBS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • February 12, 2018
    ...at 485-86). 17. Under Massachusetts law, a trial judge is under no obligation to provide a Bowden-type instruction. Avila v. Clarke, 938 F. Supp. 2d 151, 157 (D. Mass. 2013). "[T]he obligation of the authorities to investigate a crime does not translate into a jury instruction that the auth......
  • Seales v. Thompson, Civil No. 13-11483-LTS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 18, 2015
    ...United States v. Frady, 456 U.S. 152, 168 (1982); accord Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir. 1994); Avila v. Clarke, 938 F. Supp. 2d 151, 171 (D. Mass. 2013). If a petitioner seeks to establish a "fundamental miscarriage of justice" as an alternative to showing cause and prejudice, ......
  • Request a trial to view additional results
7 cases
  • Carrington v. Massachusetts, CIVIL ACTION NO. 19-11552-RGS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 29, 2020
    ...2767091, at *2 (D. Mass. June 17, 2014) (denying habeas petition on ground of failure to give Bowden instruction); Avila v. Clarke , 938 F. Supp. 2d 151, 171 (D. Mass. 2013) (same). Moreover, there demonstrably was no error here because the trial judge did not instruct the jury to disregard......
  • Carrington v. Massachusetts, No. 19-cv-11552-RGS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • September 3, 2020
    ...WL 2767091, at *2 (D. Mass. June 17, 2014) (denying habeas petition on ground of failure to give Bowden instruction); Avila v. Clarke, 938 F. Supp. 2d 151, 171 (D. Mass. 2013) (same). Moreover, there demonstrably was no error here because the trial judge did not instruct the jury to disrega......
  • Hardy v. Maloney, Civil Action No. 01-cv-10794-PBS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • February 12, 2018
    ...at 485-86). 17. Under Massachusetts law, a trial judge is under no obligation to provide a Bowden-type instruction. Avila v. Clarke, 938 F. Supp. 2d 151, 157 (D. Mass. 2013). "[T]he obligation of the authorities to investigate a crime does not translate into a jury instruction that the auth......
  • Seales v. Thompson, Civil No. 13-11483-LTS
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 18, 2015
    ...United States v. Frady, 456 U.S. 152, 168 (1982); accord Ortiz v. Dubois, 19 F.3d 708, 714 (1st Cir. 1994); Avila v. Clarke, 938 F. Supp. 2d 151, 171 (D. Mass. 2013). If a petitioner seeks to establish a "fundamental miscarriage of justice" as an alternative to showing cause and prejudice, ......
  • Request a trial to view additional results

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