Barbosa v. Norfolk Superior Court
| Decision Date | 18 November 2011 |
| Docket Number | Civil Action No. 10-10159-DJC |
| Parties | RICARDO BARBOSA, Petitioner, v. NORFOLK SUPERIOR COURT and THE MASSACHUSETTS DEPARTMENT OF CORRECTION, Respondents. |
| Court | U.S. District Court — District of Massachusetts |
Petitioner Ricardo Barbosa filed a writ of habeas corpus ("Petition") pursuant to 28 U.S.C. § 2254 alleging that he is entitled to relief because his due process rights were violated when the Norfolk Superior Court, in determining that Barbosa violated his probation and sentencing him for that violation, considered conduct not specified in the probation surrender notice. Barbosa has also filed a series of separate motions and requests with the Court, styled as a motion to expand the habeas petition and record (D. 28), a motion for leave to file late notice of appeal from a state court order (D. 35), a motion "for leave and pause habeas corpus writ" (D. 38), a motion to strike (D. 39), a motion for this Court to remove the attorney representing the Respondents in this matter (D. 49), a motion to remove the "multi-victim" status of the case (D. 53), and a motion to "argue [an] issue not addressed during exhaustion of state remedies." (D. 54). For the reasons set forth below, Barbosa's petition and his various motions are each DENIED.
Barbosa was indicted in Suffolk County on December 31, 2003 for indecent assault and battery on a person 14 or over, contributing to the delinquency of a child, assault with a dangerous weapon, assault and battery, statutory rape of a child and threat to commit a crime. (Respondents' Supplemental Answer, D. 15 at 4, 9).1 He pled guilty on March 25, 20052 and was sentenced to three years of incarceration followed by ten years of probation. (D. 15 at 7). On November 5, 2007, Barbosa moved to vacate his sentence. (D. 15 at 8). The motion was denied the same day by the Suffolk Superior Court. (D. 15 at 8). Barbosa appealed on November 29, 2007. (D. 15 at 8). On December 21, 2007, Barbosa filed a separate motion to revise and revoke his sentence. (D. 15 at 8). Again, the motion was denied the same day by the Suffolk Superior Court and Barbosa appealed. (D. 15 at 8-9). Barbosa's two appeals were consolidated and the Massachusetts Appeals Court affirmed each of the Suffolk Superior Court's denials. Commonwealth v. Barbosa, 73 Mass. App. Ct. 1125 (2009) (Table). Barbosa appealed to the Supreme Judicial Court, which denied further review. Commonwealth v. Barbosa, 453 Mass. 1109 (2009) (Table).
Barbosa was indicted in Plymouth County on March 28, 2003 for one count of resisting arrest and multiple counts of receiving a stolen motor vehicle, operating a motor vehicle with asuspended license, malicious damage to a motor vehicle, assault, assault and battery on a public employee, threat to commit a crime, and possession of a Class D controlled substance. (Appendix to Respondents' Memorandum, D. 36-1 at 7). On December 7 and 8, 2005, Barbosa was found guilty or pled guilty to counts of resisting arrest, malicious damage to a motor vehicle, operating a motor vehicle with a suspended license, assault and battery on a public employee, threat to commit a crime, and possession of a Class D controlled substance, and was sentenced to one year of incarceration followed by three years of probation. (D. 36-1 at 6-7). He did not appeal this conviction. (D. 36-1 at 7).
Supervision for Barbosa's probation pursuant to his convictions in Suffolk County and Plymouth County were transferred to the Norfolk Superior Court. (D. 15 at 10-20). On January 25, 2007 a probation surrender notice issued, alleging that Barbosa had violated his probation in Quincy on January 6, 2007 by having committed an assault and battery ("Quincy charge")3 and in Brockton on January 13, 2007 by having committed an assault by means of a dangerous weapon, two counts of threatening to commit a crime, and assault and battery on a police officer ("Brockton charges").4 (D. 15 at 66). After the surrender notice issued, the Quincy district court charges were supplanted by indictment for attempted murder, kidnapping, threats, assault and battery and malicious destruction of property. (D. 15 at 60).
Barbosa's probation revocation evidentiary hearing was held in Norfolk Superior Court on June 27, 2007. (D. 15 at 14, 143). For purposes of the revocation hearing, Barbosa stipulated to the Brockton charges as set forth in his probation surrender notice, but did not stipulate to the Quincy charge as set forth in the notice or to the charges that superseded the Quincy charge. (D. 15 at 145-46, 153, 184, 227). At the commencement of the probation surrender hearing defense counsel argued that, because the defendant had stipulated to the Brockton charges, there was no necessity for the judge to hear evidence concerning the Quincy episode. (D. 15 at 145-47). The judge disagreed, stating:
Well, it seems to me that the nature of the violation is very significant for purposes of disposition. So, if [the prosecution and Mr. Barbosa's counsel] don't agree about disposition, and therefore I'm going to need to make a decision about disposition, then I'm going to need to know what the violation is. And if you stipulate to one violation and not to the other, then I need to make a decision about whether there's a violation on the other ground because that bears on disposition.
(D. 15 at 147). The judge then heard evidence about events surrounding the Quincy episode - including not only the pending charges but also allegations regarding an uncharged rape - to which the defendant did not object. Specifically, the judge heard the testimony of the Quincy Police Officer who received a request from the mother of Barbosa's children for a restraining order and the pursuit of criminal charges against Barbosa and the testimony of the Quincy Police Detective who subsequently interviewed the mother of Barbosa's children and investigated the allegations she made to police regarding Barbosa's conduct. (D. 15 at 164-226). Both officers discussed the facts constituting the Quincy episode. (D. 15 at 164-226). After hearing the evidence, the judge found that the Quincy episode "amount[ed] to a violation of the law and the condition of probation that [Barbosa] was subject to," and stated that (D. 15 at 237-38).
The court then turned to sentencing and disposition. The court examined a mental health evaluation of Barbosa prepared by Bridgewater State Hospital and provided to the court by Barbosa's counsel and a copy of Barbosa's criminal history and restraining order history provided by the prosecution. (D. 15 at 242-45, 252-58). Barbosa's counsel objected to the inclusion of the latter materials, but was overruled by the judge, who stated, (D. 15 at 258). Barbosa then made a series of statements to the court on his own behalf. (D. 15 at 259-61, 264-71). The mother of Barbosa's children also made a statement to the court, in which she expressed her preference that Barbosa not be incarcerated. (D. 15 at 273). At the close of the hearing, the judge revoked the defendant's probation on all three Suffolk counts and sentenced the defendant to two to three years in state prison on the count of assault and battery by means of a dangerous weapon. (D. 15 at 274). Probation was to remain in effect to the end of the unexpired term on the remaining two counts. (D. 15 at 274). On the Plymouth counts, the judge extended the defendant's probation for an additional ten years on all the counts, subject to certain conditions. (D. 15 at 274-76). The defendant's subsequent motion to revise and revoke was granted, and the defendant was given a revised sentence of one year in the house of correction to run concurrently with his prison sentence on the Suffolk charges. (D. 15 at 19).
Barbosa appealed to the Massachusetts Appeals Court, alleging that his due process rightswere violated when he was found in violation of probation based on criminal violations not specified in the probation surrender notice. (D. 15 at 42-45). The Appeals Court affirmed the revocation. Commonwealth v. Barbosa, 73 Mass. App. Ct. 1122, at *2. Barbosa then appealed to the Massachusetts Supreme Judicial Court, which denied further review on April 7, 2009. Commonwealth v. Barbosa, 453 Mass. 1109 (2009) (Table).
Barbosa filed this Petition on February 2, 2010. (D. 1). The Petition includes two counts: first, that his federal due process rights were violated because the state court relied upon conduct not specified in the probation surrender notice to determine both whether Barbosa had violated his probation and what sentence to impose as a result, and second, that his Fifth Amendment protection against double jeopardy was violated based on duplicative convictions resulting from his March 25, 2005 guilty plea in the Suffolk proceedings. (D. 1 at 6, 8). On November 22, 2010, over Barbosa's objection, the Court dismissed the second count as time-barred. (D. entry for 11/22/10). Barbosa appealed the dismissal on January 3, 2011. (D. 18). The United States Court of Appeals for the First Circuit dismissed the appeal as premature and held that Barbosa must wait until his timely due process claim is adjudicated by this Court before obtaining appellate review. (D. 24). The First Circuit's mandate issued and the record was returned to this Court on April 14, 2011. (D. 25).
In addition to his due process...
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