Barresi v. Maloney, CIV.A. 00-10403-EFH.

Citation273 F.Supp.2d 144
Decision Date24 July 2003
Docket NumberNo. CIV.A. 00-10403-EFH.,CIV.A. 00-10403-EFH.
PartiesWilliam A. BARRESI, II, Plaintiff v. Michael J. MALONEY, Defendant.
CourtU.S. District Court — District of Massachusetts
273 F.Supp.2d 144
William A. BARRESI, II, Plaintiff
Michael J. MALONEY, Defendant.
No. CIV.A. 00-10403-EFH.
United States District Court, D. Massachusetts.
July 24, 2003.

Page 145


Page 146

Kenneth G. Littman, Peppard & Littman, Fall River, MA, for William A. Barresi, II, Plaintiff.

Linda A. Wagner, Attorney General's Office, Boston, MA, for Michael J. Maloney, Defendant.


HARRINGTON, Senior District Judge.


Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He argues that he was deprived of rights protected by the Sixth and Fourteenth Amendments of the United States Constitution by the trial judge's application of the Massachusetts Rape Shield Statute, Mass.Gen.L. ch. 233, § 21B. As a writ of habeas corpus will not ordinarily issue because of evidentiary errors, petitioner must persuade the Court that, regardless of whether the trial judge's decisions were correct as a matter of state law, they "so infuse[d] the trial with inflammatory prejudice as to [have] render[ed] a fair trial impossible." Allen v. Snow, 635 F.2d 12, 15 (1st Cir.1980); DiBenedetto v. Hall, 176 F.Supp.2d 45, 54 (D.Mass.2000); Domaingue v. MacDonald, 978 F.Supp. 53, 57 (D.Mass.1997). As described below, the Court concludes the petitioner has not met this burden. Accordingly, the petition is denied.

I. Procedural Background

After a jury trial in Massachusetts Superior Court in October, 1995, Petitioner William A. Barresi, II, was found guilty of rape of a child by use of force (Mass. Gen.L. ch. 265, § 22A), and indecent assault and battery on a child under fourteen years of age (Mass.Gen.L. ch. 265, § 31B). He was sentenced to not more than ten years, nor less than six, on the conviction of rape of a child by use of force and not more than five years, nor less than three, on the indecent assault and battery on a child under the age of fourteen. The latter sentence was to be suspended for five years and served from and after the sentence imposed for the former offense. The Massachusetts Appeals Court affirmed the conviction by written opinion. Commonwealth v. Barresi, 46 Mass.App.Ct. 907, 705 N.E.2d 639 (1999). The Massachusetts Supreme Judicial Court ("SJC") denied further appellate review. Commonwealth v. Barresi, 429 Mass. 1106, 710 N.E.2d 604 (1999). Barresi then petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court granted the respondent's motion to dismiss Barresi's petition on September 13, 2000, on the ground that the petitioner had failed to present his claim to the SJC as posing a federal constitutional question and, thus, his state remedies were not exhausted as required by 28 U.S.C. § 2254(b)(1) and (c). On July 23, 2002, the United States Court of Appeals for the First Circuit vacated this Court's dismissal, having concluded that the petitioner had exhausted his state remedies. Barresi v. Maloney, 296 F.3d 48 (1st Cir.2002). The case was remanded to this Court for further proceedings. On April 30, 2003, this Court dismissed the petition again because petitioner's memorandum of law

Page 147

filed subsequent to the First Circuit's opinion raised claims not passed on by the First Circuit, nor argued in petitioner's appeal to the SJC. On June 9, 2003, the Court granted a motion by petitioner and assented to by respondent to amend the petition and file a substitute memorandum.

II. Petitioner's Trial

At trial, the complainant testified that on many occasions in the period between March, 1993 and August, 1993, Barresi, her stepfather, assaulted and raped her. The complainant was thirteen years old at the time of the incidents. The assaults and rapes typically took place at home in the afternoon, after the petitioner had returned from work and before the victim's mother came home.

The Commonwealth also offered testimony by the complainant's brother. He testified that on one occasion he saw the petitioner straddling the victim, who was lying on a couch. According to the victim's brother, the petitioner screamed at him, ordering him outside.

The victim's mother, the petitioner's wife, testified that in the evening on the date that the complainant made her complaint to the police, the mother and the petitioner had arrived home to find three teenage boys asking for the complainant. The complainant's mother asked Barresi to look for the complainant. When Barresi returned with the victim, she and her mother, who was very angry, talked for approximately fifteen minutes. Subsequently, the victim left the house and went to the police station where she made her complaint against the petitioner. The Commonwealth also presented fresh complaint evidence in its case against the petitioner.

At trial, the petitioner denied assaulting and raping the complainant. Instead, he contended that she fabricated the allegations because she was angry about the discipline imposed upon her because it interfered with her relationship with boys. The petitioner also advanced the theory that the complainant was engaged in sexual relations with one or more male teenagers and, therefore, had a motive to lie — her fear that her mother would learn of these relationships and discipline her. To present these theories to the jury, petitioner filed a pretrial motion pursuant to the Commonwealth's Rape Shield Statute, Mass.Gen.L. ch. 233, § 22B.1 Barresi's petition for a writ of habeas corpus is grounded on the trial court's denial of two forms of evidence he sought to admit in this motion: expert testimony that the complainant was infected with the sexually transmitted disease chlamydia during the time of the incidents, but that the petitioner had not become infected; and evidence of the complainant's sexual history.

Page 148

A. Doctor's Testimony

More specifically, in the pretrial motion, petitioner set out facts to show that on August 24, 1993, the complainant tested positive for chlamydia, whereas petitioner's 1994 culture and a 1995 serology test were negative. The petitioner sought to admit these test results to establish that he could not have raped the victim without contracting chlamydia and, therefore, the allegations against him must have been fabricated.

At an evidentiary hearing on the motion, the petitioner called his own physician. The doctor defined chlamydia and explained, in general, the meaning of an incubation period. The physician acknowledged he had never treated a patient for chlamydia. "My practice is basically one of treating adult, elderly people, so my experience with sexually transmitted diseases is not very extensive," he told the court. Instead, petitioner's proffered witness indicated his testimony was based on recent reading about the disease. This reading, he said, indicated that someone who tested positive on August 24, 1993, as the complainant did, would have to have been infected two to three weeks earlier, meaning the complainant carried chlamydia during the time of at least some of the alleged assaults and rapes.

The trial court ruled that the doctor could not testify in part because his knowledge of chlamydia was based entirely upon his readings. The trial court also determined that he had insufficient experience in the area to give any opinion concerning the incubation period, for what period of time the victim could have transmitted the disease, and the likelihood of transmission during that period. On this point, the doctor had said, "When I reviewed the references that I had, I could not get any specific numbers as to how many people ... who actually get exposed actually come down with the infection. I'm not sure that that kind of data is available."

B. The Victim's Sexual History

Also in his pretrial motion, the petitioner sought to introduce evidence that on or about August 18, 1993 and on prior occasions, the complainant had sexual intercourse with James Costa, one of the teenage boys who had come to the house looking for her on the night she made her complaint to police. The trial court denied this portion of the motion "without prejudice," indicating that "if the testimony raises these issues again, we'll deal with it again."

During the course of the trial, the petitioner repeatedly sought to introduce this evidence. Specifically, during cross-examination of the victim, defense counsel inquired about her relationship with the boy. On each occasion, the Commonwealth objected and the trial court sustained the objection.

III. The Habeas Corpus Standard

The standard for reviewing a petition for a writ of habeas corpus is set forth in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996). Because the petitioner is in state custody, his application for habeas review is controlled by 28 U.S.C. § 2254(d)(1). This statute permits a federal court to issue a writ of habeas corpus if the underlying state adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Under the "contrary to" prong, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme

Page 149

Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A writ is appropriate under the "unreasonable application" prong "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. To be an unreasonable application of Supreme Court precedent, "some increment of incorrectness beyond error is required." McCambridge v. Hall, 303 F.3d 24, 36...

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