Clarke v. Spencer
| Decision Date | 12 November 2008 |
| Docket Number | Civil No. 06-10572-RCL. |
| Citation | 585 F.Supp.2d 196 |
| Parties | Alton CLARKE, Petitioner v. Luis SPENCER, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Victoria L. Nadel, Boston, MA, for Petitioner.
Susanne G. Reardon, Daniel I. Smulow, Office of the Attorney General, Trial Division, Boston, MA, for Respondent.
Alton Clarke ("Clarke") filed this petition for a writ of habeas corpus to challenge his detention pursuant to Section 2254(d) of Chapter 28 of the United States Code. Clarke is serving a twelve-year sentence for rape and kidnapping at MCI-Norfolk. Clarke alleges that during his retrial upon reversal of prior convictions, the ambiguity of identically worded verdict slips, which acquitted him of one count of rape while convicting him of two other rape counts, subjected him to double jeopardy. Clarke further alleges that the prosecution impermissibly used his act of terminating his post-arrest interview to imply guilt and thus violated his right to remain silent.
Respondent Luis Spencer ("Spencer"), the Superintendent of MCI-Norfolk, opposes the petition, arguing that Clarke's double jeopardy claim is procedurally defaulted as it was not raised during state proceedings and that Clarke has not overcome the default by demonstrating cause for the default and prejudice from it or, alternatively, that he is actually innocent. Spencer further claims that use of Clarke's post-arrest testimony during his cross-examination is permissible impeachment.
Clarke was convicted of kidnapping and raping the complainant, Dawn Rose. Rose testified that Clarke pointed a gun at her, forced her to get into his car, and drove her to a house, which she later identified as 22 Skyview Lane. Once inside the house, Rose testified that Clarke raped her by first inserting the gun into her vagina, then by inserting his penis into her vagina, and finally by inserting his penis into her mouth. Approximately three weeks later, Rose recognized and identified Clarke as the man who raped her when, by chance, she ran into him at Boston City Hospital. After a chase by Rose's boyfriend and hospital security guards, Clarke was apprehended and taken into custody by Boston Police officers.
Detective Gavin of the Boston Police Department interviewed Rose at the hospital, where she described the incident, including the inside of 22 Skyview Lane. Clarke was taken to the police station and, after being read Miranda warnings, agreed to speak with Gavin. Gavin testified that during the interview Clarke initially denied ever having taken guests to 22 Skyview Lane, a house owned by his friend. When questioned about how the complainant might have been able to describe the inside of the house, Clarke indicated that he had nothing more to say on the subject and Gavin terminated the interview.
At trial Clarke testified that he was approached by Rose while shopping at a store and was offered sexual services in exchange for a fee. He stated that they agreed to the payment of forty dollars "up front" and the remaining forty dollars upon arrival at their destination. Clarke then took Rose to 22 Skyview Lane, where he told her he did not have the funds to pay her. After Rose refused to return the forty dollars, Clarke testified that he took back his money from her, at which point, Rose became angry and threatened to accuse Clarke of rape.
Clarke was charged with assault and battery with a dangerous weapon, kidnapping, and three counts of aggravated rape, one count for each different form of penetration. Clarke's first trial, in January, 1997, resulted in a mistrial when the jury failed to reach a unanimous verdict.
Clarke was retried in August, 1997, on the same charges. The verdict slips for the aggravated rape charges were numbered but otherwise identically worded, and the trial judge instructed the jury about how the counts corresponded to the verdict slips. The jury convicted Clarke of kidnapping and two counts of the lesser included rape offenses and acquitted him of the assault and battery with a dangerous weapon and the third count of rape.
Clarke appealed, arguing that testimony regarding his post-arrest silence was impermissibly used to imply his guilt, contrary to Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The Appeals Court agreed and reversed his convictions, setting aside the verdict on January 27, 2000. Commonwealth v. Clarke, 48 Mass.App.Ct. 482, 722 N.E.2d 987 (2000) (hereinafter "Clarke II"), appeal denied, Commonwealth v. Clarke, 431 Mass. 1103, 733 N.E.2d 124 (2000) (unpublished table decision).
Following the reversal, the Commonwealth again retried Clarke in August of 2001 on the remaining two lesser counts of rape and kidnapping. At the start of the third trial, Clarke moved to dismiss the charges, claiming the prosecutor's willful violations and attempts to "goad" Clarke into a mistrial were impermissible double jeopardy violations. The trial judge denied the motion and Clarke appealed the denial, pursuant to Massachusetts law, to a single justice of the Massachusetts Supreme Judicial Court, who also rejected it.1
The third trial judge granted Clarke's motion in limine, precluding the prosecution from asking about the detective's question that led Clarke to terminate his interview. The trial judge also sustained all objections during cross-examination of Clarke that concerned the termination of his interview. During closing argument, the prosecution commented on the inconsistencies between the initial story told to Detective Gavin and the story presented at trial but the jury was instructed not to treat closing arguments as evidence. Clarke was again found guilty of kidnapping and both counts of rape and subsequently sentenced to the twelve years he is currently serving.
Clarke appealed this verdict, again claiming impermissible use of his post-arrest interview termination to imply his guilt. He further argued that the third trial was a violation of double jeopardy because it was unclear on which rape count he had previously been acquitted, as the verdict slips were identically worded. The Appeals Court affirmed all the convictions, ruling that the prosecution's arguments were proper and the judge's motions to limit post-arrest testimony prevented any Doyle violations. Commonwealth v. Clarke, No. 02-P-891, 60 Mass.App.Ct. 1105, 799 N.E.2d 605, 2003 WL 22881000 (Dec. 5, 2003) (unpublished table decision) (hereinafter "Clarke III"). The Appeals Court held that the double jeopardy claim was barred as it was raised for the first time on appeal. The Court also noted that even had the claim been properly raised, its underlying assumptions were invalid since jury instructions clearly set out the order of the counts of the indictment and the corresponding verdict slips. The Supreme Judicial Court denied further appellate review on March 31, 2004.
On June 10, 2005, Clarke filed a pro se motion in Suffolk Superior Court asking for a Required Finding of Not Guilty or a New Trial, pursuant to Rule 25(b)(2) of the Massachusetts Rules of Criminal Procedure, which is still pending. On March 31 2006, Clarke filed this petition for a writ of habeas corpus claiming that his conviction was obtained in violation of his protection against double jeopardy and privilege against self-incrimination.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a petition for a writ of habeas corpus shall not be granted for any claims that were adjudicated on the merits in state court unless the adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1); Yarborough v. Alvarado, 541 U.S. 652, 655, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). For a state court decision to be contrary to clearly established law, it must "appl[y] a rule that contradicts the governing law set forth in [the Supreme Court] cases" or "confront[ ] a set of facts that are materially indistinguishable from a decision of Court and nevertheless arrive[ ] at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Federal courts may also grant the petition under the "unreasonable application" clause, if the state court correctly identifies the governing legal principles but unreasonably applies those principles to the facts of the case. Id. at 407, 120 S.Ct. 1495. In deference to state courts, application of the law must be not merely incorrect but "objectively unreasonable". See id. at 409, 120 S.Ct. 1495.
State prisoners are required to exhaust their available state remedies before petitioning the Federal courts for habeas relief. 28 U.S.C. § 2254(b)-(c) (2006); see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). Clarke has fully exhausted the available state remedies for the claims raised in this petition and may therefore be heard by this Court. On appeal, Clarke raised both the double-jeopardy and the Doyle claim, citing Supreme Court precedent and the U.S. Constitution to alert the state courts to the federal nature of his claims. See Petitioner's Appellate Brief 16, 24 (Docket No. 5). The Appeals Court of Massachusetts upheld the judgment, and the Supreme Judicial Court denied further review.2 Clarke III, 60 Mass.App.Ct. 1105, 799 N.E.2d 605, 2003 WL 22881000, at *1, *2, appeal denied, Commonwealth v. Clarke, 441 Mass. 1105, 806 N.E.2d 102 (2004) (unpublished table decision).
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