Delgado v. Dennehy, Civil Action No. 04-30124-MAP.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Citation: 503 F.Supp.2d 411
• Docket Number: Civil Action No. 04-30124-MAP.
• Parties: Alex DELGADO, Petitioner v. Kathleen M. DENNEHY, Commissioner of Corrections, Respondent.
• Decision Date: 27 August 2007

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503 F.Supp.2d 411 Alex DELGADO, Petitioner
v.
Kathleen M. DENNEHY, Commissioner of Corrections, Respondent. Civil Action No. 04-30124-MAP. United States District Court, D. Massachusetts. August 27, 2007.

Page 412

John M. Thompson, Thompson and Thompson, PC, Springfield, MA, for Petitioner.

Annette C. Benedetto, Department of Attorney General, Boston, MA, for Respondent.

MEMORANDUM REGARDING RESPONDENT'S MOTION TO DISMISS (Dkt. No. 25)

PONSOR, District Judge.

I. INTRODUCTION

Petitioner Alex Delgado, a state prisoner serving a life term for his participation in a 1992 murder, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Kathleen M. Dennehy has moved to dismiss his petition, arguing that none of the arguments offered by Petitioner entitles him to the relief he seeks.

On March 19, 2007, this court allowed Respondent's motion. This memorandum will set forth the reasons supporting that ruling.

II. STANDARD OF REVIEW

A. AEDPA

Pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), a petition for habeas corpus may only be granted if the state court's 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." 28 U.S.C. § 2254(d)(1).

According to the Supreme Court, the "contrary to" prong of § 2254(d)(1) covers instances where "a state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or "the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a [different] result." Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J.). "Avoiding these pitfalls does not require" a state court to cite the controlling Supreme Court case — "indeed, it does not even require awareness of [the controlling case], so long as neither the reasoning nor the result of the state-court decision contradicts [it]." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam); see also Bell v. Cone, 543

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U.S. 447, 455, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005).

The "unreasonable application" prong of § 2254(d)(1) is implicated whenever a state court "correctly identifies the governing legal principle from the Supreme Court's decisions but then unreasonably applies that principle to the facts of the prisoner's case." Caputo v. Nelson, 455 F.3d 45, 49 (1st Cir.2006) (citation omitted). In determining whether a state-court decision unreasonably applies Supreme Court precedent, "a federal habeas court should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409, 120 S.Ct. 1495. As the First Circuit has noted, "an erroneous or incorrect application is not necessarily an unreasonable application." McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir.2002) (en banc) (citation omitted).

In addition, under AEDPA, a factual determination "`made by a State court shall be presumed to be correct,' and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence.'" Obershaw v. Lanman, 453 F.3d 56, 59 (1st Cir.2006) (quoting 28 U.S.C. § 2254(e)(1)), cert. denied, ___ U.S. ___, 127 S.Ct. 957, 166 L.Ed.2d 727 (2007). "For this purpose, `facts' are defined as basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators." Sanna v. Dipaolo, 265 F.3d 1, 7 (1st Cir.2001) (citation omitted).

Ultimately, AEDPA's standard of review, while strict, "only applies, ... when the state court decided the federal issue." Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir.2001), cert. denied, 535 U.S. 1018, 122 S.Ct. 1609, 152 L.Ed.2d 623 (2002). In cases where the state court declines or neglects to address a constitutional claim raised by a petitioner, a federal district court must review that claim de novo. Watkins v. Murphy, 292 F.3d 70, 75-76 (1st Cir.2002).

B. Fed.R.Civ.P. 12(b)(6).

"Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts provides that the Federal Rules of Civil Procedure apply to the extent that they are not inconsistent with [habeas] rules." Banks v. Dretke, 540 U.S. 668, 687 n. 8, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004); see also Fed.R.Civ.P. 81(a)(2).

Motions to dismiss habeas petitions pursuant to Fed.R.Civ.P. 12(b)(6) are not inconsistent with habeas rules. Thus, in rifling on a respondent's motion to dismiss for failure to state a claim upon which relief may be granted, a district court is "obliged to assume all facts pleaded by [the petitioner] to be true." Walker v. True, 399 F.3d 315, 319 (4th Cir.2005) (Luttig, J.) (citation omitted), vacated on other grounds by 546 U.S. 1086, 126 S.Ct. 1028, 163 L.Ed.2d 849 (2006).

Of course, this assumption does not apply to factual determinations made by the state courts, which are presumed to be correct absent clear and convincing evidence to the contrary.

III. BACKGROUND

A. The Crime.¹

On September 13, 1992, Arnaldo Esteras, Carlos Rodriguez, and Carlos Cruz were standing on a Springfield street corner

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when Ismael Cintron walked by wearing his "Latin Kings" beads. Commonwealth v. Arriaga, 438 Mass. 556, 559, 781 N.E.2d 1253 (2003). Esteras demanded that Cintron "[t]ake off the mother fucking beads" and "Rodriguez threatened to give Cintron an "ass whipping" if he did not. Id.

Cintron complied but later "reported the incident" to other Latin Kings, including Petitioner, the gang's vice-president. The leaders of the Latin Kings concluded that Esteras should be "terminated" for the insult and armed Cintron and Hector Arriaga with a gun and a knife in order to carry out their "mission." Id.

At approximately 9:15 P.M., Arriaga used the gun to shoot Esteras three times. The sixteen year-old died from these wounds in the emergency room of a Springfield hospital about fifteen minutes later. Id. at 560, 781 N.E.2d 1253.

Shortly after the shooting, another Latin King named Cruz Gonzalez drove Cintron and Arriaga to Hartford, Connecticut, where they disposed of the gun, along with their dark, hooded sweatshirts and a stolen license plate that had been affixed to the getaway car. Id.

When several witnesses to the murder identified Cintron as a participant, Springfield police officers went to the local Latin Kings headquarters, an apartment at 95 Bancroft Street. There, they found a jacket bearing Cintron's street name, and Arriaga's wallet. Id.

Gonzalez and Cintron were arrested when they returned to Springfield on the morning of September 14, 1992, and Amherst police took Petitioner into custody later that same day. The following day, Gonzalez informed law enforcement officers where they could find the stolen registration plate, the sweatshirts, and the gun. Petitioner's fingerprint eventually turned up on the registration plate. Id.

B. Pre-Trial Proceedings.²

On October 2, 1992, a Hampden County grand jury indicted Arriaga on one count of first degree murder and one count of conspiracy to commit murder. On January 19, 1993, it charged Petitioner with being an accessory before the fact to the murder, and the two cases were subsequently joined.

Prior to Petitioner's trial, the grand jury charged a number of other individuals who participated in the decision to kill Esteras with conspiracy to commit murder. (See Dkt. No. 8, Ex. 2, R.App. of Appellant Delgado on Appeal to SJC 155.) During the pre-trial phase of Petitioner's case, the Commonwealth informed Petitioner that Maria Mercado, one of the alleged conspirators, would be a witness against him and her "cooperation, including her truthful testimony," would be taken "into consideration in resolving the charge pending against her." (Did. No. 43, Ex. B, Letter from Laurel H. Brandt, Asst. District Att'y, to David P. Hoose, Esq., Greg T. Schubert, Esq., Terrance M. Dunphy, Esq., Richard J. Rubin, Esq., Andrew M. Klyman, Esq., and Terry Scott Nagel (May 6, 1993).)³

During Petitioner's pre-trial detention, the trial judge found that Petitioner "and

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Arriaga, along with other Latin King members, joined in an orchestrated effort to intimidate witnesses, including Maria Mercado." (Dkt. No. 8, Ex. 4, R.App. of Appellant Arriaga on Appeal to SJC 298.) As part of this campaign, Petitioner "wrote to Mercado from his jail cell following his arrest and in that correspondence made it clear that her children's safety was in jeopardy if she didn't remain silent about what happened." (Id. at 322-23.)

Prior to their trial, Petitioner and Arriaga moved for a change of venue due, in part, to prejudicial publicity. In response to this motion, the trial judge elected to impanel the jury in Essex County and bring the jurors to Hampden County for the trial. According to the trial judge, Petitioner and Arriaga not only consented to this arrangement but "suggested Essex County as an appropriate locus from which to choose the trial jurors" based on the fact that "the percentage of citizens of Hispanic origin or heritage in Essex County was comparable to that of Hampden County." (Id. at 289.)⁴

Jury selection began on September 7, 1993. While 350 prospective jurors were summoned each day, a large number of them did not respond and a great many others who did show up were excluded for cause.⁵ Accordingly, it took four days to pick a jury of sixteen.

As this process unfolded, Petitioner's trial counsel came to believe that African American and Hispanic residents of Essex County were grossly underrepresented in the array. On September 8, 1993, he noted the dearth of nonwhite prospective jurors and lodged an objection to the array for that reason. (See Dkt. No. 29, Trial Tr. vol. 2, 164:12-166:12, Sept. 8, 1993.)

On September 10, 1993,...