Delong v. Brady

• Decision Date: 14 July 2010
• Docket Number: Civil Action No. 05-11334-WGY.
• Parties: Joseph DeLONG, Petitioner, v. Bernard BRADY, Superintendent of the MCI Cedar Junction Correctional Center, Respondent.
• Court: U.S. District Court — District of Massachusetts

723 F.Supp.2d 376

Joseph DeLONG, Petitioner,

v.Bernard BRADY, Superintendent of the MCI Cedar Junction Correctional Center, Respondent.

Civil Action No. 05-11334-WGY.

United States District Court,D. Massachusetts.

July 14, 2010.

COPYRIGHT MATERIAL OMITTED.

James J. Arguin, Maura D. McLaughlin, Argiro K. Shapiro, Jennifer L. Sullivan, Office of the Attorney General, Thomas F. Reilly, Cooley Manion Jones LLP, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

Joseph DeLong, acting pro se, filed this petition for a writ of habeas corpus pursuant to Section 2254 of Title 28 of the United States Code. DeLong seeks to vacate his conviction for Armed Robbery under Massachusetts General Laws Chapter 265 Section 17.1, for which he was sentenced to ten to fifteen years in prison.

DeLong alleges that the Massachusetts Appeals Court erred by upholding the Superior Court's decision to admit prior bad acts evidence. DeLong Mem. in Supp. of App. for Writ of Habeas Corpus (“DeLong Mem.”) at 32-33 [Doc. No. 30]. DeLong claims that admission of the prior bad acts evidence violated his due process rights under the Fourteenth Amendment and his right to a fair trial under the Sixth Amendment. Id.

DeLong also claims he was denied effective assistance of counsel in violation of the Sixth Amendment. DeLong Mem. at 41. Specifically, DeLong claims that trial counsel failed to: (1) suppress incriminating evidence obtained from his motor vehicle after his arrest (Count B-1); (2) present additional alibi witnesses (Count B-2); (3) challenge police testimony concerning the identification of DeLong by an out-of-court witness (Count B-3); (4) object to the jury instruction regarding witness identification testimony (Count B-4); (5) pursue certain defense strategies (Counts B-5, 6, 7, 9, 10); ¹ and (6) suppress identifications of DeLong made through an “unfair” photographic array (Count B-8). ² DeLong Mem. at 42-121.

Respondent Bernard Brady, the superintendent of the MCI-Cedar Junction Correctional Center at Walpole where DeLong is presently incarcerated, ³ argues that DeLong's prior bad act evidentiary claims ought be denied because they allege an error of state law not cognizable on habeas review. Brady Mem. in Opp. to Pet. for Writ of Habeas Corpus (“Brady Mem.”) at 1 [Doc. No. 32]. Brady argues that DeLong's ineffective assistance of counsel claims ought be denied because the Massachusetts Appeals Court's decision on these claims was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Id. at 2.

A. Procedural Posture

DeLong was indicted by a Massachusetts grand jury for armed robbery and tried between August 19 and 25, 1999. DeLong Mem. at 1-2. The jury returned a guilty verdict and DeLong timely filed an appeal on September 21, 1999. Id. at 2. DeLong filed a post-verdict motion for a new trial which was denied on May 30, 2003. Id. DeLong filed a notice of appeal from this denial of a new trial on June 18, 2003. Id. On June 26, 2003, the Appeals Court consolidated DeLong's appeal of the denial of his motion for a new trial and his direct appeal. Id. On appeal, DeLong argued that: (1) the trial court erred in admitting prior bad acts evidence; (2) the probative value of the prior bad acts was not outweighed by their potential for unfair prejudice; (3) his counsel was ineffective in failing to move to suppress evidence the police obtained from DeLong's car on the basis of improper impoundment; and (4) his counsel was ineffective for failing to secure the testimony of two alibi witnesses. See Commonwealth v. Delong, 60 Mass.App.Ct. 528, 533-38, 803 N.E.2d 1274 (2004) (“ Delong I ”). On February 26, 2004, the Massachusetts Appeals Court affirmed DeLong's conviction. Id. at 538, 803 N.E.2d 1274.

DeLong claims that on or about June 28, 2005, he filed a second motion for a new trial in Massachusetts Superior Court, Suffolk County. DeLong Mem. at 2. The motion and accompanying affidavits and memorandum of law, however, were never docketed. Id. On or about June 26, 2006, DeLong mailed a second motion for a new trial with accompanying documentation. Id. This motion was docketed on July 11, 2006. Id.

On July 12, 2006, Superior Court Justice Elizabeth Donovan denied DeLong's second motion for a new trial without a hearing, DeLong Mem. at 2, holding that the issues in DeLong's second motion were either advanced in his first motion for a new trial or could have been so advanced had DeLong's appellate counsel believed them meritorious, Brady Mem. at 3. Justice Donovan also found there to be insufficient grounds to support DeLong's ineffective assistance of counsel claim in light of the overwhelming evidence on the issue of identification. Id.

DeLong timely filed a notice of appeal from this decision on July 20, 2006. DeLong Mem. at 3. On January 9, 2007, DeLong filed his first pro se brief with the Massachusetts Appeals Court, raising nine issues pertaining to the denial of his second motion for a new trial. Brady Mem. at 3. DeLong argued that the Superior Court erred in denying his motion for a new trial without a hearing. Id. DeLong also raised eight ineffective assistance of counsel claims, asserting that trial counsel failed to: (1) investigate a government witness who allegedly misidentified DeLong; (2) object to or appeal Justice Donovan's jury instruction regarding an “honest but mistaken” identification; (3) obtain prior trial transcripts for impeachment; (4) challenge police testimony that a non-testifying witness identified DeLong from a photo array; (5) challenge police testimony that DeLong was depicted in a surveillance video; (6) suppress identification of DeLong based on an unreasonably suggestive photo array; (7) investigate or raise an alibi defense at trial or on appeal; and (8) argue for dismissal of the indictment. See Commonwealth v. Delong, 72 Mass.App.Ct. 42, 46-51, 888 N.E.2d 956 (2008) (“ Delong II ”).

On April 30, 2007, DeLong's appellate counsel filed a supplemental brief raising the following three issues: (1) admission of identification evidence from a non-testifying witness violated DeLong's constitutional right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); (2) trial counsel failed to object to the admission of a non-testifying witness's testimony; and, (3) trial counsel failed to object to the omission from the jury charge of an “honest but mistaken” instruction regarding identification. Brady Mem. at 3-4. On June 13, 2008, the Massachusetts Appeals Court affirmed the denial of DeLong's second motion for a new trial. Delong II, 72 Mass.App.Ct. at 51, 888 N.E.2d 956. ⁴

DeLong and his counsel filed motions for further appellate review with the Massachusetts Supreme Judicial Court on July 2, 2008, and August 25, 2008, respectively. Brady Mem. at 4. The Supreme Judicial Court denied DeLong's request for further appellate review on October 2, 2008. Id.

On June 24, 2005, DeLong filed a petition for a writ of habeas corpus with this Court [Doc. No. 1]. On July 12, 2005, the Court administratively closed the case because DeLong's petition presented grounds not yet exhausted in the courts of the Commonwealth. DeLong's case was thus administratively closed on July 14, 2005. On October 27, 2008, DeLong moved to reopen his case, offering evidence that the Suffolk Superior Court had denied DeLong's application for further appellate review [Doc. No. 7]. On January 15, 2009, this Court allowed DeLong's motion to reopen his case. On March 6, 2009, the government moved to dismiss DeLong's habeas petition as time-barred [Doc No. 11]. On March 27, 2009, this Court allowed that motion and entered an order of dismissal [Doc. No. 13]. After timely applying for an extension of time, on April 27, 2009, DeLong filed an opposition to the government's motion to dismiss his petition as time-barred [Doc. No. 15]. On May 5, 2009, this Court treated DeLong's opposition as a motion for reconsideration of the dismissal, allowed it, and vacated its earlier order of dismissal. DeLong's case was therefore reopened on May 5, 2009.

B. Relevant Factual Background ⁵

1. The Robbery

At approximately 10:00 a.m. on the morning of January 17, 1998, Kevin Beaton, an assistant service manager at the Star Market on Western Avenue in Brighton responded to a page from Richard LaMonica, a part-time service associate who was working in the small “money room” located behind the courtesy booth at the front of the store. The page requested that someone pick up the cash that had been deposited from cash registers into a drop safe located at the front of the store, and to bring such cash to the money room for processing. Beaton went to the safe, accompanied by Aleika Lewis, whom Beaton had asked to witness the pickup of the cash. Beaton counted the money in the safe. Thereafter, he and Lewis walked to the courtesy booth. On their way to the front of the store, a man whom Lewis had previously seen observing them approached Lewis and said, “[e]xcuse me.” Lewis replied, “[j]ust a minute please. I'll be right with you,” and the man moved away.

A few minutes later, the man again approached Lewis and asked to speak to a manager. Lewis attempted to page the store manager, but when he did not respond, she asked Beaton to talk to the man. Beaton inquired as to whether he could help the man with anything. In response, the man approached Beaton and said in a soft voice, “I have a .45 and this is a robbery. I want you to take me into the money room.” The man had his hands in his pockets and did not display a gun.

Beaton took the man into the courtesy booth and asked another service associate who was working there, Angela Wilson, to hand him the money that was in a drawer in the booth. The man said he wanted the money in a bag. Beaton complied, placing the money in a Ziploc bag.

The man then said to Beaton, “I want to go into...