Dias v. Maloney, Civ.A. 00-10845-WGY.

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Citation156 F.Supp.2d 104
Docket NumberNo. Civ.A. 00-10845-WGY.,Civ.A. 00-10845-WGY.
PartiesGilbert DIAS, Petitioner, v. Michael T. MALONEY, Respondent.
Decision Date02 August 2001
156 F.Supp.2d 104
Gilbert DIAS, Petitioner,
Michael T. MALONEY, Respondent.
No. Civ.A. 00-10845-WGY.
United States District Court, D. Massachusetts.
August 2, 2001.

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Gilbert Dias, Concord, NH, pro se.

Michael T. Maloney, Department of Correction, Legal Division, Milford, MA, pro se.

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Linda A. Wagner, Attorney General Office, Criminal Division, Boston, MA, pro se.


YOUNG, Chief Judge.

Gilbert Dias ("Dias") was convicted of second-degree murder in 1975 and was sentenced to life in prison. He now petitions this Court, pro se, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that the Commonwealth of Massachusetts is holding him in violation of the Constitution and laws of the United States.


Over the past twenty-five years, numerous state and federal courts have addressed myriad challenges brought by Dias against his conviction. In order to place Dias's current petition in context, this Court will begin by summarizing what transpired at these earlier proceedings.

A. Facts

On direct appeal, the Massachusetts Supreme Judicial Court fully summarized the evidence presented at trial against Dias. This Court adopts that recitation of facts, as is proper absent clear and convincing evidence that casts doubt on the state court's determination. See 28 U.S.C. § 2254(e)(1); Hurtado v. Tucker, 245 F.3d 7, 10 & n. 4 (1st Cir.2001); Avellar v. DuBois, 30 F.Supp.2d 76, 79 (D.Mass.1998) (Stearns, J.) (citing, inter alia, Sumner v. Mata, 449 U.S. 539, 545-46, 101 S.Ct. 764, 66 L.Ed.2d 722 [1981]).

On the evening of March 15, 1974, the victim Gerald Travis (Travis), accompanied by Russell Greene (Greene), and Fernando Mello (Mello), went to a bar, The Republican Club, in Fall River. There the group met another friend, Thomas Wing (Wing). Each of them consumed several beers. In the course of the evening, the young men traveled to another bar where they continued their beer drinking and socializing until closing time, whereupon they proceeded to a third tavern, which had also closed. Not yet ready to call an end to the evening's activities, Mello's companions accepted his invitation to go to Dias's apartment; Mello, the only member of the group acquainted with Dias, had been staying at his apartment for several days prior to March 15.

Though no one was at home, the group entered the apartment, and, while Mello gave Wing and Greene a tour of the premises, Travis retired to the kitchen and began frying eggs and sausages. In the course of their tour, Mello happened on two shotguns leaning against the bureau in Dias's bedroom and a box of shotgun shells atop the bureau. One of the shotguns, from which the parties agree the fatal shot was fired, was capable of firing only once, and then had to be "broken open" to be reloaded. Although noticing that this gun was unloaded, Mello, wary that his friends might engage in horseplay, hid the gun under a couch in the livingroom and put the bullets in Dias's bureau.

Soon after, Dias returned to his apartment in the company of several friends. Except for Dias, no one in the group arriving was acquainted with any member of Mello's party. Dias appeared upset. According to various accounts, this was because he had lost his wallet, because of the unexplained presence of unknown persons who had placed the kitchen in a state of disarray, or because he could not locate his guns. At any rate, Dias found a gun and shells, loaded the gun, and came into the kitchen. He pointed the gun at Greene, and demanded that the premises be vacated.

There was a conflict in the testimony as to what transpired thereafter. Mello,

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Greene, and Wing, whose accounts essentially coincided, testified that as Dias entered the kitchen the shotgun was in the "closed" position and the hammer was cocked. Greene pushed the barrel of the shotgun away from his face. At the same time, Travis jumped toward Dias, the lights went out momentarily, and Travis was fatally shot.

Michael Sturgeon (Sturgeon), the only defense witness, was in the group which accompanied Dias to the apartment.1 He testified that as Dias came into the kitchen, the shotgun which he was brandishing was in the "broken" position, and thus could not be fired. According to his version, Travis jumped toward Dias, and, grabbing the shotgun by the barrel, tore it from the defendant's hand. Still holding the barrel, Travis swung the shotgun at Dias, attempting to use the butt end as a club. Dias put up his arm to fend off the blow, and, on contact, the shotgun slammed shut and accidentally discharged into Travis's chest area.

Commonwealth v. Dias, 373 Mass. 412, 413-15, 367 N.E.2d 623 (1977), available at Resp't's Ex. 5. A more detailed account of the facts is found in Dias v. DuBois, No. 93-12566, slip op. at 2-7 (D.Mass. Feb. 26, 1996) (Woodlock, J.), available at Pet'r's Ex. 18.

B. Prior Proceedings

1. Trial

Dias was indicted on a charge of first degree murder and retained Kenneth Sullivan ("Sullivan"), an experienced and distinguished criminal lawyer,2 to represent him at trial. Trial was held before the Honorable Vincent Brogna, Justice of the Superior Court. Justice Brogna summarized the facts at trial as follows:

The defendant did not testify.

The Commonwealth called a police officer, Edward Mello, who testified that when he and Officer McDonald went to the scene of a reported shooting they were told by three people that the man who shot their friend went into an apartment across the street. Officers Mello and McDonald went to the apartment that had been indicated and found the defendant, with a woman wiping blood off his face. The officers had followed a trail of blood.

Officer Mello was asked:

"Q. Did you initiate any conversation with the defendant?"

A. No, sir.

Q. Did the defendant say anything to you, sir?

A. He just said that he got beat up by some friends.

Q. Did he relate any other incident to you that occurred that night shortly before?

A. No, sir.

Q. Did he relate any shooting?

A. No, sir.

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Q. Did he relate any complaints about a disturbance in his apartment?

A. No, sir.

Q. Then what took place?

A. "I took him out of the house and placed him in the cruiser."

The defendant was then transported to the Fall River police station.

Officer Mello testified that there was no conversation with the defendant in the cruiser; and that when they arrived at the police station the defendant was advised of his rights. The defendant was then asked if he would like to make a statement, and he stated that he didn't. There was further conversation, and the defendant did make a statement, which was exculpatory in that he stated that there was a struggle between himself and the victim for the gun, during which struggle it fired into the victim's stomach. He then said that he didn't want to make any more statements until he was advised by an attorney and said that he had been injured and would like to be treated. He was thereupon sent to the Union Hospital.

In his closing argument the Assistant District Attorney, after reciting the evidence relating to the manner in which the Commonwealth alleged the shooting took place, argued as follows:

"Now, everyone scatters, including Mello (not Officer Mello), Wing and Greene. Greene tells us he is outside, he's upset. He told you what he did with Dias. Wing told you what he did with Dias. And Dias runs off to an apartment."

"Ask yourselves this: If you were there that night, and you ran to another apartment and the police came, would you tell them, `I was just beat up'? Would you stop there, knowing that in your apartment someone has been shot, or a bullet was fired? Would you say, `There's been an awful accident in my apartment. This is what happened; somebody has been accidentally shot'. Do you think you might say, `I am okay, go back and see somebody in my apartment, I think he's hurt bad.' And if you don't say that, do you think there's a reason why you don't say that, do you think there's a reason why you don't say that to a police officer?"

Commonwealth v. Dias, No. 48536, slip op. at 1-4 (Mass.Super.Ct. Oct. 21, 1980), available at Resp't's Ex. 7. Sullivan did not object to the testimony and argument above, nor did he object to the prosecutor's assertion, in his closing argument, that Dias had stated that he was "going to kill someone." Pet. at 10-11. In fact, Dias stated that he was going to kill pigs, not humans. Id.

At the conclusion of the trial, Sullivan took exception to the emphasized jury instructions reprinted below:

[Friday, October 10, 1975.]

THE COURT: .... Now, you will decide the case based upon the evidence that you have heard, the exhibits that have been introduced before you. You may use what you saw on the view, and upon the law as I explain it to you.

I think by this time you know that it is your function and yours alone to determine factually what happened. It is your province and yours alone to determine what part — all, or part, or none — of the story that any witness or the opinion of any witness is expressed that you are going to believe and follow. This is your function, not mine.

At the outset, as in every criminal trial, as I told you before, the defendant, Mr. Dias, is presumed innocent. This means that you are to draw no inference against him by reason of the fact that he

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was arrested, charged with a crime, indicted by a grand jury. As I told you earlier, a grand jury indictment is merely a mechanical procedural way of starting a criminal proceedings.


The presumption of innocence also means that you are to draw no inference against the defendant if he chooses, as here, not to take the stand in his own behalf. He does not have to prove that he is innocent. He does not have to put on any witnesses if he does not want to. The Commonwealth has to prove that he is guilty, and the Commonwealth has to prove it beyond a reasonable doubt.

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