DiLibero v. Divris

• Decision Date: 20 March 2023
• Docket Number: 21-cv-30094-RGS
• Parties: DENNIS DILIBERO, Petitioner, v. MATTHEW DIVRIS, Respondent.
• Court: U.S. District Court — District of Massachusetts

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DENNIS DILIBERO, Petitioner, v. MATTHEW DIVRIS, Respondent.

No. 21-cv-30094-RGS

United States District Court, D. Massachusetts

March 20, 2023

REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

DONALD L. CABELL, U.S.M.J.

I. INTRODUCTION

Petitioner Dennis DiLibero (“DiLibero” or “Petitioner”) is currently serving a term of incarceration of 10 to 15 years following his state court conviction for aggravated rape of a child in violation of M.G.L. c. 265, § 23A. He contends that he received ineffective assistance of counsel before and during trial and petitions for a writ of habeas corpus pursuant to 28 U.S.C § 2254, seeking to vacate his conviction. The matter has been referred to this court for a report and recommendation. For the reasons discussed below, I recommend that the petition be denied.

II. RELEVANT BACKGROUND

On October 12, 2016, a Bristol County Superior Court jury convicted the petitioner on the charge of rape of a child (the petitioner's grandson) aggravated by age, namely by forcing the child to perform an oral sex act. The petitioner moved for a new trial, which the court denied, and the petitioner appealed both the denial and his conviction to the Massachusetts Appeals Court (“MAC”). The MAC affirmed the petitioner's conviction and upheld the trial court's denial of the motion for a new trial. Commonwealth v. Delibero^[1], 147 N.E.3d 1127 (Mass. App. Ct. 2020), rev. denied, 157 N.E.3d 578 (Mass. 2020). The petitioner appealed but the Supreme Judicial Court (SJC) denied further appellate review on October 1, 2020. Commonwealth v. Dilibero, 157 N.E.3d 578 (Mass. 2020). The petitioner timely filed the instant habeas petition on September 15, 2021. (Dkt. No. 1).

III. THE HABEAS PETITION

The petitioner alleges that his trial counsel provided ineffective assistance in at least six different ways and thus deprived him of his Sixth Amendment right to the effective assistance of counsel, Specifically, trial counsel:

(1) failed to move to dismiss the indictment despite the government's use of false testimony and its misleading presentation of statements attributed to witnesses before the grand jury, which presented a false and distorted view of the evidence;

(2) failed to alert the court during a pre-trial motion for a hearing on whether the child-victim's memory had been tainted that the prosecutor had misrepresented key facts when arguing the motion; failed to provide an accurate picture of the evidence; and failed to move for reconsideration when the court denied the motion;

(3) failed to renew the taint motion when new evidence became available showing the child-victim had been subjected to additional influences and interviews well-known to corrupt a child's memory;

(4) failed to present available evidence to the jury that the child-victim had been subjected to influences and interviews under circumstances known to corrupt a child's memory or educate the jury on the impacts of improper questioning and vilification;

(5) failed to introduce evidence that, just prior to testifying, the child-victim was coached to identify the petitioner as the perpetrator; and

(6) failed to call available witnesses who would have contradicted key testimony of government witnesses.

(Dkt. No. 5, pp. i-ii).

IV. LEGAL STANDARD

A. General Standard of Review for Habeas Claims

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may only grant habeas relief on claims that have been adjudicated on the merits, and then only after the petitioner has exhausted all available state remedies. 28 U.S.C. § 2254(c); see O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state prisoners must give the state courts one full opportunity to resolve any constitutional issues”); see also Sanchez v. Roden, 753 F.3d 279, 294 (1st Cir. 2014) (quoting Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000)) (“A claim based on federal law is not exhausted unless a petitioner has ‘fairly and recognizably' presented it to the state courts.”). Under the AEDPA, habeas relief is only permitted if the previous adjudication

(1) 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 Unites States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d). To obtain relief, then, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). “In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).

B. Standard of Review for Ineffective Assistance Claims

To demonstrate ineffective assistance of counsel, a petitioner must show that his representation by counsel (1) “fell below an objective standard of reasonableness” and (2) that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). This test creates a high burden for the petitioner to overcome. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in exercise of reasonable professional judgment.” Id. at 689-90; see also Knight v. Spencer, 447 F.3d 6, 15 (1st Cir. 2006) (noting that petitioner must show his “counsel's choice was so patently unreasonable that no competent attorney would have made it”).

The reasonableness of the attorney's representation is viewed “as of the time of counsel's conduct.” Strickland, 466 U.S. at 690. Judicial scrutiny of counsel's representation and performance must be “highly deferential,” and the court should make “every effort . . . to eliminate the distorting effects of hindsight.” Bell v. Cone, 535 U.S. 685, 698 (2002) (internal quotation marks omitted).

To demonstrate prejudice, a petitioner must show “that there is a reasonable probability” that, but for the attorney's deficient performance, there would have been a different outcome. Strickland, 466 U.S. at 694. A “reasonable probability is one ‘sufficient to undermine confidence in the outcome.'” Johnston v. Mitchell, 871 F.3d 52, 64 (1st Cir. 2017) (quoting Gonzalez-Soberal v. United States, 244 F.3d 273, 278 (1st Cir. 2001)).

For ineffective assistance claims raised in the habeas context, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable . . . [which] is different from asking whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. This review is “doubly deferential,” Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)), as “federal courts are to afford ‘both the state court and the defense attorney the benefit of the doubt.'” Woods v. Etherton, 578 U.S. 113, 117 (2016) (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)). A state court's decision that a petitioner's counsel was not constitutionally ineffective “precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.”^[2] Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In other words, “the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. at 105.

V. DISCUSSION

1. Counsel's Failure to Seek Dismissal of the Indictment

The petitioner's counsel moved prior to trial to dismiss the indictment on the ground that the Commonwealth presented “unfair prejudicial testimony” about the petitioner's irrelevant prior bad acts to the grand jury. Delibero, 147 N.E.3d at 1127, *1. The petitioner argues that his counsel should have also moved to dismiss on the ground that the Commonwealth presented false and misleading testimony to the grand jury, and that his failure to do so constitutes ineffective assistance.

The relevant facts are as follows. Detective Brian Cordeiro, the sole investigator on DiLibero's case, testified before the grand jury on January 21, 2015, and among other things summarized his interviews of DiLibero, DiLibero's wife, and the victim's mother, who was also DiLibero's stepdaughter. (Dkt. No. 5-3, p. 1). Detective Cordeiro testified that: (1) the victim did not use any particular name to refer to Robert Silvia (Silvia), another of his grandfathers,^[3] (id. at p. 31:3-7); (2) Silvia was unable to walk, (id. at p. 22:14-16); (3) Silvia and his wife only watched the victim once every six months, (id. at p. 22:16-18); and (4) Silvia and his wife last watched the victim at Christmas (i.e., approximately eight months before the victim first disclosed the abuse to his mother), (id.). The detective also affirmed when asked by the prosecutor that (5) there was a delay of six months between when the abuse occurred and when the victim first reported it. (Id. at p. 32:21-23). The petitioner contends that these facts clearly mattered to the grand jury since one grand juror asked Detective Cordeiro what the victim called Silvia and another remarked on the interval between the abuse and the victim's initial disclosure of the abuse. (Id. at pp. 31:3-4, 33:16-18).

Testimony at trial contradicted some of Detective Cordeiro's grand jury assertions, however. The victim's mother...