Donald v. Spencer, Civil Action No. 08-11671-WGY.

• Decision Date: 23 February 2010
• Docket Number: Civil Action No. 08-11671-WGY.
• Citation: 685 F.Supp.2d 250
• Parties: Stanley DONALD, Petitioner, v. Luis SPENCER, Superintendent of MCI Norfolk, Respondent.
• Court: U.S. District Court — District of Massachusetts

685 F.Supp.2d 250

Stanley DONALD, Petitioner,
v.
Luis SPENCER, Superintendent of MCI Norfolk, Respondent.

Civil Action No. 08-11671-WGY.

United States District Court,
D. Massachusetts.

Decided: Feb. 23, 2010.

[685 F.Supp.2d 251]

Stanley Donald, Norfolk, MA, pro se.

Eva M. Badway, Attorney General's Office, Boston, MA, for Respondent.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

Stanley Donald ("Donald") brings this action against Superintendent Luis Spencer seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pet. [Doc. No. 1]. Donald presents seven grounds for relief, which can be grouped into four issues: 1) whether Donald was deprived of due process by ineffective assistance of trial counsel (GROUND 1); 2) whether Donald was deprived of due process by ineffective assistance of the post-conviction counsel (GROUND 5); 3) whether Donald should be allowed post conviction discovery and DNA testing (GROUNDS 3, 4, and 8); and 4) whether Donald was deprived of due process by denial of his motion for post-

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conviction discovery without an evidentiary hearing (GROUNDS 6, 7).¹

A. Procedural Posture

In April 1999, Donald was convicted of two counts of aggravated rape, unarmed robbery, kidnapping, assault and battery by means of a dangerous weapon, and carjacking in the Massachusetts Superior Court sitting in and for the County of Middlesex. Commonwealth v. Donald, Middlesex Superior Court Criminal Docket No. MICR1997-02366 ("Superior Court Proceedings"), Resp't Supplemental Answer, Ex. A [Doc. No. 26]. On appeal Donald claimed, inter alia, that his counsel was constitutionally ineffective because he introduced in evidence a religious prayer that the prosecution had agreed not to introduce. Resp't Supplemental Answer, Ex. D. The Appeals Court affirmed the conviction, rejecting all issues raised by Donald including ineffective assistance of counsel. Commonwealth v. Donald, 56 Mass.App.Ct. 1102, 2002 WL 31246493, at *6 (2002) (table opinion). Donald filed an application for further appellate review with the Supreme Judicial Court, in which again he claimed that his counsel was ineffective. Resp't Supplemental Answer, Ex. H. The Supreme Judicial Court denied his application. Commonwealth v. Donald, 438 Mass. 1104, 1104, 782 N.E.2d 515 (2003).

After his trial was completed, Donald several times filed motions for post-conviction relief and post-conviction discovery, all of which were denied. The first motion, filed in 2001, [Superior Court Proceedings, Doc. No. 100], was denied without prejudice [Superior Court Proceedings, Doc. No. 101]. A single justice of Supreme Judicial Court treated Donald's appeal as a petition for extraordinary relief under Massachusetts General Laws ch. 221, § 3 and denied it. Resp't Supplemental Answer, Ex. J. The full bench of the Supreme Judicial Court affirmed the decision of the single justice. Donald v. Commonwealth, 437 Mass. 1007, 1007, 770 N.E.2d 471 (2002).

The second motion, [Superior Court Proceedings, Doc. No. 224], filed by Donald's post-conviction counsel in 2005 and proposing the Y-Chromosome method for further DNA testing was denied. [Superior Court Proceedings, Doc. No. 238]. The Appeals Court affirmed, stating that the proposed method of DNA testing did not amount to newly discovered evidence and that the case against Donald was overwhelming. Commonwealth v. Donald, 66 Mass.App.Ct. 1110, 1110, 2006 WL 1543955 (2006). An application for further appellate review was denied. Commonwealth v. Donald, 447 Mass. 1106, 1106, 851 N.E.2d 1078 (2006).

Donald, acting pro se, renewed this motion in 2008 offering a "ProFiler Plus and CoFiler" DNA testing method. [Superior Court Proceedings, Doc. No. 277]. The motion was once again denied. [Superior Court Proceedings, Doc. No. 311]. In his appeal from this denial, Donald raised the following issues: whether the assistance of his post-conviction counsel who in 2005 proposed a "wrong" method of DNA testing without first consulting an expert was ineffective; whether the court should allow him to perform new "ProFiler Plus and CoFiler" DNA testing; and whether the Superior Court should, at the very least, hold an evidentiary hearing on his motion. Commonwealth v. Donald, 72 Mass.App. Ct. 1104, 2008 WL 2552966, at *1 (2008) (table opinion). The Appeals Court held that the claim for ineffective assistance of

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the post-conviction counsel was not properly before it, that the two other claims should be rejected, and that the decision of the Superior Court was correct. Id. The Supreme Judicial Court denied Donald's petition for further appellate review on the matter. Commonwealth v. Donald, 452 Mass. 1103, 1103, 893 N.E.2d 1237 (2008).

In 2006, Donald filed his first habeas petition with the District Court. Stanley Donald v. Lois Russo, No. 06-11416 (D.Mass.2006). This first petition was denied as unexhausted. Stanley Donald v. Lois Russo, No. 06-11416, [Doc. No. 29]. In 2008, Donald filed this second habeas petition presently before the Court. This Court first dismissed it as a "mixed" petition since one of the claims, a challenge to the venire, had not been exhausted in the courts of the Commonwealth. Electronic Order of Dismissal (May 21, 2009). Upon reconsideration, as Donald had moved in the alternative to waive any unexhausted claims, the judgment of dismissal was vacated and the case reinstated. Electronic Order Vacating J. of Dismissal (June 6, 2009).

B. Facts

Donald was convicted based on the following facts: ²

On Tuesday, October 21, 1997, leaving her apartment in Watertown, the victim was attacked by a black man at the garage floor of the building. The man rammed her to the ground, and smashed her face into the cement floor of the garage when she was trying to sit in her Honda Accord. The man asked for money, and when she said she didn't have the required cash with her, took her keys and ordered her into the car. While they rode he was threatening her and also recited Biblical passages and invoked the name of Jesus. He took her license and bank access card and asked for her password for the automated teller machine (ATM).

When they stopped, the man pulled the victim out of the car and smashed her on the side of the head. Then he ordered her to take off her clothes and lie on the ground with her legs in the air. He penetrated her vagina several times with his tongue and penis and drove away.

At 11:00 A.M., Foxborough police officers found the victim in a very disoriented condition. An ambulance transported her to the Southwood Hospital in Foxborough.

At 11:04 A.M., a $300 withdrawal was made from the victim's bank account at an ATM machine located on Chauncy Street in Mansfield, four miles from the scene of the rape. The transaction was recorded on videotape.

At 8:00 P.M., Brockton police discovered the victim's abandoned gray Honda Accord about twenty miles from the crime scene. At 5:30 A.M. the following morning, October 22, 1997, Nathaniel Young, while he was sweeping the area around Howard Street in Brockton, found a driver's license on the ground only about fifty yards from the location where the victim's car had been abandoned. The name on the license was "Stanley Donald," and the picture on the license depicted a black man.

Armed with this information, investigators tracked down Stanley Donald's employer, Educators' Publishing Service in Cambridge. In November of 1997, investigators showed the still images from the ATM transaction to the company president and to Stanley Donald's supervisor. They both identified the man depicted in the image as Stanley Donald. They also identified him at trial. At the time of the

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attack, Donald had been working steadily at the company for more than five months. He did not show up for work as scheduled on October 21, the day of the attack. He never showed up for work again and he never picked up his final paycheck.

On November 20, 1997, the victim went to the Watertown police station to view a photographic array. The victim selected a photograph of the defendant and said that it looked "very, very much like the person who assaulted me." The victim also identified Donald at trial.

On November 11, 1997, Detective Munger had a telephone conversation with the Donald's mother. She gave the police an envelope addressed to her in Dorchester, containing a one-page handwritten letter and a handwritten prayer. A handwriting expert and document examiner opined that all three documents were written by Donald. The envelope was postmarked from New York within three weeks of the attack. The letter read as follows:

Dear: Mom

I'm Okay, I really got to high and lost my mind, I'm not in jail. I got a new name, and a job, please forgive me mama, I'm still with Jesus, I go to church everyday now and there is (no drugs here) only me and the horse and cows.

Love/Stan

On the afternoon of the attack, chemist Robert Martin from the Massachusetts State Police collected the clothing that the victim wore when she had been raped. Later, he took a cutting from her underpants and submitted it to Cellmark Diagnostics for DNA testing, along with known samples of Donald's and the victim's blood. Cellmark compared the DNA profile of sperm samples extracted from the evidence with the DNA profile from the Donald's sample using the polymerase chain reaction DNA method. The result: the frequency of this profile occurred in one in 7, 800 African-Americans.

C. Federal Jurisdiction

This Court may exercise jurisdiction over Donald's petition for habeas corpus, pursuant to 28 U.S.C. § 2254.

II. ANALYSIS

A. Standard of Review

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a district court "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United...