Epsom v. Hall, 02-2222.

• Citation: 330 F.3d 49
• Decision Date: 29 May 2003
• Docket Number: No. 02-2222.,02-2222.
• Parties: Albert EPSOM, Petitioner, Appellant, v. Timothy HALL, Respondent, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

330 F.3d 49

Albert EPSOM, Petitioner, Appellant, v. Timothy HALL, Respondent, Appellee.

No. 02-2222.

United States Court of Appeals, First Circuit.

Heard April 9, 2003.

Decided May 29, 2003.

Robert L. Sheketoff, for petitioner.

James J. Arguin, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief for respondent.

Before BOUDIN, Chief Judge, LYNCH and HOWARD, Circuit Judges.

BOUDIN, Chief Judge.

In this habeas proceeding, 28 U.S.C. § 2254 (2000), Albert Epsom challenges his state conviction for first degree murder. The issue is whether his trial counsel rendered ineffective assistance. The district court denied relief but granted a certificate of appealability, 28 U.S.C. § 2253 (2000). We accept the framework for analysis ably constructed by Epsom's counsel in this court but conclude that relief was properly denied.

The factual background is critically important. In the early morning hours of March 19, 1983, up to fifteen members of the Centaurs motorcycle club were present in a bar in Waltham, Massachusetts. They were large men — some weighing two hundred pounds or more — dressed in black leather vests, some wearing wristbands with spikes and one bearing a hunting knife case on his belt. Epsom entered with another man (Thomas Hutton) and three women. A quarrel ensued between Epsom and a member of the bar staff, leading in turn to an exchange of epithets between Epsom and one of the Centaurs, Robert Ferrazzani.

Ferrazzani then charged Epsom, tripped, and ended up on the floor with Epsom holding him down. Epsom was then hit with a bottle and Hutton was punched by several of the Centaurs. Epsom released Ferrazzani, made a placatory comment, and left to curses by Ferrazzani. Epsom was followed outside by four of the Centaurs, one of whom was James Wilson. What then happened was described by the Supreme Judicial Court ("SJC") as follows:

Outside, there were several people on the sidewalk including four to six Centaurs. Hutton told his female companions to get into their nearby car. [Epsom] spun around and picked up a firearm that had fallen from his person to the ground. He placed the gun in his belt, raised both hands, and said, "It's away, it's away," or "It's back in my holster." One of the Centaurs told [Epsom] that none of them had guns, that none of them wanted trouble, and that they just wanted to go home. Other Centaurs were yelling at [Epsom] and Hutton.

Then, [Epsom] pulled his gun from his belt, stated "I don't care if there's twenty of you; I'm not afraid of nobody," waved the gun back and forth, and fired a shot into the sidewalk. After the shot, the victim [James Wilson] said "[G]et the fuck out of here." [Epsom] then said, "[F]uck you," and shot the victim in the arm. [Epsom] turned to his left, kicked one of the Centaurs in the groin, and then turned back to his right and shot the victim again. He shot the victim a third time. The fatal shot entered the victim's chest.

Commonwealth v. Epsom, 399 Mass. 254, 503 N.E.2d 954, 956-57 (1987) ("Epsom I"). Epsom does not dispute this summary of the record but claims that the evidence would have been different if competent counsel had called other witnesses.

At trial, Epsom's counsel defended on the ground that Epsom had acted in self-defense. Largely through cross-examination of state witnesses, counsel established that the Centaurs were a menacing crew, that Ferrazzani had started the fight inside the bar, that the Centaurs had there assaulted Epsom and Hutton, that Epsom had sought to leave peacefully, that several Centaurs had followed shouting abuse, that outside Epsom had been alone confronting as many as ten persons, and that he had fired a warning shot before shooting Wilson.

Somewhat reluctantly, the trial judge gave a jury instruction on self-defense. Epsom was convicted of first degree murder and sentenced to life imprisonment. On direct appeal, Epsom argued that the self-defense instruction was erroneous. The SJC denied the claim, saying that Epsom's evidence did not permit a self-defense theory: "There was no evidence that [Epsom] was assaulted or threatened outside the pub, or that the entire series of events, including those within the pub, caused [Epsom] to be without reasonable means of escape and to be actually and reasonably in fear of grievous bodily harm or death when he shot the victim." Epsom I, 503 N.E.2d at 957 (emphasis added).

In 1994, pursuant to Massachusetts' procedure for post-conviction relief, Epsom moved for a new trial and for appointed counsel. The motion was based on alleged ineffective assistance related to the failure to call Epsom himself and Gina Carver as witnesses; and the affidavit attached to the pro se motion also referred to the failure to call Hope Nevins. Epsom was initially unsuccessful but eventually the SJC remanded the case for an evidentiary hearing in Superior Court, Commonwealth v. Epsom, 422 Mass. 1002, 661 N.E.2d 1337 (1996) ("Epsom II"), where two potential witnesses, Carver and Nevins, testified.

Carver testified at the evidentiary hearing that she saw the motorcyclists advance toward Epsom before any shots were fired. As for Nevins, she had said in a 1983 police statement that she saw Epsom punched as events progressed outside the bar and added at the evidentiary hearing that she heard a threat and saw a few of the Centaurs go toward him. Epsom also testified at the hearing but not as to what he would have said if he had testified at trial. Still, the statements of Carver and Nevins, if unimpeached, would have helped support the inference that Epsom was under threat outside the bar.

After the hearing, the judge determined that Carver had not been available to testify at the time of the trial. Alternatively, the judge held that failing to call Carver as a witness did not amount to ineffective assistance because she could not see clearly from her vantage point and her credibility was suspect.¹ The hearing judge did not reach the testimony of Nevins, holding that it was beyond the scope of the SJC's remand. A single justice of the SJC affirmed, adding that even if Carver's testimony were admitted, it would not show self-defense under Massachusetts law. Epsom then filed the present federal habeas action.

The district court denied Epsom relief. It agreed with the state court that Epsom made a "knowing and voluntary decision not to testify on his [own] behalf after consultation with counsel." It deferred to the state court's fact findings with respect to Carver and concluded that failing to call her was not constitutional error. As to Nevins, the district court held that failure to call her could not have affected the outcome of the trial because her proposed testimony contradicted her prior statement to the police, see note 1, above, and because, in any event, she did not see Epsom being confronted with any weapon and no case for a self-defense theory could be made on these facts.

We review the district court's decision in this case de novo. Stephens v. Hall, 294 F.3d 210, 217 (1st Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 907, 154 L.Ed.2d 816 (2003). Under section 2254, habeas relief is available only if the state court's decision, on any issue it actually decided, 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), "was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). State court fact findings are "presumed to be correct," unless a habeas petitioner can rebut with "clear and convincing evidence" to the contrary. Id. § 2254(e)(1).

At the threshold, Massachusetts argues that Epsom's claim with respect to Nevins is unexhausted; but Epsom relied on Nevins in his original pro se motion for a new trial and — although Nevins' possible testimony was not addressed by either the Superior Court or the SJC — the district court agreed with Epsom that exhaustion had occurred. Indeed, the district court held that because the state courts had bypassed the claim, review as to Nevins should be without deference to the state courts. Fortini, 257 F.3d at 47. On appeal, the state renews its exhaustion objection but we accept the district court's contrary view.

Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), relief on Epsom's claim of incompetent counsel requires two elements: first, trial counsel's performance must be deficient in some way sufficiently substantial to deny him effective representation; and second, that deficiency must have resulted in prejudice, defined as a "reasonable probability that, but for counsel's unprofessional errors, the result ... would have been different." Id. at 687, 694, 104 S.Ct. 2052. Epsom's argument is that trial counsel failed the Strickland standard by failing to call three critical witnesses to support a theory of self-defense: Epsom, Carver and Nevins.

Epsom's habeas counsel does not deny that each of the witnesses was vulnerable and that, assuming a substantial case of self-defense had otherwise been presented, a reasonable tactical decision could be reached to refrain from calling Epsom, Carver and Nevins. But, precisely because the case actually presented was very weak — indeed, the SJC suggested that no self-defense instruction was even justified, Epsom I, 503 N.E.2d at 957 — Epsom's habeas counsel says that trial counsel had to call the weak witnesses available to him to have any chance of success. Failing to do so would amount to abandoning the only defense available. In his brief, habeas counsel argued thus:

The basketball player with the ball, who decides that he can't pass because no one's really open, that he can't dribble because the defender knows he only goes right, and that he can't shoot because he's out of his best range, guarantees that his team will not score. The trial...