Evans v. Thompson, Civil Action No. 04-12205-WGY.

• Decision Date: 11 December 2006
• Docket Number: Civil Action No. 04-12205-WGY.
• Citation: 465 F.Supp.2d 62
• Parties: Jimmy EVANS, Plaintiff, v. Michael THOMPSON, Superintendent, MCI Shirley, Defendant.
• Court: U.S. District Court — District of Massachusetts

465 F.Supp.2d 62

Jimmy EVANS, Plaintiff, v. Michael THOMPSON, Superintendent, MCI Shirley, Defendant.

Civil Action No. 04-12205-WGY.

United States District Court, D. Massachusetts.

December 11, 2006.

Ryan M. Schiff, Michael R. Schneider, Salsberg & Schneider, Boston, MA, for Plaintiff.

Susanne G. Reardon, Office of the Attorney General, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

Jimmy Evans ("Evans") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Evans is seeking an evidentiary hearing plus funds to pursue forensic, ballistic, and fingerprint testing and a reversal of his convictions of first degree murder and possession of a firearm without a license in the Massachusetts Superior Court sitting in and for the County of Suffolk. Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody [Doc. No. 1] ("Habeas Pet.") at 2; Petitioner's Motion for Funds & for an Evidentiary Hearing in Support of His Petition for Writ of Habeas Corpus [Doc. No. 12] at 1. Evans' older brother John Evans ("John") was also convicted of first degree murder for his involvement in the same incident. Commonwealth v. Evans, 439 Mass. 184, 186, 786 N.E.2d 375 (2003).

Evans bases his request for relief on four principal arguments: (1) the unconstitutionality of 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"); (2) the alleged application of improper standards by the Massachusetts Supreme Judicial Court ("Supreme Judicial Court") in determining the facts upon which its legal analysis was grounded; (3) ineffective assistance of counsel at trial; and (4) violation of federal constitutional due process rights due to the inability to confront two Commonwealth witnesses. Petitioner's Memorandum in Support of Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 [Doc. No. 2] ("Pet.Mem.") at 1-2.

In response, the Commonwealth asserts that one of Evans' claims regarding the confrontation of a witness at trial was not properly presented to the Supreme Judicial Court and is therefore not exhausted. Respondent's Memorandum in Opposition to Petition for Habeas Corpus [Doc. No. 7] ("Resp.Mem.") at 1. As a result, the petition must be denied. Id. In the alternative, if this Court reaches the merits of the claims, the Commonwealth argues that Evans cannot show that the state court's decision was contrary to or presents an unreasonable application of clearly established federal law or an unreasonable determination of the facts in light of the record evidence. Id.

II. FACTUAL¹ AND PROCEDURAL HISTORY

At about midnight on January 24, 1995, the victim, Lyle Jackson ("Jackson"), went to Cortee's Lounge, a nightclub in Dorchester, where he met his friend, Marcello Holliday ("Holliday"). Evans, 439 Mass. at 186-87, 786 N.E.2d 375. Evans, John, Brown, and Tinsley were also at Cortee's Lounge. Id. at 187, 786 N.E.2d 375. When Cortee's closed at approximately 1:45 AM on January 25, Holliday left with Jackson and another friend, and entered a car which was parked directly across the street from Cortee's. Id. Before driving away, John ran past their car and fired a handgun at a group of people across the street. Id.

Jackson, Holliday, and their friend then drove to Walaikum's, a small fast food restaurant that was crowded with customers when they arrived at approximately 2:20 AM. Id. About fifteen minutes later, Evans and John entered the restaurant, looked around, and then walked out. Id. Less than one minute later, they reentered and Evans produced a silver handgun with a black handle. Evans, 439 Mass. at 187, 786 N.E.2d 375. With John beside him, Evans walked toward Jackson, who, seeing him approach with the gun, began to back away. Id. At this point Holliday, who was sitting close by, ran out of the restaurant. Id. As he backed away, Jackson fell over some tables and chairs and begged Evans to spare his life. Id. Evans shot the victim four or five times. Id.

Alton Clarke ("Clarke"), a patron of the restaurant, witnessed the murder. Id. During the shooting, Clarke tried to leave the restaurant, but was confronted by John, who was armed with a black handgun. Evans, 439 Mass. at 187, 786 N.E.2d 375. John allowed Clarke to leave after Clarke stated that he had nothing to do with Jackson. Id. John then approached Jackson and fired a shot at him. Id. Clarke heard this shot as he was fleeing the restaurant. Id. Willy Wiggins, who owned Walaikum's, saw the first gunman shooting Jackson and ran to the back of the kitchen to call the police. Id.

Evans, John, Brown, and Tinsley left the scene in a gold Lexus automobile. Id. John was the driver of the Lexus, Evans was in the front passenger seat, and the other two sat in the back. Evans, 439 Mass. at 187, 786 N.E.2d 375. Clarke recorded the plate number, gave it to a security guard, and also called 911 on his cellular telephone. Superior Court Memorandum of Decision and Order on Defendants' Motions for New Trial ("Super.Ct.Mem.") at 4 (December 30, 1999) (Donovan, J.) in Petitioner's Appendix B of Pet. Mem. at 33a. Holliday saw the gold Lexus flee the scene, identified John as the driver, and noticed three other passengers in the car. Id. at 2-3. Back at the restaurant, Holliday found Jackson lying on the floor, spitting up blood and attempting to talk. Id. at 3. Holliday and Marvette Neal ("Neal") attempted to comfort Jackson while medical personnel arrived. Id,

The police arrived on the scene and pursued the gold Lexus automobile. Evans, 439 Mass. at 187, 786 N.E.2d 375. During the ensuing chase, two guns were thrown out of the front passenger window of the Lexus. Id. at 187-88, 786 N.E.2d 375. The Lexus stopped at a dead end street and the occupants got out and fled on foot. Id. at 188, 786 N.E.2d 375. All four were ultimately apprehended and the two guns thrown from the Lexus were recovered. Id, One of the guns was a silver-plated nine millimeter Ruger semiautomatic handgun with a black handle. Id. The other gun was a black nine millimeter Heckler & Koch semiautomatic handgun. Id. Six shell casings (three from each gun) and four bullet fragments (two from each gun) were recovered from inside and outside the restaurant. Evans, 439 Mass. at 188, 786 N.E.2d 375. One of the bullet fragments removed from Jackson's body matched the black Heckler & Koch. Id. No identifiable fingerprints could be retrieved from either gun. Id.

Jackson was shot three times and he died from an infection due to his wounds. Id. One bullet passed through his left forearm and reentered his left chest. Id. This bullet was recovered by the medical examiner. Super. Ct. Mem. at 3. The two other bullets entered near the left rib cage, traveled through the body, and exited the right side of his abdomen. Id.

On February 21, 1995, Evans was indicted and charged with first degree murder, two counts of illegally possessing ammunition, and two counts of illegally possessing a firearm. Pet. Mem. at 2. Evans, John, Brown, and Tinsley were tried on a theory of joint venture. Evans, 439 Mass. at 188, 786 N.E.2d 375. On November 8, 1996, after a jury trial in Suffolk County Superior Court, Evans was convicted on all counts and sentenced to life without parole on the murder conviction and concurrent terms of five years on the two firearm charges. Resp. Mem. at 2. The remaining ammunition convictions were placed on file with the petitioner's consent. Id. John was also convicted of first degree murder as well as related charges. Pet. Mem. at 3. The two other co-defendants, Brown and Tinsley, were acquitted. Evans, 439 Mass. at 188, 786 N.E.2d 375.

On November 17, 1998, Evans filed a motion for a new trial. Resp. Mem. at 2. After two non-evidentiary hearings, Justice Elizabeth Donovan of the Superior Court denied the motion in a written memorandum and order on December 30, 1999. Super. Ct. Mem. at 1, 27. Evans filed a timely notice of appeal from the denial of his motion for a new trial. Resp. Mem. at 2. This appeal was consolidated with his direct appeal to the Supreme Judicial Court, filed pursuant to Massachusetts General Laws chapter 278, section 33E. Id.

On April 16, 2003, the Supreme Judicial Court affirmed Evans' conviction and upheld the denial of his post-conviction motions. Evans, 439 Mass. at 205, 786 N.E.2d 375. A petition for rehearing was denied on June 5, 2003. Resp. Mem. at 3. On October 20, 2003, the United States Supreme Court denied Evans' petition for writ of certiorari. Evans v. Massachusetts, 540 U.S. 973, 124 S.Ct. 445, 157 L.Ed.2d 322 (2003).

Evans filed a petition for writ of habeas corpus and supporting memorandum in this Court on October 19, 2004. Habeas Pet. at 1.

III. DISCUSSION

A. Standard of Review

Habeas corpus review of claims previously adjudicated in state court is both limited and highly deferential:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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 United 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). This "highly deferential standard for evaluating state-court rulings" reflects the overarching structure of the federal habeas corpus scheme, which vests "primary responsibility" for evaluating federal law claims raised in criminal trials in the state courts. Woodford v. Visciotti, 537 U.S. 19, 24, 27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (citing Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)...